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

                            FOR THE TENTH CIRCUIT                        November 4, 2019
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 19-1342
                                                 (D.C. No. 1:18-CR-00470-PAB-11)
 JASON OAKS,                                                 (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before BACHARACH, EID, and CARSON, Circuit Judges.
                 _________________________________

      Jason Oaks appeals the district court’s decisions denying his motion to revoke

the magistrate judge’s detention order and his motion for reconsideration. Exercising

our jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3145, we affirm.

      I. Background

      A grand jury charged Mr. Oaks with one count of conspiring to distribute

cocaine, one count of using a communications device to facilitate a drug crime, and


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
two counts of distributing cocaine. Although Mr. Oaks knew that his co-defendants

had been arrested and that law enforcement was requesting his self-surrender, he

remained a fugitive for five months. When law enforcement tracked him down to

arrest him, he tried to flee.

       After his arrest, the government requested that Mr. Oaks be detained pending

trial. He was subject to a rebuttable presumption of detention under 18 U.S.C.

§ 3142(e)(3)(A). At his hearing, he entered a plea of not guilty, but he did not

contest his detention. The magistrate judge ordered him detained pending trial.

       Four months later, Mr. Oaks filed a request for a change of plea hearing,

indicating that he wanted to change his plea to guilty. Shortly thereafter, he filed a

motion to revoke the magistrate judge’s detention order. The district court denied the

revocation motion. Mr. Oaks then filed a motion for reconsideration. After the

district court denied that motion, Mr. Oaks filed a timely appeal. 1


       1
         In his notice of appeal, Mr. Oaks only designated the order denying the
motion for reconsideration as the order being appealed. But in his brief, he also
challenges the district court’s denial of his motion to revoke the magistrate judge’s
detention order. Relying on Powell v. Miller, 849 F.3d 1286 (10th Cir. 2017), the
government argues that “appealing a motion for reconsideration does not include an
appeal of issues from the underlying order for which reconsideration was sought.”
Aplee. Resp. Br. at 12. But that case is inapposite. Powell involved a motion for
reconsideration filed almost three years after the denial of qualified immunity. Id. at
1287-88. We dismissed the appeal for lack of jurisdiction, explaining that the
defendant could not use the untimely motion for reconsideration “to resurrect his
right to appeal the district court’s order denying him qualified immunity” and he
“ha[d] failed to make any showing that the order denying his motion to reconsider
[was] otherwise immediately appealable [under the collateral order doctrine].” Id. at
1289. Powell does not stand for the proposition that a notice of appeal that only
designates an order denying reconsideration prevents this court from considering a
challenge to the underlying substantive order.
                                           2
      II. Discussion

      We review de novo “mixed questions of law and fact concerning the detention

or release decision, but we accept the district court’s findings of historical fact which

support that decision.” United States v. Cisneros, 328 F.3d 610, 613 (10th Cir.

2003). We review for abuse of discretion the denial of a motion for reconsideration.

United States v. Randall, 666 F.3d 1238, 1241 (10th Cir. 2011).

      In his motion for revocation of the magistrate judge’s detention order,

Mr. Oaks asked the district court to “conduct a hearing de novo,” Aplt. App. at 57,

but the district court did not hold a hearing. Mr. Oaks first argues that the district

court erred by failing to provide him with a “de novo hearing.” Aplt. Bail Br. at 6. A

district court conducts a de novo review of a magistrate judge’s detention order,

Cisneros, 328 F.3d at 616 n.1, but there is no statutory requirement that the court

hold a hearing, see 18 U.S.C. § 3145(b) (“If a person is ordered detained by a

magistrate judge, . . . the person may file, with the court having original jurisdiction

over the offense, a motion for revocation or amendment of the order. The motion

shall be determined promptly.”). Rather, the court may hold a hearing, if it so

chooses. Cf. Cisneros, 328 F.3d at 617 (“[The district court] also held [its] own

hearing to consider new evidence from the parties, as was [its] prerogative.”).

