Free Order of Detention - District Court of Colorado - Colorado

Case 1:04-cr-00432-WYD

Document 92

Filed 05/29/2008

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Kathleen M. Tafoya Criminal Action No. 04-cr-00432-WYD

UNITED STATES OF AMERICA, Plaintiff, v. CINDY ATENCIO, Defendant, ______________________________________________________________________________ ORDER OF DETENTION ______________________________________________________________________________ THIS MATTER came before me for a detention hearing subsequent to the defendant's arrest for an alleged violation of supervised release. During a hearing on May 29, 2008, the defendant waived her right to a preliminary hearing under Rule 32.1 of the Federal Rules of Criminal Procedure, and did not present any information relating to the issue of detention. The defendant, through counsel, also advised the court that she was not contesting the government's request for detention. Based upon the facts alleged in the Petition and in light of the defendant's waiver, the court finds that probable cause exists to believe that the defendant violated one or more conditions of her release. Rule 32.1(6), Fed. R. Crim. P., governs the issue of detention where a person has been arrested for violating probation or supervised release. The Rule provides that the person must be taken without unnecessary delay before a magistrate judge who, among other things, must make a determination of detention as follows: The magistrate judge may release or detain the person under 18

Case 1:04-cr-00432-WYD

Document 92

Filed 05/29/2008

Page 2 of 4

U.S.C. § 3143(a) pending further proceedings. The burden of establishing that the person will not flee or pose a danger to any other person or to the community rests with the person. Fed. R. Crim. P. 32.1(6) (emphasis added). Section 3143(a), 18 U.S.C., provides: (1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of a sentence, other than a person for whom the applicable guideline promulgated pursuant to 28 U.S.C. § 994 does not recommend a term of imprisonment, be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c). If the judicial officer makes such a finding, such judicial officer shall order the release of the person in accordance with section 3142(b) or (c). (2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless­ (A)(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or (ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and (B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community. (Emphasis added.) In making my findings of fact, I have taken judicial notice of the information contained in the court file, including the 2004 bail report and the Presentence Investigation Report, the Amended Petition containing the alleged violations of defendants' supervised release and the

Case 1:04-cr-00432-WYD

Document 92

Filed 05/29/2008

Page 3 of 4

oral recommendation of the Probation Department. Weighing the factors applicable under Rule 32.1(6), I find the following: There is probable cause to believe that the defendant committed the violations charged in the Petition and Amended Petition on Supervised Release. The defendant has failed to establish by clear and convincing evidence that she will not flee and that she will not pose a danger to any other person or to the community. Specifically, the evidence establishes that on several occasions the defendant tested positive for the presence of cocaine after submitting to mandatory urinalysis. Also, on or about February 15, 2007, while on home detention, the defendant absconded from such detention and remained absent until her arrest in this matter in May, 2008. After considering all appropriate factors, I conclude that the defendant has failed to establish by clear and convincing evidence that she will not flee the jurisdiction. IT IS 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 a reasonable opportunity to consult confidentially with defense counsel; and

Case 1:04-cr-00432-WYD

Document 92

Filed 05/29/2008

Page 4 of 4

IT IS FURTHER ORDERED that upon order of this Court or on request of an attorney for the United States, 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. Dated May 29, 2008. BY THE COURT: s/ Kathleen M. Tafoya KATHLEEN M. TAFOYA United States Magistrate Judge