United States v. Lopez-Parada

          ORDER

          PHILIP A. BRIMMER United States District Judge.

         This matter comes before the Court on defendant Reidesel Lopez-Parada's Motion for Amendment of the Order of Detention Entering on October 23, 2018 (ECF Document 47) [Docket No. 83] of Magistrate Judge Mix's Order of Detention [Docket No. 47], entered on October 23, 2018. The United States has filed a response [Docket No. 95], and the defendant has filed a reply [Docket No. 98].

         Defendant seeks amendment of the magistrate judge's detention order under 18 U.S.C. § 3145(b) resulting in his release on an unsecured bond or, in the alternative, on electronic monitoring. Docket No. 83 at 1, 5. At the detention hearing on October 23, 2018, the defendant did not contest detention. Id. at 3.

         Requirements for Detention Under the Bail Reform Act

         Under the Bail Reform Act, a defendant may be detained pending trial only if a 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.” 18 U.S.C. § 3142(e). The government bears the burden of proof at a detention hearing. Id. The government must prove risk of flight by a preponderance of the evidence and must prove dangerousness to any person or to the community by clear and convincing evidence. 18 U.S.C. § 3142(f).

         In deciding whether there are conditions of release that would assure the appearance of the defendant and the safety of the community, the magistrate judge must consider the following factors:

(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 --

(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 proceedings; and

(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 person's release. . . .

         Count One of the indictment names the defendant, among others, and charges a conspiracy to distribute more than five kilograms of cocaine. This count carries a ten-year mandatory minimum and a maximum sentence of life imprisonment. Therefore, pursuant to 18 U.S.C. § 3142(e)(3)(A), Count One has a rebuttable presum ption of pretrial detention. In order to rebut this presumption, a defendant must produce some evidence. United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991). Although a defendant may present evidence and rebut the presumption, the Court may nevertheless take the presumption into account as a factor in determining whether detention is appropriate. Id. The defendant is also charged with three other counts (use of a communications device in connection with drug trafficking; possession with intent to distribute more than 500 grams of cocaine; and possession with intent to distribute more than five kilograms of cocaine). Two of these counts (Counts Ten and Seventeen) also carry a rebuttable presumption of detention.

         At the conclusion of the detention hearing, the magistrate judge found by a preponderance of the evidence that the defendant was a flight risk. Docket No. 47 at 3. She concluded that there was no condition or combination of conditions of ...