                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                           March 17, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-3026
                                                  (D.C. No. 6:15-CR-10152-JTM-5)
ADALBERTO HERNANDEZ-MEDINA,                                   (D. Kan.)
a/k/a Beto, a/k/a Babeto,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before GORSUCH, MATHESON, and McHUGH, Circuit Judges.
                 _________________________________

      Adalberto Hernandez-Medina was arrested in Arizona on a drug conspiracy

charge out of the federal district court in Kansas. Because he is an illegal alien, the

Bureau of Immigration and Customs Enforcement of the Department of Homeland

Security also lodged a detainer (“ICE detainer”). After a pretrial detention hearing, a

magistrate judge in the Arizona federal district court ordered his conditional release,

but stayed the order to permit review. The government promptly moved to revoke


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the order. Following Mr. Hernandez-Medina’s transfer to Kansas, the district court

there granted the government’s motion and ordered him detained. He now appeals,

challenging the district court’s decision on substantive and procedural grounds. We

exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), and affirm.

       Mr. Hernandez-Medina is charged with conspiracy to distribute 500 grams or

more of methamphetamine. If convicted, he faces a sentence of at least ten years to

life. 21 U.S.C. § 841(b)(1)(A). Pursuant to 18 U.S.C. § 3142(e)(3)(A), (f)(1)(C),

the seriousness of this charge triggers a presumption that no condition(s) of release

will reasonably assure his appearance for trial and the safety of the community, as

required to warrant pretrial release under 18 U.S.C. § 3142(e)(1). Nevertheless, the

magistrate judge in Arizona ordered his release on certain conditions, including

maintaining/actively seeking employment and complying with federal, state and local

law. On de novo reconsideration of the matter, see United States v. Cisneros,

328 F.3d 610, 616 n.1 (10th Cir. 2003), the district court revoked the release order.

Its rationale for doing so included (a) the seriousness of the charge, (b) the evidence

supporting the charge, (c) the fact that, as an illegal alien prohibited from working in

the United States, Mr. Hernandez-Medina could not simultaneously meet the routine

employment and compliance-with-law conditions relied on by the magistrate judge,

and (d) the likelihood that if Mr. Hernandez-Medina were released, DHS would

execute the ICE detainer and ultimately remove him to Mexico, taking him out of the

jurisdiction as effectively as if he voluntarily fled (which the district court did not

deem as likely). See Dist. Ct. Doc. 92, at 18-19, 22-24.

                                             2
       On appeal from a pretrial detention order, we review questions of law and

mixed questions of law and fact de novo, but defer to the district court’s findings of

fact unless clearly erroneous. Cisneros, 328 F.3d at 613. Mr. Hernandez-Medina

raises two broad objections to the district court’s order. First, he contends the district

court erroneously relied on the ICE detainer in finding him a potential flight risk,

arguing that “[t]he government cannot create the flight risk and then advocate for a

defendant’s detention because he is a flight risk.” Bail Memo. Br. at 10. As

recounted above, the district court did not rely solely on this consideration but cited

several circumstances pertinent to the detention determination under 18 U.S.C.

§ 3142(g). What this court said under similar circumstances in United States v.

Salas-Urenas, 430 F. App’x 721 (10th Cir. 2011),1 is equally apt here:

               We need not resolve whether pre-trial detention would be proper
       based solely on a defendant’s immigration status or an ICE detainer
       because that situation is not before us. A defendant’s immigration status
       and the existence of an ICE detainer are relevant to the detention decision
       as part of the history and characteristics of the defendant. The district court
       here properly weighed those considerations along with the nature of the
       charges and the weight of the evidence, both of which favored detention, in
       concluding that [the defendant] should not be released pending trial.
Id. at 723.

In this same vein, Mr. Hernandez-Medina contends the district court erroneously

found that nothing could stop his removal pursuant to the ICE detainer if he were

released before the government had a chance to prosecute. But the district court

never found or stated that Mr. Hernandez-Medina would necessarily be removed if

       1
        While Salas-Urenas is an unpublished decision, we consider it relevant and
persuasive. See Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                              3
released on bail.2 Rather, the district court merely observed it was more likely that

Mr. Hernandez-Medina would leave the country involuntarily through removal than

voluntarily through personal flight.

      Mr. Hernandez-Medina’s second general objection is procedural. He contends

the eight-week delay in resolution of the government’s motion to revoke the release

order violated the statutory directive that the matter “shall be determined promptly.”

18 U.S.C. § 3145(a). The delay was a function of complications with the marshal

service completing Mr. Hernandez-Medina’s transfer from Arizona to Kansas. See

Dist. Ct. Doc. 92 at 25-26. As the district court found, the delay did not bespeak any

bad faith interference with the judicial process that might conceivably warrant a

dismissal of the case with prejudice (and a dismissal without prejudice would have no

practical consequence):

      I am finding that Mr. Hernandez was brought here as quickly as possible.
      There was nothing more that I’m aware of that could have been done on
      this end to get him from Arizona to Kansas and [even] if . . . there was a
      violation, the only way that I would ever dismiss with prejudice is if I
      found that there was bad faith . . . in creating the delay and so if . . . there is
      a dismissal, it would be without prejudice to refiling, which simply means
      that we go through some of the same steps, of course.
Id. at 27. Further, the district court stated that its “decision would not have been any

different” had the government’s motion been heard earlier. Id.

      On appeal, Mr. Hernandez-Medina does not challenge the district court’s

findings about the lack of bad faith and the lack of any effect of the delay on the


      2
       Indeed, a final order of removal—the threshold trigger for commencement of
the removal period, see 8 U.S.C. § 1231(a)(1)(B)(i)—has not even been issued yet.
                                               4
outcome of the government’s motion.3 In our view, that is essentially the end of the

matter. The Supreme Court has held that delays in review of pretrial detention—even

if they clearly violate time prescriptions in the Bail Reform Act—are properly

deemed harmless “unless the court concludes from the record as a whole that the

error may have had a ‘substantial influence’ on the outcome of the proceeding.”

United States v. Montalvo-Murillo, 495 U.S. 711, 722 (1990).4 In other words, if the

defendant “would have been detained” anyway, the procedural delay in reaching that

conclusion is harmless. Id.

      The order of the district court is affirmed.




                                            Entered for the Court
                                            Per Curiam




      3
         He does complain in general terms that his detention in Arizona “deprived
him and counsel of the ability to meet and work together to prepare for his defense at
trial without undue inconvenience or hardship.” Bail Memo. Br. at 15. If defense
preparation for trial were adversely affected and Mr. Hernandez-Medina convicted as
a result, the appropriate time to advance these complaints would be on appeal from
the conviction.
      4
         While Montalvo-Murillo involved time limits in 18 U.S.C. § 3142(f) for the
initial detention hearing (which are more specific and stringent than § 3145’s broad
command for promptness in the district court’s determination of detention appeals),
we have invoked its guidance in connection with the latter as well, see United States
v. Meyers, 95 F.3d 1475, 1488 & n.5 (10th Cir. 1996).
                                           5
