United States v. Ernesto Santos-Flores , 794 F.3d 1088 ( 2015 )


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  •                                                                             FILED
    FOR PUBLICATION                                 JUL 23 2015
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 15-10289
    Plaintiff - Appellee,              D.C. No. 2:15-cr-00632-DLR-1
    District of Arizona,
    v.                                              Phoenix
    ERNESTO SANTOS-FLORES, AKA
    Ernesto Adan Santos-Flores,                      ORDER
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of Arizona
    Susan R. Bolton, District Judge, Presiding
    Submitted to Motions Panel July 6, 2015
    Before: SCHROEDER, CANBY, and KOZINSKI, Circuit Judges.
    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.
    2
    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
    3
    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
    4
    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
    1
    A categorical bar against release for removable aliens would raise
    constitutional questions. See, e.g., Lopez-Valenzuela v. Arpaio, 
    770 F.3d 772
    (9th
    Cir. 2014) (en banc) (holding that Arizona constitutional provision categorically
    forbidding bail for certain undocumented immigrants violates substantive due
    process). In light of the plain language of the Bail Reform Act, however, we need
    not reach those questions here.
    2
    The Immigration and Naturalization Service was abolished pursuant to the
    Homeland Security Act of 2002. See Hernandez v. Ashcroft, 
    345 F.3d 824
    , 828 n.2
    (9th Cir. 2003). Immigration functions were transferred to the agencies within the
    newly-created Department of Homeland Security (“DHS”) and to the Department
    of Justice (“DOJ”). 
    Id. The notification
    under 18 U.S.C. § 3142(d) must now,
    (continued...)
    5
    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
    2
    (...continued)
    therefore, be made to the appropriate DHS or DOJ official.
    6
    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
    3
    We need not, therefore, reach the question of whether the removal period
    of 8 U.S.C. § 1231(a)(1)(A) begins while a defendant is “in custody” on pretrial
    release, subject to restraints not shared by the public generally that significantly
    confine and restrain his freedom. See 8 U.S.C. § 1231(a)(1)(B); cf. Hensley v.
    Mun. Ct., 
    411 U.S. 345
    , 351 (1973). Nor need we reach the relevance, if any, of
    8 C.F.R. § 215.3(g), which provides that the departure from the United States of an
    alien who is needed as a party to a criminal case shall be deemed prejudicial to the
    interests of the United States.
    7
    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 Santos-Flores’s contention that a denial of pretrial
    release to him will amount to a presumption that all illegal reentry defendants,
    much less all undocumented alien defendants, will be denied pretrial release. For
    8
    instance, on the record before us, the government has shown by a preponderance of
    the evidence that Santos-Flores’s latest entry into the United States violated the
    terms of his supervised release in the Western District of Texas. The Bail Reform
    Act provides that the court shall consider “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.” 18 U.S.C. § 3142(g)(3)(B). Consideration of this
    factor does not apply categorically to all undocumented aliens, all illegal reentry
    defendants, or even all defendants with a prior illegal reentry conviction. It would
    apply only to defendants whose reentry occurred in violation of an applicable term
    of supervised release.
    Similarly, Santos-Flores does not dispute that he has a prior charge of failure
    to appear in Colorado, in addition to a number of other prior arrests. Consideration
    of a defendant’s record concerning appearance at court proceedings and other past
    conduct is proper under 18 U.S.C. § 3142(g)(3)(A). This factor is individualized to
    Santos-Flores and does not create a categorical rule that would prevent release for
    undocumented defendants or defendants in illegal reentry prosecutions. Santos-
    Flores has made no attempt to explain his prior charge of failure to appear and his
    other arrests, or to offer any countervailing circumstances.
    9
    It is true that the government also advances a number of undisputed factors
    that are relatively common to defendants in illegal reentry cases. These include
    Santos-Flores’s possession of identification documents that do not belong to him;
    his claim, made to the Border Patrol, to be a United States citizen; and his reentry
    into the United States in violation of an order of removal. But consideration of the
    nature and circumstances of the offense charged is proper under 18 U.S.C.
    § 3142(g)(1). See Townsend, 
    897 F.2d 989
    , 994 (9th Cir. 1990). When these
    considerations are supplemented by the factors already discussed that are particular
    to Santos-Flores and not necessarily applicable to all alien reentry defendants, the
    totality of the evidence supports the district court’s ruling and negates any claim
    that the district court applied a categorical rule or presumption favoring detention
    of alien defendants.
    We do not accept, however, the government’s argument that Santos-Flores’s
    lack of ties to the District of Arizona supports the pretrial detention order, because
    Santos-Flores has significant community ties in Colorado. Family ties,
    employment, length of residence in the community, and community ties are all
    relevant to the determination of pretrial release. 18 U.S.C. § 3142(g)(3)(A). This
    court has held that “community ties” under the Bail Reform Act “embrace[] both
    the community in which the charges are brought and also a community in the
    10
    United States to which the defendant has ties.” 
    Townsend, 897 F.2d at 995
    . The
    record reflects that Santos-Flores has a United States citizen wife and United States
    citizen children, with whom he seeks to live in Colorado. He resided in the same
    Colorado community for approximately fifteen years, since childhood. He worked
    for the same employer for approximately nine years and apparently would be
    welcomed back. These community ties favor Santos-Flores, but they do not
    overcome the numerous other factors that supported the district court’s
    determination that he was a voluntary flight risk.
    In sum, the district court correctly found that the government in this case
    met its burden of showing, by a preponderance of the evidence, that individualized
    factors demonstrate that no condition or combination of conditions will reasonably
    assure that Santos-Flores will voluntarily appear. See 18 U.S.C. § 3142(e);
    
    Motamedi, 767 F.2d at 1406
    . We therefore affirm the district court’s pretrial
    detention order.
    AFFIRMED.
    11
    Counsel Listing
    Robert J. McWhirter, ASU Alumni Law Group, Phoenix, Arizona, 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, Arizona, for Appellee United States of America.
    12