                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA

    UNITED STATES OF AMERICA

                            v.
                                                                      Criminal Action No. 20-40 (BAH)
    MARVIN ANTONIO SAGASTUME-
    GALICIA,                                                          Chief Judge Beryl A. Howell

                            Defendant.

                              MEMORANDUM OPINION AND ORDER

         Pending before the Court is the government’s motion for review of a Magistrate Judge’s

order releasing the defendant, Marvin Antonio Sagastume-Galicia, who has been charged with

one count of reentry of an alien removed from the United States following conviction for three or

more misdemeanors involving violence against persons, in violation of 8 U.S.C. § 1326(a),

(b)(1). Crim. Compl. at 1, ECF No. 1.1 Based on the parties’ briefing and evidence proffered at

a hearing held telephonically on April 21, 2020, the government’s motion for review was

granted, and the Magistrate Judge’s order releasing the defendant was reversed.2

         This memorandum opinion sets out the findings and reasons for this Court’s

determination that the defendant must be detained pending trial. See 18 U.S.C. § 3142(i)(1)

(requiring that a detention order “include written findings of fact and a written statement of the

reasons for the detention”); United States v. Nwokoro, 651 F.3d 108, 112 (D.C. Cir. 2011)

(remanding to the district court for a preparation of “findings of fact and a statement of reasons




1
         The criminal complaint charging defendant and the warrant for his arrest incorrectly list the defendant’s
name as Marvin Antonio Sagastume-Garcia. The government has clarified that defendant’s surname is in fact
Sagastume-Galicia. Gov’t Mem. Supp. Pre-Trial Detention at 1 n.2, ECF No. 4.
2
         The Chief Judge is empowered to hear “[r]equests for review of an order by a magistrate judge in a
criminal matter not assigned to a district judge.” LCrR 59.3.

                                                          1
in support of [defendant’s] pretrial detention” when a transcription of the detention hearing was

insufficient).

I.      BACKGROUND

        On November 21, 2019, the government filed a one-count criminal complaint against

defendant, charging him with illegally reentering the United States following conviction for three

or more misdemeanors involving violence against persons, in violation of 8 U.S.C. § 1326(a) and

(b)(1). An arrest warrant was issued the following day by a Magistrate Judge. Arrest Warrant,

ECF No. 3. Following defendant’s arrest on April 16, 2020, he made his initial appearance in

this Court the next day, on Friday, April 17, 2020. Min. Entry (Apr. 17, 2020). During that

appearance, the government made an oral motion for a detention hearing pursuant to 18 U.S.C.

§ 3142(f)(2)(A). Gov’t Supp. Mem. in Support of Pretrial Detention (“Gov’t Supp. Mem.”) at 2,

ECF No. 6. That motion was denied when the Magistrate Judge found the government had not

met its threshold burden of showing that defendant was a serious flight risk. Id. Consequently,

the Magistrate Judge released defendant on personal recognizance subject to certain standard

conditions of release. Rough Transcript of Hearing Before Magistrate Judge (Apr. 17, 2020)

(“MJ Hr’g Tr. (Rough)”) at 17.

        The government promptly moved to stay and appeal the Magistrate Judge’s order by e-

mail with the Court’s leave. Gov’t Supp. Mem., Ex. A (“Gov’t Mot.”), ECF No. 6-1. This Court

stayed the Magistrate Judge’s order of release, Order (Apr. 17, 2020), ECF No. 5, and scheduled

a hearing for the following Monday, April 20, 2020. Owing to the current nationwide

emergency caused by the COVID-19 pandemic, the hearing was to take place telephonically with

defendant proceeding by video teleconference. Technical difficulties, however, meant that the

defendant was unable to participate by videoconference, and defense counsel waived his



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presence. Rough Transcript of Hearing (Apr. 20, 2020) (“Hr’g Tr. (Rough)”) at 8. The hearing

thus proceeded with counsel for defendant and the government appearing telephonically.

II.       LEGAL STANDARDS

          A magistrate judge's order for release is reviewed de novo, and a district judge

conducting that review must “promptly,” 18 U.S.C. § 3145(a), make an independent

determination whether conditions of release exist that will reasonably assure the defendant's

appearance in court or the safety of any other person or the community, pursuant to 18 U.S.C.

§ 3142. See 28 U.S.C. § 636(a)(2) (authorizing magistrate judges to “issue orders pursuant to

section 3142 of title 18 concerning release or detention of persons pending trial”); 18 U.S.C.

§ 3145(a) (“If a person is ordered released by a magistrate judge . . . the attorney for the

Government may file, with the court having original jurisdiction over the offense, a motion for

revocation of the order.”); see also United States v. Henry, 280 F. Supp. 3d 125, 128 (D.D.C.

2017) (“The Court reviews de novo whether there are conditions of release that will reasonably

assure the safety of any other person and the community.”); United States v. Hunt, 240 F. Supp.

