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United States v. Loera

United States District Court, D. New Mexico

June 22, 2017

UNITED STATES OF AMERICA Plaintiff,
v.
JASON LOERA, Defendant.

          Damon P. Martinez United States Attorney Dean S. Tuckman Stephen R. Kotz Kristopher N. Houghton Cynthis L. Weisman Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          David C. Serna David C. Serna Attorney at Law and Jerry A. Walz Walz and Associates Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Opposed Motion Requesting Medical Services and Reconsideration of Conditions of Detention, filed January 10, 2017 (Doc. 163)(“Motion”). The Court held an evidentiary hearing on April 28, 2017. The primary issues are: (i) whether, under 18 U.S.C. § 3145(c), “exceptional reasons” permit the Court to release Defendant Jason Loera from detention at Cibola County Detention Center pending sentencing so that Loera can undergo ileostomy reversal surgery; (ii) whether the Court should demand that the United States Marshals Service provide Loera with an ileostomy reversal surgery while Loera is in the United States Marshals Service's custody; (iii) whether, in a motion to reconsider Loera's detention made under 18 U.S.C. § 3145, Loera may allege a constitutional claim for deliberate indifference in violation of the Eighth Amendment to the Constitution of the United States of America; and (iv) whether, while in the United States Marshals Service's custody, Loera has suffered deliberate indifference in violation of the Eighth Amendment, because either the United States Marshals Service or Cibola County Detention Center has not provided Loera with necessary care for his ileostomy. The Court concludes: (i) under 18 U.S.C. § 3145(c), “exceptional reasons” do not exist which would warrant the Court releasing Loera from detention at Cibola County Detention Center pending sentencing; (ii) the United States Marshals Service should not provide Loera with an ileostomy reversal surgery while Loera is in its custody; (iii) Loera may not allege a constitutional claim of deliberate indifference in a motion brought under 18 U.S.C. § 3145; and (iv), even if Loera has alleged his constitutional claim through the proper procedural vehicle, Loera did not suffer deliberate indifference in violation of the Eighth Amendment. Accordingly, the Court will deny the Motion.

         FACTUAL BACKGROUND

         In United States v. Loera, 59 F.Supp.3d 1089, Memorandum Opinion and Order, filed October 20, 2014 (Doc. 62)(D.N.M. 2014)(Browning, J.)(“Motion to Suppress MOO”), the Court made one-hundred and twenty findings of fact. See 59 F.Supp. at 1096-1108, Motion to Suppress MOO at 5-25. The Court incorporates those findings of fact herein by reference and does not repeat them. The Court will find and state only some additional facts that are needed to evaluate the Motion.

         1. Loera has been in the United States Marshal's Service's custody since September, 2016. See Transcript of Hearing at 70:10 (taken April 28, 2017)(Wolf)(“Tr.”).[1]

         2. Cibola County Detention Center houses Loera. See Tr. at 11:1 (Lucero).

         3. Cibola County Detention Center has “a contract with the U.S. Marshal's Service and . . . accept[s] whatever detainees they send . . . .” Tr. at 7:17-18 (Lucero).

         4. Dr. Steve Wolf is a career United States Public Health Service physician and has worked in that capacity for twenty-five years. See Tr. at 52:10-12 (Wolf).

         5. The United States Public Health Service is “responsible for prisoner healthcare while prisoners are in their federal proceedings.” Tr. at 53:17-18 (Wolf).

         6. Since 2007, Dr. Wolf has been assigned to the United States Marshals Service as the medical director for prisoner operations. See Tr. at 52:24-25 (Wolf).

         7. When making decisions about care, the United States Public Health Service “look[s] at how long an individual will be in custody.” Tr. at 53:14-15 (Wolf)(alteration added).

         8. “[A] surgery that has more risk of complications is a surgery that [the United States Public Health Service] would generally defer until an individual gets to a long-term destination.” Tr. at 55:25-56:1 (Wolf)(alterations added).

         9. “[A] lot of [prisoner] requests are best addressed in a long-term setting.” Tr. at 53:24-25 (Wolf)(alterations added).

         10. The standard of care that the United States Public Health Service provides “is basically the community standard of care.” Tr. at 55:4-19 (Wolf).

