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Rutherford v. United States

United States District Court, M.D. Tennessee, Nashville Division

April 10, 2015

ANTHONY DEWAYNE RUTHERFORD
v.
UNITED STATES OF AMERICA

MEMORANDUM

TODD J. CAMPBELL, District Judge.

I. Introduction

Pending before the Court is a Motion To Set Aside Or Vacate Sentence (Docket No. 1), filed by the Movant/Petitioner. Through the Motion, the Petitioner challenges the conviction and sentence imposed in connection with the revocation of his supervised release. The Government has filed a Response (Docket No. 13) to the Motion.

For the reasons set forth herein, the Petitioner's Motion To Set Aside Or Vacate Sentence (Docket No. 1) is DENIED, and this action is DISMISSED.

II. Procedural and Factual Background

In the underlying criminal case, the Petitioner was charged in a Superseding Petition with violating the conditions of his supervised release, as follows: (1) The Defendant shall not commit another federal, state or local crime (Clarksville, December 13, 2013); (2) The Defendant shall not unlawfully possess a controlled substance (Clarksville, December 13, 2013); (3) The Defendant shall not commit another federal, state or local crime (Johnson City, March 11, 2014); (4) The Defendant shall not unlawfully possess a controlled substance (Johnson City, March 11, 2014); (5) The Defendant shall not leave the judicial district without the permission of the court or the probation officer (Johnson City, March 11, 2014); (6) The Defendant shall notify the probation officer within 72 hours of being arrested or questioned by a law enforcement officer (Johnson City, March 11, 2014). (Docket No. 55 in Case No. 3:08-00125).

In support of the first, second and third allegations, the Superseding Petition provides, in part, as follows:

1. The Defendant shall not commit another federal, state or local crime.
On December 13, 2013, Mr. Rutherford was arrested and charged with manufacture, deliver, or sell of a controlled substance, to wit marijuana, and possession of drug paraphernalia, by the Clarksville Police Department.
The incident report states Mr. Rutherford was stopped for speeding and not wearing a seat belt on North 2nd Street in Clarksville, Tennessee. Officer Hankins made contact with him and could smell a strong odor of marijuana emitting from Mr. Rutherford. During a search of the vehicle a digital scale was recovered. Mr. Rutherford was transported to Special Operations and during the search a bag of green plant material was found concealed in his crotch. The green plant material field tested positive for THC. He also had $463 in his possession.
Officer Hankins also reported Mr. Rutherford initially did not want to comply with the search of his person, stating, If you want to strip search me, then we will fight.' The officers were able to talk him down and he complied with the search of his person. In addition, a text message was found on his cell phone which read bring the old girl a gram' and he responded be there in 5.' This test message was sent minutes prior to the traffic stop.
* * *
2. The Defendant shall not unlawfully possess a controlled substance.
On December 13, 2013, Mr. Rutherford was charged with being in possession of 10 grams of Marijuana, ...

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