Opinion
3:20-cr-32-X (6)
07-08-2021
UNITED STATES OFAMERICA v. ALONSO PEREZ, JR., Defendant.
MEMORANDUM OPINION AND ORDER OF DETENTION
DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.
In an Order Accepting Report and Recommendation of the United States Magistrate Judge Concerning Plea of Guilty, dated June 10, 2021, United States District Judge Brantley Starr has referred this matter to the undersigned United States magistrate judge for a hearing to determine whether it has been clearly shown that there are exceptional circumstances under 18 U.S.C. § 3145(c) why Defendant Alonso Perez, Jr. should not be detained under 18 U.S.C. § 3143(a)(2) and whether it has been shown by clear and convincing evidence that Defendant Alonso Perez, Jr. is not likely to flee or pose a danger to any other person or the community if released under 18 U.S.C. § 3142(b) or (c). See Dkt. No. 533.
Background
Defendant is set for sentencing before Judge Starr on September 8, 2021. See Dkt. No. 534. ''[W]hether a defendant should be released pending trial and whether a defendant should be released pending sentencing or appeal are distinct inquiries governed by different provisions of the Bail Reform Act.'' United States v. Lee, 31 Fed.Appx. 151, No. 01-30876, 2001 WL 1747632, at *1 (5th Cir. Dec. 4, 2001).
''The provisions of 18 U.S.C. § 3143 govern release pending sentencing or appeal.'' Fed. R. Crim. P. 46(c). 18 U.S.C. § 3143(a)(2) dictates that the Court ''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.'' 18 U.S.C. § 3143(a)(2).
On February 5, 2020, the undersigned United States magistrate judge released Defendant subject to an Order Setting Conditions of Release. See Dkt. No. 81.
''The provisions of 18 U.S.C. § 3143 govern release pending sentencing or appeal.'' Fed. R. Crim. P. 46(c). 18 U.S.C. § 3143(a)(2) dictates that the Court ''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.'' 18 U.S.C. § 3143(a)(2).
Defendant, as ordered, filed a motion for continued pretrial release in which he identifies the exceptional circumstances under 18 U.S.C. § 3145(c) that he contends justify his continued release post-conviction and in which he addresses whether he is likely to flee or pose a danger to any other person or the community if released under 18 U.S.C. § 3142(b) or (c) pending sentencing. See Dkt. No. 569.
The Court held a hearing on July 8, 2021 on the matters referred by Judge Starr, at which Defendant appeared in person and through counsel and the government's counsel appeared and at which the case agent testified.
Legal Standards and Analysis
As a preliminary matter, Defendant is subject to mandatory detention under Section 3143(a)(2) because he has, on a guilty plea, now been adjudged guilty of a violation of 21 U.S.C. §§ 841 & 846. See Dkt. Nos. 470, 510, & 533. That is ''an offense in a case described in subparagraph (A) ... of subsection (f)(1) of section 3142, '' specifically, ''an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.).''
Defendant therefore must be detained pursuant to 18 U.S.C. § 3143(a)(2) unless he meets the conditions of release set forth in Section 3143(a)(2) or 18 U.S.C. § 3145(c). Release of ''a person who has been found guilty of an offense in a case described in [18 U.S.C. § 3142(f)(1)(A)] and is awaiting imposition or execution of sentence'' requires that ''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.'' 18 U.S.C. § 3143(a)(2)(B); see also United States v. Morrison, 833 F.3d 491, 506 (5th Cir. 2016) (''The decision to detain Jacqueline after conviction is a common one because of the presumption in favor of detention that attaches to a convicted defendant. See 18 U.S.C. § 3143.''); United States v. Lopez, 504 Fed.Appx. 297, 298 (5th Cir. 2012) (''A defendant who has been convicted 'shall ... be detained' pending sentencing '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.' Thus, there is a presumption against release pending sentencing.'' (footnotes omitted)). As the United States Court of Appeals for the Fifth Circuit has repeatedly recognized, Federal Rule of Criminal Procedure 46(c) and Section 3143(a)(1) impose a burden on a convicted defendant seeking release pending sentencing to show by clear and convincing evidence that she or he is not a flight risk or a danger to the community. See 18 U.S.C. § 3143(a)(1); Fed. R. Crim. P. 46(c) (''The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant.''); United States v. Lockett, 549 Fed.Appx. 269 (mem.), No. 13-11097, 2013 WL 6623771, at *1 (5th Cir. Dec. 17, 2013).
Further, Defendant must meet the conditions of release set forth in Section 3143(a)(2)(A) or 3145(c). Defendant cannot, and does not claim that he can, satisfy the Section 3143(a)(2)(A) showing that there is a substantial likelihood that a motion for acquittal or new trial will be granted or that an attorney for the government has recommended that no sentence of imprisonment be imposed on Defendant.
18 U.S.C. § 3145(c) provides that ''[a] person subject to detention pursuant to [18 U.S.C. §] 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in [18 U.S.C. §] 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.'' As reflected in the Report and Recommendation Concerning Plea of Guilty [Dkt. No. 93], Section 3145(c) provides an alternative basis for pre-sentencing release under ''exceptional circumstances, '' so long as Defendant also makes the required showing under Section 3143(a)(1) and 3143(a)(2)(B) - that is, by clear and convincing evidence that Defendant is not likely to flee or pose a danger to the safety of any other person or the community if released under 18 U.S.C. § 3142(b) or 3142(c) pending sentencing. See United States v. Carr, 947 F.2d 1239, 1240 (5th Cir. 1991).
