United States v. Zavala

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 18, 2009
No. 08-20809
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE LUIS ZAVALA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-326-6
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Luis Zavala appeals the district court’s order denying his motion to
revoke his pretrial detention order. Zavala has been in custody since his 2004
arrest. In 2008, we reversed Zavala’s jury convictions of two counts of conspiracy
to possess with intent to distribute and two counts of possession with intent to
distribute five or more kilograms of cocaine. Zavala contends that he is not a
flight risk and that his continued detention violates his rights under the Eighth
Amendment, the Speedy Trial Act, the Bail Reform Act, and the Due Process
Clause.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20809
The district court determined that Zavala did not rebut the 18 U.S.C.
§ 3142 presumption that no condition or combination of conditions would
reasonably ensure Zavala’s appearance or the safety of the community if Zavala
were released. 18 U.S.C. § 3142 (e) & (f). Absent an error of law, we will uphold
a district court’s pretrial detention order if it is supported by the proceedings
below. United States v. Rueben, 974 F.2d 580, 585 (5th Cir. 1992); United States
v. Hare, 873 F.2d 796, 798 (5th Cir. 1989).
Zavala has not shown that he rebutted the presumption that he is a flight
risk and that his release would present a danger to the community. See § 3142.
Zavala did not raise his constitutional arguments in the district court. Further,
he has abandoned any argument related to the Speedy Trial Act by failing to
brief it adequately. See United States v. Stevens, 487 F.3d 232, 242 n.1 (5th Cir),
cert. denied, 128 S. Ct. 336 (2007). His Eighth Amendment argument is
foreclosed. See Hare, 873 F.2d at 800. The lack of consideration of Zavala’s due
process claim will not result in a manifest miscarriage of justice as Zavala had
ample opportunity to present the argument to the district court. See United
States v. Barrett, 837 F.2d 1341, 1344 n.2 (5th Cir. 1988) (declining to consider
due process argument raised for the first time).
The district court’s decision is supported by the proceedings below. See
Rueben, 974 F.2d at 586. The pretrial detention order is AFFIRMED.
2