     Case: 20-50206      Document: 00515384523        Page: 1     Date Filed: 04/16/2020




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit


                                   No. 20-50206
                                                                           FILED
                                                                         April 16, 2020
                                 Summary Calendar
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee

v.

BRANDON SIMS,

                                                Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:20-CR-11-1


Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
      Brandon Sims appeals the district court’s order adopting and upholding
the magistrate judge’s denial of release pending trial. Sims has been indicted
on   charges       of   conspiring    to   possess     with     intent      to      distribute
methamphetamine, possessing with intent to distribute methamphetamine,
unlawful possession of a firearm by a convicted felon, and possession of a
firearm in furtherance of a drug trafficking crime. See 21 U.S.C. §§ 841(a)(1),


      * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 20-50206

(b)(1), 846; 18 U.S.C. §§ 922(g), 924(a), (c). The offenses allegedly occurred as
part of an extensive Adderall counterfeiting scheme.
      We review a district court’s pretrial detention order under a deferential
standard equivalent to abuse of discretion. United States v. Rueben, 974 F.2d
580, 586 (5th Cir. 1992). The question on appeal is “whether the evidence as a
whole supports the conclusions of the proceedings” in the district court. Id.;
United States v. Trosper, 809 F.2d 1107, 1111 (5th Cir. 1987). We review
questions of law de novo. United States v. Olis, 450 F.3d 583, 585 (5th Cir.
2006). Factual findings supporting an order of detention are reviewed for clear
error. United States v. Aron, 904 F.2d 221, 223 (5th Cir. 1990).
      Pretrial detention shall be ordered if “the judicial officer finds that no
condition or combination of conditions will reasonably assure the appearance
of the person as required and the safety of any other person and the
community.” 18 U.S.C. § 3142(e). As Sims concedes, there is a rebuttable
presumption against granting him pretrial release because the indictment
provided probable cause to believe that he committed certain drug and firearm
crimes. See § 3142(e)(3); Trosper, 809 F.2d at 1110 (noting that the
presumption against pretrial release arises when qualifying offenses “are
charged in the indictment”).
      Sims contends that he had only to come up with some relevant evidence
to carry the burden of production necessary to rebut the presumption. He
further argues that the district court misapplied the law and erroneously
relieved the Government of its burden of persuasion by concluding that Sims
failed to rebut the presumption of 18 U.S.C. § 3142(g). “Although it is true that
the burden of persuasion remains with the government, the burden imposed
on the defendant is the production of evidence supportive of the point for which
it is offered.” Trosper, 809 F.2d at 1110. The district court did not misapply



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                                 No. 20-50206

any burdens or presumptions simply by citing § 3142(g), which provides factors
relevant to pretrial release. Rather, the district court adopted the reasoning of
the magistrate judge, who properly applied the presumption and considered the
factors of § 3142(g). Moreover, “the mere production of evidence does not
completely rebut the presumption.” Reuben, 974 F.2d at 586.
      The district court concluded that the Government had carried its burden
under the § 3142(g) factors, including the weight of evidence against Sims, the
prospect of lengthy incarceration if convicted, Sims’s criminal history, his
criminal activity while released under state supervision, his history of drug
and alcohol abuse, and his attempt to evade police at the time of his arrest.
While Sims has a supportive family, that factor was deemed offset by the
“disconnect” between the person his family knows and the defendant before the
courts. See Trosper, 809 F.2d at 1110 (discounting “family ties [that] did not
demonstrate relationships wherein the family members had some control,
either physical or emotional, over [the defendant’s] actions”).
      Sims fails to show any error of law or any clearly erroneous factual
finding. See Olis, 450 F.3d at 585; Aron, 904 F.2d at 223. The evidence as a
whole supports the district court’s decision, which was not an abuse of
discretion, especially in light of the unrebutted presumption against granting
release in this case. See Rueben, 974 F.2d at 586; see also § 3142(e).
Accordingly, the district court’s order is AFFIRMED.




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