United States v. Sanchez-Rivas ( 2018 )


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  •                                                                                 FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                         Tenth Circuit
    FOR THE TENTH CIRCUIT                        October 17, 2018
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                          No. 18-2138
    (D.C. No. 2:18-MJ-2325-RCB-SMV-1)
    CHRISTIAN SANCHEZ-RIVAS,                                     (D. N.M.)
    Defendant - Appellant.
    _________________________________
    ORDER AND JUDGMENT *
    _________________________________
    Before HARTZ, MATHESON, and BACHARACH, Circuit Judges.
    _________________________________
    Defendant Christian Sanchez-Rivas appeals the district court’s order of
    detention pending trial. We have jurisdiction under 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3145
    (c), and we affirm.
    I.
    On July 17, 2018, Sanchez-Rivas was apprehended by United States Border
    Patrol agents outside a store in Sunland Park, New Mexico. The agents discovered
    Sanchez-Rivas and his two companions by following a trail of footprints from the
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral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 with
    Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    nearby Mexico border to the store, where they found the trio hiding in and around a
    dumpster.
    Sanchez-Rivas admitted to the agents that he was a native and citizen of
    Mexico, who was present in the United States without authorization. The agents
    further learned that Sanchez-Rivas had been deported a month earlier, on June 18,
    2018, and he had not received permission to reapply for admission to the United
    States. He was charged by criminal complaint with reentry after deportation in
    violation of 
    8 U.S.C. §§ 1326
    (a)(1) and (2).
    The magistrate judge ordered Sanchez-Rivas detained pending trial because
    (1) the evidence against him was strong, (2) he lacked ties to the district of New
    Mexico where the charges were pending, (3) he did not have legal status in the
    United States, and (4) he was subject to removal or deportation upon completion of
    his sentence. Sanchez-Rivas filed a motion for reconsideration. Following a hearing,
    the magistrate judge reaffirmed the detention order.
    Sanchez-Rivas appealed to the district court. The evidence and arguments at
    the hearing established that Sanchez-Rivas first came to the attention of immigration
    officials in March 2018, when was arrested and briefly detained for public
    intoxication. Although the charge was dismissed, he was taken into immigration
    custody and placed in removal proceedings.
    At a March 29, 2018 hearing, the immigration judge (IJ) granted
    Sanchez-Rivas’s request to continue the hearing so counsel could determine whether
    there were any grounds on which to seek relief from removal. In granting the
    2
    continuance, the IJ directed counsel to “file all applications for relief on or before ten
    (10:00) o’clock on the 3rd of May, 2018 . . . or I’ll deem they have been abandoned.”
    Aplee. Supp. App. at 27.
    On May 3, 2018, Sanchez-Rivas and his counsel appeared for the immigration
    hearing. Counsel made an oral motion to withdraw in favor of a different lawyer who
    was allegedly on her way to the hearing from out of town. The IJ denied the motion
    because he had “not received any motion to withdraw from [existing counsel] or I’ve
    not received any motion to substitute . . . for other counsel.” 
    Id. at 24
    . When counsel
    admitted that he would “not be filing any relief,” 
    id. at 25
    , the IJ found any grounds
    for relief had been abandoned and ordered Sanchez-Rivas removed to Mexico. The
    IJ informed Sanchez-Rivas that the deadline for an appeal was June 4, 2018. No
    appeal was filed, and Sanchez-Rivas was deported to Mexico.
    In support of pretrial release, Sanchez-Rivas relied primarily on his good
    character and strong ties to the United States, as well as an alleged defense to the
    illegal reentry charge under § 1326(d). In particular, Sanchez-Rivas, who is 26 years
    old, explained that he was brought to the United States by his parents when he was an
    infant. He had never been back to Mexico until June 2018, when he was deported.
    Although he has a sister who lives in Mexico, he knows her only through
    photographs. The family has lived in the same mobile home park in North Carolina
    for 22 years, in a mobile home currently owned by Sanchez-Rivas.
    Sanchez-Rivas also noted that he obtained his General Educational
    Development Diploma in 2013, applied for and received status pursuant to the
    3
    Deferred Action for Childhood Arrivals program (DACA), and secured a work permit
    in September 2014. Most recently, Sanchez-Rivas, who plans to marry a United
    States citizen, worked as a certified income tax preparer. He also noted that pretrial
    services, although it recommended that he be detained, determined that