         11. The United States Public Health Service receives “a lot of requests from jails all over the country and many of the requests would be for things that might be considered desirable but aren't medically necessary.” Tr. at 55:4-19 (Wolf).

         12. When

an individual may be leaving [the United States Marshals Service's] custody very shortly[, ] . . . something [i.e., a medical procedure] that [the United States Public Health Service] might normally approve, [the United States Public Health Service] would not approve, because of the fact that [the individual is] being released from custody, or they're being transferred to their long-term institution where it would be more appropriate to do that [i.e., to carry out the procedure].

Tr. at 55:4-19 (Wolf)(alterations added).

         13. Ileostomy procedures[2] “are not typically emergency procedures or even urgent procedures . . . .” Tr. at 57:17-19 (Wolf).

         14. Since August 2013, Michelle Lucero has worked as a Physician Assistant at the Cibola County Detention Center. See Tr. at 4:6-10 (Lucero).

         15. Lucero is the primary care provider at Cibola County Detention Center. See Tr. at 6:7 (Lucero).

         16. Lucero must write prescriptions under a supervising physician's authority. See Tr. at 27:16-23 (Walz, Lucero).

         17. Lucero is familiar with Loera. See Tr. at 8:10 (Lucero).

         18. Upon Loera's arrival at Cibola County Detention Center, Lucero knew that Loera had an ileostomy and that “there is maintenance that has to be done for a condition like that.” Tr. at 11:1 (Lucero).

         19. Inmates at the Cibola County Detention Center infrequently have ileostomy bags. See Tr. at 31:17-23 (Walz, Lucero).

         20. Although Lucero generally does not treat inmates with ileostomy bags, she is “not incapable of treating it.” Tr. at 32:3 (Lucero).

         21. After Lucero's initial evaluation of Loera, Lucero attempted to obtain Loera's medical records, because Loera had disclosed to Lucero “that the plan was to eventually do the [ileostomy] take down after a certain amount of time.” Tr. at 11:23 (Lucero)(alteration added).

         22. While housed at the Cibola County Detention Center, Loera made numerous requests to see medical staff. See Tr. at 17:13 (Lucero).

         23. Lucero saw Loera in clinic on December 8, 2016, because Loera had complained of: (i) a leaking ileostomy bag; (ii) the need for a replacement bag, and (iii) the need of a sanitary location to change the ileostomy bag. See Tr. at 17:17-19 (Lucero).

         24. On December 12, 2017, a nurse saw Loera, and provided him with a new ileostomy bag and “an antifungal powder that he typically uses with the bag to adhere it [to his body] to help minimize the risk of infection or irritation.” Tr. at 17:22-25 (Lucero)(alterations added).

         25. Changing of an ileostomy bag does not require a sterile procedure. See Tr. at 18:19-19:2 (Lucero)(“[I]t's not a sterile procedure. It's not -- when you go into surgery, you're having to do a sterile procedure. This isn't anything that's sterile. You should be clean about it, you should wash your hands before and after, but there's nothing markedly beyond that that needs to be executed.”); id. at 64:17-18 (Wolf)(stating that caring for an ileostomy is “not sterile procedure”).

         26. Patients frequently care for and change their ileostomy bags at home, “keeping it clean, wiping it, using soap and water, keeping the site clean.” Tr. at 64:17-18 (Wolf).

         27. Loera expressed a primary concern “for nutritional compromise and electrolyte[3] balance.” Tr. at 19:24-15 (Lucero).

         28. Lucero assured Loera that “his B12 and folate[4] were normal, that his iron levels were normal . . . .” Tr. at 20:4-5 (Lucero).

         29. Based on Loera's labs, there “wasn't any sign that he needed to have any type of additional supplementation other than the dietary meals that have been provided from the Center.” Tr. at 21:3-6 (Lucero).

         30. Loera “stressed that he did want to have [the ileostomy take-down] procedure done . . . [and voiced] his other concerns . . . for nutritional deficiency and [the] need[] to have Ensure supplement drinks, [and Gatorade] for electrolyte imbalances . . . .” Tr. at 12:11-15 (Lucero)(alterations added).

