United States v. Victor H. Blanco-Cardenas, 16 F.3d 417, 10th Cir. (1994)

16 F.
3d 417
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
UNITED STATES of America, Plaintiff-Appellant,

v.
Victor H. BLANCO-CARDENAS, Defendant-Appellee.
No. 93-1461.
United States Court of Appeals, Tenth Circuit.

Feb. 10, 1994.
ORDER AND JUDGMENT1

Before LOGAN, TACHA, and BRORBY, Circuit Judges.
PER CURIAM
1
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); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
The United States appeals from the district court's order releasing defendantappellant Victor H. Blanco-Cardenas on bail pending his trial. We granted the
government's emergency motion to stay defendant's release. We now reverse
the district court's release order, and order defendant detained until trial.
Defendant is charged by indictment with one count of possession with intent to

distribute more than 500 grams of cocaine, and one count of conspiracy to
distribute cocaine. The government has invoked the presumption in favor of
detention, 18 U.S.C. 3142(e), and requested defendant be detained pending
trial.
The record reflects that four detention hearings were held before the magistrate
judge and the district judge. At the conclusion of the hearings before the
magistrate judge, defendant was ordered detained because the government had
sustained its burden under 3142(e) of proving there were no conditions that
could ensure defendant's presence in court. The magistrate judge found: (1)
defendant had a prior drug felony; (2) defendant is a citizen of Mexico with
financial and family ties to Mexico, although he is in the United States legally
and has a wife and a brother in Colorado; (3) there was probable cause to
believe defendant committed an offense proscribed by the Controlled
Substances Act, and (4) defendant faces a substantial sentence if convicted in
this case. The magistrate judge further found that defendant would be
employed if released, but a detainer filed by the Immigration and Naturalization
Service (INS) might result in defendant's deportation before trial in this case.
Thereafter, the INS detainer was lifted, and the district court ordered defendant
released on conditions. The focus of the proceedings before the district court
was the INS matter and the value of the security to be posted.
Our review of the district court's release order is "plenary as to mixed questions
of law and fact and independent, with due deference to the district court's purely
factual findings." United States v. Stricklin, 932 F.2d 1353, 1355 (10th
Cir.1991).
6
Under
section 3142(e), upon a finding of probable cause that the defendant has
committed a federal drug offense carrying a maximum prison term of ten years or
more, a rebuttable presumption arises that no conditions of release will assure
defendant's appearance and the safety of the community. Once the presumption is
invoked, the burden of production shifts to the defendant. However, the burden of
persuasion regarding risk-of-flight and danger to the community always remains
with the government. The defendant's burden of production is not heavy, but some
evidence must be produced. Even if a defendant's burden of production is met, the
presumption remains a factor for consideration by the district court in determining
whether to release or detain.
7
Id. at 1354-55.
Here, although defendant produced some evidence supporting his release, we

determine the evidence presented to the district court, coupled with the
detention presumption, demonstrates that the government sustained its burden
of proving defendant is a danger to the community and a flight risk.
Furthermore, the record reveals no evidence or findings to disturb the
magistrate judge's conclusion to detain defendant, other than the removal of the
immigration detainer. Under the circumstances of this case, we conclude that
the district court failed to give sufficient weight to the presumption of detention
and the sufficiency of the government's evidence showing that defendant is a
flight risk and a danger to the community.
9
The order of the United States District Court for the District of Colorado is
REVERSED. The matter is REMANDED with instructions to enter an order of
detention in conformity with 18 U.S.C. 3142(i)(2), (3), and (4).
10
The mandate shall issue forthwith.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470

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16 F.

UNITED STATES of America, Plaintiff-Appellant,

United States Court of Appeals, Tenth Circuit.

ORDER AND JUDGMENT1

Defendant is charged by indictment with one count of possession with intent to

Here, although defendant produced some evidence supporting his release, we

The mandate shall issue forthwith.

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