The government opposes release and asserts that Defendant has not clearly shown that there are exceptional circumstances under 18 U.S.C. § 3145(c) why he should not be detained under 18 U.S.C. § 3143(a)(2) and that he is likely to flee and pose a danger to any other person or the community if released pending sentencing.
The Court finds that Defendant has made the required showing that he is not likely to flee or pose a danger to the safety of any other person or the community if continued on release. As Defendant explains in his Motion for Continued Pre-Trial Release, he “is in compliance with all the pre-trial conditions and requests the court to allow his continued release until sentencing” and “has traveled to operate his business while on pre-trial release and will not flee or pose any danger to the community if continued on pre-trial release.” Dkt. No. 569 at 1. The government presented testimony of essentially the same pre-arrest facts on which it relied in February 2020 at the detention hearing. The Court found that there were conditions that would reasonably assure Defendant's appearance as required and the safety of the community, and Defendant has for 17 months complied with those conditions. And the case agent testified that he has no knowledge of any post-arrest criminal activity by Defendant.
The issue of Defendant's presentencing release therefore turns on whether ''it is clearly shown that there are exceptional reasons why [Defendant's] detention [pending sentencing] would not be appropriate.'' 18 U.S.C. § 3145(c). In support of that showing, Defendant explains that he “is the principal in a sign fabrication installation company and is attempting to save to provide for his wife and four minor children while he is incarcerated. Additionally, he has two employees.” Dkt. No. 569 at 1.
The United States Court of Appeals for the Fifth Circuit has explained that the ''exceptional reasons'' provision ''was added to' 3145(c) with the mandatory detention provisions of' 3143(a)(2) and (b)(2) and was apparently designed to provide an avenue for exceptional discretionary relief from those provisions.'' Carr, 947 F.2d at 1240. The United States Court of Appeals for the Second Circuit offers a working definition of ''exceptional reasons'': ''a unique combination of circumstances giving rise to situations that are out of the ordinary.'' United States v. DiSomma, 951 F.2d 494, 497 (2d Cir. 1991). That court also explained that, in assessing reasons proffered as the basis for release under Section 3145(c), ''a case by case evaluation is essential.'' Id. The United States Court of Appeals for the Eighth Circuit has similarly explained that '''exceptional' means 'clearly out of the ordinary, uncommon, or rare.''' United States v. Little, 485 F.3d 1210, 1211 (8th Cir. 2007) (citation omitted). One court has explained that, ''to avoid emasculating the mandatory detention statute[, ] 'exceptional reasons review is limited to determining whether remanding the defendant to custody until sentencing would be tantamount to subjecting individuals to unjust detention.''' United States v. Thomas, No. 10-cr-229, 2010 WL 3323805, at *2 (D.N.J. Aug. 20, 2010) (quoting United States v. Christman, 712 F.Supp.2d 651, 655 (E.D. Ky. 2010)).
District courts in this circuit have noted a variety of circumstances that do not rise to the level of exceptional. See United States v. Cyrus, No. 10-0228-04, 2010 WL 5437247, at *1-*2 (W.D. La. Dec. 27, 2010) (need to ''secure his home and attend to other personal matters'' were not exceptional reasons justifying release pending sentencing); United States v. Douglas, 824 F.Supp. 98, 99-100 (N.D. Tex. 1993) (defendant's cooperation with the government that subjected him to potential retaliation by co-defendants and his attempts at rehabilitation did not constitute exceptional reasons); United States v. Dempsey, No. 91-098, 1991 WL 255382, at *1-*2 (E.D. La. Nov. 19, 1991) (poor health, emotional and mental problems, and need to properly prepare his business and his family for his long absence were not exceptional circumstances); United States v. Scott, No. 1:95-CR-80-1, 1995 WL 723752, at *1-*2 (E.D. Tex. Nov. 22, 1995) (need to assist parent was a purely personal reason that was no more exceptional than those routinely rejected by courts); see also United States v. Landry, No. CR 15-32-JWD-SCR, 2015 WL 5202458, at *2-*4 (M.D. La. Sept. 4, 2015); United States v. Posada, 109 F.Supp.3d 911, 912-16 (W.D. Tex. 2015).
The facts that Defendant urges as exceptional circumstances, including his compliance with his conditions of pretrial release, are certainly commendable. But the Court determines - as have many other courts when presented with similar arguments for presentencing release - that Defendant's proffered reasons for continuing his release do not individually give rise to a situation that is out of the ordinary. And, while the Court understands Defendant's desire to earn additional money to care for his family, the Court determines that all of the circumstances that Defendant asserts are not, taken together, a unique combination of circumstances giving rise to a situation that is out of the ordinary and do not amount to a situation in which Defendant's detention pending his sentencing hearing in two months would be inappropriate.
Conclusion
Accordingly, the Court finds that it has not been clearly shown that there are exceptional circumstances under 18 U.S.C. § 3145(c) why Defendant Alonso Perez, Jr. should not be detained under 18 U.S.C. § 3143(a)(2), and so Defendant Alonso Perez, Jr. will be detained pending sentencing.
It is therefore ORDERED that Defendant Alonso Perez, Jr. be committed to the custody of the Attorney General and United States Marshal for further proceedings.
It is ORDERED that Defendant Alonso Perez, Jr., while being so held, be afforded reasonable opportunity for private consultation with counsel.
SO ORDERED.