United States v. Santos-Flores

• Decision Date: 23 July 2015
• Docket Number: No. 15–10289.,15–10289.
• Citation: 794 F.3d 1088
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ernesto SANTOS–FLORES, aka Ernesto Adan Santos–Flores, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

794 F.3d 1088

UNITED STATES of America, Plaintiff–Appellee

v.Ernesto SANTOS–FLORES, aka Ernesto Adan Santos–Flores, Defendant–Appellant.

No. 15–10289.

United States Court of Appeals, Ninth Circuit.

Submitted to Motions Panel July 6, 2015.

Filed July 23, 2015.

Robert J. McWhirter, ASU Alumni Law Group, Phoenix, AZ, for Appellant Ernesto Santos–Flores.

John S. Leonardo, United States Attorney, Krissa M. Lanham, Deputy Appellate Chief, and William G. Voit, Assistant United States Attorney, United States Attorney's Office, Phoenix, AZ, for Appellee United States of America.

Appeal from the United States District Court for the District of Arizona, Susan R. Bolton, District Judge, Presiding. D.C. No. 2:15–cr–00632–DLR–1.

Before: SCHROEDER, CANBY, and KOZINSKI, Circuit Judges.

ORDER

Defendant Ernesto Santos–Flores appeals the district court's order of detention pending trial. We have jurisdiction pursuant to 18 U.S.C. § 3145(c) and 28 U.S.C. § 1291. We hold that the district court erred in ordering pretrial detention based on the likelihood that, if released pending trial, Santos–Flores would be placed in immigration detention and removed from the United States, precluding his appearance for trial. We affirm the district court's detention order, however, based on the district court's alternative, individualized analysis of factors that make Santos–Flores a voluntary flight risk.

Santos–Flores, a native and citizen of Mexico, is charged with one count of felony illegal reentry of a removed alien in violation of 8 U.S.C. § 1326(a), as enhanced by § 1326(b)(1). The government alleges that Santos–Flores was previously convicted of felony illegal reentry on November 19, 2014 in the United States District Court for the Western District of Texas, and sentenced to a term of time served plus one year of supervised release. The conditions of supervised release included not entering the United States without documentation and not committing any other crimes. Santos–Flores was then, on or about December 9, 2014, removed from the United States to Mexico pursuant to a reinstated order of removal. On March 30, 2015, Santos–Flores was apprehended by the Border Patrol in Maricopa County, within the District of Arizona. He presented the Border Patrol with three forms of false identification (a United States passport, birth certificate, and Social Security card) and claimed to be a United States citizen. The government conducted an immigration history check and determined that Santos–Flores was not a citizen and did not appear to have obtained authorization to return to the United States.

Santos–Flores was charged by complaint on April 1, 2015, and indicted (following an extension of time) on May 26, 2015. A magistrate judge of the District of Arizona issued an order of detention pending trial on April 8, 2015. Santos–Flores appealed, and the district court affirmed the detention order on May 26, 2015. This appeal followed.

Under the Bail Reform Act of 1984, as amended, Congress has determined that any person charged with an offense under the federal criminal laws shall be released pending trial, subject to appropriate conditions, unless 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). Only in rare cases should release be denied, and doubts regarding the propriety of release are to be resolved in favor of the defendant. United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir.1985).

Here, the government does not contend, nor did the district court find, that Santos–Flores poses a danger to any other person or the community pending trial. The district court found, however, that if Santos–Flores were released under the Bail Reform Act, he likely would be unable to appear at trial because he would be detained by United States Immigration and Customs Enforcement (“ICE”) and removed from the United States. In the alternative, the district court found that his alleged illegal reentry, violation of supervised release, and use of fraudulent identification documents indicated that Santos–Flores could not be trusted to obey a court order to appear.

On a motion for pretrial detention, the government bears the burden of showing by a preponderance of the evidence that the defendant poses a flight risk. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir.1991). We review the district court's factual findings concerning whether any condition or combination of conditions will reasonably assure the appearance of the defendant as required under a “deferential, clearly erroneous standard.” United States v. Hir, 517 F.3d 1081, 1086 (9th Cir.2008) (quoting United States v. Townsend, 897 F.2d 989, 994 (9th Cir.1990) ). The conclusions based on such factual findings, however, present a mixed question of fact and law. See Hir, 517 F.3d at 1086. Thus, “the question of whether the district court's factual determinations justify the pretrial detention order is reviewed de novo.” Id. at 1086–87 (citations omitted).

