United States v. Nguyen , 166 F. App'x 118 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 6, 2006
Charles R. Fulbruge III
Clerk
No. 06-50061
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
CHUONG NGUYEN,
Defendant-Appellant.
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Appeal From the United States District Court
for the Western District of Texas
SA-05-CR-503-FB
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Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Chuong Nguyen submits a Memorandum for Bail Pending
Trial from the district court’s order denying his Motion to Revoke
the Magistrate Judge’s Detention Order. On August 3, 2005, Nguyen
was indicted on one count of aiding and abetting money laundering,
in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(A). On August 4,
2005, a detention hearing was held before the magistrate judge.
The Government argued, and the magistrate agreed, that Nguyen poses
a serious flight risk and that there are no release conditions to
sufficiently address the risk of his nonappearance for trial. The
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-50061
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question of Nguyen’s detention was reopened on August 29, 2005 to
allow Nguyen to present additional evidence regarding his risk of
flight. Again, the magistrate judge denied bail and ordered
pretrial detention. Nguyen appealed to the district court, which
summarily affirmed the magistrate’s ruling.
“When a district court acts on a motion to revoke or amend a
magistrate’s pretrial detention order, the district court acts de
novo and must make an independent determination of the proper
pretrial detention or conditions for release.” U.S. v. Rueben, 974
F.2d 580, 585 (5th Cir. 1992). Absent an error of law, this Court
must apply a deferential standard of review and uphold a district
court order “if it is supported by the proceedings below.” See id.
at 586, citing United States v. Hare, 873 F.2d 796, 798 (5th Cir.
1987). “On appeal, the question becomes whether the evidence as
a whole supports the conclusions of the proceedings below.” Id.Pursuant to the Bail Reform Act, a defendant should be
released pre-trial on personal recognizance or upon the execution
of an unsecured appearance bond “unless the judicial officer
determines that such release will not reasonably assure the
appearance of the person as required or will endanger the safety of
any other person or the community.” 18 U.S.C. § 3142(b). This is
to be determined by a detention hearing. § 3142(e). Detention can
be ordered only in a case that involves one of the six
circumstances listed in § 3142(f). See United States v. Byrd, 969
F.2d 106, 109 (5th Cir. 1992). “A serious risk that the person
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will flee” is one of those six circumstances that warrants
detention if there are no release conditions that will reasonable
assure appearance of the defendant when required. § 3142(f)(2)(A).
In this case, the evidence as a whole supports the
magistrate’s finding that Nguyen posed a serious risk of flight.
The magistrate’s use of the term “unacceptable risk of flight” does
not indicate that the magistrate applied the wrong legal standard.
Furthermore, the Government carried its burden of showing that
there are no release conditions which would sufficiently address
the risk of Nguyen’s nonappearance. As such, the district court
did not err in denying Nguyen’s motion to revoke the magistrate
judge’s detention order. See United States v. Fortna, 769 F.2d 243(5th Cir. 1985).
The appellant’s request for bail pending trial is DENIED.