      To support his position, Mr. Oaks cites to United States v. Koenig, 912 F.2d

1190 (9th Cir. 1990). In that case, the Ninth Circuit stated that “[the district court]

should review the evidence before the magistrate and make its own independent

determination whether the magistrate’s findings are correct, with no deference. If the

                                            3
performance of that function makes it necessary or desirable for the district judge to

hold additional evidentiary hearings, it may do so . . . .” Id. at 1193 (emphasis

added). Mr. Oaks contends that the above-quoted language “indicates that a district

court should hold a hearing if there is evidence that the magistrate did not consider.”

Aplt. Bail Br. at 7 (emphasis added). We disagree with Mr. Oaks’ characterization.

Rather, we read that language as giving the district court discretion to hold a hearing

if it determines it needs to do so.

       More importantly, Mr. Oaks concedes that “[t]here is no precedent in this

Circuit that states that a district court must hold a hearing . . . .” Id. He argues that

this “is a matter of first impression” and that “in cases where the district court is

presented with new testimonial evidence that the magistrate did not have, as is the

case here, then a district court should be required to hold a hearing.” Id. at 7-8.

Mr. Oaks, however, has pointed to nothing in the statutory language or our case law

that would lead us to impose such a requirement. Instead, a district court retains the

discretion to decide whether to hold a hearing when conducting its de novo review of

a magistrate judge’s detention decision. Contrary to Mr. Oaks’ assertion, the district

court did not commit reversible error by failing to hold a hearing.

       Mr. Oaks next argues that the district court failed to consider the factors in

18 U.S.C. § 3142(g); specifically, his “physical and mental condition,” Aplt. Bail Br.

at 8. We disagree.




                                             4
       When “determining whether there are conditions of release that will

reasonably assure the appearance of the person as required and the safety of any other

person and the community,” the court should

       take into account the available information concerning--

       (1) the nature and circumstances of the offense charged . . . ; (2) the
       weight of the evidence against the person; (3) the history and
       characteristics of the person . . . ; and (4) the nature and seriousness of
       the danger to any person or the community that would be posed by the
       person’s release.

18 U.S.C. § 3142(g). “[T]he history and characteristics of the person,” includes,

among other things, “the person’s character, physical and mental condition, family ties,

employment, financial resources, length of residence in the community, community ties,

past conduct, history relating to drug or alcohol abuse, criminal history, and record

concerning appearance at court proceedings.” Id. § 3142(g)(3)(A) (emphasis added).

       In its decision, the district court went through each of the factors. It

determined that the presumption of detention, the strong evidence against Mr. Oaks, 2

and his criminal history all weighed in favor of detention. Because Mr. Oaks had

remained a fugitive for five months, the court noted that his community and family

ties—while weighing in his favor—did not carry much weight. The court also

considered Mr. Oaks’ medical conditions, noting his nose was broken at the time of

his arrest and that he suffered from sleep problems. The court acknowledged


       2
        The court noted that Mr. Oaks had indicated to the government his intent to
plead guilty to the conspiracy count at his change of plea hearing scheduled for
September 20, 2019. That hearing was re-set to October 24, 2019, and it has now
been re-set again to December 6, 2019.
                                             5
Mr. Oaks’ desire to seek treatment for his medical conditions if he was released on

bond. The court concluded that factor weighed somewhat in favor of release.

       After considering the factors, the court found that there “is no combination of

conditions that would ensure the safety of the community and assure the appearance

of the defendant.” Aplt. App. at 85. The court explained that the government had

shown by clear and convincing evidence that Mr. Oaks is involved in trafficking

cocaine and presents a danger to the community. And Mr. Oaks’ “recent revocation

of probation and failure to appear and his failure to turn himself in on this case

demonstrate by a preponderance of the evidence that the defendant poses a risk of

flight.” Id. at 86. The court recognized that “the defendant may be motivated not to

flee given his need for medical treatment,” but concluded that “this factor is

outweighed by the above-noted factors.” Id.

