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United States v. Perez

United States District Court, N.D. Texas, Dallas Division

October 16, 2019

UNITED STATES OF AMERICA
v.
DAVID PEREZ

          MEMORANDUM OPINION AND ORDER OF DETENTION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.

         By Order Accepting Report and Recommendation of the United States Magistrate Judge Concerning Plea of Guilty, filed September 30, 2019 (doc. 95), this matter has been referred for a hearing to determine whether it has been clearly shown that there are exceptional circumstances under 18 U.S.C. § 3145(c) why the defendant should not be detained under 18 U.S.C. § 3143(a)(2), and whether it has been shown by clear and convincing evidence that the defendant is likely to flee or pose a danger to any other person in the community if released under 18 U.S.C. § 3142(b) or (c). Also before the Court is Defendant's Motion for Continued Release Pending Sentencing, filed October 14, 2019 (doc. 102), which was referred by electronic order dated October 15, 2019 (doc. 103).

         David Perez (Defendant) appeared in person and through counsel for a hearing on October 16, 2019. After consideration of the filings, evidence, testimony, oral argument, and applicable law, the Court finds that exceptional reasons have not been shown, and Defendant is ordered detained. The motion for continued pretrial release is DENIED. The defendant's oral motion to STAY execution of this order of detention pending appeal to the district judge is GRANTED.

         I. BACKGROUND

         Defendant was charged by superseding indictment dated March 17, 2019, with conspiracy to possess and possession with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a), 846. (See doc. 22.) He was arrested and made his initial appearance in this district on April 2, 2019, and after the government orally withdrew its motion for detention, he was released on conditions of pretrial release on April 3, 2019. (See docs. 35, 37, 40, 41.) On July 24, 2019, the parties filed a plea agreement in which Defendant agreed to waive his rights and to plead guilty to the possession count. (See doc. 76.) On September 5, 2019, Defendant appeared and entered his plea of guilty before a U.S. Magistrate Judge, who recommended that the guilty plea be accepted. (See docs. 87-89.) The recommendation provided notice that upon conviction, Defendant was subject to the mandatory detention provisions of 18 U.S.C. § 3143(a)(2), unless the Court made certain findings. (See doc. 44.) The Court accepted the recommendation on September 30, 2019, and referred the matter for hearing and determination of whether Defendant had made the necessary showing to support the findings required for continued release. (See doc. 95.)

         It is undisputed that Defendant has been fully compliant with his conditions of pretrial release. Defendant contends that exceptional reasons why he should not be detained exist because of his compliance with his conditions of release and his need to care for his elderly parents, who have health issues, and to assist his wife in transporting their teenage daughter to school. (See doc. 102 at 3.)

         II. ANALYSIS

         Section 3143(a)(2) of Title 18 mandates the detention of persons who have been found guilty of certain offenses and who are awaiting imposition or execution of sentence, except in certain limited circumstances. It provides:

(2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless--
(A)(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or
(ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and
(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.

18 U.S.C. § 3143(a)(2). In addition, § 3145(c) provides that a person subject to mandatory detention under this section may also be ordered released if the person meets the conditions of release in § 3143(a)(1)[1] and it is clearly shown that there are exceptional reasons why the person's detention would not be appropriate. See 18 U.S.C. § 3145(c); see also U.S. v. Rothenbach, 170 F.3d 183 (5th Cir. 1999) (per curiam).[2]

         The offenses listed in § 3143(a)(2) for which detention is mandatory at this stage of the proceedings described in § 3142(f)(1)(A)-(C) include crimes of violence, crimes with a life sentence, and drug offenses for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act, 21 U.S.C. 801 et seq. In this case, Defendant has been found guilty of a drug offense that falls within the ambit of ยง 3142(f)(1)(C) because it is subject to a maximum term of imprisonment of ten ...


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