United States v. Timley , 236 F. App'x 441 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 6, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 07-3137
(D.C. No. 07-CR-40031-JAR)
D O N N ELL FR AN CIS TIM LEY, (D . Kan.)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before BRISCO E, EBEL, and O’BRIEN, Circuit Judges.
Appellant Donnell Francis Timley, a federal defendant charged with drug
crimes, appeals the district court’s order of detention pending trial, presently set
to begin August 28, 2007. W e affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.
M r. Timley is charged with possession with intent to distribute 74 grams of
cocaine base and possession w ith intent to distribute 114 grams of marijuana. As
a matter of statute, the cocaine-base count raises a rebuttable presumption of
detention pending trial. See 18 U.S.C. § 3142(e).
The magistrate judge held a hearing at which he recounted M r. Timley’s
extensive criminal history: incarceration for 37 months for intent to distribute
cocaine base, the revocation of supervised release, and a pending charge of
conspiracy to distribute depressants. The magistrate judge noted that there were
“very few gaps in the adult history in which the Defendant was not either subject
to prosecution or serving some sort of sentence.” A plt. App. at 15-16. W ith this
history, the present charges could result in the imposition of a mandatory life
imprisonment sentence.
The magistrate judge concluded that no conditions or combination of
conditions would assure that defendant was not a danger to the community and
that defendant also posed a flight risk. See 18 U.S.C. § 3142(e) ( “If, after a
hearing . . . , the 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, such judicial officer shall order the
detention of the person before trial.”).
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Upon its de novo review, the district court made even more extensive
findings concerning M r. Timley’s “continuous stream of [criminal] activity.”
Aplt. App. at 47. For instance, the district court observed that M r. Timley had
been on the scene of multiple shootings, where law enforcement officers found
“him engaged in some criminal conduct” and “always [with] drugs on him.” Id.
at 50. Also, M r. Timley has been accused of violent domestic battery and there
are reports that he had tried to intimidate a witness. M oreover, the district court
observed that “when [Mr. Timley] has reason to avoid and evade apprehension he
does so. And certainly when someone is facing a mandatory sentence of life
imprisonment they would have such motivation.” Id. at 48. The district court
agreed with the magistrate judge that M r. Timley should be detained as a safety
and flight risk.
II.
Generally, a bail appeal presents questions of fact and mixed questions of
law and fact. United States v. Cisneros, 328 F.3d 610, 613 (10th Cir. 2003). “W e
apply de novo review to mixed questions of law and fact concerning the detention
or release decision, but we accept the district court’s findings of historical fact
which support that decision unless they are clearly erroneous.” Id.M r. Timley, however, does not question either the district court’s
interpretation of § 3142(e) or its factual findings. Instead, he claims that the
district court failed to give appropriate weight to his disability, his long-term ties
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in the community, the needs of his wife and five-year-old son, his past history of
appearing for court dates, the absence of adult convictions for crimes of violence,
and the failure of the government to present evidence on the current charges. See
18 U.S.C. § 3142(g) (listing factors for court consideration: (1) nature and
circumstances of offense charged, including whether offense is a crime of
violence or involves a controlled substance; (2) weight of evidence against
defendant; (3) defendant’s history and characteristics; and (4) nature and
seriousness of danger to any person or the community posed by defendant’s
release).
W e see no error in the district court’s consideration of the statutory factors
or the weight it accorded to these factors. M r. Timley failed to rebut the
presumption that, unless detained until trial, he presents a danger to society and a
risk of flight. Accordingly, we AFFIRM the decision of the district court.
ENTERED FOR THE COURT
PER CURIAM
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