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

                            FOR THE TENTH CIRCUIT                     October 26, 2012

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

v.                                                       No. 12-3254
                                              (D.C. No. 6:12-CR-10085-MLB-14)
SANDRA LOZORIA,                                            (D. Kan.)

              Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before O’BRIEN, EBEL, and HOLMES, Circuit Judges.




      Defendant Sandra Lozoria appeals from the district court’s denial of release

pending trial. We have jurisdiction under 18 U.S.C. § 3145(c) and 28 U.S.C. § 1291

and affirm.




*
       This panel has determined that oral argument would not materially assist 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                       I. Background

      Defendant has been charged by indictment with violating 21 U.S.C. §§ 841

and 843(b). She made her initial appearance before the magistrate judge on

August 29, 2012. Shortly after that, the Department of Homeland Security,

Immigration Customs and Enforcement (ICE) placed an immigration custody

detainer on defendant based on its belief that she was present in the United States

illegally. The magistrate judge held a detention hearing on August 31 and issued an

order releasing defendant on bond. Because of ICE’s detainer, however, he ordered

defendant detained until September 5. Magistrate Judge’s Order at 3. On

September 4, the United States filed a motion in the district court to revoke the

magistrate judge’s order of release.

      The district court held an evidentiary hearing on September 20. Defendant did

not testify, but her counsel argued that she was not a flight risk and that ICE’s

detainer was an insufficient basis on which to deny bond. To demonstrate that she

was a flight risk, the United States presented evidence of defendant’s past actions to

conceal her identity and whereabouts from authorities. In addition, an ICE special

agent testified that ICE’s detainer assured that defendant would be taken into ICE

custody if the district court denied the government’s motion to revoke her release,

that the pending criminal charges would not prevent the agency from initiating

removal proceedings against her, that her deportation would remove her from the




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district court’s jurisdiction, and that she would be deported within a few days if she

were to stipulate to removal.

       On September 21, the district court granted the government’s motion to revoke

defendant’s release on bond. Defendant appeals.

                                      II. Discussion

       When we review the issue of detention, we review mixed questions of law and

fact de novo, “but we accept the district court’s findings of historical fact which

support that decision unless they are clearly erroneous.” United States v. Cisneros,

328 F.3d 610, 613 (10th Cir. 2003).

       Defendant argues, as a question of first impression in this court, that the

district court erred because the government has both the power and the responsibility

under 8 C.F.R. §§ 215.2(a) and 215.3 to prevent her removal from the United States

during the criminal proceedings. But we conclude that we need not decide whether

that argument has merit in this case because the district court had two distinct bases

for revoking her release, the second of which alone justifies the order revoking

release.

       First, the district court stated that ICE would take defendant into custody if the

court released her, and that ICE would then seek to remove her from the country and

the court’s jurisdiction. District Court Order at 2-3. Second, the court also stated,

“quite apart from any ICE consequences,” that defendant’s past actions concealing

her identity and whereabouts from authorities showed that “she could present a flight


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risk if released on bond, even if the aforesaid problems with ICE were not present.”

Id. at 3.

       Defendant does not challenge the district court’s second ground for

considering her a flight risk or the fact findings upon which it was based. That

ground is sufficient standing alone to support the court’s order revoking release.

       AFFIRMED.


                                               Entered for the Court
                                               Per Curiam




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