United States v. Hernandez
| Decision Date | 19 November 2018 |
| Docket Number | No. CR 18-0201 JB\KK,CR 18-0201 JB\KK |
| Court | U.S. District Court — District of New Mexico |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JAVIER HECTOR PLATA HERNANDEZ (a.k.a. Javier Plata), Defendant. |
THIS MATTER comes before the Court on the Defendant's Motion to Revoke or Amend Order Denying Motion to Modify Conditions of Release, filed October 13, 2018 (Doc. 27)("Motion"). The Court held a hearing on October 25, 2018. The primary issue is whether the Court should release Defendant Javier Hector Plata Hernandez -- who does not have legal status in the United States of America -- to the custody of his mother, Margarita Plata, because Plata Hernandez' driving under the influence convictions do not endanger the public, and because he is not otherwise a flight risk. The Court will deny Plata Hernandez' request for release to Plata, because Plata Hernandez' illegal immigration status, driving under the influence convictions, and battery against household member convictions pose a danger to the community, the battery against household member convictions pose a danger to Plata, and Plata Hernandez' illegal immigration status makes him a flight risk, and no condition or combination of conditions would reduce these risks to acceptable levels.
The Court takes its facts from the Criminal Complaint, filed January 22, 2018 (Doc. 2)("Complaint"), and the Pretrial Services Report, filed January 26, 2018 (Doc. 13). The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that these facts are largely Plaintiff United States of America's version of events.
Plata Hernandez was born in Juarez, Mexico, and moved to the United States when he was twenty-one. See Pretrial Services Report at 1. He resided in Albuquerque, New Mexico after moving to the United States. See Pretrial Services Report at 1. Plata Hernandez' former spouse, Maria Cisneros, and their two children, reside in Albuquerque, and Plata Hernandez provides $600 in monthly child support. See Pretrial Services Report at 2. Plata Hernandez does not have a United States passport, and he was removed from the United States in 2007 by the United States Immigration and Customs Enforcement ("ICE"). See Pretrial Services Report at 2. Plata Hernandez' permanent resident card, "green card," expired, and ICE "placed a Detainer on the defendant, which remains outstanding." Pretrial Services Report at 2.
Plata Hernandez was charged in 1999 with "driving while intoxicated" and "resisting/obstructing a police officer." Pretrial Services Report at 5. In 2003, Plata Hernandez was charged with the misdemeanor offense of "aggravated battery against a household member;" the victim was his then-wife, Cisneros. Pretrial Services Report at 5. See Pretrial Services Report at 5. Plata Hernandez used the named "Javier H. Plata" when arrested. Pretrial Services Report at 5. In 2006, Plata Hernandez was charged with "false imprisonment," "aggravated battery against a household member" with a deadly weapon or resulting in "great bodily harm," "bribery, intimidation, and retaliation against a witness," "aggravated assault against a household member," "driving under the influence of liquor," "negligent use of a deadly weapon," child abuse, and consumption or possession of an open container of an alcoholic beverage. Pretrial Services Report at 5-6. He gave the name "Javier Plata" when arrested for the 2006 charges. Pretrial ServicesReport at 5. Plata Hernandez initially failed to appear to answer for the 2006 charges. See Pretrial Services Report at 5. After receiving his sentence, he was removed from the United States to Mexico. See Pretrial Services Report at 6. In 2016, Plata Hernandez was charged in New Mexico with "possession of a controlled substance" and aggravated driving under the influence. Pretrial Services Report at 6. See Pretrial Services Report at 6. When arrested, Plata Hernandez gave his name as "Cesar Gonzalo-Delgado." Pretrial Services Report at 6.
A municipal detention facility released Plata Hernandez on November 26, 2016, and the ICE Officers discovered him in New Mexico on January 19, 2018. See Complaint at 1. Plata Hernandez is charged with reentering the United States after previous removal, in violation of 18 U.S.C. § 1326. See Complaint at 1.
On August 24, 2018, the Honorable Kirtan Khalsa, United States Magistrate Judge for the District of New Mexico, issued the Order Setting Conditions of Release, filed January 25, 2018 (Doc. 12)("Order"), in which she placed Plata Hernandez in the custody of La Pasada Halfway House ("La Pasada"). See Order at 2. Plata Hernandez filed a motion on August 24, 2018, seeking to modify the Order. See Motion to Modify Conditions of Release at 1, filed August 24, 2018 (Doc. 18)("First Motion"). After Magistrate Judge Khalsa orally denied Plata Hernandez' First Motion, see Transcript of Hearing at 10:17-22 (taken October 4, 2018), filed October 23, 2018 (Doc. 31)("Oct. 4 Tr."), Plata Hernandez filed the Motion, see Motion at 1.
