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


                               No. 09-20560                            FILED
                                                                   October 16, 2009
                             Summary Calendar
                                                                 Charles R. Fulbruge III
                                                                         Clerk
UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

BRUCE D ZACCARIA,

                                           Defendant-Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas
                         USDC No. 4:08-CR-443-22


Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
      Bruce D. Zaccaria was indicted for one count of conspiracy to distribute
anabolic steroids unlawfully. At a detention hearing, a magistrate judge found
that Zaccaria was not a flight risk. However, based on a finding that Zaccaria
was a danger to the community, the magistrate judge ordered that he be
detained. Zaccaria moved to revoke the order in the district court pursuant to




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 09-20560

18 U.S.C. § 3145(b), but the district court denied the motion. This appeal follows.
      Under the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., pretrial
detention “can be ordered only ‘in a case that involves’” one of the circumstances
listed in § 3142(f) and “in which 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 community.”
United States v. Byrd, 969 F.2d 106, 109 (5th Cir. 1992); see also § 3142(e)(1).
      Zaccaria’s detention was apparently predicated on the belief that his case
involved an offense punishable under the Controlled Substances Act (CSA), 21
U.S.C. § 801 et seq., by at least 10 years of imprisonment. See § 3142(f)(1)(C).
Under current law, Zaccaria’s conspiring to distribute anabolic steroids would
qualify as such an offense because it would be punishable under § 841(b)(1)(E)(i),
which provides a 10-year maximum term of imprisonment.             See 21 U.S.C.
§§ 812(c), 841(b)(1)(D)-(E)(i), 846.
      However, “the proper penalty statute is the one in effect when the offense
is committed.” United States v. Smith, 869 F.2d 835, 836-37 (5th Cir. 1989). The
superseding indictment alleged that the conspiracy to distribute anabolic
steroids existed from 2001 through at least 2007, and the Government’s witness
testified that Zaccaria participated in the conspiracy from 2005 to 2007. If
Zaccaria committed the offense, he did so before the enactment of the Ryan
Haight Online Pharmacy Consumer Protection Act of 2008, Pub. L. 110-425,
§ 3(e)(1)(A)-(B), 122 Stat. 4820, 4828 (effective Apr. 15, 2009) (codified in
relevant part at § 841(b)(1)(D)-(E)). The version of the CSA in effect when
Zaccaria’s charged offense was allegedly committed would punish Zaccaria under
former § 841(b)(1)(D) with “a term of imprisonment for not more than 5 years.”
Accordingly, Zaccaria’s charged offense falls outside the scope of § 3142(f)(1)(C).
      This court has held that the Government need not show that the “charged
offense” itself presents one of the circumstances in § 3142(f) so long as the
defendant’s case involved any offense or other § 3142(f) factor that could serve

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                                  No. 09-20560

as the statutory basis for detention. Byrd, 969 F.2d at 110. The Government’s
witness testified that Zaccaria not only participated in the drug conspiracy but
also personally distributed some of the anabolic steroids, but other possible
offenses he may have committed under the CSA involving anabolic steroids, such
as distribution or possession with intent to distribute, would also be punishable
by only a five-year maximum term of imprisonment under former § 841(b)(1)(D).
Likewise, the record does not suggest that Zaccaria’s case involved an offense
punishable under 21 U.S.C. §§ 859, 860 or 861.
      In addition, while the superseding indictment charging Zaccaria included
a total of 46 counts against 22 individuals, including allegations of smuggling
human growth hormone into the United States, money laundering, and the
unlawful distribution of ecstasy and hydrocodone, the Government did not
present any evidence suggesting that Zaccaria was even aware of the other
criminal activities alleged in the indictment. This court has held that “the proof
of a nexus” between the charged offense “and one or more of the . . . § 3142(f)
factors is crucial.” Byrd, 969 F.2d at 110. Because the Government did not show
any nexus between Zaccaria’s charged offense involving anabolic steroids and
any other offense in the superseding indictment apart from the coinciding role
of a single co-conspirator, his pretrial detention cannot be predicated on those
other offenses.
      Because Zaccaria’s case does not involve one of the seven circumstances
listed in § 3142(f), we reverse the district court’s decision to deny Zaccaria’s
motion for revocation of the detention order. On remand, the district court
should promptly enter an appropriate order of release under § 3142(b) or(c). See
§ 3142(a)(1)-(2), (b), and (h). However, we note that “the provisions of 18 U.S.C.
§ 3142 do not contemplate finality or res judicata on the issue of pre-trial
detention.” Byrd, 969 F.2d at 110.
      REVERSED and REMANDED for further proceedings.



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