3d 128, 132–33 (D.D.C. 2017) (noting that “although the D.C. Circuit has not yet addressed the

issue, the many circuits that have agree[d] that the district judge should review de novo a

detention decision rendered by a Magistrate Judge” and collecting cases). “The Court is free to

use in its analysis any evidence or reasons relied on by the magistrate judge, but it may also hear

additional evidence and rely on its own reasons.” United States v. Hubbard, 962 F. Supp. 2d

212, 215 (D.D.C. 2013) (quoting United States v. Sheffield, 799 F. Supp. 2d 18, 19–20 (D.D.C.

2011)).




                                                   3
III.   DISCUSSION AND FINDINGS

       The Bail Reform Act requires release of a defendant prior to trial unless a judicial officer

determines, after a hearing, that “no condition or combination of conditions will reasonably

assure the appearance of the person[.]” 18 U.S.C. § 3142(e)(1). In a “case that involves . . . a

serious risk that [the defendant] will flee”, the court “shall hold a hearing” upon a motion from

an attorney for the government. Id. § 3142(f)(2)(A). “A determination that an individual is a

flight risk must be supported by a preponderance of the evidence.” United States v. Vasquez-

Benitez, 919 F.3d 546, 551 (D.C. Cir. 2019) (citing United States v. Vortis, 785 F.2d 327, 328–29

(D.C. Cir. 1986) (per curiam)). The “preponderance must . . . go to the ultimate issue: [whether]

no combination of conditions . . . can ‘reasonably’ assure that the defendant will appear for trial.”

United States v. Xulam, 84 F.3d 441, 442 (D.C. Cir. 1996). In determining whether the

government has met that burden, the court must “take into account the available information

concerning” four factors set out in 18 U.S.C. § 3142(g). These factors are: “(1) the nature and

circumstances of the offense charged, . . .; (2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including . . . 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 . . .; (4) the nature and

seriousness of the danger to any person or the community that would be posed by the person's

release.” 18 U.S.C. § 3142(g).

       At the hearing in this matter, defense counsel argued that the government failed to

“establish that there [are] grounds for a detention hearing,” Hr’g Tr. (Rough) at 13, an apparent

reference to the Magistrate Judge’s determination that the government had not, as required by 18



                                                  4
U.S.C. § 3142(f)(2)(A), shown that this case involved a “serious risk of flight.” MJ Hr’g Tr.

(Rough) at 11. That ruling, however, was in error. The government has proffered that

defendant, who is a citizen of Guatemala and illegally present in the United States, was subject to

a removal order in 2009 and was indeed removed from Houston, Texas in August, 2009, after his

convictions earlier that same year of three sex abuse misdemeanors, in violation of D.C. Code

§ 22-3006. Gov’t Supp. Mem. at 5; see also Pretrial Services Report (“PTS Rep.”) at 3, ECF No.

2. His reentry thus evinces an inability to conform his conduct to court orders and instills little

confidence that he would not seek to evade orders from this Court to appear. That conclusion is

further supported by the significant penalties defendant faces as a result of pending charges in

both this case and in Superior Court, where he has been charged with Assault with a Dangerous

Weapon and Assault with Significant Bodily Injury, in case number 2020 CF3 004126. PTS

Rep. at 3. Not only does the charged offense in the case before this Court carry with it the

possibility of 10 years’ imprisonment, 8 U.S.C. § 1326(b)(1), so, too, does one of the charges

pending in Superior Court. Gov’t Mem. Supp. Pre-Trial Detention (“Gov’t Mem.”) at 5, 7, ECF

No. 4. In addition, owing to his undocumented status, defendant also faces the prospect of

deportation. This confluence of circumstances is more than enough to establish that this case

presents a serious risk of flight justifying a detention hearing.

       Having so found, this Court proceeded to hold a detention hearing and elicited

information necessary to determine whether “no condition or combination of conditions will

reasonably assure the appearance of the” defendant. 18 U.S.C. § 3142(e)(1). The factors that

must be considered in making that determination, and the findings that underpin each one, are

discussed seriatim.




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               1.      The Nature and Circumstances of the Offense

       As noted above, the defendant has been charged with a single count of illegal reentry, in

violation of 8 U.S.C. § 1326(a). The nature of this offense favors detention for at least three

reasons. First, defendant’s return to the United States following his 2009 court-ordered removal

is strong evidence that he will be unable to abide by court-ordered release conditions. Second,

defendant’s undocumented status means that his crime exposes him to deportation. Given the

defendant’s presence in the United States after being removed, he has already shown a

willingness to break the law in order to remain here and suggests a strong intent to avoid the

consequences of deportation. That potential sanction doubtless provides a large incentive to flee

in order to avoid detection by immigration authorities. Third, the circumstances of this particular

offense similarly show why detention is favored. In ordinary circumstances, the charge

defendant faces carries a maximum penalty of 2 years’ imprisonment. Id. The government

avers, however, that the defendant was previously convicted of three misdemeanors involving

“crimes against the person,” which criminal history increases the maximum term of

imprisonment to 10 years. Gov’t Mem. at 5; see also 8 U.S.C. § 1326(b)(1). Specifically, the

government states that a “criminal record check and review of the defendant’s alien file revealed

that on or about February 19, 2009, the defendant was convicted in the Superior Court of the

District of Columbia of three counts of Misdemeanor Sexual Abuse.” Gov’t Mem. at 4.

