United States v. Figueroa-Alvarez

681 F.Supp.3d 1131

UNITED STATES of America, Plaintiff, v. Bernardo FIGUEROA-ALVAREZ, Defendant.

Case No. 4:23-cr-00171-DCN

United States District Court, D. Idaho

Signed July 10, 2023

Janet Franklin, DOJ-USAO, Pocatello, ID, for Plaintiff.

Bernardo Figueroa-Alvarez, Pro Se.

AMENDED¹ MEMORANDUM DECISION AND ORDER RE: GOVERNMENT'S MOTION FOR DETENTION (DKT. 5)

Raymond E. Patricco, Chief United States Magistrate Judge

Pending before the Court is the Government's Motion for Detention (Dkt. 5). The Court, having conducted an evidentiary hearing during which it heard additional proffers and argument from the parties, is fully apprised and enters the following order.

I. Factual Background

Defendant is a 37-year-old citizen of Mexico. Sometime in 2007, he illegally entered the United States and became a resident of Eastern Idaho. He has resided in Eastern Idaho for approximately the last 16 years. Defendant lives in Rigby, Idaho with his girlfriend of 5 years. He has three children from a prior marriage - all born in the United States and United States citizens - who reside with their mother in Idaho Falls, Idaho. Defendant has visitation rights and pays monthly child support.

Prior to his arrest, Defendant was employed at Quality Pros Paver in Idaho Falls for 3 years. His financial resources consist of approximately $4,500 in savings and a 2014 pickup truck for which he makes monthly payments.

Most of Defendant's immediate family - his parents and siblings - live in Mexico. His sister's husband was issued a visa and legally resides in the United States.

Defendant has been deported or removed from the United States to Mexico on four occasions: December 1, 2011; December 14, 2018; February 23, 2019; and April 12, 2019. Each time, he illegally reentered the United States and returned to Eastern Idaho or its vicinity.

Defendant has four prior criminal convictions, three misdemeanors and one infraction. On July 4, 2014, he was convicted of misdemeanor failure to purchase a driver's license and paid a $226 fine. On June 10, 2015, he was again convicted of misdemeanor failure to purchase a driver's license and paid a $257 fine. On April 2, 2016, he was convicted of an open container by a passenger infraction and paid a $72 fine. On January 1, 2019, he was convicted of misdemeanor illegal entry into the United States and was sentenced to serve 30 days in prison. There is no evidence in the record that Defendant failed to appear for any court proceedings as required or violated any pretrial or post-sentence conditions.

On June 11, 2023, Defendant was arrested in Bonneville County for misdemeanor driving under the influence; that charge remains pending. As a result of the arrest, Bureau of Immigration and Customs Enforcement ("ICE") agents encountered Defendant and this prosecution ensued.

On June 27, 2023, the grand jury returned an indictment charging Defendant with one count of illegal reentry after removal, in violation of 8 U.S.C. § 1326(a) and (b). (Dkt. 2). On June 30, 2023, the Government filed the instant Motion for Detention. (Dkt. 5). On July 3, 2023, the Court convened an initial appearance and hearing on the instant motion.

II. The Bail Reform Act

A. Gatekeeping Under Section 3142(f)

The Bail Reform Act of 1984 (the "Act") repealed the Bail Reform Act of 1966. S. REP. NO. 225, 98th Cong., 1st Sess. (1983). The principal reason for the reform was to address dangerousness in the federal pretrial bail decision:

Many of the changes in the Bail Reform Act [of 1966] incorporated in this bill reflect the Committee's determination that Federal bail laws must address the alarming problem of crimes committed by persons on release and must give appropriate recognition to the danger a person may pose to others if released.

Id. at 3. For the first time, then, the Act authorized pretrial detention for a "a small but identifiable group of particularly dangerous defendants . . . ." Id. at 6. Congress stressed that "[t]he decision to provide for pretrial detention is in no way a derogation of the importance of the defendant's interest in remaining at liberty prior to trial." Id. at 7. This liberty interest, however, would henceforth be balanced against the "societal interests" in protecting the community from dangerous recidivists, as well as those defendants who threaten "the integrity of the judicial process." Id.

