                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 22 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 04-4253
                                                   (D.C. No. 1:03-CR-27-ST)
    KENNETH CHARLES ROGERS,                                (D. Utah)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY , and McCONNELL , 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.

         Kenneth Charles Rogers appeals from an order denying his request to be

released on bail pending trial. We reverse and remand for further proceedings.


*
      This order and judgment is not binding precedent, except under the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.
      As we explained in an earlier opinion, Rogers has been charged with

violations of 18 U.S.C. § 922(g)(8) (possession of a firearm while subject to a

protection order) and 18 U.S.C. § 922(g)(9) (possession of a firearm following

conviction of a domestic violence offense). See United States v. Rogers,

371 F.3d 1225, 1226 (10th Cir. 2004) (“Rogers I”). After Rogers was arrested,

the district court conducted a detention hearing and found by clear and convincing

evidence that Rogers posed a danger to others. See id. For this reason, and

because we determined in Rogers I that violations of § 922(g)(8) and § 922(g)(9)

constitute crimes of violence for purposes of the Bail Reform Act, see Rogers I,

371 F.3d at 1232, Rogers has been detained continuously since his arrest on

February 14, 2003.

      This appeal arises from the denial of Rogers’s most recent motion for

review of the district court’s detention order. The district court denied this

motion on the ground that our opinion in Rogers I precluded it from releasing

Rogers from pre-trial detention. This was error. In Rogers I, we overturned a

legal determination made by the district court that ostensibly prevented Rogers

from being detained; then, having eliminated the only asserted legal obstacle to

Rogers’s detention, we ordered the district court to give effect to its prior factual

finding that detention pending trial was appropriate. See Rogers I, 371 F.3d at

1232. We did not, however, foreclose the court from considering new


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circumstances or new legal arguments that would justify revocation of the

detention order.

      Because the district court incorrectly characterized the extent of its

authority, we vacate its order denying Rogers’s motion for review of his detention

status. We remand for the district court to conduct a further hearing on the claim

that denying bail is punitive. Upon remand, the court should exercise its

discretion after considering all relevant factors, including the government’s view

that the appropriate sentence if Rogers is convicted will likely exceed forty

months.

      Accordingly, the district court order denying Rogers’s motion for release is

REVERSED and REMANDED for further proceedings consistent with this order

and judgment.



                                       ENTERED FOR THE COURT
                                       PER CURIAM




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