Free Order of Detention - District Court of Colorado - Colorado

Case 1:01-cr-00357-LTB

Document 137

Filed 08/14/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-cr-00357-LTB 06-cr-00036-LTB UNITED STATES OF AMERICA, Plaintiff, v. MARTIN HERRERA, Defendant.

ORDER OF DETENTION

This matter was before the Court for arraignment, discovery, and detention hearing on August 14, 2007. Assistant United States Attorney Roxane Perruso represented the government, and Edward Pluss 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-00357-LTB

Document 137

Filed 08/14/2007

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DATED and ENTERED this 14th day of August, 2007. By the Court: S/Michael E. Hegarty Michael E. Hegarty United States Magistrate Judge

Case 1:01-cr-00357-LTB

Document 137

Filed 08/14/2007

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United States v. Martin Herrera Case No. 01-cr-00357-LTB 06-cr-00036-LTB 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's presence for court proceedings; or (b) there 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's character, physical and mental condition, family ties, 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's release. 1

Case 1:01-cr-00357-LTB

Document 137

Filed 08/14/2007

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The Court has taken judicial notice of the Court's file and the Pretrial Services Report. Weighing the statutory factors set forth in the Bail Reform Act, I find the following: First, the Indictment which has issued in this case charges Defendant with a violation of 8 U.S.C. § 1326, unlawful reentry of an alien after removal for an aggravated felony; and several violations of 18 U.S.C. § 922(g)(5), possession of a firearm by an illegal alien. The rebuttable presumption of detention does not appear to apply here. Second, I note that in light of the Indictment in this case, probable cause exists to sustain the charges identified in the Indictment which has been issued against Defendant. Third, I find by a preponderance of the evidence that Defendant presents a risk of nonappearance for future Court proceedings due to an ICE detainer that has been lodged; the citizenship of Defendant; his history of eight failures to appear; and Defendant's history of failing to comply with Court orders. Fourth, I find by clear and convincing evidence that Defendant presents a risk to the community due to his serious prior criminal history, including felony menacing, a drug offense, and assault. 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's appearance for court proceedings. I further conclude that Defendant is a danger to 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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