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United States v. Nieto-Garcia

United States District Court, N.D. West Virginia

September 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MAURO NIETO-GARCIA, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR REVIEW OF THE ORDER GRANTING DETENTION, REVOKING MAGISTRATE JUDGE'S DETENTION ORDER AND ESTABLISHING CONDITIONS OF PRETRIAL RELEASE

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         I. Background

         On August 8, 2017, the defendant in the above-styled criminal matter was indicted by the grand jury for reentry of a removed alien, in violation of 18 U.S.C. § 1326(a). At the defendant's arraignment hearing before United States Magistrate Judge James E. Seibert, the government made an oral motion for detention. Accordingly, the magistrate judge conducted a detention hearing, at which time the government presented the testimony of an Immigration and Customs Enforcement (“ICE”) officer and sought to establish the defendant's risk of flight. The defendant responded with testimony of his ties to the community in Stillwater, Oklahoma. After the hearing, Magistrate Judge Seibert entered an order granting the motion to detain the defendant pending trial on the basis of risk of flight. ECF No. 17.

         The defendant then filed a motion for review of the order granting detention. ECF No. 18. The government filed a response to the defendant's motion for review, and the defendant filed a reply to the government's response. This Court grants the defendant's motion to review of the detention order and, after careful review of the pleadings and the record, revokes the magistrate judge's detention order.

         II. Applicable Law

         Pursuant to 18 U.S.C. § 3145(b), “[i]f a person is ordered detained by a magistrate judge . . . the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order.” In construing that statute, the United States Court of Appeals for the Fourth Circuit noted in United States v. Clark, 865 F.2d 1433 (4th Cir. 1989), that “[a] defendant ordered detained by a magistrate may seek de novo review in the district court.” Id. at 1436 (citing United States v. Williams, 453 F.2d 329, 333 (4th Cir. 1985)).

         III. Discussion

         Title 18, United States Code, Section 3142(e)(1) provides that detention of a defendant is appropriate if “the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” Subsection (g) of 18 U.S.C. § 3142 specifies four factors to be taken into account “in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community.” In this case, the rebuttable presumption under 18 U.S.C. § 3142(e)(2) does not apply. Thus, “[w]ith regard to the risk of flight as a basis for detention, the government must prove by a preponderance of the evidence that no combination of conditions will reasonably assure the defendant's presence at future proceedings.” United States v. Steward, 19 F. App'x 46, 48 (4th Cir. 2001) (unpublished).

         Here, the defendant has lived in the United States for over four years. The defendant has been employed as a maintenance worker at a golf club in Stillwater, Oklahoma, and has a second job as a landscape worker. The defendant's family also resides in Stillwater, Oklahoma. The defendant has no prior felony convictions, and has only one previous misdemeanor conviction for driving without a license, for which he is currently serving a sentence of probation in Oklahoma. An Oklahoma state probation officer, Monce Gil, has informed the United States Probation Office that the defendant is in full compliance with the terms of his state probation. Probation Officer Gil does not oppose the defendant's release from federal custody and his return to supervision by the state probation office.

         Prior to the defendant's detention, he resided at 1224 South Husband Street, Sillwater, Oklahoma 74074. A long-time friend and coworker of the defendant, Jaime Martinez, has been in contact with the United States Probation Office and verified the defendant's address. Mr. Martinez is also the defendant's landlord. Mr. Martinez lives nearby the defendant's residence at 6124 West Coventry Drive, Stillwater, Oklahoma 74074, and is willing to serve as a third-party custodian for the defendant. The United States Probation Officer also recently wrote a letter to the magistrate judge, in which she stated that Mr. Martinez had verified the above information and “indicated his willingness to do whatever necessary to make sure the defendant appears for all court appearances.” The letter is attached to and made a part of this order.

         The government's response to the defendant's motion for review of the detention order asserts that the defendant is a flight risk because he is subject to an ICE detainer. However, the fact that a defendant is subject to an ICE detainer is not a determinative factor in deciding whether a defendant is a flight risk. See United States v. Blas, No. CRIM.13-0178-WS-C, 2013 WL 5317228, at *4 n.9 (S.D. Ala. Sept. 20, 2013) (“The administrative detainer lodged by ICE was a factor taken into consideration regarding risk of flight; however that detainer did not presumptively establish the appropriateness of detention.”); United States v. Montoya-Vasquez, No. 4:08CR3177, 2009 WL 103596, at *5 (D. Neb. Jan. 13, 2009) (“If Congress wanted to bar aliens with immigration detainers from eligibility for release, it could have readily said so, but did not.”).

         The government's response does not provide any compelling reason why the defendant is a flight risk other than that he is subject to an ICE detainer. However, as discussed above, the defendant has offered several other compelling reasons why he is not a flight risk. This Court finds that the defendant is not a flight risk because he has several ties to his community in Stillwater, Oklahoma, and will be under the supervision of the Oklahoma state probation office. Additionally, Mr. Martinez, a United States citizen, has indicated his willingness to do whatever necessary to make sure the defendant appears for all court appearances. Thus, the government has not proven by a preponderance of the evidence that no combination of conditions will reasonably assure the defendant's presence at future proceedings. Accordingly, this Court finds on de novo review that the defendant is not a flight risk and should be released to his home at 1224 South Husband Street, Sillwater, Oklahoma 74074.

         IV. Conclusion

         The defendant's motion for review of the detention order is GRANTED, and, upon de novo review, this Court REVOKES the detention order (ECF No. 17). It is hereby ORDERED that the defendant is RELEASED pending trial. The defendant's release is contingent upon his agreement to sign a standard bond form (Order Setting Conditions of Release, AO Form 199A), the ...


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