Free Order of Detention - District Court of Colorado - Colorado

Case 1:01-cr-00433-WYD

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Filed 01/10/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case Nos. 01-cr-00159-WYD & 01-cr-00433-WYD UNITED STATES OF AMERICA, Plaintiff, v. CRUZ AGUIRRE-CORDERO, Defendant.

ORDER OF DETENTION

These matters were before the Court for a continued detention hearing on January 10, 2007. Assistant United States Attorney Joseph Mackey represented the government, and Martha Eskeson represented the defendant. The defendant did not contest detention. The Court has concluded, by a preponderance of the evidence, that no condition or combination of conditions of release will reasonably assure the appearance of the defendant, and has found by clear and convincing evidence that no condition or combination of conditions for release will reasonably assure the safety of the community, based on the attached findings. IT IS HEREBY ORDERED that the defendant is committed to the custody of the Attorney General or his designated representative for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal; and IT IS FURTHER ORDERED that the defendant is to be afforded reasonable opportunity to consult confidentially with defense counsel; and IT IS FURTHER ORDERED that upon order of this Court or on request of an attorney for the United States of America, the person in charge of the corrections facility shall deliver defendant to the United States Marshal for the purpose of an appearance in connection with this proceeding.

Case 1:01-cr-00433-WYD

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DATED and ENTERED this 10th day of January, 2007. By the Court: S/Michael E. Hegarty Michael E. Hegarty United States Magistrate Judge

Case 1:01-cr-00433-WYD

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United States v. Cruz Aguirre-Cordero Case Nos. 01-cr-00159-WYD & 01-cr-00433-WYD FINDINGS OF FACT, CONCLUSIONS OF LAW, and REASONS FOR ORDER OF DETENTION In order to sustain a motion for detention, the government must establish that (a) there is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably insure the defendant' presence for court proceedings; or (b) there s is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably insure the safety of any other person or the community. If there is probable cause to believe that the defendant committed an offense which carries a maximum term of imprisonment of over 10 years and is an offense prescribed by the Controlled Substances Act, or if the defendant is charged with a crime of violence, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community. The Bail Reform Act, 18 U.S.C. § 3142(g), directs the court to consider the following factors in determining whether there are conditions of release that will reasonably assure the appearance of the defendant as required and the safety of any other person and the community: (1) [t]he nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; the weight of the evidence against the person; the history and characteristics of the person, including ­ (A) the person' character, physical and mental condition, family ties, s employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and whether at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State or local law; and

(2) (3)

(B)

(4)

the nature and seriousness of the danger to any person or the community that would be posed by the person' release. s

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Case 1:01-cr-00433-WYD

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Filed 01/10/2007

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In addition, these matters involve allegations of supervised release violations, under which the Court applies the customary standards in order to determine whether detention is appropriate pending the defendant' appearance before a United States District Judge. s The Court has taken judicial notice of the Court' file and the pretrial services report in s Case No. 06-cr-00462-WYD. Weighing the statutory factors set forth in the Bail Reform Act, I find the following: First, the Petitions for Supervised Release Violation allege that defendant illegally reentered the country after a removal, a Grade C violation of supervised release. Second, I note that in light of the waiver of preliminary hearing in this case, probable cause exists to sustain the charges identified in the Petitions for Supervised Release Violation which have been issued against defendant. Third, I find from the pretrial services report that, by a preponderance of the evidence, defendant presents a risk of flight because (1) Defendant appears to be a citizen of the Republic of Mexico; (2) Defendant has close familial ties to Mexico; (3) Defendant was previously arrested and/or convicted for Driving Without a Valid License, Driving Under Restraint, and Unlawful Reentry of a Deported Alien, Subsequent to an Aggravated Felony Conviction; (4) Defendant' s supervised release has previously been revoked; (5) Defendant is on supervised release with the United States District Court, District of Colorado; and (6) ICE has lodged a detainer against the defendant. Fourth, I find from the pretrial services report that, by clear and convincing evidence, the defendant presents a risk of danger to the community because Defendant was previously arrested and/or convicted for Driving While Ability Impaired, Harassment, Possession with Intent to Distribute Less Than 50 Kilograms of Marijuana, and Possession of a Schedule II Controlled Substance. As a result, after considering all of these factors, I conclude there is a preponderance of the evidence that no condition or combination of conditions for release will reasonably assure the defendant' appearance for court proceedings. I further conclude that defendant is a danger to s the public as established by clear and convincing evidence, and that there are no conditions under which I could release him and ensure the safety of the community.

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