         31. Lucero “didn't feel” that Loera's first request for surgery was appropriate. Tr. at 38:21-39:2 (Lucero).

         32. Lucero told Loera that the ileostomy take down “would probably be considered an elective procedure” and that she could not “approve that kind of surgical procedure, ” but would have “to submit the request through the U.S. Marshal service.” Tr. at 12:22-25 (Lucero).

         33. Lucero sent Loera's request for an ileostomy take-down procedure to the United States Marshal's Service, but indicated that she “did feel that it was elective because he was stable and this was his request.” Tr. at 13:22-24 (Lucero).

         34. The United States Public Health Service received Loera's request for a surgical consult regarding an ileostomy take-down procedure “in late December or early January 2017 . . . .” Tr. at 56:13-57:2 (Wolf).

         35. The United States Public Health Service denied Loera's request, because the agency “determined that it was not medically necessary to do this while in the short term custody of the U.S. Marshals.” Tr. at 57:5-13 (Wolf).

         36. Loera made complaints related to his abdominal pain that Lucero “couldn't prove or disprove.” Tr. at 14:1 (Lucero).

         37. Lucero does not know the etiology of Loera's abdominal pain, because the appropriate radiology studies have not been performed. See Tr. at 39:4-7 (Walz, Lucero).

         38. “[A] lot of [Loera's] discomfort was . . . [the result of] a lot of scar tissue from his previous surgeries, ” and “that's a very difficult thing to address because if you were to go back in and cut out that scare tissue, per se, you're just going to develop more because that's part of the healing process, is developing a scar.” Tr. at 16:3-6 (Lucero)(alterations added).

         39. After Loera raised the issue of his abdominal pain, Loera “pressed . . . to have the [surgical] consult so that [Loera and his physicians] could get a better idea of the etiology of his abdominal pain.” Tr. at 38:21-39:2 (Lucero)(alterations added).

         40. Lucero was not in a position to stop Loera's request for a surgical consult, because she is neither a surgeon nor a gastroenterologist. See Tr. at 25:21-24 (Lucero).

         41. As a result of Loera's complaints, Lucero sent a second request for an ileostomy take-down procedure to the U.S. Marshal's Service, emphasizing “the need for having a surgical consultant [to] have him evaluated.” Tr. at 14:5-6 (Lucero)(alteration added).

         42. In early 2017, Dr. Wolf received a second request “specifying that Mr. Loera was complaining of decreased output from his [ileostomy] site and was having abdominal pain.” Tr. at 58:1-4 (Wolf).

         43. Loera's reported symptoms of abdominal pain were new to Dr. Wolf. See Tr. at 58:4 (Wolf).

         44. The United States Public Health Service approved Loera's second request for a surgeon's consultation. See Tr. at 58:7-8 (Wolf).

         45. Dr. Wolf requested that the surgeon address whether Loera's ileostomy takedown procedure was urgent or could be deferred. See Tr. at 58:10-11 (Wolf).

         46. The surgeon, Dr. Ray, did not address Dr. Wolf's question. See Tr. at 58:16 (Wolf); id. at 58:21-22 (Wolf).

         47. Lucero sent Loera's California medical records to the University of New Mexico and requested that the University of New Mexico determine whether Loera's ileostomy takedown procedure is elective. See Tr. at 22:25-23:8 (Lucero); id. at 23:20-22 (Lucero).

         48. An attending physician and a nurse-practitioner at the University of New Mexico responded to Lucero's request, but did not specifically answer the questions that Lucero had posed. See Tr. at 24:4-15 (Lucero).

         49. Dr. Ray's request for a CAT scan and a gastro-graphing[5] study are currently pending “and so the decision really rests with the decision of the Court as to whether these studies will be done, because those studies will need to be done if we're going to be ordered to do the surgery.” Tr. at 59:11-14 (Wolf).

         50. Dr. Wolf deferred those requests until the Court renders a decision whether the United States Public Health Service was “going to be obligated to do this surgery.” Tr. at 59:4-5 (Wolf).

         51. When Loera “went to his March 1st consult, [the surgeon] then requested a CT scan and a gastro graph and study . . . .” Tr. at 38:21-39:2 (Lucero)(alteration added).

