                                                                            FILED
                               FOR PUBLICATION                                 JUL 23 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10289

              Plaintiff - Appellee,              D.C. No. 2:15-cr-00632-DLR-1
                                                 District of Arizona,
 v.                                              Phoenix

ERNESTO SANTOS-FLORES, AKA
Ernesto Adan Santos-Flores,                      ORDER

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                      Submitted to Motions Panel July 6, 2015


Before: SCHROEDER, CANBY, and KOZINSKI, Circuit Judges.

      Defendant Ernesto Santos-Flores appeals the district court’s order of

detention pending trial. We have jurisdiction pursuant to 18 U.S.C. § 3145(c) and

28 U.S.C. § 1291. We hold that the district court erred in ordering pretrial

detention based on the likelihood that, if released pending trial, Santos-Flores

would be placed in immigration detention and removed from the United States,
precluding his appearance for trial. We affirm the district court’s detention order,

however, based on the district court’s alternative, individualized analysis of factors

that make Santos-Flores a voluntary flight risk.

      Santos-Flores, a native and citizen of Mexico, is charged with one count of

felony illegal reentry of a removed alien in violation of 8 U.S.C. § 1326(a), as

enhanced by § 1326(b)(1). The government alleges that Santos-Flores was

previously convicted of felony illegal reentry on November 19, 2014 in the United

States District Court for the Western District of Texas, and sentenced to a term of

time served plus one year of supervised release. The conditions of supervised

release included not entering the United States without documentation and not

committing any other crimes. Santos-Flores was then, on or about December 9,

2014, removed from the United States to Mexico pursuant to a reinstated order of

removal. On March 30, 2015, Santos-Flores was apprehended by the Border Patrol

in Maricopa County, within the District of Arizona. He presented the Border

Patrol with three forms of false identification (a United States passport, birth

certificate, and Social Security card) and claimed to be a United States citizen. The

government conducted an immigration history check and determined that Santos-

Flores was not a citizen and did not appear to have obtained authorization to return

to the United States.


                                           2
      Santos-Flores was charged by complaint on April 1, 2015, and indicted

(following an extension of time) on May 26, 2015. A magistrate judge of the

District of Arizona issued an order of detention pending trial on April 8, 2015.

Santos-Flores appealed, and the district court affirmed the detention order on May

26, 2015. This appeal followed.

      Under the Bail Reform Act of 1984, as amended, Congress has determined

that any person charged with an offense under the federal criminal laws shall be

released pending trial, subject to appropriate conditions, unless a “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). Only in rare cases should release be denied,

and doubts regarding the propriety of release are to be resolved in favor of the

defendant. United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985).

      Here, the government does not contend, nor did the district court find, that

Santos-Flores poses a danger to any other person or the community pending trial.

The district court found, however, that if Santos-Flores were released under the

Bail Reform Act, he likely would be unable to appear at trial because he would be

detained by United States Immigration and Customs Enforcement (“ICE”) and

removed from the United States. In the alternative, the district court found that his


                                           3
alleged illegal reentry, violation of supervised release, and use of fraudulent

identification documents indicated that Santos-Flores could not be trusted to obey a

court order to appear.

      On a motion for pretrial detention, the government bears the burden of

showing by a preponderance of the evidence that the defendant poses a flight risk.

United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991). We review the

district court’s factual findings concerning whether any condition or combination

of conditions will reasonably assure the appearance of the defendant as required

under a “deferential, clearly erroneous standard.” United States v. Hir, 517 F.3d

1081, 1086 (9th Cir. 2008) (quoting United States v. Townsend, 897 F.2d 989, 994

(9th Cir. 1990)). The conclusions based on such factual findings, however, present

a mixed question of fact and law. See Hir, 517 F.3d at 1086. Thus, “the question

of whether the district court’s factual determinations justify the pretrial detention

order is reviewed de novo.” Id. at 1086-87 (citations omitted).

      The factors that a court should consider in determining whether a particular

defendant should be released under pretrial supervision or confined pending trial

are set forth in 18 U.S.C. § 3142(g), and immigration status is not a listed factor.

See also 18 U.S.C. § 3142(e)(2)-(3), (f). Alienage may be taken into account, but

it is not dispositive. See Motamedi, 767 F.2d at 1408 (holding that, under the


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circumstances of that case, the factor of alienage “does not tip the balance either

for or against detention”).