Plata Hernandez requests that Magistrate Judge Khalsa modify his conditions of release, because Plata Hernandez is waiting for an appeal of his determination status, he has stayed at LaPasada and adhered to its rules, and his desire to remain in the United States reduces the likelihood that he will flee. See First Motion at 1; First Motion ¶ 2-3, at 1. He asks that Magistrate Judge Khalsa release him to Plata, who has agreed to serve as a third-party custodian. See First Motion ¶ 5-6, at 2.
The United States filed the Response to Defendant's Motion to Modify Conditions of Release (Doc. 18), filed September 28, 2018 (Doc. 24). The United States argues that no facts have changed to warrant Plata Hernandez' release to his mother. See First Response at 3-4. According to the United States, Plata Hernandez lacks legal status in the United States, and he was previously deported and reentered. See First Response at 2. Further, the United States contends that Plata Hernandez has a weaker defense to his reentry charge than he did when charged, because a judge refused to reopen Plata Hernandez' removal proceedings, so without a reversal of the judge's decision, Plata Hernandez will be removed. See First Response at 2-3. The United States notes that Plata Hernandez has been arrested at least four times, including for driving under the influence, aggravated driving under the influence, possession of a controlled substance, child abuse, negligent use of a deadly weapon, aggravated assault against a household member, retaliation against a witness, intimidation, bribery, false imprisonment, and resisting/obstructing a police officer. See First Response at 3. According to the United States, Plata Hernandez has also failed to appear on multiple occasions. See First Response at 3. The United States contends that Plata Hernandez should be detained on his pending charges. See First Response at 3.
Magistrate Judge Khalsa held a hearing on October 4, 2018. See Oct. 4 Tr. at 1. Plata Hernandez argued that what had changed between the Order and the hearing was that he found a "suitable third party custodian." Oct. 4 Tr. at 3:9 (Acton). See id. at 3:7-9 (Acton). Further, Plata Hernandez noted that he has done well at La Pasada. See Oct. 4 Tr. at 3:16-18 (Acton). Plata Hernandez explained that he had been in the United States legally, had been convicted and had been subsequently deported, and, while his conviction has been overturned, his legal status has not been reestablished. See Oct. 4 Tr. at 3:19-25 (Acton). According to Plata Hernandez, an immigration attorney is working on his immigration case. See Oct. 4 Tr. at 4:1-7 (Acton). Plata Hernandez contended that his residence at La Pasada already allows him to move within the County of Bernalillo, New Mexico, that he hopes to remain within the country, and that his only crime would be illegally residing within the United States, which he will be doing regardless to whom Magistrate Judge Khalsa appoints custody. See Oct. 4 Tr. at 4:17-8 (Acton).
The United States reiterated its position that the facts remain unchanged. See Oct. 4 Tr. at 5:24-25 (Kastrin). The United States argued that, if residing successfully at La Pasada justifies Plata Hernandez' release, "every compliant person on conditions would therefore have grounds to . . . be released." Oct. 4 Tr. at 6:6-7 (Kastrin). According to the United States, Plata's presence has not previously prevented Plata Hernandez' crimes and Plata Hernandez has a violent criminal history, which includes violence against household members. See Oct. 4 Tr. at 6:10-22 (Kastrin). Further, the United States expressed concerns about Plata Hernandez' drinking then driving and about Plata's ability to control such actions. See Oct. 4 Tr. at 6:23-7:8 (Kastrin). Finally,according to the United States, that Plata Hernandez lost in immigration court increases his flight risk. See Oct. 4 Tr. at 7:9-17 (Kastrin).
Magistrate Judge Khalsa inquired whether the United States Probation Office ("USPO") had addressed Plata Hernandez' substance abuse problems. See Oct. 4 Tr. at 7:22-23 (Khalsa). USPO responded that Plata Hernandez is in treatment. See Oct. 4 Tr. at 7:24-8:3 (Probation Officer Duarte). Magistrate Judge Khalsa indicated that, at La Pasada, Plata Hernandez had no access to a vehicle. See Oct. 4 Tr. at 8:11-12 (Khalsa). Plata Hernandez explained that his last conviction for driving under the influence was twelve years earlier, see Oct. 4 Tr. at 8:16 (Acton), but the United States corrected that Plata Hernandez had been convicted "less than two years ago," see Oct 4 Tr. at 9:12 (Kastrin). Magistrate Judge Khalsa orally denied Plata Hernandez' motion, because the flight risk remains, and he has a history of substance abuse and behavior "that puts other people at risk." Oct 4 Tr. at...
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