Opinion
No. 5:21-CR-020-DCR-MAS-1
2021-03-23
UNITED STATES of America, Plaintiff, v. Jose RAMIREZ-VACA, Defendant.
David C. Kiebler, AUSA, Assistant U.S. Attorney, U.S. Attorney's Office, Lexington, KY, for Plaintiff.
David C. Kiebler, AUSA, Assistant U.S. Attorney, U.S. Attorney's Office, Lexington, KY, for Plaintiff.
DETENTION ORDER
Matthew A. Stinnett, United States Magistrate Judge
The Indictment alleges that Defendant Jose Ramirez-Vaca ("Ramirez-Vaca"), having previously been removed from the United States, unlawfully reentered the country in violation of 8 U.S.C. §§ 1326(a) and (b)(1). [DE 1, Indictment]. The United States orally sought detention per 18 U.S.C. § 3142(f)(2)(A), arguing that there is a serious risk that Ramirez-Vaca will flee or fail to appear in this case if released pretrial. [DE 11]. The Court initially held a detention hearing in this matter on March 16, 2021. [DE 20]. However, the Government's proffer concerning the content, sequence, and effect of various immigration orders in Ramirez-Vaca's file required substantial clarification, and the Court continued the proceeding to permit presentation of the relevant documents, as well as testimony from Immigration and Customs Enforcement ("ICE") Agent Erin Huffines ("Agent Huffines"). [Id. ].
The Pretrial Services Report ("PSR") indicates that Defendant's true stated name is Ricardo Ramirez-Vaca. [PSR at 1; DE 11]. Regardless, Defendant did not contest his identity as the proper subject of this Indictment.
Though the body of the Indictment does not specifically allege a prior felony or cite to subsection (b)(1), the accompanying penalty page indicates an enhanced 10-year maximum, as provided for in (b)(1). [DE 1, at Page ID # 2]. Given the persisting (narrow) exception for prior felonies, the Indictment need not allege it as an offense element to potentially trigger the enhanced penalty upon sentencing for any conviction in this matter. See Almendarez-Torres v. United States , 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) ; United States v. Smith , 881 F.3d 954, 960 (6th Cir. 2018) (observing that "Almendarez–Torres is still good law and will remain so until the Supreme Court explicitly overrules it").
The Court resumed and completed the detention hearing on March 19, 2021. [DE 22]. The Court afforded both sides all procedural rights outlined in the Bail Reform Act ("BRA"). Per Federal Rule of Appellate Procedure 9(a) and for the reasons discussed in this opinion, the BRA requires Ramirez-Vaca's detention.
I. BRA FRAMEWORK
Evidence rules do not apply in the detention hearing context. 18 U.S.C. § 3142(f). The key is simply evidentiary reliability and accuracy. See, e.g., United States v. Webb , 149 F.3d 1185 (Table), No. 98-1291, 1998 WL 381686, at *1 (6th Cir. June 22, 1998). Given hearing informality, the Court properly considers a wide range of proof. The nature and quality of proof, though, impacts its probative value and weight in the detention calculus. The § 3142(g) factors ultimately drive the overarching analysis.
The subsection directs the Court to balance the following:
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) 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
(B) 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 (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. In considering the conditions of release described in subsection (c)(1)(B)(xi) or (c)(1)(B)(xii) of this section, the judicial officer may upon his own motion, or shall upon the motion of the Government, conduct an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of property that, because of its source, will not reasonably assure the appearance of the person as required.
18 U.S.C. § 3142(g).
Detention premised on nonappearance requires preponderant evidence of flight risk. See, e.g., United States v. Patriarca , 948 F.2d 789, 793 (1st Cir. 1991) ; United States v. Curry , No. 6:06-CR-82-DCR, 2006 WL 2037406, at *6 (E.D. Ky. Jul. 18, 2006). Danger-based detention demands clear and convincing evidence that no combination of conditions will reasonably ensure community safety. 18 U.S.C. § 3142(f). Here, the United States moved for detention solely on flight grounds, and the Court does not find detention appropriate based on danger. However, given the testimony and documentation establishing that Ramirez-Vaca will more likely than not be administratively removed from the country if he is released in this matter, the Court finds detention warranted based on nonappearance risk.
II. ANALYSIS
Collectively, the history and characteristics of Ramirez-Vaca (namely, his undocumented status, prior removals, and current imminent removability) and the weight of nonappearance risk evidence drive the instant detention analysis. See 18 U.S.C. §§ 3142(g)(2)–(3). Per the PSR, despite the overall length of time Ramirez-Vaca has spent in the United States, he is a non-citizen and lacks legal status. Indeed, Ramirez-Vaca has been removed from the United States on several different occasions between the late 1970s and 2016. [PSR at 6]. Defendant further has two criminal convictions (in 1978 and in 2016) for illegal reentry, the latter occurring in the federal system. [PSR at 3, 6]. He is currently subject to an administrative ICE detainer.
The Government's exhibit at the detention hearing (Ramirez-Vaca's immigration file) reflects documentation pertaining to some, but not all, of the removals identified in the PSR. The immigration file confirms Defendant's removal in 1982, 2014, and 2016. [Government's Exhibit A at 4, 5, 8]. The PSR lists additional removals in 1976, 1978, and 1979. [PSR at 6]. However, Defendant did not challenge the accuracy of the PSR, and it is not clear whether the immigration documentation at Government's Exhibit A was intended to encompass Ramirez-Vaca's complete file. Regardless, the precise number and dates of removal are not critical here; it is sufficient for relevant purposes to note that the record unequivocally establishes Defendant's lengthy history of repeated removal from this country.