      Congress chose not to exclude removable aliens from consideration for

release or detention in criminal proceedings. See 18 U.S.C. § 3142(a)(3), (d).1 The

Bail Reform Act does, however, provide specific procedures to be followed when a

judicial officer determines that a defendant is not a citizen of the United States or

lawfully admitted for permanent residence. 18 U.S.C. § 3142(d). The judicial

officer must determine whether such an alien may flee or pose a danger to any

other person or the community. 18 U.S.C. § 3142(d)(2). If so, the judicial officer

shall order temporary detention for not more than ten days, and direct the attorney

for the government to notify “the appropriate official of the Immigration and

Naturalization Service.” 18 U.S.C. § 3142(d).2 A determination that the alien may


      1
         A categorical bar against release for removable aliens would raise
constitutional questions. See, e.g., Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th
Cir. 2014) (en banc) (holding that Arizona constitutional provision categorically
forbidding bail for certain undocumented immigrants violates substantive due
process). In light of the plain language of the Bail Reform Act, however, we need
not reach those questions here.
      2
         The Immigration and Naturalization Service was abolished pursuant to the
Homeland Security Act of 2002. See Hernandez v. Ashcroft, 345 F.3d 824, 828 n.2
(9th Cir. 2003). Immigration functions were transferred to the agencies within the
newly-created Department of Homeland Security (“DHS”) and to the Department
of Justice (“DOJ”). Id. The notification under 18 U.S.C. § 3142(d) must now,
                                                                      (continued...)

                                           5
flee or pose a danger—voluntary acts—is required to impose even this temporary

detention. Id. If the immigration official does not take custody of the defendant

during that ten-day period, Congress directs the court to treat the defendant in

accordance with the other provisions of the Bail Reform Act, “notwithstanding the

applicability of other provisions of law governing release pending trial or

deportation or exclusion proceedings.” 18 U.S.C. § 3142(d). The district court’s

decision to detain Santos-Flores pending trial based on the possibility of his

detention or removal by immigration authorities, therefore, is contrary to the

express language of the Bail Reform Act.

      Reinstatement of a prior order of removal is neither automatic nor

obligatory. Villa-Anguiano v. Holder, 727 F.3d 873, 878 (9th Cir. 2013). ICE may

decide to forego reinstatement for a variety of reasons, including but not limited to

the exercise of prosecutorial discretion. Id. at 878-79. The government may also

exercise its judgment that the public interest in criminally prosecuting an alien is

greater than the public interest in swiftly removing him. The government may,

therefore, elect to deliver the alien to the United States Attorney’s Office for

prosecution, as it did here, instead of removing him immediately pursuant to



      2
       (...continued)
therefore, be made to the appropriate DHS or DOJ official.

                                           6
8 U.S.C. § 1231(a)(5). Having made this choice, however, the government may

not use its discretionary power of removal to trump a defendant’s right to an

individualized determination under the Bail Reform Act.

      As a number of district courts have persuasively explained, the risk of

nonappearance referenced in 18 U.S.C. § 3142 must involve an element of volition.

See, e.g., United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1176-78 (D. Or.

2012) (citing cases). If the government, by placing Santos-Flores in immigration

detention or removing him, jeopardizes the district court’s ability to try him, then

the district court may craft an appropriate remedy. See id. at 1179-81.3 The court

may not, however, substitute a categorical denial of bail for the individualized

evaluation required by the Bail Reform Act. 18 U.S.C. § 3142(e), (g); see also

Lopez-Valenzuela, 770 F.3d at 791.

      We conclude that the district court erred in relying on the existence of an

ICE detainer and the probability of Santos-Flores’s immigration detention and



      3
         We need not, therefore, reach the question of whether the removal period
of 8 U.S.C. § 1231(a)(1)(A) begins while a defendant is “in custody” on pretrial
release, subject to restraints not shared by the public generally that significantly
confine and restrain his freedom. See 8 U.S.C. § 1231(a)(1)(B); cf. Hensley v.
Mun. Ct., 411 U.S. 345, 351 (1973). Nor need we reach the relevance, if any, of
8 C.F.R. § 215.3(g), which provides that the departure from the United States of an
alien who is needed as a party to a criminal case shall be deemed prejudicial to the
interests of the United States.

