United States District Court, M.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
W.
KEITH WATKINS UNITED STATES DISTRICT JUDGE.
Before
the court is Defendant's motion (Doc. # 21) pursuant to
18 U.S.C. § 3145(b) for revocation of the Magistrate
Judge's order (Doc. # 18) detaining Defendant pending
trial. The Government filed a response in opposition. (Doc. #
25.) Based upon consideration of the arguments of counsel,
the record (including the transcript of the hearing conducted
by the Magistrate Judge (Doc. # 20) and the pretrial services
report (Doc. # 19-2)), Defendant's motion is due to be
denied without a hearing.
I.
JURISDICTION
A
defendant whom the magistrate judge has ordered detained
pending trial may move the court with original jurisdiction
over the offense to revoke the order of detention. §
3145(b).
II.
DISCUSSION
The
Bail Reform Act of 1984, 18 U.S.C. §§ 3141-3156,
governs the release or detention of a defendant pending
trial. When a detainee moves to revoke a magistrate
judge's pretrial detention order, “the district
court must conduct an independent review to determine whether
the magistrate [judge] properly found that pretrial detention
is necessary.”[1] United States v. King, 849 F.2d
485, 490 (11th Cir. 1988). Under 18 U.S.C. § 3142(e),
the judicial officer has “substantial latitude in
determining whether pretrial detention is appropriate.”
Id. at 487.
A
finding that a defendant poses a flight risk or is a
danger to another person or the community requires his or her
detention pending trial. Id. at 488. Factors that
bear on whether a defendant should be released or detained
pending trial under § 3142(e) include: (1) “the
nature and circumstances of the offense charged, ” 18
U.S.C. § 3142(g)(1); (2) “the weight of the
evidence against” the defendant, id. §
3142(g)(2); (3) the defendant's “history and
characteristics, ” such as his or her “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, ” id. §
3142(g)(3); and (4) “the nature and seriousness of the
danger to any person or the community that would be posed by
the person's release, ” id. §
3142(g)(4). The government bears the burden of showing by a
preponderance of the evidence that the defendant is a flight
risk or by clear and convincing evidence that the defendant
poses a danger to the community. See United States v.
Medina, 775 F.2d 1398, 1402 (11th Cir. 1985) (explaining
the government's burden of proof under the Bail Reform
Act on a motion for pretrial detention); see also
King, 849 F.2d at 488-89 (accord).
Based
upon de novo review, the court finds that the
evidence adduced on the § 3142(g) factors clearly
supports the Magistrate Judge's factual findings and his
legal conclusions that the Government proved that Defendant
is a flight risk and a danger to the community so as to
require detention under § 3142(e). The factors focusing
on the “nature and circumstances of the offense
charged, ” § 3142(g)(1), and the weight of the
charge's evidence, § 3142(g)(2), favor detention.
Defendant is under indictment for being a felon in possession
of a 9mm semi-automatic handgun and live ammunition in
violation of 18 U.S.C. § 922(g)(1). The maximum penalty
of ten years for this felony reflects its seriousness. 18
U.S.C. § 924(a)(2). And the weight of the evidence
appears to be strong. As reflected in the pretrial services
report, Defendant has a prior felony conviction, which he has
not disputed, and, at the time of his arrest, he was carrying
a pistol in his waistband. (Doc. # 19-2.)
On
balance, Defendant's history and characteristics also
weigh in favor of detention. Defendant's criminal record
includes a 2011 state felony conviction for third-degree
robbery (reduced on a plea deal from a charge of first-degree
robbery) involving his attempt during a robbery to strangle a
cab driver with a shoelace. Defendant's conduct
underlying this crime of violence shows a significant risk of
danger to the community, a risk that, contrary to
Defendant's argument, is more than
“generalized” and “theor[ized].”
(Doc. # 21, at 4-5); see also King, 849 F.2d at 487
n.2 (“[T]he language [in the Bail Reform Act] referring
to the safety of the community refers to the danger that the
defendant might engage in criminal activity to the detriment
of the community.”). Additionally, Defendant repeatedly
failed to report to his probation officer and abide by
court-imposed conditions while under state-court supervision
for his third-degree robbery conviction. His inability to
comply with the conditions of his state probation, which
resulted in his probation being revoked three times, is a
solid indicator that he would act with similar disregard to
any conditions of release imposed in this case.
Attempting
to counter this evidence, [2] Defendant asserts that the Government
presented no evidence of “any conduct (probation
violation)” after his probation was revoked for the
third time in August 2015. (Doc. # 21, at 6.) But
Defendant's argument omits that Defendant was in state
custody for two of those years, that is, until September 27,
2017, when he was released and his state sentence was
terminated. (Doc. # 19-2, at 6.) Nor does his argument
mention that little more than six months after his release,
Defendant was arrested on the charges that led to the
indictment in this case. Notably also, Defendant has not held
steady, verifiable employment since his 2017 release from
state custody.
Finally,
as he argued at the detention hearing, Defendant, focusing on
his familial ties in Opelika, asserts that he can live with
his sister and her two children in their two-bedroom
residence. Since his release from state prison in September
2017, Defendant has lived with his sister intermittently.
(See Doc. # 19-2, at 3 (According to Defendant's
sister, he “comes and goes, ” but she consents to
his living with her.).) However, based on Defendant's
overall history and characteristics, in conjunction with the
other § 3142(g) factors, the court finds Defendant's
proposed non-custodial housing arrangement is inadequate to
secure Defendant's presence at court proceedings and
reasonably assure the safe of the community.
Based
on the totality of the § 3142(g) factors - particularly
the nature of the charged offense, the weight of the
evidence, and Defendant's history and characteristics as
more fully developed at the detention hearing - the court
finds that the Magistrate Judge correctly concluded that the
Government carried its burden of showing that “no
condition or combination of conditions will reasonably assure
the appearance of” Defendant and the safety of the
community. § 3142(e)(1).
Accordingly,
Defendant's motion for revocation of the detention order
will be denied.
III.
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