                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            NOV 2 1999
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,

    v.                                                    No. 99-8090
                                                     (D.C. No. 99-CR-31-D)
    VICTOR MANUEL                                          (D. Wyo.)
    GOMEZ-FERNANDEZ,

                  Defendant-Appellant.




                              ORDER AND JUDGMENT          *




Before BALDOCK , EBEL , 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)(2); 10th Cir. R. 34.1(G). 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      This order and judgment is not binding precedent, except under the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 Victor Manuel Gomez-Fernandez appeals the district court’s

denial of release on bond pending trial. We have jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), and we affirm.

      On March 19, 1999, defendant was charged with numerous counts of drug

violations, most carrying possible prison terms in excess of ten years. The

magistrate judge ordered defendant detained. At defendant’s request, the district

court reviewed the magistrate judge’s detention order at a hearing on April 15,

1999. At the close of the hearing, the court requested that counsel brief the issue

of whether defendant was a flight risk. After consideration of the arguments, the

district court ordered defendant’s continued detention, determining that no

conditions of release could reasonably assure either defendant’s appearance at

future proceedings or the safety of the community. Specifically, the district court

determined that defendant’s extensive ties to Mexico posed a genuine risk that he

would flee to that country. In addition, the court reasoned that a taped recording

of a conversation between defendant and another person during a drug deal in

which defendant threatened violence against a passing police officer if he

discovered the drug deal, created a genuine concern for the safety of the

community if defendant was released.

      Pursuant to 18 U.S.C. § 3142(e), “upon a finding of probable cause that

defendant has committed a federal drug offense carrying a maximum prison term


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of ten years or more, a rebuttable presumption arises that no conditions of release

will assure defendant’s appearance and the safety of the community.”     United

States v. Stricklin , 932 F.2d 1353, 1354 (10th Cir. 1991). Although “[o]nce the

presumption is invoked, the burden of production shifts to the defendant . . . .

the burden of persuasion regarding risk-of-flight and danger to the community

always remains with the government.”     Id. at 1354-55. Our review of the district

court’s detention order “is plenary as to mixed questions of law and fact and

independent, with due deference to the district court’s purely factual findings.”

Id. at 1355.

      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 § 3142(g), including (1) the nature of

the offense and whether the offense involved violence or narcotic drugs; (2) the

weight of the government’s evidence; (3) the history and characteristics of the

defendant; and (4) whether the defendant posed a serious danger to any person or

the community.

      Here, the district court analyzed the § 3142(g) factors and correctly

determined that the government had carried the burden of persuasion on the issue

of risk of flight. First, the court noted that the case against defendant involved

a large drug distribution conspiracy, and that the government’s evidence


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supported its contention that defendant played a major role in the alleged

conspiracy. The court then found that defendant had provided only limited

information regarding his history and characteristics and had not demonstrated

how this information supported defendant’s request for release. Finally, the court

concluded that defendant’s threat of harm to a police officer established his

danger to the community.

      On appeal, defendant argues that the district court inappropriately

considered his national origin in making its bond determination. Defendant has

been a naturalized citizen of this country since 1997 and is married to a United

States citizen. However, the government produced evidence that defendant and

his wife have strong and on-going ties to Mexico, and in fact, frequently travel

to that country. The government also alleged that relatives and co-conspirators of

defendant have fled to Mexico, and that defendant was planning a trip to Mexico

to attend the wedding of one of these relatives and co-conspirators. The district

court therefore, adopted the position of the government in finding that defendant

was a flight risk.

      Based on our review of the parties’ briefs on appeal and appendices, we

conclude that the district court’s factual findings underlying its detention order

are not clearly erroneous. The district court did not err in finding that defendant

posed a serious risk of fleeing and that no condition or combination of conditions


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would reasonably assure his appearance if he were released. Moreover, the

court’s determination that defendant posed a community threat if released was

adequately supported and not persuasively challenged by defendant.

      Accordingly, the judgment of the United States District Court for the

District of Wyoming is AFFIRMED.


                                      ENTERED FOR THE COURT
                                      PER CURIAM




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