         52. Dr. Wolf received two more requests “for specific procedures that Dr. Ray wanted to do in anticipation of doing the [ileostomy] reversal . . . for a CAT scan and one was for a gastro-graphing study . . . .” Tr. at 58:23-59:2 (Wolf)(alteration added).

         53. Lucero's last visit with Loera was on March 17, 2017, at which she informed him that, after his University of New Mexico consult, the University of New Mexico had requested a gastrographic study and CT scan. See TR. at 49:11-49:23 (Lucero).

         54. Dr. Ray's recommendations for follow-up tests “were solely based on the need to get those tests if surgery was going to go forward.” Tr. at 60:22-24 (Wolf).

         55. Dr. Ray shared Loera's examination with Dr. Wolf. See Tr. at 60:3-61:18 (Wolf).

         56. According to Dr. Ray's findings, there was no report of pain; the site where Loera changed his ileostomy bag was clean and uninfected; and there was a hernia near to that site, which could be addressed at the time of the ileostomy take-down procedure. See Tr. at 60:7-13 (Wolf).

         57. Cibola County Detention Center extends to Loera the “standard care that [it] would to anybody else in the community.” Tr. at 26:15-19 (Lucero).

         58. Loera “is getting what is medically necessary.” Tr. at 26:15-19 (Lucero).

         59. If Loera were housed at a long-term Center, while in the United States Marshals Service's custody, his surgery might be reconsidered. Tr. at 39:20-23 (Lucero).

         60. Loera “lost some weight since he had been” housed at Cibola County Detention Center. Tr. at 25:6-14 (Lucero).

         61. Loera's weight loss is potentially a “good thing for him because he also has a hernia associated with his [ileostomy] and it's not uncommon for obese[6] people to have hernias that they incur with situations like this.” See Tr. at 25:6-14 (Lucero).

         62. Certain circumstances relating to a strangulation of a hernia render an ileostomy take-down procedure urgent, including: “severe nuisance, severe pain, possible evidence of inflammation, redness or swelling at the site, fever, and nausea, vomiting; [t]hese are signs potentially of an acute abdominal process that would warrant urgent intervention.” Tr. at 61:4-14 (Wolf).

         63. “[H]ernias of [the type that Loera exhibits] very rarely strangulate, meaning very rarely do they get stuck in a way that strangles the intestinal contents in them, which leads to the death of the intestinal contents, and the potential infection and emergency need for surgery.” Tr. at 61:4-14 (Wolf).

         64. At the time of Loera's examination, his hernia did not exhibit these conditions, and the ileostomy site was “reduceable, meaning that you could press on it and . . . [that is] one thing you want to see.” Tr. at 61:17-18 (Wolf).

         65. The surgery that Loera requests entails risks of surgical complications that “could ensue very rapidly thereafter or there may be development of scarring and fibrosis[7] that could lead to obstruction . . . [or] leakage.” Tr. at 62:19-63:12 (Wolf).

         66. If Loera underwent surgery while in the custody of the United States Marshals Service, these complications “might develop after [Loera] . . . goes to the federal Bureau of Prisons and then they would have an individual who is in their hands, not in the hands of the surgeon who treated him, and ha[ve] to deal with the complications; this is never desirable.” Tr. at 62:19-63:12 (Wolf).

         67. Conversely, if Loera underwent surgery and developed complications while in the United States Marshals Service's custody, the United States Marshals Service would become the “long-term custodian as a consequence of that until the situation is stabilized . . . .” Tr. at 62:19-63:12 (Wolf).

         68. The Court does not have any concerns about the care that Loera is receiving at Cibola County Detention Center. See Tr. at 64:12.

         69. Cibola County Detention Center's care of Loera's ileostomy “has been good.” Tr. at 64:13 (Wolf).

         70. With respect to Loera's ileostomy, “there was no evidence of inflammation, redness or infection.” Tr. at 64:24 (Wolf).

         71. The Court does not have any concerns about Loera, his condition, and his safety in remaining in a temporary detention Center while awaiting sentencing and ultimate transfer to the Bureau of Prisons. See Tr. at 65:13-17.