       Mr. Oaks complains that the court “completely fail[ed] to address [his] mental

health condition even though [he] clearly asserted it in his original motions,” and he

further complains that the court was “dismissive of his argument on his physical

conditions.” Aplt. Bail Br. at 9. In his motion to revoke the magistrate judge’s

detention order, Mr. Oaks stated that he wanted to be released “for a specific reason:

medical treatment for the broken nose, a broken hand/thumb, the sleep problems

arising from the broken nose and mental health issues for which he was being treated

at the time of his arrest.” Aplt. App. at 60. In its decision, the district court

recognized that Mr. Oaks wanted to be released so he could seek medical treatment

and it weighed that factor in his favor. We do not agree that the court was dismissive

                                             6
of Mr. Oaks’ physical conditions nor do we agree that the district court was expressly

required to mention Mr. Oaks’ mental health issues. The district court indicated that

Mr. Oaks would be motivated not to flee because of his need for medical treatment;

the court did not need to specify each condition for which Mr. Oaks would be seeking

treatment. Mr. Oaks has failed to show that the district court erred in considering the

§ 3142(g) factors. And he offers no argument as to how the district court erred in

concluding that he was a danger to the community and a flight risk.

      Finally, Mr. Oaks argues that the district court erred by failing to consider his

reply to the government’s response to his motion to revoke the magistrate judge’s

detention order. Mr. Oaks raised this issue in his motion for reconsideration, noting

that it did not “appear that the Court considered [his] Reply in its Order,” and asking

the court to reconsider his revocation motion, “in light of his Reply.” Aplt. App. at

97-98. Mr. Oaks then repeated the arguments he made in his reply.

      The district court explained that it did not consider Mr. Oaks’ reply “because,

at the time the Court ruled on the Motion for Revocation, the defendant had not filed

a reply brief.” Aplt. App. at 106. 3 The court explained that it “ruled within a

reasonable time after the response to the revocation of release motion” and “[t]he

defendant does not argue to the contrary.” Id. Mr. Oaks complains on appeal that

the district court stated that seven days had passed when it ruled on his motion, when



      3
         The docket reflects that the district court entered its denial order and then
later that same day Mr. Oaks filed his reply.

                                            7
in fact only six days had passed. 4 The district court may have made a misstatement

about the number of days that had passed when it issued its ruling, but Mr. Oaks fails

to explain how this is legally significant. He has not identified an order or local rule

permitting him to file a reply brief at all, let alone within a specific timeframe.

      Moreover, in denying the motion for reconsideration, the court observed that

“the evidence and arguments in both the reply brief and the motion to reconsider

could have been made in the Motion for Revocation.” Id. at 106. Because

“[m]otions to reconsider are generally an inappropriate vehicle to advance ‘new

arguments or supporting facts which were available at the time of the original

motion,’” id. (quoting Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.

2000)), the district court found “no proper basis to reconsider its order,” id.

Mr. Oaks has failed to show that the district court abused its discretion in denying his

motion for reconsideration.

      For the foregoing reasons, we affirm the district court’s orders denying the

motion to revoke the magistrate judge’s detention order and denying the motion for

reconsideration.


                                             Entered for the Court
                                             Per Curiam

      4
         Mr. Oaks also argues for the first time on appeal that “[t]he district court did
not rule within a reasonable time, especially in light of the fact that Oaks changed
counsel in that time frame.” Aplt. Bail Br. at 12. We will only reverse on the basis
of this forfeited argument if Mr. Oaks can show plain error. Richison v. Ernest Grp.,
Inc., 634 F.3d 1123, 1128 (10th Cir. 2011). But he has not attempted to show how
his new argument satisfies the plain error standard, which “marks the end of the road
for an argument for reversal not first presented to the district court.” Id. at 1131.
                                            8
