United States v. Dahda (Los) ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 10, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-3097
(D.C. No. 2:12-CR-20083-DDC-1)
LOS ROVELL DAHDA, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before LUCERO, MATHESON, and McHUGH, Circuit Judges.
_________________________________
Proceeding pro se, Los Rovell Dahda appeals the district court’s denial of
release on bail pending his appeal of the sentence imposed on resentencing for
convictions stemming from his participation in a marijuana distribution network. 1
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), we affirm.
Background
As pertinent here, Dahda’s convictions included one count of conspiring to
manufacture, distribute, and possess with intent to distribute 1,000 kilograms or more
*
This order and judgment is not binding precedent, except under the doctrines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.
1
Because Dahda is representing himself, we construe his pleadings liberally.
See Haines v. Kerner, 404 U.S. 519, 520 (1972).
of marijuana, and to maintain a drug-involved premises, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(vii), 846, and 856, and 18 U.S.C. § 2 (the conspiracy
conviction), and one count of maintaining a drug-involved premises, in violation of
§ 856 (the substantive drug-involved premises conviction). The district court
initially sentenced him to 189, 60, and 40 months’ imprisonment and imposed a fine
of almost $17 million. On direct appeal, Dahda challenged his convictions, the fine,
and the 189-month sentence on the conspiracy conviction. We affirmed the
convictions and the challenged sentence, but we reversed the fine and remanded for
reconsideration of the amount because the amount of the fine exceeded the statutory
maximum. United States v. Dahda, 853 F.3d 1101, 1118 (10th Cir. 2017), aff’d,
138 S. Ct. 1491 (2018) (Dahda I). Dahda’s brother, Roosevelt Dahda, was a
codefendant and in a separate opinion, we affirmed Roosevelt Dahda’s convictions
but remanded for a reassessment of the quantity of marijuana attributable to him and
for resentencing. See United States v. Dahda, 852 F.3d 1282, 1287, 1295, 1298
(10th Cir. 2017), aff’d, 138 S. Ct. 1491 (2018).
On remand, Dahda argued that, in addition to recalculating his fine, the district
court should recalculate the drug quantity attributable to him in light of this court’s
ruling in his brother’s appeal. More specifically, relying on Alleyne v. United States,
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570 U.S. 99 (2013), 2 and United States v. Ellis, 868 F.3d 1155 (10th Cir. 2017), 3
which was decided shortly after we issued Dahda I, he argued that because the jury
did not make a specific finding on attributable drug quantity on the conspiracy
charge, the court should resentence him on that conviction based on the five-year
statutory maximum applicable to a drug offense involving less than 50 grams of
marijuana, see 21 U.S.C. § 841(b)(1)(D). He also filed a motion for immediate
release from custody under § 3145(c) pending resentencing. Like the motion to
expand the scope of the remand, Dahda’s motion for immediate release relied on
Ellis—he maintained that he should be released because, under Ellis, the maximum
prison sentence the court could impose for the conspiracy count at resentencing was
five years and he had already served almost seven years.
The district court denied the motion for release, concluding that even under the
reasoning in Ellis, a five-year statutory maximum sentence was inapplicable to the
conspiracy conviction because the jury found Dahda guilty of conspiracy to maintain
a drug-involved premises, which, like the substantive drug-involved premises
conviction, carries a statutory maximum penalty of twenty years’ imprisonment
2
In Alleyne, the court held that “any fact that increases the mandatory
minimum [sentence] is an ‘element’ that must be submitted to the jury” “and found
beyond a reasonable doubt.” 570 U.S. at 103.
3
In Ellis, the defendant was convicted on drug conspiracy charges under
§§ 841(a)(1), (b)(1)(A), 846, and 851, and the district court imposed a mandatory-
minimum life sentence. 868 F.3d at 1160. Based on Alleyne, we held that the
sentence violated Ellis’s Sixth Amendment rights because the conspiracy-cocaine
amounts were an element of the offense for sentencing purposes and the jury had not
made a finding of the amounts individually attributable to him. Ellis, 868 F.3d at
1169-70.