         72. Loera “is getting appropriate care.” Tr. at 65:19 (Wolf).

         PROCEDURAL BACKGROUND

         A federal grand jury indicted Loera on two counts of receipt of visual depictions of minors engaged in sexually explicit conduct, allegedly occurring on September 9, 2009, and one count of possession of a visual depiction of a minor engaged in sexually explicit conduct, allegedly occurring on February 20, 2010. See Indictment at 1-2, filed May 29, 2013 (Doc. 2). A federal grand jury filed a superseding indictment that charged Loera with three counts of possession of material containing any visual depiction of a minor engaged in sexually explicit conduct, each allegedly occurring on November 20, 2012. See Superseding Indictment at 1-2, filed January 9, 2014 (Doc. 25)(“Superseding Indictment”). A federal grand jury then filed a second superseding indictment that charged Loera with three counts of possession of material containing any visual depiction of a minor engaged in sexually explicit conduct, each allegedly occurring on November 20, 2012, and three counts of knowingly receiving a depiction which involved the use of a minor engaging in sexually explicit conduct. See Second Superseding Indictment, filed March 8, 2016 (Doc. 113).

         On April 22, 2016, the parties notified the Court of Loera's plea agreement pursuant to rule 11 of the Federal Rules of Criminal Procedure. See Plea Agreement, filed April 22, 2016 (Doc. 129)(“Plea Agreement”). Loera pled guilty to the Second Superseding Indictment's Count 3, which charges a violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1), and 2256, being a receipt of a visual depiction of a minor engaged in sexually explicit conduct. See Plea Agreement ¶ 3, at 2. On October 7, 2016, the Honorable William P. Lynch, United States Magistrate Judge for the United States District Court for the District of New Mexico, adjudged Loera guilty and continued Loera's conditions of release. See Plea Minute Sheet at 1, filed April 22, 2016 (Doc. 130)(“Plea Minute Sheet”). Magistrate Judge Lynch found “exceptional circumstances . . . to allow Defendant to continue on release” and required Loera “to self surrender on 6/1/2016 in California.” Plea Minute Sheet at 1.[8]

         On May 27, 2016, Loera filed an Unopposed Motion to Modify Order on Defendant Jason's Loera's Self-Surrender, filed May 27, 2016 (Doc. 134)(“Unopposed Motion to Modify Order on Self-Surrender”). Loera moved the Court to set June 24, 2016, as the date for his self-surrender to enable Loera to receive a colorectal surgery in Los Angeles, California, on June 3, 2016. Unopposed Motion to Modify Order on Self-Surrender ¶ 5, at 1. Magistrate Judge Lynch granted Loera's motion, stating that “Loera will continue on release until June 24, 2016, at which time he is ordered to self-surrender to the United States Marshals Service in the Central District of California.” Amended Order on Defendant Jason Loera's Self-Surrender at 1, filed May 31, 2015 (Doc. 135).

         On June 23, 2016, Loera filed a Second Unopposed Motion to Modify Order on Defendant Jason Loera's Self Surrender Date Based on Exceptional Medical Needs, filed June 23, 2016 (Doc. 138)(“Second Unopposed Motion to Modify Order on Self Surrender Date”). Loera moved the Court to set July 15, 2016, as a new date for self-surrender, because Loera wanted to “complete what will be two significant and necessary additional surgeries, and related medical treatment, related to colorectal surgery.” Second Unopposed Motion to Modify Order on Self Surrender Date at 1. Magistrate Judge Lynch granted Loera's Second Unopposed Motion to Modify Order on Self Surrender Date, ordering “that the United States Marshals Service in the Central District of California is ordered to accept Loera's self-surrender date and take him into custody on July 15, 2016.” Second Amended Order on Defendant Jason Loera's Self-Surrender at 2, filed June 24, 2016 (Doc. 139).

