United States District Court, D. Colorado
A. BRIMMER United States District Judge.
matter comes before the Court on defendant Diego
Molina-Chavez's Motion for Review of a Detention Order
Pursuant to 18 U.S.C. § 3145(b) [Docket No. 118],
wherein the defendant asks the Court to review the detention
order of Magistrate Judge Kristen L. Mix entered on May 8,
2017. See Docket Nos. 9 and 10. A district court
reviews a magistrate judge's detention or release order
de novo and makes "an independent determination of the
proper pretrial detention or conditions for release."
United States v. Cisneros, 328 F.3d 610, 616 n.1
(10th Cir. 2003) (quotation omitted).
Court has reviewed an audio tape of the May 8, 2017 detention
hearing in this case. The defendant did not present evidence
at the hearing, but rather proceeded by way of proffer. He
argued that his criminal history was relatively minor and
that, as a result, he could not be considered a danger to the
community. He pointed out that he had worked for company
called Radtech for thirteen years and that his employer was
willing to let him return to his job. He also noted that he
has three children between the ages of twelve and one and
that his common law wife works from their home. He stated
that he has family ties to Denver and Colorado Springs and
does not possess a passport. As a result, the defendant
argued that he would not have any incentive to flee.
United States noted that, based on the charges in the
complaint, there was a presumption of detention. The
government proffered that the defendant was a participant in
a methamphetamine drug trafficking ring and the leader, Juan
Amaya, mentioned the defendant's involvement with
methamphetamine sales in several recorded telephone calls.
The government argued that the defendant was on probation and
had been arrested on many occasions.
detention ruling, Judge Mix noted three bases for her
detention order. First, that there was a presumption of
detention based on the charges in the complaint. Second, that
the defendant was on probation. Third, that the defendant has
used an alias Social Security number and had three failures
to appear, which she believed demonstrated a disregard for
detention is governed by 18 U.S.C. § 3142. Under §
3142(f), the facts that a judicial officer uses to support a
finding that no condition or combination of conditions will
reasonably assure the safety of any other person or the
community must be supported by clear and convincing evidence.
The United States must prove flight risk by a preponderance
of the evidence. Cisneros, 328 F.3d at 616. As
acknowledged by the defendant at the hearing, this case
involves a rebuttable presumption that no condition or
combination of conditions will reasonable assure the safety
of any other person or the community or the defendant's
appearance. Both Counts 25 and 26 of the superseding
indictment, Docket No. 33, carry minimum penalties of ten
years imprisonment and maximum penalties of life
imprisonment. However, even with the rebuttable
presumption, the government retains the burden of proof.
Cisneros, 328 F.3dat616.
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, "
the Court must take into account the following factors:
(1) the nature and circumstances of the offense charged,
including whether the offense is a crime of violence .. .
[or] involves a . . . controlled substance . ..;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including
(A) 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, and record concerning appearance at court
(B) 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 ...