    Sanchez-Rivas had a cousin who would be a suitable third-party custodian if
    released.
    With regard to the illegal reentry charge, Sanchez-Rivas argued that he “may
    be able to challenge his prior removal based on procedural and substantive grounds.
    A [§]1326(d) motion may be in his future. However, we are still waiting on his
    immigration records.” Aplt. App. at 96. Specifically, Sanchez-Rivas argued that his
    DACA status was grounds for relief from removal, and he was denied procedural due
    process when the IJ proceeded at the May 2018 hearing without waiting to hear
    argument from the lawyer who planned to enter her appearance when she arrived.
    The district court found that Sanchez-Rivas should be detained because he was
    a flight risk and no condition or combination of conditions could assure his
    appearance.
    II.
    Under the Bail Reform Act, the government may move for pre-trial detention
    “in a case that involves . . . a serious risk that such person will flee.”
    § 3142(f)(2)(A). If the court determines there is such a risk, the government must
    then prove that there is no “condition or combination of conditions” that “will
    reasonably assure the [defendant’s] appearance . . . as required [as well as] the safety
    4
    of any other person and the community.” Id. § 3142(f). In making this
    determination, the district court is directed to consider various factors, including “the
    nature and circumstances of the offense charged,” “the weight of the evidence against
    the person,” “the history and characteristics of the person,” and “the nature and
    seriousness of the danger to any person or the community that would be posed by the
    person’s release.” § 3142(g).
    The government did not contend that Sanchez-Rivas represented a danger to
    the community; instead, it relied solely on the risk of flight. The government bears
    the burden of proving a defendant is a flight risk by a preponderance of the evidence.
    United States v. Cisneros, 
    328 F.3d 610
    , 616 (10th Cir. 2003). “We 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. at 613
    . “A [factual] finding is
    clearly erroneous when, although there is evidence to support it, the reviewing court,
    on review of the entire record, is left with the definite and firm conviction that a
    mistake has been committed.” United States v. Gilgert, 
    314 F.3d 506
    , 515 (10th Cir.
    2002) (brackets and internal quotation marks omitted). “On clear error review, our
    role is not to re-weigh the evidence; rather, our review . . . is significantly
    deferential.” 
    Id. at 515-16
     (internal quotation marks omitted).
    III.
    According to Sanchez-Rivas, the district court gave no weight to the evidence
    that favored pretrial release. Specifically, he argues that (1) his strong ties to the
    5
    United States and desire to be with his family and fiancé make him less likely to flee,
    and (2) he has a viable defense to the illegal reentry charge under § 1326(d). As an
    overarching premise, Sanchez-Rivas contends that the court failed to make an
    individualized determination that he was a flight risk; rather, it based its decision on
    the presumption that every defendant who is a deportable alien, regardless of the facts
    and circumstances, should be detained. These arguments lack merit.
    We agree that Sanchez-Rivas cannot be detained solely because he is a
    removable alien. See United States v. Ailon-Ailon, 
    875 F.3d 1334
    , 1338 (10th Cir.
    2017) (“[A]lthough Congress established a rebuttable presumption that certain
    defendants should be detained, it did not include removable aliens on that list.”).
    Indeed, the district court acknowledged that Sanchez-Rivas could not be detained
    solely because he was deportable. See Aplt. App. at 109. We agree, however, with
    the government that the court did not apply a categorical presumption; instead, it
    made an individualized determination that Sanchez-Rivas was a flight risk.
    First, the district court considered Sanchez-Rivas’s history and characteristics:
    “I’m certainly sympathetic to Mr. Sanchez’[s] history and characteristics. And I give
    some credence in my decision to the fact that there have been some encounters with
    law enforcement and—but not much.” 
    Id. at 109
    .
    Second, the district court considered the weight of the evidence against
    Sanchez-Rivas:
    Basically, what will make my determination is—is the strength of
    the evidence. And you would ask me to discount the weight of the
    evidence or to weigh it less heavily because there may be a defense to the
    6
    prior removal order. That can be handled through motions practice. . . .
    [B]ut at this point, I’m not making a determination about guilt or
    innocence, I’m making a determination on the strength of the evidence.
    And I’ve read the Criminal Complaint, I’ve heard what the Government
    had to say about the facts of his apprehension, and—so the strength of the
    evidence will play significantly in my decision.
    
