United States District Court, S.D. California
ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S
APPEAL AND SETTING HEARING ON THE APPEAL (DOC. NO.
HONORABLE MARILYN L. HUFF UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Ramon Quintero's
(“Defendant”) appeal of the Magistrate
Judge's detention order (Doc. No. 20) filed on December
27, 2019. The Government filed a response in opposition on
December 30, 2019. (Doc. No. 21.) The Defendant is charged
with attempted reentry of a removed alien, a felony, in
violation of Title 8 U.S.C. § 1326. (Doc. No. 11.) The
Court has jurisdiction to hear this matter under Title 18
U.S.C. § 3145(b) and is required to determine the
Defendant's motion promptly. A district judge reviews
de novo a magistrate judge's decision to detain
the defendant. United States v. Koenig, 912 F.2d
1190 (9th Cir. 1990). Under Koenig, a district judge
is to make his or her own de novo determination of
facts without deference to the magistrate judge's
ultimate conclusion. However, “the district court is
not required to start over in every case, and proceed as if
the magistrate's decision and findings did not
exist.” Id at 1193.
Bail Reform Act, Title 18 U.S.C. § 3142(g), requires the
Court to consider four factors in determining whether to
detain or release a defendant: (1) the nature and
circumstances of the offense charged, including whether the
offense is a crime of violence, a violation of section 1591,
a Federal crime of terrorism, or involves a minor victim or a
controlled substance, firearm, explosive, or destructive
device; (2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including
the person's character, physical and mental condition,
family ties, employment, financial resources, length of
residence in the community, community ties, past conduct,
history relating to drug or alcohol abuse, criminal history,
record concerning appearance at court proceedings, and
whether, at the time of the current offense or arrest, the
person was on probation, on parole, or on other release
pending trial, sentencing, appeal, or completion of sentence
for an offense under Federal, State, or local law; and (4)
the nature and seriousness of the danger to any person or the
community that would be posed by the defendant's release.
considering the nature of the offenses charged, the Court
also considers the penalties associated with the charges.
United States v. Townsend, 897 F.2d 989, 995 (9th
Cir. 1990). Additionally, “the weight of the evidence
is the least important of the various factors.”
United States v. Motamedi, 767 F.2d 1403, 1408 (9th
Cir. 1985) (internal citations omitted). Although immigration
status is not a listed factor to consider in determining
bail, “[a]lienage may be taken into account, but it is
not dispositive.” United States v.
Santos-Flores, 794 F.3d 1088, 1090 (9th Cir. 2015).
However, “[a] defendant's immigration detainer is
not a factor in this analysis, whether as evidence for or
against a finding that the defendant poses a risk of
nonappearance." United States v.
Diaz-Hernandez, 943 F.3d 1196, 1199 (9th Cir. 2019).
government bears the burden of showing by a preponderance of
the evidence that the defendant poses a flight risk.
Santos-Flores at 1090. A finding that a defendant is
a danger to any other person or the community must be
supported by clear and convincing evidence. 18 U.S.C. §
3142(f)(2)(B). Furthermore, the Court is prohibited from
imposing a financial condition that would result in the de
facto detention of a defendant. 18 U.S.C. § 3142(c)(2);
see also Diaz-Hernandez at 1199 (Affirming the
district judge's detention order based on the district
court's finding that the defendant would not be able to
post bond in the amount that the district judge theorized
would reasonably assure the defendant's appearance.).
Defendant's family ties to the United States including
family support weighs in favor of setting bail. However, the
Defendant's serious criminal history, including a robbery
involving a firearm conviction resulting in a prison term of
six years, a drug and forgery conviction resulting in a
prison term of 4 years, a recent felony conviction for an
immigration offense in the Eastern District of California,
and a recent state court conviction for driving under the
influence and obstructing a public officer weighs against
setting bail in this case. Additionally, the Defendant is on
probation with the state court at the time the instant
offense was committed, which also weighs against setting
bail. Furthermore, the Defendant has two prior deportations
and has returned despite being ordered to remain outside
United States, leaving the Court with little confidence that
the Defendant will be able to follow the Court's order to
appear for further proceedings if released on bail. The
Defendant's lack of employment history also weighs
against setting bail in this case. Additionally, as the
Government points out, the Defendant has a prior immigration
felony and therefore is subject to a substantial sentencing
guideline range, which weighs in favor of detention.
de novo review of the current record before the
Court and upon considering the factors set forth under the
Bail Reform Act, the Court is inclined to support the
Magistrate Judge's conclusion by a preponderance of the
evidence that the defendant is a flight risk and that no
condition or combination of conditions will reasonably assure
the appearance of the Defendant. Accordingly, in light of the
Court's obligation to determine this matter promptly, the
Court DENIES WITHOUT PREJUDICE the Defendant's request to
set bail in this case.
Court's ruling is made without prejudice to allow U.S.
Pretrial Services to weigh in at the hearing. Accordingly,
the Court sets a hearing on the appeal for January 13, 2020
at 2:00 p.m. The Defendant may file a reply by January 6,
2020 or, in the alternative, may orally present his reply at
the hearing on this matter. The Court directs U.S. Pretrial