Free Order of Detention - District Court of Colorado - Colorado

Case 1:00-cr-00235-LTB

Document 270

Filed 04/16/2008

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 00-cr-00235-LTB UNITED STATES OF AMERICA, Plaintiff, v. JAIME GONZALEZ-HERRERA, Defendant. _____________________________________________________________________ ORDER OF DETENTION _____________________________________________________________________ THIS MATTER came before the Court for a detention hearing on April 16, 2008. Present were the following: Mark Barrett, Assistant United States Attorney; U.S. Probation Officer Andrea L. Bell; Anthony Viorst, counsel for the defendant; and the defendant. The Court reviewed the Presentence Investigation Report, heard the testimony of Probation Officer Bell, and considered the comments of counsel. The Court has concluded that no condition or combination of conditions of release will reasonably assure the appearance of the defendant and the safety of the community, based upon the attached findings. IT IS HEREBY 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 IT IS FURTHER ORDERED that upon order of this Court or on request of an attorney for the United States of America, the person in charge of the corrections facility shall deliver defendant to the United States Marshal for the purposes of an appearance in connection with this proceeding. DATED and ENTERED this 16th day of April, 2008. BY THE COURT: s/ Kristen L. Mix U.S. Magistrate Judge Kristen L. Mix

Case 1:00-cr-00235-LTB

Document 270

Filed 04/16/2008

Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 00-cr-00235-LTB

UNITED STATES OF AMERICA, Plaintiff, v. JAIME GONZALES-HERRERA, Defendant. _____________________________________________________________________ FINDINGS OF FACT, CONCLUSION OF LAW and REASONS FOR ORDER OF DETENTION _____________________________________________________________________ THIS MATTER came before the Court for a detention hearing on April 16, 2008. The Court has taken judicial notice of the Presentence Investigation Report and considered the comments of counsel. In order to sustain a motion for detention, the government must establish that (a) there is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably insure the defendant's presence for court proceedings; or (b) there is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably insure the safety of any other person or the community. The former element must be established by a preponderance of the evidence, while the latter requires proof by clear and convincing evidence. The Bail Reform Act, 18 U.S.C. § 3142(g), directs the Court to consider the following factors in determining whether there are conditions of release that reasonably assure the appearance of the defendant as required and the safety of any other person and the community: (1) [t]he nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; the weight of the evidence against the person; 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

(2) (3)

Case 1:00-cr-00235-LTB

Document 270

Filed 04/16/2008

Page 3 of 3

(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 making my findings of fact, I have taken judicial notice of the information set forth in the Presentence Investigation Report and the entire court file, and have considered the testimony of Ms. Bell and the comments of counsel. Weighing the statutory factors set forth in the Bail Reform Act, I find the following: First, the defendant has been charged with violating the conditions of his supervised release by distributing a controlled substance, possessing or using a controlled substance, and failing to participate in drug treatment as ordered by his Probation Officer.

Second, I note that the Presentence Investigation Report indicates that in 2001 defendant pled guilty to one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine.
After considering all of the factors set forth in the Bail Reform Act and the offense charged in this case, I find, by a preponderance of the evidence, that no condition or combination of conditions of release will reasonably assure the appearance of the defendant. I also find, by clear and convincing evidence, that no condition or combination of conditions will reasonably assure the safety of the community. In support of those findings, I note the factors listed above, as well as the lengthy sentence that could be imposed if the defendant was found guilty of the charged offense. DATED and ENTERED this 16th day of April, 2008.

BY THE COURT: s/ Kristen L. Mix U.S. Magistrate Judge Kristen L. Mix