     Case: 20-10387      Document: 00515418303         Page: 1    Date Filed: 05/15/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                    No. 20-10387                          May 15, 2020
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

v.

ALEOGHENA OKHUMALE,

               Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:20-CR-122-4


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Aleoghena Okhumale brings this interlocutory appeal arguing that his
pre-trial detention is unlawful. We vacate the district court’s denial of
Okhumale’s motion to revoke the detention order and remand for further
proceedings.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      I.
      In March of this year, Okhumale was indicted on one count of conspiracy
to launder monetary instruments and one count of unlicensed money
transmitting. See 18 U.S.C. §§ 1956 & 1960. The government moved that
Okhumale should be detained awaiting trial and an order of temporary
commitment was entered until a detention hearing could be held.
      A detention hearing was held before a magistrate judge. At the hearing,
the Government argued that Okhumale should be detained based on a risk
that he would flee because he had minimal ties to the area and significant ties
outside of the United States, had previously attempt to evade law enforcement,
and had recently transferred a large amount of money to bank accounts in his
name in Nigeria. The Government also argued that Okhumale’s criminal
history, including both a DWI conviction and recent arrest for a DWI,
warranted pre-trial detention as well. Okhumale’s counsel acknowledged that
Okhumale had a “drinking problem” and “needs to quit drinking,” but argued
that this had never impacted Okhumale’s ability to appear in court.
      The magistrate judge ordered Okhumale detained pending trial,
concluding that Okhumale presented a risk that he would flee and there was
“no condition or combination of conditions” that would “reasonably assure the
defendant’s appearance in court” and “no condition or combination of
conditions” that would “reasonably assure the safety of any other persons and
the community.”
      Okhumale then filed a motion in the district court to revoke the
magistrate judge’s detention order. After a de novo review, the district court
concluded that the Government “did not prove by preponderance of the
evidence that [Okhumale] would be a flight risk.” However, it concluded that
Okhumale “poses a risk to his safety and that of others, which warrants his
detention.” Specifically, it relied on Okhumale’s previous DWI conviction,
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recent DWI arrest, and the fact that he was on bond for those offenses at the
time he was indicted for the federal charges. The district court explained that
“[h]is continued use of alcohol alone creates a risk to him and the community
(the public at large) if he operates a motor vehicle.” Because it determined that
there were no conditions that would reasonably assure Okhumale’s safety and
the safety of the public, the district court determined detention was warranted.
Okhumale brings this interlocutory appeal.
                                         II.
      The district court’s order denying revocation of the detention order is
appealable to this court. See 18 U.S.C. § 3145(c). “Absent an error of law,” this
court will uphold a district court’s pretrial detention order “if it is supported by
the proceedings below, a deferential standard of review that [this court]
equate[s] to the abuse-of-discretion standard.” United States v. Rueben, 974
F.2d 580, 586 (5th Cir. 1992) (internal quotation marks and citation omitted).
                                         III.
      Okhumale argues that his pre-trial detention is unlawful because the
district court did not find a serious risk that Okhumale would flee before trial.
The Government argues that such a finding is not necessary to justify pre-trial
detention. It claims that the district court’s conclusion that Okhumale posed a
risk both to his own health and safety and to the public’s health and safety is
enough to justify pre-trial detention.
      In United States v. Byrd, 969 F.2d 106, 108–09 (5th Cir. 1992), we
explained that judicial officers shall order pre-trial release “unless the judicial
officer determines that such release will not reasonably assure the appearance
of the person as required or will endanger the safety of any other person or the
community.” Id. at 109 (quoting 18 U.S.C. § 3142(b)). Detention may be ordered
only “if, after a hearing pursuant to § 3142(f), the judicial officer finds that no
condition or combination of conditions will reasonably assure the appearance
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of the person as required and the safety of any other person and the
community.” Id. (internal alterations omitted) (quoting § 3142(e)).
      Section 3142(f) specifies the circumstances under which a detention
hearing must be held, including: a case involving a crime of violence; an offense
with a maximum sentence of life imprisonment or death; certain drug offenses
with a maximum term of imprisonment for ten years or more; a felony offense
if the defendant has two or more previous conviction that would quality under
the preceding subsections; a “serious risk that the person will flea;” or a
“serious risk that the person will obstruct or attempt to obstruct justice, or
threaten, injure, or intimidate, or attempt to threaten, injure or intimidate, a
prospective witness or juror.” Byrd, 969 F.2d at 109 (quoting 18 U.S.C.
§ 3142(f)(1)-(2)).
      In Byrd, we explained that “detention can be ordered . . . only ‘in a case
that involves’ one of the six circumstances listed in (f),” and when “the judicial
officer finds, after a hearing, 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.” Id. Based on our holding in Byrd,
Okhumale contends that the district court “simply cannot legally do what it
has done; that is detain [Okhumale] ([who is charged with a] non-violent
offense) solely because he allegedly poses a risk to his safety and safety of
others.”
      The Government disagrees, arguing that Okhumale overreads Byrd. The
Government views the circumstances outlined in § 3142(f) to be only a
“threshold matter,” or “gateway.” In other words, the Government argues that
once it alleged that Okhumale should be detained for a reason listed in
§ 3142(f)—in this case the risk that Okhumale would flee—it properly
triggered a detention hearing where another set of requirements then took
over—those of § 3142(e). And, § 3142(e) allows for pre-trial detention if “no
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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.” Thus, pursuant to § 3142(e), the Government contends pre-trial
detention was proper because Okhumale was a danger to others and himself,
even if he was not a flight risk
      We disagree with the Government’s interpretation of Byrd and the
relevant statutory scheme. This court’s holding in Byrd requires both the
presence of one of the circumstances outlined in § 3142(f) and a determination
under § 3142(e) that the no conditions imposed could either assure the
appearance of the defendant or the safety of the defendant and community.
Byrd, 969 F.2d at 109–10; see also United States v. Zaccaria, 347 F. App’x 984,
986 (5th Cir. 2009) (reversing a district court order denying a motion for
revocation of a detention order because the case did not involve any of the
circumstances listed in § 3142(f)). In Byrd we expressly adopted the approaches
of the First and Third Circuits, which we described as holding “that a person’s
threat to the safety of any other person or the community, in the absence of
one of the six specified circumstances, could not justify detention under the
Act.” Byrd, 969 F.2d at 109.
      Here, the magistrate judge’s order was based in part on the risk of flight,
which is a circumstance listed in § 3142(f)(2)(A), thus satisfying Byrd.
However, the district court disagreed with the magistrate judge and
determined that the Government had failed to prove that Okhumale was a
flight risk. Therefore, the district court’s denial of the motion to revoke the
detention order was based solely on its determination that Okhumale “poses a
risk to his safety and that of others.” Because that risk alone, without one of
the circumstances outlined in § 3142(f), cannot justify pre-trial detention, we
VACATE the district court’s order denying Okhumale’s motion for revocation


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of the detention order. We REMAND to the district court for proceedings
consistent with this order.
      We note that the district court discussed some factors in its analysis of
Okhumale’s risk to the community that might have been relevant to the
analysis of whether he was a flight risk, such as the relative ease of removing
an ankle monitor. Perhaps the district court did not see the need for a more
robust flight-risk analysis if danger to the community was an independently
sufficient reason to detain Okhumale. Or perhaps the district court simply did
not think those other factors tipped the scales. In any event, because we
vacated the district court’s order, the court is free on remand to reconsider its
flight-risk ruling if it so chooses.




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