United States v. Gomez-Fernandez, 10th Cir. (1999)

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
NOV 2 1999
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 99-8090
(D.C. No. 99-CR-31-D)
(D. Wyo.)
v.
VICTOR MANUEL
GOMEZ-FERNANDEZ,
Defendant-Appellant.
ORDER AND JUDGMENT
Before BALDOCK , EBEL , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Victor Manuel Gomez-Fernandez appeals the district courts

denial of release on bond pending trial. We have jurisdiction pursuant to
28 U.S.C. 1291 and 18 U.S.C. 3145(c), and we affirm.
On March 19, 1999, defendant was charged with numerous counts of drug
violations, most carrying possible prison terms in excess of ten years. The
magistrate judge ordered defendant detained. At defendants request, the district
court reviewed the magistrate judges detention order at a hearing on April 15,
1999. At the close of the hearing, the court requested that counsel brief the issue
of whether defendant was a flight risk. After consideration of the arguments, the
district court ordered defendants continued detention, determining that no
conditions of release could reasonably assure either defendants appearance at
future proceedings or the safety of the community. Specifically, the district court
determined that defendants extensive ties to Mexico posed a genuine risk that he
would flee to that country. In addition, the court reasoned that a taped recording
of a conversation between defendant and another person during a drug deal in
which defendant threatened violence against a passing police officer if he
discovered the drug deal, created a genuine concern for the safety of the
community if defendant was released.
Pursuant to 18 U.S.C. 3142(e), upon a finding of probable cause that
defendant has committed a federal drug offense carrying a maximum prison term
-2-
of ten years or more, a rebuttable presumption arises that no conditions of release

will assure defendants appearance and the safety of the community.
United
States v. Stricklin , 932 F.2d 1353, 1354 (10th Cir. 1991). Although [o]nce the
presumption is invoked, the burden of production shifts to the defendant . . . .
the burden of persuasion regarding risk-of-flight and danger to the community
always remains with the government.
Id. at 1354-55. Our review of the district
courts detention order is plenary as to mixed questions of law and fact and
independent, with due deference to the district courts purely factual findings.
Id. at 1355.
In determining whether any condition or combination of conditions would
reasonably assure defendants appearance and the safety of the community, the
court must consider the factors contained in 3142(g), including (1) the nature of
the offense and whether the offense involved violence or narcotic drugs; (2) the
weight of the governments evidence; (3) the history and characteristics of the
defendant; and (4) whether the defendant posed a serious danger to any person or
the community.
Here, the district court analyzed the 3142(g) factors and correctly
determined that the government had carried the burden of persuasion on the issue
of risk of flight. First, the court noted that the case against defendant involved
a large drug distribution conspiracy, and that the governments evidence
-3-
supported its contention that defendant played a major role in the alleged
conspiracy. The court then found that defendant had provided only limited
information regarding his history and characteristics and had not demonstrated
how this information supported defendants request for release. Finally, the court
concluded that defendants threat of harm to a police officer established his
danger to the community.
On appeal, defendant argues that the district court inappropriately
considered his national origin in making its bond determination. Defendant has
been a naturalized citizen of this country since 1997 and is married to a United
States citizen. However, the government produced evidence that defendant and
his wife have strong and on-going ties to Mexico, and in fact, frequently travel
to that country. The government also alleged that relatives and co-conspirators of
defendant have fled to Mexico, and that defendant was planning a trip to Mexico
to attend the wedding of one of these relatives and co-conspirators. The district
court therefore, adopted the position of the government in finding that defendant
was a flight risk.
Based on our review of the parties briefs on appeal and appendices, we
conclude that the district courts factual findings underlying its detention order
are not clearly erroneous. The district court did not err in finding that defendant
posed a serious risk of fleeing and that no condition or combination of conditions
-4-
would reasonably assure his appearance if he were released. Moreover, the

courts determination that defendant posed a community threat if released was
adequately supported and not persuasively challenged by defendant.
Accordingly, the judgment of the United States District Court for the
District of Wyoming is AFFIRMED.
ENTERED FOR THE COURT
PER CURIAM
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United States v. Gomez-Fernandez, 10th Cir. (1999)

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

UNITED STATES OF AMERICA,

ORDER AND JUDGMENT

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Defendant Victor Manuel Gomez-Fernandez appeals the district courts

of ten years or more, a rebuttable presumption arises that no conditions of release

Id. at 1354-55. Our review of the district

would reasonably assure his appearance if he were released. Moreover, the

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