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regardless of drug quantity, see id. § 856(b). We affirmed the denial of the motion
for release on the alternative basis that the “patently deficient motion” failed to show
that he met the conditions for release in 18 U.S.C. § 3143(a)(1). United States v.
Dahda, No. 19-3099, Order and Judgment at 5 (10th Cir. July. 3, 2019) (Dahda II).
In particular, we noted that Dahda’s motion “offered no evidence supporting [] a
finding” that he was not likely to flee or pose a danger to the community if released,
and that on appeal, he relied only on the evidence presented at his initial detention
hearing despite the fact that the district court had found based on that evidence that
he posed a serious flight risk and that no conditions would reasonably assure the
safety of the community. Id.
On resentencing, the district court sentenced Dahda to 135 months’
imprisonment for the conspiracy and drug-involved premises convictions, and
imposed lesser terms on the remaining counts, all to run concurrently. The court
rejected Dahda’s argument that his sentence on the conspiracy count was capped at
five years under § 841(b)(1)(D). His appeal of that sentence is pending.
After resentencing, Dahda filed a motion in the district court for release
pending appeal. The court denied the motion for reasons discussed more fully below,
and Dahda now seeks review of that order.
Discussion
1. Legal Standards
We review the district court’s ultimate detention decision de novo because it
presents mixed questions of law and fact, but we review the underlying findings of
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fact for clear error. United States v. Cisneros, 328 F.3d 610, 613 (10th Cir. 2003).
“A 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).
Because Dahda was convicted of a drug-related offense that carries a
maximum term of imprisonment of ten years or more, he needed to satisfy the
requirements of both 18 U.S.C. § 3143(b)(1) and § 3145(c) to obtain his release
pending appeal. See id. § 3143(b)(2) (detention mandatory for person convicted of
offense in § 3142(f), which includes drug offenses with a maximum term of
imprisonment of ten years or more); § 3145(c) (person otherwise subject to
mandatory detention under § 3143(b)(2) may be ordered released for exceptional
reasons). First, he was required to demonstrate by clear and convincing evidence that
he is “not likely to flee or pose a danger to the safety of any other person or the
community if released,” Id. § 3143(b)(1)(A). He was also required to demonstrate
(1) that “the appeal is not for the purpose of delay and raises a substantial question of
law or fact likely to result in . . . a reduced sentence to a term of imprisonment less
than the total of the time already served plus the expected duration of the appeal
process,” id. § 3143(b)(1)(B)(iv); 4 and (2) that “there are exceptional reasons why
4
Dahda seeks immediate release pending his appeal. We note, however, that
the only relief he can obtain under § 3143(b)(1)(B)(iv) is an order terminating his
detention “at the expiration of the likely reduced sentence.”
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[his] detention would not be appropriate,” id. § 3145(c). But when a defendant fails
to meet any one of the requirements of § 3143(b)(1), the inquiry ends and the court
need not address whether § 3145(c) showing has been made.
2. District Court Motion and Order
In support of his motion for release in the district court, Dahda presented
evidence that he would not be a flight risk and, based primarily on his good behavior
while in custody and his disagreement with the factual findings that underpinned the
district court’s initial detention order, he maintained that he would not pose a danger
to the community if released. He further maintained that his appeal presents a
substantial question of law (the Alleyne/Ellis argument) that is likely to result in a
shorter sentence than the amount of time he has already served. And he maintained
that exceptional reasons justify his release pending appeal, including that he risks
overserving his sentence; his appellate counsel was ineffective; he needs to be tested
to determine whether he is a possible match to his sister, who needs a kidney
transplant; and he suffers from an auto-immune disease that increases the risks of
severe illness if he contracts the COVID-19 virus.