                                           7
removal from the United States to find that no condition or combination of

conditions will reasonably assure Santos-Flores’s appearance pursuant to

18 U.S.C. § 3142(e).

      Our conclusion is different, however, with regard to the district court’s

alternative ruling that Santos-Flores is a voluntary flight risk. We conclude that

the totality of the evidence supports the district court’s ruling and, consequently, its

detention order. Primary factors include Santos-Flores’s violation of the terms of

his supervised release, his multiple unlawful entries into the United States, his

prior failure to appear when required in state court, his use and possession of

fraudulent identity documents, and the severity of the potential punishment and the

weight of the evidence against him.

      Santos-Flores does not dispute this evidence, but argues that such factors are

so common to defendants in illegal reentry prosecutions that they amount to a

categorical rule, or at least an improper presumption, against release in such cases.

Even if we accept, for purposes of decision, the premises of this argument, it fails

on its own terms. Review of the individualized factors set forth in 18 U.S.C.

§ 3142(g) does not bear out Santos-Flores’s contention that a denial of pretrial

release to him will amount to a presumption that all illegal reentry defendants,

much less all undocumented alien defendants, will be denied pretrial release. For


                                           8
instance, on the record before us, the government has shown by a preponderance of

the evidence that Santos-Flores’s latest entry into the United States violated the

terms of his supervised release in the Western District of Texas. The Bail Reform

Act provides that the court shall consider “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.” 18 U.S.C. § 3142(g)(3)(B). Consideration of this

factor does not apply categorically to all undocumented aliens, all illegal reentry

defendants, or even all defendants with a prior illegal reentry conviction. It would

apply only to defendants whose reentry occurred in violation of an applicable term

of supervised release.

      Similarly, Santos-Flores does not dispute that he has a prior charge of failure

to appear in Colorado, in addition to a number of other prior arrests. Consideration

of a defendant’s record concerning appearance at court proceedings and other past

conduct is proper under 18 U.S.C. § 3142(g)(3)(A). This factor is individualized to

Santos-Flores and does not create a categorical rule that would prevent release for

undocumented defendants or defendants in illegal reentry prosecutions. Santos-

Flores has made no attempt to explain his prior charge of failure to appear and his

other arrests, or to offer any countervailing circumstances.


                                           9
      It is true that the government also advances a number of undisputed factors

that are relatively common to defendants in illegal reentry cases. These include

Santos-Flores’s possession of identification documents that do not belong to him;

his claim, made to the Border Patrol, to be a United States citizen; and his reentry

into the United States in violation of an order of removal. But consideration of the

nature and circumstances of the offense charged is proper under 18 U.S.C.

§ 3142(g)(1). See Townsend, 897 F.2d 989, 994 (9th Cir. 1990). When these

considerations are supplemented by the factors already discussed that are particular

to Santos-Flores and not necessarily applicable to all alien reentry defendants, the

totality of the evidence supports the district court’s ruling and negates any claim

that the district court applied a categorical rule or presumption favoring detention

of alien defendants.

      We do not accept, however, the government’s argument that Santos-Flores’s

lack of ties to the District of Arizona supports the pretrial detention order, because

Santos-Flores has significant community ties in Colorado. Family ties,

employment, length of residence in the community, and community ties are all

relevant to the determination of pretrial release. 18 U.S.C. § 3142(g)(3)(A). This

court has held that “community ties” under the Bail Reform Act “embrace[] both

the community in which the charges are brought and also a community in the


                                          10
United States to which the defendant has ties.” Townsend, 897 F.2d at 995. The

record reflects that Santos-Flores has a United States citizen wife and United States

citizen children, with whom he seeks to live in Colorado. He resided in the same

Colorado community for approximately fifteen years, since childhood. He worked

for the same employer for approximately nine years and apparently would be

welcomed back. These community ties favor Santos-Flores, but they do not

overcome the numerous other factors that supported the district court’s

determination that he was a voluntary flight risk.

      In sum, the district court correctly found that the government in this case

met its burden of showing, by a preponderance of the evidence, that individualized

factors demonstrate that no condition or combination of conditions will reasonably

assure that Santos-Flores will voluntarily appear. See 18 U.S.C. § 3142(e);

Motamedi, 767 F.2d at 1406. We therefore affirm the district court’s pretrial

detention order.

      AFFIRMED.




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                               Counsel Listing

Robert J. McWhirter, ASU Alumni Law Group, Phoenix, Arizona, for Appellant
Ernesto Santos-Flores.

John S. Leonardo, United States Attorney, Krissa M. Lanham, Deputy Appellate
Chief, and William G. Voit, Assistant United States Attorney, United States
Attorney’s Office, Phoenix, Arizona, for Appellee United States of America.




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