United States District Court, D. Colorado
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
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