The district court rejected Dahda’s arguments and denied his motion. With
respect to the § 3143(b)(1) requirements, the court found that although Dahda
successfully demonstrated that he is not a flight risk, he failed to show by clear and
convincing evidence that he would not pose a danger to the community. The court
explained that, while a “positive factor,” the fact that he “has served several years in
prison with no significant disciplinary incidents” did not “lessen the court’s concern
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that if released, he poses a serious risk to the safety of the community.” Aplee. Bail
Mem. Br., Attach. B at 6. The court found it significant that early in the charged
conspiracy, Dahda was on supervised release in another case in which he pleaded
guilty to providing false information to acquire a firearm and possession of an
unregistered sawed-off shotgun. Reiterating its finding in the initial detention order,
the court again held that Dahda “poses a serious risk of sophisticated, large-scale
drug trafficking based in part on [his] long-term history of assaultive behavior,
history relating to drug abuse, significant prior criminal record, committing the
charged conduct while on supervised release in this court[,] and an unverified release
plan.” Id. Although the district court could have denied Dahda’s motion based
solely on its dangerousness determination, see § 3145(c), the court also considered
and rejected his other arguments.
3. Arguments on Appeal
Dahda’s arguments on appeal focus primarily on the district court’s findings
that his appeal does not raise a substantial question and that he did not show
exceptional reasons why his detention is inappropriate. But we need not address
those arguments because we agree with the district court’s determination that he did
not meet his burden to show by clear and convincing evidence that he would not pose
a danger to the community if released.
Dahda challenges the district court’s dangerousness determination on two
grounds. First, he downplays the dangerousness of marijuana distribution, claiming
that “marijuana offenses raise fewer concerns than other offenses that carry similar
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penalties.” Aplt. Bail Memo. Br. at 2. Second, he contends that the district court
denied his motion for release based on what he characterizes as a “dated detention
order” that he contends was based on findings that were “clearly incorrect based on
the record of the case.” Id. at 1 (capitalization omitted). In other words, he disagrees
with the fact findings that underpinned the district court’s initial detention order.
For example, Dahda disputes that he presents a risk of “sophisticated, large-
scale drug trafficking,” id. at 2 (capitalization omitted), noting that “there is nothing
special about using a cell phone” to facilitate drug distribution, id., and that the jury
did not make a finding of drug quantity attributable to him. He also disputes the
district court’s finding that he had a history of assaultive behavior, explaining that he
committed an assault in self-defense when he was a young man and has not
committed any violent offenses since then. He quibbles with the court’s finding that
he had a history of drug abuse, claiming he only “smoked marijuana on two
occasions during his lifetime,” drank alcohol once every few months “but never to
the point of intoxication,” and “never failed or refused a urinalysis while in custody
or on supervision.” Id. at 3 (emphasis omitted). Next, while he offers to “defer to
the court on whether this prior criminal record is significant or not,” id., he points out
that the revised presentence report rated his recidivism risk as low. And finally, he
disagrees with the district court’s finding that he was involved in the conspiracy that
led to his convictions in this case while on supervised release for firearms offenses in
another case, ignoring the fact that, as the district court explained, although the
prosecution’s evidence at trial focused on events that occurred after his supervision
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in the other case had ended, the jury found him guilty of a conspiracy that began
eight months before he was released from prison and almost three years before his
supervision ended.
As was the case with his motion for release pending resentencing, see
Dahda II, he presented no new evidence in the district court, much less clear and
convincing evidence, that would support a finding that he was not likely to pose a
danger to the community if released, and his arguments on appeal consist primarily
of disputes about the district court’s factual findings in his initial detention order.
But his attacks on those findings do not establish that they are clearly erroneous.
Accepting the district court’s findings of historical fact and based on our de novo
review of the record, we agree with the district court’s determination that Dahda
presents a danger to the community, despite his view that, unlike other drug-related
crimes, marijuana offenses do not pose a threat to society. In any event, there is
ample evidence of his potential dangerousness apart from his involvement with
marijuana distribution, including his previous firearms convictions and other criminal
history.
We affirm the district court’s order denying Dahda’s motion for release
pending appeal.
Entered for the Court
Per Curiam
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