    Id. at 109-10
    .
    According to Sanchez-Rivas, however, the district court ignored his defense to the
    illegal reentry charge in considering the strength of the evidence. Although the court did
    not specifically mention § 1326(d), it was clearly aware of the argument because it noted
    that Sanchez-Rivas could raise the defense in a motion. More to the point, to establish a
    defense under § 1326(d), Sanchez-Rivas must demonstrate that he has “exhausted any
    administrative remedies that may have been available,” “the deportation proceedings at
    which the order was issued improperly deprived [him] of the opportunity for judicial
    review,” and “the entry of the order was fundamentally unfair.” Id.
    At the time of the district-court hearing, the immigration records were not
    available. But since the hearing, the government has produced the transcript of the
    May 3, 2018 proceedings, which establishes that Sanchez-Rivas was notified of his right
    to appeal. His failure to exhaust his administrative remedies, i.e., appeal, alone makes a
    successful defense under § 1362(d) unlikely.
    Last, the district court evaluated the nature and circumstances of the offense:
    [Y]ou may be absolutely right, he may, if he were released, choose to
    return and face the consequences, but when he knows that if he isn’t
    successful in his defense of this case that he’s going to Mexico, a place
    where he has recently been and the thought of staying there is abhorrent
    to him, I’m afraid that he does have significant incentive to flee
    elsewhere within the United States. And you say, ‘Well, why would he
    7
    do that? He’s got—he’d have to live, you know, in fear. He wouldn’t
    be able to be with his family.’ Well, those same things apply if he ends
    up in Mexico.
    Id. at 110.
    For his final argument, Sanchez-Rivas contends that the district court failed to
    discuss whether any conditions of release could be fashioned to satisfy its concerns
    about flight. As authority, he relies on United States v. Mobley, 720 F. App’x 441
    (10th Cir. 2017). But Mobley is easily distinguished. In Mobley, this court remanded
    for additional findings of fact and an explanation of the reasoning behind the district
    court’s pretrial detention order because the court’s analysis of the § 3142(g) factors
    was so lacking as to preclude meaningful appellate review.
    We acknowledge that Sanchez-Rivas suggested conditions of release that
    included electronic monitoring and/or a secured bond. The government, on the other
    hand, argued that no conditions short of detention were adequate. Ultimately, the
    district court agreed with the government:
    The Court, having heard the parties’ arguments and having reviewed the
    criminal complaint, pre-trial services report, Defendant’s Brief and attached
    Exhibits, and the United States’ response, and being otherwise fully advised
    . . . [f]or the reasons stated on the record, the Court hereby FINDS by a
    preponderance of the evidence that the Defendant is a flight risk[,] [and]
    FINDS that there are no conditions or combination of conditions which
    will reasonably assure the appearance of the Defendant as required.
    Aplt. App. at 90.
    Under the highly deferential standard of review we must afford the court’s
    factual findings, our review of the entire record does not leave us “with the definite
    8
    and firm conviction that a mistake has been committed.” Gilgert, 
    314 F.3d at 515
    (internal quotation marks omitted).
    We affirm the court’s order detaining Sanchez-Rivas pending trial. We grant
    Sanchez-Rivas’s motion to file a reply brief.
    Entered for the Court
    Per Curiam
    9
    

Document Info

Docket Number: 18-2138

Filed Date: 10/17/2018

Precedential Status: Non-Precedential

Modified Date: 4/17/2021