Moreover, the documentation in Defendant's immigration file, coupled with the explanatory testimony from Agent Huffines at the detention hearing, establishes by a preponderance that Ramirez-Vaca is subject to a standing removal order and will be promptly removed from the country if released in this case. [See DE 23, Witness and Exhibit List]. In 1978, the agency tasked with immigration enforcement (then-titled the Immigration and Nationalization Service, "INS"), issued a final order of deportation as to Ramirez-Vaca. [Government's Exhibit A at 1]. Following removal, when Ramirez-Vaca was discovered in the country on subsequent occasions, the existing deportation order was consistently reinstated. [Id. at 4, 7, 10]. The prior deportation order likewise was reinstated again on September 8, 2020, after Ramirez-Vaca's arrest in Fayette County for driving under the influence and operating on a suspended or revoked license. [Id. at 12; PSR at 6]. However, ICE simultaneously issued an Order of Supervision, releasing Ramirez-Vaca under specified conditions pending his removal. [Government's Exhibit A at 13].
At the hearing, Agent Huffines clarified the basis for the Order of Supervision and the likely timeline for Ramirez-Vaca's removal. She explained that Ramirez-Vaca (like others similarly situated) was released under supervision in September 2020 simply because of COVID-19 outbreaks at ICE's detention facilities and his advanced age. [Hearing Recording at 08:30–10:00]. She further testified that Defendant's September 2020 temporary release from physical custody (termed an "alternative to detention" or "ATD") was a pandemic-specific response and, rather than serving as the equivalent of release, was intended to provide Ramirez-Vaca an opportunity to "self-deport" and make arrangements for his own departure. [Id. ]. Agent Huffines's testimony and the ICE documentation confirm that Ramirez-Vaca was not released on ATD pending removal in 2014 or 2016. [Id. ].
Per Agent Huffines, though Ramirez-Vaca could theoretically lodge a request for ATD, he would not be eligible to see an immigration judge or have his request heard by an immigration judge; rather, upper level ICE officials are responsible for determining who is on ATD in their discretion, and Huffines testified that such officials had advised that Ramirez-Vaca would not currently be eligible for ATD. [Id. at 10:55–11:23, 11:55–12:25]. Agent Huffines stated that his current ineligibility for ATD is due to the subsiding pandemic, as well as Ramirez-Vaca's failure to make self-deportation arrangements as required. [Id. at 12:50–13:25]. Accordingly, Agent Huffines testified that upper-level ICE officials had assured her, with confidence, that Ramirez-Vaca would be promptly removed within approximately two weeks if he were released in this case and returned to ICE custody. [Id. at 11:25–11:35].
Of course, Defendant's non-citizen status, alone, is not determinative of flight risk under the BRA. See, e.g., United States v. Veloz-Alonso , 910 F.3d 266, 269–70 (6th Cir. 2018) (emphasizing that the BRA and immigration analyses are distinct); United States v. Adomako , 150 F. Supp. 2d 1302, 1307 (M.D. Fla. 2001) (emphasizing that even "a deportable alien" is not categorically "barred from release" under the BRA, but noting that immigration is still a factor to weigh in the flight analysis "to the extent that the government chooses to present it in support of its motion for detention"). However, the circumstances of this case require no guessing about an immigration judge's potential action; as the paperwork confirms and as Agent Huffines testified, Ramirez-Vaca is plainly subject to previously-ordered removal and is not eligible to have further proceedings before an immigration judge. Cf. United States v. Montoya-Vasquez , No. 4:08CR3174, 2009 WL 103596, at *4 (D. Neb. Jan. 13, 2009) ("finding that the court could not "address the risk of ICE removing the defendant from the United States without speculating about what the Immigration Judge may do" and concluding that, under the BRA, such [s]peculation is not evidence, much less preponderating evidence"). Notably, unlike a case in which there is only an administrative ICE detainer pending against the defendant, Ramirez-Vaca's removal is far from speculative here given the standing removal order that was reinstated following his most recent apprehension in the United States. See, e.g., United States v. Ramirez-Hernandez , 910 F. Supp. 2d 1155, 1158–59 (N.D. Iowa 2012) (distinguishing Montoya-Vasquez and finding preponderant evidence of flight risk where—as here—a prior removal order had been reinstated, the defendant had no right to further proceedings before an immigration judge, and agent testimony confirmed that removal was certain rather than speculative).
In sum, Agent Huffines's testimony and the accompanying ICE documentation has established by a preponderance of the evidence that Ramirez-Vaca's imminent removal, if released in this case, is non-speculative and virtually certain. Consequently, the Government has shown that it is more likely than not that Ramirez-Vaca will be unable to appear as directed for this prosecution. Under such circumstances, the Court finds detention proper under the BRA.
III. CONCLUSION
For the stated reasons, the Court finds that there are no conditions that can reasonably assure Ramirez-Vaca's appearance as required in this case. Accordingly, the Court GRANTS the United States' oral detention motion. The Court further DIRECTS the Clerk to file the PSR, under seal , in the record for this matter.
As the BRA requires in this case, Ramirez-Vaca shall remain in custody pending trial. The parties may appeal this Order under the terms of 18 U.S.C. § 3145(a).