The factors that a court should consider in determining whether a particular defendant should be released under pretrial supervision or confined pending trial are set forth in 18 U.S.C. § 3142(g), and immigration status is not a listed factor. See also 18 U.S.C. § 3142(e)(2)-(3), (f). Alienage may be taken into account, but it is not dispositive. See Motamedi, 767 F.2d at 1408 (holding that, under the circumstances of that case, the factor of alienage “does not tip the balance either for or against detention”).

Congress chose not to exclude removable aliens from consideration for release or detention in criminal proceedings. See 18 U.S.C. § 3142(a)(3), (d).¹ The Bail Reform Act does, however, provide specific procedures to be followed when a judicial officer determines that a defendant is not a citizen of the United States or lawfully admitted for permanent residence. 18 U.S.C. § 3142(d). The judicial officer must determine whether such an alien may flee or pose a danger to any other person or the community. 18 U.S.C. § 3142(d)(2). If so, the judicial officer shall order temporary detention for not more than ten days, and direct the attorney for the government to notify “the appropriate official of the Immigration and Naturalization Service.” 18 U.S.C. § 3142(d).² A determination that the alien may flee or pose a danger—voluntary acts—is required to impose even this temporary detention. Id. If the immigration official does not take custody of the defendant during that ten-day period, Congress directs the court to treat the defendant in accordance with the other provisions of the Bail Reform Act, “notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings.” 18 U.S.C. § 3142(d). The district court's decision to detain Santos–Flores pending trial based on the possibility of his detention or removal by immigration authorities, therefore, is contrary to the express language of the Bail Reform Act.

Reinstatement of a prior order of removal is neither automatic nor obligatory. Villa–Anguiano v. Holder, 727 F.3d 873, 878 (9th Cir.2013). ICE may decide to forego reinstatement for a variety of reasons, including but not limited to the exercise of prosecutorial discretion. Id. at 878–79. The government may also exercise its judgment that the public interest in criminally prosecuting an alien is greater than the public interest in swiftly removing him. The government may, therefore, elect to deliver the alien to the United States Attorney's Office for prosecution, as it did here, instead of removing him immediately pursuant to 8 U.S.C. § 1231(a)(5). Having made this choice, however, the government may not use its discretionary power of removal to trump a defendant's right to an individualized determination under the Bail Reform Act.

As a number of district courts have persuasively explained, the risk of nonappearance referenced in 18 U.S.C. § 3142 must involve an element of volition. See, e.g., United States v. Trujillo–Alvarez, 900 F.Supp.2d 1167, 1176–78 (D.Or.2012) (citing cases). If the government, by placing Santos–Flores in immigration detention or removing him, jeopardizes the district court's ability to try him, then the district court may craft an appropriate remedy. See id. at 1179–81.³ The court may not, however, substitute a categorical denial of bail for the individualized evaluation required by the Bail Reform Act. 18 U.S.C. § 3142(e), (g) ; see also Lopez–Valenzuela, 770 F.3d at 791.

We conclude that the district court erred in relying on the existence of an ICE detainer and the probability of Santos–Flores's immigration detention and removal from the United States to find that no condition or combination of conditions will reasonably assure Santos–Flores's appearance pursuant to 18 U.S.C. § 3142(e).

Our conclusion is different, however, with regard to the district court's alternative ruling that Santos–Flores is a voluntary flight risk. We conclude that the totality of the evidence supports the district court's ruling and, consequently, its detention order. Primary factors include Santos–Flores's violation of the terms of his supervised release, his multiple unlawful entries into the United States, his prior failure to appear when required in state court, his use and possession of fraudulent identity documents, and the severity of the potential punishment and the weight of the evidence against him.

Santos–Flores does not dispute this evidence, but argues that such factors are so common to defendants in illegal reentry prosecutions that they amount to a categorical rule, or at least an improper presumption, against release in such cases. Even if we accept, for purposes of decision, the premises of this argument, it fails on its own terms. Review of the individualized factors set forth in 18 U.S.C. § 3142(g) does not bear out...