To balance a defendant's fundamental interest in pretrial liberty with adequate protection of the community and the integrity of the judicial process, Congress authorized detention hearings only in limited circumstances. Id. at 20 ("[T]he requisite circumstances for invoking a detention hearing in effect serve to limit the types of cases in which detention may be ordered prior to trial."); see also United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (recognizing that "[t]he Bail Reform Act carefully limits the circumstances under which detention may be sought to the most serious of crimes."). Section 3142(f) of the Act specifies those circumstances:

Detention Hearing. — The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of such person as required and the safety of any other person and the community—

(1) upon motion of the attorney for the Government, in a case that involves—

(A) a crime of violence, a violation of section 1591, or an offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed;

(B) an offense for which the maximum sentence is life imprisonment or death;

(C) 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.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46;

(D) any felony if such person has been convicted of two or more offenses described in subparagraphs (A) through (C) of this paragraph, or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) of this paragraph if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses; or

(E) any felony that is not otherwise a crime of violence that involves a minor victim or that involves the possession or use of a firearm or destructive device (as those terms are defined in section 921), or any other dangerous weapon, or involves a failure to register under section 2250 of title 18, United States Code; or

(2) upon motion of the attorney for the Government or upon the judicial officer's own motion in a case, that involves—

(A) a serious risk that such person will flee; or

(B) a serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.

18 U.S.C. § 3142(f). In shorthand form, detention hearings are authorized only if the defendant (i) is charged with one of five categories of serious crimes - crimes that, if the defendant were to recidivate while on pretrial release, pose the greatest risk to community safety; or (ii) presents a serious risk of flight, or a serious risk of obstruction or intimidation - acts that present the greatest risk to the integrity of the judicial process.²

Absent one of these serious circumstances that would automatically trigger a detention hearing, a defendant must be released on personal recognizance, unsecured appearance bond, or conditions. 18 U.S.C. § 3142(a).³ This is true whether the defendant is otherwise dangerous. See United States v. Twine, 344 F.3d 987 (9th Cir. 2003) ("We are not persuaded that the Bail Reform Act authorizes pretrial detention without bail based solely on a finding of dangerousness. This interpretation of the Act would render meaningless 18 U.S.C. § 3142(f)(1) and (2)."); United States v. Dillard, 214 F.3d 88, 96 (2d Cir. 2000) ("The question whether the defendant poses a danger to the safety of the community . . . cannot be considered unless the defendant is found to be eligible for detention under subsection 3142(f). A defendant who is not eligible must be released, notwithstanding alleged dangerousness.").

Section 3142(f), then, imposes on the magistrate courts a gatekeeping function at initial appearance. See United States v. Subil, 2023 WL 3866709, at *4 (W.D. Wa. June 7, 2023) ("Thus, Section 3142(f) serves an important 'gate-keeping function,' [citation omitted] by preventing even the opportunity to seek detention in all but a certain, narrow subset of cases. Indeed, the Supreme Court's holding that detention imposed by the Act is regulatory, not punitive—and therefore constitutional—is premised in part on the Act's careful limits on when a detention hearing is available.") (citing Salerno, 481 U.S. at 749, 107 S.Ct. 2095).

B. Serious Risk of Flight

The crime of illegal reentry after removal, in violation of 8 U.S.C. § 1326, is not one of the five serious crimes enumerated in § 3142(f)(1). Accordingly, in such cases, the Government is entitled to a detention hearing upon its request only if it can establish that the defendant poses a serious risk of flight or obstruction/intimidation under § 3142(f)(2). Relevant here is whether the Defendant is a serious risk of flight.

A threshold question is whether risk of flight differs from risk of non-appearance referenced elsewhere in the Act. Compare 18 U.S.C. § 3142(f)(2)(A), with §§ 3142(e)-(g).⁴ In addressing this question, the Court is guided by basic principles of statutory interpretation. "A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant." Hibbs v. Winn, 542 U.S. 88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004). "[E]very word and every provision [of a statute] is to be given effect [and...