                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-3731
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                David Lynn Cirksena

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                      Appeal from United States District Court
                   for the Southern District of Iowa - Des Moines
                                   ____________

                            Submitted: January 15, 2019
                              Filed: January 30, 2019
                                  [Unpublished]
                                  ____________

Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
                           ____________

PER CURIAM.

       David Lynn Cirksena is charged in an indictment with conspiracy to distribute
marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846; possession with intent to
distribute marijuana, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(1);
and felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Cirksena
appeals from a pretrial detention order entered by the district court pursuant to 18
U.S.C. § 3142(e). We have jurisdiction to review the merits of the detention order
under 18 U.S.C. § 3145(c) and Rule 9 of the Federal Rules of Appellate Procedure.
“We apply the clearly erroneous standard to factual findings of the district court but
independently review the ultimate conclusion that detention is required because ‘no
condition or combination of conditions will reasonably assure the appearance of the
person [at trial] and the safety of any other person and the community.’” United
States v. Cantu, 935 F.2d 950, 951 (8th Cir. 1991) (quoting 18 U.S.C. § 3142(e)).

       After holding a detention hearing, the magistrate judge denied the
government’s motion for detention and ordered Cirksena released on conditions
pending trial. On appeal to the district court, the court vacated the magistrate judge’s
release order and remanded Cirksena to the custody of the United States Marshals
Service pending trial. The court supported its conclusion that Cirksena had not
rebutted the presumption of detention set forth in 18 U.S.C. § 3142(e)(3) by relying
primarily on the seriousness of the charged offenses, Cirksena’s criminal history, his
admission to engaging in unlawful activity during part of his term on probation, and
his inability to remain law-abiding despite the support of his family.

       While we see no clear error in the district court’s factual findings, the district
court failed to consider, either implicitly or explicitly, substantial evidence in the
record militating against pretrial detention. In a report submitted to the court during
the detention hearing, Cirksena explained to a mental health counselor that he began
using marijuana “during the hippie days” for “fun” and “to focus better on tasks.”
Cirksena reported that as he aged he used marijuana for pain management. Similarly,
Cirksena reported to his pretrial services officer that his marijuana usage began at age
19 and he has never received any substance abuse treatment. Despite Cirksena’s long
history of marijuana use, his criminal history is limited, includes no crimes of
violence, and Cirksena was successfully discharged from probation for each prior
offense.

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       Cirksena is 71 years old, suffers from arthritis and needs a new knee, and will
again reside with his wife if granted pretrial release. Cirksena’s first conviction was
at age 61. In 2008, he was convicted of operating a motor vehicle while intoxicated.
His criminal history also includes a 2012 felony drug conviction (marijuana) in Polk
County, Iowa, and a 2014 felony drug conviction (marijuana) in Yavapai County,
Arizona. The Iowa conviction resulted in a deferred judgment with two years of
probation, which Cirksena successfully completed. The Arizona conviction resulted
in a five-year term of probation, which Cirksena was successfully discharged from
on November 22, 2016. The successful completion of Cirksena’s prior sentences,
which is some indication of Cirksena’s ability to follow court-ordered conditions, was
not a factor considered by the district court.

       The district court also did not recognize Cirksena’s supervising pretrial
services officer’s opinion that Cirksena was amenable to pretrial supervision on
conditions. Those conditions related to not only supervision, but would help insure
Cirksena remained law-abiding and did not flee the jurisdiction. His supervising
officer recommended drug testing and treatment, travel restrictions, weapons
restrictions, home visits, and a prohibition on obtaining a passport.

      The court emphasized the presence of guns as a significant factor when
determining dangerousness. It was undisputed at the detention hearing that the
weapons have been seized are in the custody of the government. Further, the proffers
made at the detention hearing raised questions as to ownership and purpose of the
loaded handgun found in the office area in a locked drawer of Cirksena’s home.
According to Cirksena and his wife, the handgun belonged to Cirksena’s son, who
was involved in a domestic incident requiring removal from the son’s possession.
Questions were also raised about the long guns found in a basement closet. The law
enforcement officer who testified at the detention hearing was unable to confirm the
guns were in working order. According to a proffer made by defense counsel, the
guns were inherited from Cirksena’s dad and one of them was rusted and one was

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manufactured by Sears & Roebuck Company. Finally, the reliability and veracity of
the purported confidential informant that generally and broadly stated that Cirksena
carried a gun when picking up marijuana was called into question at the hearing.
Cirksena’s explanations and challenges to the government’s evidence provide some
indication that the weapons found inside his home pose less of a risk to the safety of
the community than the charges, on their face, suggest.

       Upon our de novo review of the ultimate conclusion on whether detention is
required, we find Cirksena has rebutted the presumption of detention. Having met
that threshold, based on this record, we conclude Cirksena does not fall “within the
limited category of defendants whom Congress intended would be subject to pre-trial
detention.” United States v. Warren, 787 F.2d 1237, 1239 (8th Cir. 1986)
(McMillian, J., dissenting). The intended class of pretrial detainees is “a small but
identifiable group of particularly dangerous defendants as to whom neither the
imposition of stringent release conditions nor the prospect of revocation of release
can reasonably assure the safety of the community or other persons.” Id. (quoting
S.Rep. No. 225, 98th Cong., 1st Sess. 6-7 (1983), reprinted in 1984 U.S.Code Cong.
& Ad.News 3182, 3189).

      The offenses charged are serious. As noted by the district court, they involve
a large amount of marijuana, firearms, and repeated activity. Cirksena faces a
mandatory minimum term of imprisonment of 15 years on some of the counts. But,
in looking at the factors set forth in 18 U.S.C. § 3142(g) and considering whether
Cirksena is one of the “particularly dangerous defendants” Congress contemplated,
we note there is no evidence of violence. The mere charged offenses, alone, are not
enough to require pretrial detention. Warren, 787 F.2d at 1239. There is questionable
evidence in this record regarding whether a weapon was ever used during the course
of drug trafficking. The weapons of concern are in the government’s possession.
Finally, when considering Cirksena’s dangerousness and the ability to comply with



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release conditions, Cirksena’s successful completion of all prior terms of probation
weighs in his favor.

       On this record, we find Cirksena has presented sufficient evidence to rebut the
presumption of detention. We further find the government failed to establish by clear
and convincing evidence there is no condition or combination of conditions that could
protect the public. Accordingly, we reverse the detention order and remand to the
district court to consider conditions of release.
                       ______________________________




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