         On July 15, 2016, Loera filed a Third Unopposed Motion to Modify Order on Defendant Jason Loera's Self Surrender Date Based on Exceptional Medical Needs, filed July 15, 2016 (Doc. 144)(“Third Unopposed Motion to Modify Order on Self Surrender Date”). Loera moved the Court to set August 15, 2016, as a new date for self-surrender, because “the surgeon, Dr. Moshe Barnajian, is to perform a second (final) surgery, in approximately one month . . . .” Third Unopposed Motion to Modify Order on Self Surrender Date at 1. Loera averred that the “motion is not filed for purposes of delay, but to complete what will be two significant and necessary additional colorectal surgeries, and related medical treatment.” Third Unopposed Motion to Modify Order on Self Surrender Date at 1. On July 15, 2016, the Honorable Karen B. Molzen, Chief Magistrate Judge for the United States District Court for the District of New Mexico, granted Loera's Third Unopposed Motion to Modify Order on Self Surrender Date, stating “that the United States Marshals Service in the Central District of California is ordered to accept Defendant Loera's self-surrender date and take him into custody on August 15, 2016.” Third Amended Order on Defendant Jason Loera's Self-Surrender at 2, filed July 15, 2016 (Doc. 145).

         On August 12, 2016, Loera filed a Fourth Unopposed Motion to Modify Order on Defendant Jason Loera's Self Surrender Date Based on Exceptional Medical Needs, filed August 12, 2016 (Doc. 146)(“Fourth Unopposed Motion to Modify Order on Self Surrender Date”). Loera moved the Court to set September 30, 2016, as a new date for self surrender, because “the surgeon, Dr. Moshe Barnajian, is to perform a second (final) surgery . . . .” Fourth Unopposed Motion to Modify Order on Self Surrender Date at 1. Loera again stated that the “motion is not filed for purposes of delay, but to complete what will be the second of two significant and necessary colorectal surgeries, and related medical treatment.” Fourth Unopposed Motion to Modify Order on Self Surrender Date at 1. On August 12, 2016, Magistrate Judge Lynch granted Loera's Fourth Unopposed Motion to Modify Order on Self Surrender Date, stating “that the United States Marshals Service in the Central District of California is ordered to accept Defendant's Loera's self-surrender date and take him into custody on September 15, 2016.” Fourth Amended Order on Defendant Jason Loera's Self-Surrender at 2, filed August 12, 2016 (Doc. 147).

         On August 23, 2016, Loera filed a Fifth Unopposed Motion to Modify Order on Defendant Jason Loera's Self Surrender Date and to Vacate Sentencing Hearing of October 5, 2016, Based on Exceptional Needs, filed August 23, 2016 (Doc. 148)(“Fifth Unopposed Motion to Modify Order on Self Surrender Date”). Loera moved the Court to set October 31, 2016, as a new date for self-surrender, because “the surgeon, Dr. Moshe Barnajian, is tentatively set to perform a second (final) surgery on September 16, 2016 . . . .” Fifth Unopposed Motion to Modify Order on Self Surrender Date at 1. Loera also requested the Court to vacate the October 5, 2016, sentencing hearing and to reschedule the sentencing hearing “for no earlier that [sic] November 15, 2016, to allow sufficient time for the United States Marshal to transport Defendant from his self-surrender in Los Angeles CA to Albuquerque, NM.” Fifth Unopposed Motion to Modify Order on Self Surrender Date at 1. The Court granted Loera's Fifth Unopposed Motion to Modify Order on Self Surrender Date, and scheduled a sentencing hearing for November 22, 2016. See Fifth Amended Order to Continue Sentencing Date of October 5, 2016 at 2, filed August 24, 2016 (Doc. 149).

         On August 29, 2016, Loera filed a Sixth Unopposed Motion to Set Amended Self-Surrender Date Based on Exceptional Medical Circumstances Due to Scheduling of Surgery, filed August 29, 2016 (Doc. 150)(“Sixth Unopposed Motion to Modify Order on Self Surrender Date”). Loera moved the Court to “enter an order setting an amended voluntary self-surrender date for October 31, 2916 [sic].” Sixth Unopposed Motion to Modify Order on Self Surrender Date. Loera stated that “[a]n amended voluntary self-surrender date is crucial to the medical wellbeing of Defendant that after a first colorectal surgery which required careful recovery and follow up testing, Defendant now has a tentative surgery scheduled for September 16, 2016.” Sixth Unopposed Motion to Modify Order on Self Surrender Date ¶ 5, at 2. Loera further argued that, “[b]ecause the District Court has enlarged the date for the sentencing there is ample time to have the surgery performed and to achieve recovery prior to sentencing scheduled for November 22, 2016.” Sixth Unopposed Motion to Modify Order on Self Surrender Date ¶ 7, at 2. Magistrate Judge Lynch granted Sixth Unopposed Motion to Modify Order on Self Surrender Date, stating that “the United States Marshals Service in the Central District of California is ordered to accept Defendant Loera's self-surrender date and take him into custody on October 31, 2016.” Sixth Amended Order on Defendant Jason Loera's Self-Surrender at 2, filed September 1, 2016 (Doc. 151).

