20-1419-cr
United States v. Abner Peralta

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 23rd day of July, two thousand twenty.

PRESENT:             GUIDO CALABRESI,
                     DENNY CHIN,
                     SUSAN L. CARNEY,
                                         Circuit Judges.
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UNITED STATES OF AMERICA,
               Appellant,

                              -v-                                                  20-1419-cr

LUIS COLON,
                              Defendant,

ABNER PERALTA,
                              Defendant-Appellee.

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FOR APPELLANT:                                               Thomas R. Sutcliffe, Michael F. Perry, Assistant
                                                             United States Attorneys, for Grant C. Jaquith,
                                           United States Attorney for the Northern
                                           District of New York, Syracuse, New York.

FOR DEFENDANT-APPELLEE:                    Frank Policelli, Esq., Utica, New York.

               Appeal from the United States District Court for the Northern District of

 New York (Hurd, J.).

               ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

 ADJUDGED, AND DECREED that the order of the district court is VACATED and the

 case is REMANDED for further proceedings.

               The Government appeals from an order of the district court, entered April

 8, 2020, denying its motion to remand defendant-appellee Abner Peralta pending

 sentencing. Peralta was convicted, following a jury trial, of: (1) conspiring to distribute

 and possess with intent to distribute a controlled substance, in violation of 21 U.S.C. §§

 841(a)(1), 846; and (2) possessing with intent to distribute 28 grams or more of cocaine

 base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B). On appeal, the Government argues

 that the district court erred in denying its motion because presentence detention was

 mandatory under 18 U.S.C. § 3143(a)(2) and Peralta failed to satisfy any of the statute's

 exceptions. We assume the parties' familiarity with the underlying facts, the procedural

 history of the case, and the issues on appeal.




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                                       DISCUSSION

I.     Applicable Law

              Peralta is subject to 18 U.S.C. § 3143(a)(2) because he was convicted at trial

of two offenses "for which a maximum term of imprisonment of ten years or more is

prescribed in the Controlled Substances Act (21 U.S.C. § 801 et seq.) . . . ." 18 U.S.C. §

3142(f)(1)(C). In turn, § 3143(a)(2) requires the district court to order a defendant

detained pending sentencing unless:

              (A)(i) the judicial officer finds there is a substantial
              likelihood that a motion for acquittal or new trial will be
              granted; or

              (ii) an attorney for the Government has recommended that
              no sentence of imprisonment be imposed on the person; and

              (B) the judicial officer finds by clear and convincing evidence
              that the person is not likely to flee or pose a danger to any
              other person or the community.

              Where the limited conditions enumerated above have not been satisfied, a

defendant "may nevertheless be released if (1) the district court finds that the conditions

of release set forth in § 3143(a)(1) have been met, and (2) 'it is clearly shown that there

are exceptional reasons why [the defendant's] detention would not be appropriate.'"

United States v. Lea, 360 F.3d 401, 403 (2d Cir. 2004) (emphasis omitted) (quoting 18

U.S.C. § 3145(c)). The first prong requires the district court to "find[] by clear and

convincing evidence that the person is not likely to flee or pose a danger to the safety of

any other person or the community if released." 18 U.S.C. § 3143(a)(1). "Exceptional
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reasons" exist under the second prong where there is "a unique combination of

circumstances giving rise to situations that are out of the ordinary." United States v.

DiSomma, 951 F.2d 494, 497 (2d Cir. 1991). We review a district court's release order for

clear error. See Lea, 360 F.3d at 402.

II.    Analysis

              On appeal, Peralta argues only that his release is justified under § 3145(c)

for "exceptional reasons." Because the district court failed to make any findings on the

record that would justify the application of § 3145(c) to Peralta's case, we vacate the

district court's order and remand for further proceedings.

              The Government first moved to have Peralta detained immediately

following his conviction at trial on February 3, 2020. The district court denied the

motion orally, stating in relevant part:

              Prior to the trial, I directed the probation department to
              submit me -- to me a report in the event one or both of the
              defendants was convicted of one or more crimes, which they
              did on January 27th, and the report states as follows: U.S.
              Magistrate Judge -- with respect to Abner Peralta, U.S.
              Magistrate Judge Dancks ordered him released to pretrial
              supervision with conditions. The U.S. probation officer
              received notification that the defendant surrendered his
              passport to the custody of the U.S. District Court on August
              24, 2018, in compliance with his release condition. The
              defendant maintains a single family residence in the City of
              Utica with his wife . . . and their three minor children.
              Peralta is self-employed as a maintenance manager.

              Since his release to pretrial services, Peralta has submitted to
              13 drug screens that have all returned negative for illegal
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               substances. He has not incurred any new criminal charges
               while on pretrial supervision. Peralta is currently in
               compliance with his reporting instructions to the U.S.
               probation officer and the recommendation is that if the
               defendant is found guilty, it would be appropriate for him to
               be maintained on current conditions of supervision, and I
               will do so.

Gov't App'x at 80-81.

               During post-trial proceedings, the Government twice renewed its request

to have Peralta remanded, but both requests were denied. The district court denied the

Government's first renewed motion for a failure to raise the matter in its opposition to

Peralta's post-trial motions, and it denied the second renewed motion without

explanation.

               We vacate the order here because the district court failed to make any

finding on the record of an "exceptional reason[]" why Peralta's detention pending

sentencing was not appropriate. Lea, 360 F.3d at 403. The sole findings that the district

court made here -- that Peralta supports his family, is employed, and was in compliance

with his conditions of supervision -- were plainly not adequate to justify denial of the

Government's motion. See id. at 403-04 ("There is nothing 'exceptional' about going to

school, being employed, or being a first-time offender, either separately or in

combination."). On remand, the district court is either to: (1) explain what "exceptional

reasons" exist under § 3145(c) and our precedent to justify denial of the Government's




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remand motion; or, (2) if it finds no such reasons exist, remand Peralta pending

sentencing.

                                        *   *   *

              For the foregoing reasons, we VACATE the order of the district court and

REMAND for further proceedings as set forth above.

                                         FOR THE COURT:
                                         Catherine O'Hagan Wolfe, Clerk




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