     Case: 18-51059      Document: 00514822802         Page: 1    Date Filed: 02/05/2019




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

                                                                                FILED
                                    No. 18-51059                          February 5, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

              Plaintiff – Appellee,

v.

JOSE MANUEL ACOSTA-LEYVA,

              Defendant – Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:18-CR-849-1




Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant, Jose Manuel Acosta-Leyva, appeals the district court’s
pretrial detention order. Acosta-Leyva was charged with attempting to enter
the United States with a counterfeit visa, in violation of 18 U.S.C. § 1546(a).
Finding no abuse of discretion, we AFFIRM the district court’s judgment, and
we DENY Acosta-Leyva’s motion to strike the Government’s response in part.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                No. 18-51059
      I.    BACKGROUND.
      At Acosta-Leyva’s detention hearing, Customs and Border Protection
enforcement officer Michael McCall testified that Acosta-Leyva, after being
advised of his rights, admitted that he knowingly purchased a counterfeit visa
for $6,500 from a man in Mexico so that he could reunite with his family and
seek employment in the United States. Claudia Montiel testified that she had
known Acosta-Leyva for twelve years, that she had been married to him for six
years, and that they had four children. She testified that Acosta-Leyva had
lived in Oklahoma with her for the entire time she had known him, until he
voluntarily departed in 2017. She testified that her husband’s parents and
sister lived in Mexico. She expressed her belief that her husband would come
to court for his trial, and she agreed that he would live at home in Oklahoma
if released. She also testified that Acosta-Leyva had started the process to
become a resident alien but stopped in 2013 for financial reasons. Acosta-
Leyva’s counsel represented that Acosta-Leyva was not employed at the time
of the hearing.
      The magistrate judge ordered Acosta-Leyva released on a $20,000 bond
with several conditions, including that he remain in Oklahoma County,
Oklahoma when not meeting with his attorney or attending court.            The
Government appealed the magistrate judge’s release order to the district court,
and the magistrate judge stayed the release order pending the appeal.
      The district court received briefing and heard argument on the
Government’s appeal of the magistrate judge’s order.        The district court
ordered the reversal of the magistrate judge’s release order and ordered the
detention of Acosta-Leyva, based on the strength of the evidence against him,
the high likelihood of his conviction, and the five-year statutory maximum




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                                      No. 18-51059
sentence. 1 In the district court’s subsequent written order of detention pending
trial, the district court expressly found “no condition or combination of
conditions to reasonably assure the appearance of the Defendant as required.”
In a section entitled “Findings Related to Detention,” the district court cited
the “significant and substantial” evidence against Acosta-Leyva, including his
admission of guilt; the punishment range; the record; and the fact that Acosta-
Leyva “d[id] not possess any documentation allowing legal residence in the
United States.”
       Acosta-Leyva timely filed a notice of appeal from the order of detention.
After the notice of appeal was filed, the district court set a February 20, 2019
trial date.
       II.    LAW and ANALYSIS.
       A judicial officer may order a defendant detained pending trial upon a
finding by a preponderance of the evidence that “no condition or combination
of conditions will reasonably assure the appearance of the person,” or by clear
and convincing evidence that “no condition or combination of conditions will
reasonably assure . . . the safety of any other person and the community.” 18
U.S.C. § 3142(e); see United States v. Fortna, 769 F.2d 243, 250 (5th Cir. 1985)
(citation omitted).       An assessment of whether conditions of bond will
reasonably assure a defendant’s appearance must take into account: (1) the
nature and circumstances of the offense charged; (2) the weight of the evidence;
(3) the defendant’s history and characteristics including, among other things,
his family ties, length of residence in the community, community ties, and past
conduct; and (4) the nature and seriousness of the danger to any person or the


       1 During the time between the hearing before the magistrate judge and the hearing
before the district judge, a grand jury returned an indictment charging Acosta-Leyva with
violating a different statutory subsection, 18 U.S.C. § 1546(b)(1), which carries a five-year
statutory maximum penalty. Since the hearing before the district judge, a grand jury has
returned a superseding indictment charging Acosta-Leyva with a § 1546(a) violation.
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community that would be posed by the defendant’s release. § 3142(g). “Absent
an error of law, we must uphold a district court’s pretrial detention order ‘if it
is supported by the proceedings below,’ a deferential standard of review that
we equate to the abuse-of-discretion standard.” United States v. Hare, 873 F.2d
796, 798 (5th Cir. 1989) (quoting United States v. Jackson, 845 F.2d 1262, 1263
(5th Cir. 1988)).
      Acosta-Leyva argues that the district court abused its discretion when it
reversed the magistrate judge’s order of release and ordered his pretrial
detention. Specifically, he asserts that the district court erred by failing to
consider his history and characteristics, by considering his immigration status,
and because the § 3142(g) factors demonstrate that some conditions of release
would reasonably assure his appearance. We determine that the district court
did not abuse its discretion by ordering Acosta-Leyva detained pending trial.
      As set forth above, the district judge conducted a hearing on the
Government’s motion for review and revocation of the magistrate judge’s
release order. At the conclusion of the hearing, the district judge stated that
he had reviewed the pleadings and documents in the record. He determined
that “the weight of the evidence is very strong against Mr. Acosta” and noted
the statutory maximum. The district court’s written order specifically states
that it considered “the relevant pleadings, the parties’ arguments, and the
applicable law,” and found “no condition or combination of conditions to
reasonably assure the appearance of [Acosta-Leyva] as required.”
      The defendant’s wife testified that he has family ties in both Oklahoma
and Mexico. She testified that his parents and only sibling live in Mexico and
that he voluntarily departed the United States in late 2017. The defendant
did not attempt to return to the United States until approximately one year
later on December 5, 2018, the date of his arrest in this case. Defense counsel


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indicated to the magistrate judge that the defendant had no employment in
the United States at the time of the hearing.
      Based on this court’s review of the record, we conclude that “the evidence
as a whole supports the conclusions of the proceedings below.” United States
v. Rueben, 974 F.2d 580, 586 (5th Cir. 1992) (citation omitted). The district
court’s judgment is supported by three of the four § 3142(g) factors: the weight
of the evidence, the nature and circumstances of the offense charged, and the
defendant’s history and characteristics. We find no abuse of discretion by the
district court. Accordingly, the district court’s judgment is AFFIRMED. The
defendant’s motion to strike the Government’s response in part is DENIED.




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