                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           FEB 25 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 97-2004
                                                   (D.C. No. CR 96-610-BB)
    LUIS GARCIA-FLORES,                                   (D. N.M.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT *


Before BRORBY, KELLY 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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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 appeals the district court’s order of pretrial detention entered

pursuant to 18 U.S.C. § 3142(e). Defendant has been charged with importation of

narcotics, possession with intent to distribute a controlled substance, and

conspiracy to distribute narcotics, in violation of 21 U.S.C. §§ 841(a)(1), 952(a),

and 963. The district court found that no condition or combination of conditions

would reasonably assure defendant’s appearance and the safety of the community

if he were released pending trial. We review this determination de novo, but

accept the district court’s underlying findings of historical fact, unless they are

clearly erroneous. See United States v. Kinslow, No. 96-7124, 1997 WL 22507,

at *2 (10th Cir. Jan. 22, 1997).

      The presumption of detention contained in 18 U.S.C. § 3142(e) applies

here. Even assuming that defendant produced sufficient evidence to rebut the

presumption, the presumption remains a factor for consideration by the district

court in determining whether to release or detain. See United States v. Stricklin,

932 F.2d 1353, 1354-55 (10th Cir. 1991).

      In determining whether any condition or combination of conditions would

reasonably assure defendant’s appearance and the safety of the community, the

court must consider the factors contained in 18 U.S.C. § 3142(g). Having

reviewed the record, we conclude that these factors weigh decisively against the

defendant. Defendant is charged with offenses involving the importation of over


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five hundred pounds of marijuana. The evidence concerning his participation in

these offenses is strong. At the time he committed the offenses, he was on

probation in California for a juvenile offense and had already violated his

probation on several occasions, including a violation for failure to stay home

when he was placed under house arrest, and a separate conviction for giving false

information to a police officer. Additionally, one of the terms of his probation

was that he not associate with Adrian Santana. Mr. Santana is his co-defendant in

the present offenses. We find no error in the district court’s finding that no

condition or combination of conditions, under these circumstances, will

reasonably assure defendant’s appearance at trial and the safety of the community.

Accordingly, we AFFIRM the district court’s order of detention.




                                                     ENTERED FOR THE COURT
                                                     PER CURIAM




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