       Although the defendant is statutorily exposed to 10 years’ imprisonment, the parties are

in accord that the sentencing guidelines recommend a sentence of a year or less of imprisonment

and leave open the possibility of a probationary sentence. Gov’t Supp. Mem. at 9; Def.’s




                                                 6
Response to Gov’t’s Objection to Pretrial Release (“Def.’s Opp’n”) at 2 n.1, ECF No. 8.3

Nevertheless, defendant stands accused of a crime, an essential element of which is the failure to

comply with a court order. Moreover, although the guidelines may suggest a lower penalty,

Congress emphasized the seriousness of this alleged offense by attaching a possible 10-year

sentence. This factor thus weighs in favor of detention.

                 2.       The Weight of the Evidence Against the Defendant

        The weight of the evidence in this case also favors detention. The government avers that

defendant’s 2009 removal from the united states is recorded on a “[w]arrant of [r]emoval” that

includes his photograph, his fingerprints, and his signature. Gov’t Mem. at 5. As described

above, the government was also able to conduct a criminal record check that turned up a record

of defendant’s three convictions for misdemeanor sexual abuse in Superior Court. Gov’t Mem.

at 4. The evidence necessary to prove the elements of the alleged offense is minimal and the

government avers that it has it. A strong government case only heightens defendant’s incentive

to flee. The second factor therefore also favors detention.

                 3.       The History and Characteristics of the Defendant

        Defendant, who is from Guatemala, is undocumented. PTS Rep. at 1. In 2009, he pled

guilty to three counts of misdemeanor sexual abuse in Superior Court. Id. at 3. In doing so, he

admitted to groping several women who were strangers to him. Gov’t Mem. at 7; see also Hr’g

Tr. (Rough) at 27. Although those are the only convictions on defendant’s record, they are not

his only encounter with law enforcement, with two arrests in 2019 and an additional arrest

recently resulting in pending charges in D.C. Superior Court. Specifically, in April 2019,



3
        The government estimates that the applicable guideline, U.S.S.G. § 2L1.2, produces a sentencing range of
between six and twelve months, while the defendant suggests zero to six months is the proper range. Hr’g Tr.
(Rough) at 32.

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defendant was arrested by the United States Park Police for misdemeanor lewd, indecent, or

obscene acts and misdemeanor unlawful entry. Gov’t Mem. at 3. Those charges were ultimately

dismissed. MJ Hr’g Tr. (Rough) at 9. In October 2019, defendant was again arrested by United

States Park Police for misdemeanor possession of a controlled substance. Gov’t Mem. at 3.

       The circumstances leading to defendant’s most recent arrest are, however, most troubling.

Defendant was arrested on April 15, 2020 and charged with assault with a dangerous weapon and

assault with significant bodily injury. He is accused of cutting another individual with a knife on

his chest and neck. Gov’t Mem. at 6–7. The alleged victim required stitches. Id. at 7.

Defendant has challenged the veracity of the alleged victim of the knife attack who is also

apparently the sole witness. Hr’g Tr. (Rough) at 16–17. The facts underlying that charge are not

a model of clarity, id. at 19 (government conceding that the document from which its proffer is

drawn “is not a clearly written document”), but it must be noted that a Superior Court Judge did

find probable cause existed to believe that defendant had committed this serious and violent

crime. Id. at 20.

       Defendant’s citizenship status must also be taken into account. The record suggests he

has no legal status in the United States. In fact, Immigration, Customs and Enforcement (“ICE”)

has lodged an immigration detainer, akin to a warrant, against defendant. Id. at 23. While this

fact alone cannot justify pretrial detention, see, e.g., Xulam, 84 F.3d at 444; Vasquez-Benitez, 919

F.3d at 551, it certainly must be weighed in balancing the section 3142(g) factors. Clearly when

a defendant has strong community ties, his undocumented status may provide little justification

for believing him to be a flight risk. See Vasquez-Benitez, 919 F.3d at 551 (noting that, in part

because defendant “ha[d] a wife, two children and a job as a dishwasher in the D.C. area” for a

long time period, the third factor likely favored release); Xulam, 84 F.3d at 442 (same for



