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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`UNITED STATES OF AMERICA,
`Plaintiff
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`v.
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`PAVEL LAZARENKO,
`Defendant
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`
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`
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`Case No. 00-CR-0284 CRB
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`ORDER VACATING HEARING
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`Now pending before the Court is Defendant’s motion to dismiss the petition alleging
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`violations of supervised release scheduled for hearing on November 21, 2014. This Magistrate
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`Judge does not have authority to decide his motion. Federal Rule of Criminal Procedure
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`32.1(b)(1)(A) provides that “[i]f a person is in custody for violating a condition of probation or
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`supervised release, a magistrate judge must promptly conduct a hearing to determine whether there
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`is probable cause to believe that a violation occurred. The person may waive the hearing.”
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`(Emphasis added). Defendant is not in custody; therefore, he is not entitled to a probable cause
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`hearing. See also Fed. R. Crim. P. Rule 32.1(a)(3)(C) (requiring the magistrate judge before whom
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`the defendant makes her initial appearance to advise the defendant of various rights, including “the
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`person’s right, if held in custody, to a preliminary hearing under Rule 32.1(b)(1)”) (emphasis
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`added); United States v. Reyes-Gutierrez, 2008 WL 3538575 (E.D. Wisc. Aug. 11, 2008) (noting
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`“that a parolee arrested and detained has a due process right to a preliminary hearing”). Thus,
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`Defendant’s motion, which essentially argues that he did not violate the terms of his supervised
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`release, should be made before Judge Breyer on December 17, 2014. Accordingly, the November
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`21, 2014 hearing before this Court is VACATED.
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`Northern District of California
`United States District Court
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`Case3:00-cr-00284-CRB Document1647 Filed11/20/14 Page2 of 2
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`IT IS SO ORDERED.
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`Dated: November 20, 2014
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`
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`______________________________________
`JACQUELINE SCOTT CORLEY
`United States Magistrate Judge
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`28
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`Northern District of California
`United States District Court

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