         On September 9, 2016, Andrew F. Selph, Senior United States Probation Officer, presented a Petition for Action on Conditions of Pretrial Release, filed September 9, 2016 (Doc. 152)(“Petition for Action on Conditions of Pretrial Release”). Probation Officer Selph alleged that, according to Global Positioning System (GPS) data, on September 8, 2016, Loera “travelled to a McDonald's Restaurant with a Playland . . . and remained at that location between 12:09 and 13:32 without the knowledge or authorization of U.S. Pretrial Services.” Petition for Action on Conditions of Pretrial Release ¶ 1, at 1. Probation Officer Selph stated that “[t]his conduct is in violation of the conditions of [Loera's] June 21, 2013 Order Setting Conditions of Release.” Petition for Action on Conditions of Pretrial Release ¶ 1, at 1. Probation Officer Selph “pray[ed] that the Court will order a warrant for the Defendant's arrest.” Petition for Action on Conditions of Pretrial Release at 1.

         Loera was arrested on October 6, 2016. See Unopposed Motion to Vacate and Continue Sentencing Hearing ¶ 2, at 1, filed November 7, 2016 (Doc. 160)(“Unopposed Motion to Vacate and Continue”). The following day, Magistrate Judge Lynch “found that the Defendant Jason Loera violated his conditions of release” and “ordered that the conditions of release previously imposed are hereby revoked.” Order at 1, filed October 7, 2016 (Doc. 159)(“Revocation Order”). On November 7, 2016, Loera filed his Unopposed Motion to Vacate and Continue, seeking to continue his sentencing hearing, because Psychologist Moss Aubrey had yet to compile and present his evaluations of Loera to defense counsel, rendering “the sentencing date set for November 22, 2016 . . . not achievable.” Unopposed Motion to Vacate and Continue ¶ 10, at 2; See Unopposed Motion to Vacate and Continue ¶¶ 4-9, at 1-2. The Court granted Loera's Unopposed Motion to Vacate and Continue, ordering “that the sentencing date of November 22, 2016, is hereby vacated, and that the sentencing hearing in this matter will be reset for January 24, 2017 at 9:00 a.m.” Order Vacating Sentencing Date at 1, filed November 14, 2016 (Doc. 161).

         On January 10, 2017, Loera filed another Unopposed Motion to Vacate and Continue Sentencing Hearing, filed January 10, 2017 (Doc. 162)(“Second Unopposed Motion to Vacate and Continue Sentencing Hearing”). Loera stated that, “[b]ased on the content to Dr. Aubrey's report, it is necessary for defense counsel to analyze in detail the findings, and meet with Defendant Loera to review the report, and to obtain his input.” Second Unopposed Motion to Vacate and Continue Sentencing Hearing ¶ 6, at 2. Loera further averred that, “based on scheduling issues caused from the Christmas and New Year's holidays, a meeting with defendant could not be arranged to review this report.” Second Unopposed Motion to Vacate and Continue Sentencing Hearing ¶ 7, at 2. In the Order Vacating Sentencing Date, filed January 23, 2017 (Doc. 166)(“Second Order Vacating Sentencing Date”), the Court granted Loera's Second Unopposed Motion to Vacate and Continue Sentencing Hearing. See Second Order Vacating Sentencing Date at 1. The Court vacated the January 24, 2017, sentencing date and reset the sentencing hearing for March 13, 2017. See Second Order Vacating Sentencing Date at 1.

         1. Loera& ...


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