                                                 8
defendant who “was employed and had a wide circle of respected acquaintances and close

friends in the community”). Other factors might also incentivize an undocumented defendant to

stay in the District despite substantial risk of deportation. See Vasquez-Benitez, 919 F.3d at 551

(explaining defendant was attempting to “obtain withholding of removal” in already-begun

immigration proceedings, which required following District Court’s orders “in order to convince

an immigration judge that he is credible”); Xulam, 84 F.3d at 443 (noting that the defendant had

a “strong commitment to advocating his Kurdish cause in the United States,” which could be

“pursue[d]” only “publicly” and his flight “would render him permanently impotent in that

respect”). Defendant in this case, however, has not proffered any such strong community ties or

other external reason to stay in compliance with any conditions set on his pretrial release. See

Hr’g Tr. (Rough) at 14. Defendant has at least one relative in the District of Columbia, id., but is

not currently employed. Id. at 21–22. Combined with defendant’s history of physical violence

and his inability to conform his conduct to court-ordered removal, his undocumented status and

the existence of the detainer tip this factor in favor of detention.

                4.      The Nature and Seriousness of the Danger Posed by Defendant’s
                        Release

        Although the government seeks detention based only on defendant’s risk of flight, Hr’g

Tr. (Rough) at 11, it asserts that this fourth factor also weighs in favor of detention. Defendant’s

admitted conduct, groping several women in 2009, and his more recent alleged conduct

involving cutting another individual twice with a knife, tends to show that the government is

right. This fourth and final factor also weighs in favor of detention.




                                                   9
                 5.      Effect of the Current Pandemic

        The Court is well aware that COVID-19, currently the cause of a worldwide pandemic

and national emergency,4 is spreading in the D.C. Jail. See Banks v. Booth, Civ. Action No. 20-

849 (CKK), 2020 WL 1914896, at *9 (D.D.C. Apr. 19, 2020). Although the threat of a

pandemic does not fit neatly into one of the factors courts must consider under section 3142(g),

the dangers of the virus give the Court pause about sending yet another person to the D.C. Jail

and must be taken into account. Nevertheless, given the paucity of information produced about

defendant’s ties to the community, see Hr’g Tr. (Rough) at 20–22, where defendant would be

able to go or be found were he released is highly unclear. More importantly, the conditions of

the detention facilities in this District are currently the subject of a temporary restraining order

issued by another Judge in this Court. See Banks, 2020 WL 1914896 at *15. The Court has

confidence that the D.C. Department of Corrections, which oversees those facilities, will do

everything it can to comply with that order so as to prevent the further spread of the virus to its

residents and staff.

                                                     ***

        Upon consideration of the proffered evidence presented at the hearing in this matter, the

factors set forth in 18 U.S.C. § 3142(g), and the possible release conditions set forth in

§ 3142(c), the Court finds that the four statutory factors favor pretrial detention and that the

defendant represents a serious risk of flight. Thus, the government has met its burden to show,

by a preponderance of the evidence, that “no condition or combination of conditions will

reasonably assure the appearance of the” defendant. 18 U.S.C. § 3142(e)(1); Vasquez-Benitez,


4
         See Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease
(COVID-19) Outbreak, OFFICE OF THE PRESIDENT OF THE UNITED STATES,
https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-
coronavirus-disease-covid-19-outbreak/ (last visited April 22, 2020).

                                                      10
919 F.3d at 551. Accordingly, the government's motion for review and appeal of the release

order is granted and the defendant shall remain in the custody of the Attorney General for

confinement pending a final disposition in this case. See 18 U.S.C. § 3142(i).

IV.       ORDER

          Upon consideration of the Complaint, ECF No. 1, the government's Motion for Review

and Appeal of Release Order, the evidence proffered and arguments presented in connection with

the government's motion at the detention hearing held on March 3, 2020, the entire record, and

the factors enumerated in 18 U.S.C. § 3142(g), based upon the written findings of fact and

statement of reasons set forth in this Memorandum Opinion, it is hereby

          ORDERED that the government’s Motion for Review of the Magistrate Judge’s Release

Order is GRANTED and that Order is REVERSED; it is further

          ORDERED that the government’s Motion for Pretrial Detention is GRANTED; and it is

further

          ORDERED that the defendant, Marvin Antonio Sagastume-Galicia, be committed to the

custody of the Attorney General 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 be afforded reasonable opportunity for private

consultation with counsel; and it is further




                                                11
       ORDERED that, on order of this Court or on request of an attorney for the government,

the person in charge of the corrections facility in which the defendant is confined shall deliver

the defendant to the U.S. Marshal for the District of Columbia for the purpose of an appearance

in connection with a court proceeding.

       SO ORDERED.

       Date: April 22, 2020

                                                      __________________________
                                                      BERYL A. HOWELL
                                                      Chief Judge




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