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

                             FOR THE TENTH CIRCUIT                         June 10, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                        No. 16-4052
                                             (D.C. No. 2:11-CR-00501-DN-PMW-1)
JEREMY DAVID JOHNSON,                                       (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.
                  _________________________________

      Jeremy Johnson was convicted of making false statements to a bank in

violation of 18 U.S.C. § 1014, and the district court ordered him detained pending

sentencing. He now appeals the detention ruling. Exercising jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), we affirm.

                                 I.     Background

      A jury convicted Mr. Johnson of eight counts of making false statements to a

bank and acquitted him of 78 other counts in connection with his operation of an

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
internet marketing business. The district court initially released Mr. Johnson with an

ankle monitor pending sentencing, but the government sought detention.

      The district court conducted a detention hearing, at which both parties

presented extensive arguments and Mr. Johnson addressed the court. Applying

18 U.S.C. § 3143(a)(1), the district court ruled that a 0-to-6 month range is a

recommendation for incarceration; thus, Mr. Johnson bears the burden to prove by

clear and convincing evidence that he is not a flight risk or a danger. The court did

not view Mr. Johnson as a danger, but it found he did not meet his burden on the

flight-risk question. The court expressed “serious concerns” about his likelihood of

non-appearance, Aplt. App. at 157, and, after outlining those concerns, ordered him

detained pending sentencing. The sentencing hearing is set for July 29, 2016.

      Mr. Johnson appeals the detention ruling on three grounds: (1) the

presumption of detention in § 3143(a)(1) does not apply to him because a zero-month

sentence is theoretically possible; (2) even if the presumption does apply, he met his

burden of proving he is not likely to flee or pose a danger to the safety of others; and

(3) this case presents substantial constitutional and other legal issues.

                                     II.   Analysis

      “Appellate review of detention or release orders is plenary as to mixed

questions of law and fact and independent, with due deference to the district court’s

purely factual findings.” United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir.

1991); see also United States v. Cisneros, 328 F.3d 610, 613 (10th Cir. 2003)

(explaining that we review the district court’s ultimate detention or release decision

                                            2
de novo because it presents mixed questions of law and fact, but we review the

underlying findings of fact for clear error). “A finding is clearly erroneous when,

although there is evidence to support it, the reviewing court, on review of the entire

record, is left with the definite and firm conviction that a mistake has been

committed.” United States v. Gilgert, 314 F.3d 506, 515 (10th Cir. 2002) (brackets

and internal quotation marks omitted). We review the district court’s findings with

significant deference, cognizant that “our role is not to re-weigh the evidence.” Id. at

515-16.

A. Presumption of Detention

      We turn first to Mr. Johnson’s threshold argument that he is excepted from the

presumption of detention because he might receive a zero-month sentence. There is a

presumption of detention pending sentencing “unless the judicial officer finds 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 [on personal

recognizance, unsecured appearance bond, or conditions] under section 3142(b) or

(c).” 18 U.S.C. § 3143(a)(1). But that presumption does not apply to “a person for

whom the applicable guideline promulgated pursuant to 28 U.S.C. 994 does not

recommend a term of imprisonment.” Id. Mr. Johnson interprets this provision to

mean that the presumption will never apply if the guideline range for a defendant

begins at zero months, as it does for him if one only considers his base offense level

of 7. See Aplt. Memo. at 6 (“By definition, a Guideline range that expressly includes



                                           3
the option of zero imprisonment does not recommend imprisonment.”). We are

unpersuaded.

      Mr. Johnson’s narrow, restrictive interpretation of § 3143(a)(1) contravenes

his own admission through counsel at the detention hearing that he “understands that

he suffers a very, very real risk of going to prison,” Aplt. App. 129. It also

disregards the district court’s conclusion that there is “a substantial likelihood” of

incarceration in more than the 0-to-6 month range after enhancements. Id. at 157.

Each count of conviction carries a 30-year maximum sentence. 18 U.S.C. § 1014.

And the government estimates that enhancements under U.S.S.G. §§ 2B1.1(b), 3B1.1,

and 3C1.1 could result in a total offense level of 37, with an estimated guideline

range of 210 to 262 months. Enhancements are relevant because guidelines should

be considered in their entirety. See, e.g., U.S.S.G. § 1B1.5 (explaining that a

reference to another guideline “refers to the entire offense guideline, (i.e., the base

offense level, specific offense characteristics, cross references, and special

instructions)”). While no prison time may be a theoretical possibility, Mr. Johnson

has not convinced us it is a likely one.

      In any event, the statutory language does not compel the construction

Mr. Johnson urges. He insists that the district court’s holding renders operative

language of the statute inoperative; that is, because there are no guideline ranges of

0-to-0 months, the exception to the presumption of detention will never apply. But

the statute references “applicable guideline[s] promulgated pursuant to” § 994.

§ 3143(a)(1). And that provision states that guidelines promulgated thereunder can

                                            4
impose three possible categories of punishment: “probation, a fine, or a term of

imprisonment.” 28 U.S.C. § 994(a)(1). Probation and fines are examples of

punishments that do not recommend a term of imprisonment. Accordingly,

Mr. Johnson has failed to show that the presumption of detention in § 3143(a)(1)

does not apply to him.

B. Burden of Proof

      To secure release after a guilty verdict, a defendant must rebut the presumption

of detention with clear and convincing evidence that he is not a flight risk or a danger

to any person or the community. See § 3143(a)(1) (imposing a “clear and convincing

evidence” standard); Fed. R. Crim. P. 46(c) (“The burden of establishing that the

defendant will not flee or pose a danger to any other person or to the community rests

with the defendant.”). The district court determined that Mr. Johnson did not satisfy

this burden; to the contrary, it found, “it’s actually clear and convincing that he is a

risk of non-appearance.” Aplt. App. at 161. We cannot find fault with this

determination.

      Granted, the probation office’s report assigned Mr. Johnson a risk assessment

score of 3% in predicting the likelihood of a failure to appear, new criminal arrest, or

technical violation. In addition, Mr. Johnson produced some evidence that could

support release, such as his faithfulness to the requirements imposed during his

five-year pretrial release, his timely appearance at court dates, his family ties in Utah,

a willingness to reinstate the bonds posted, and the surrender of his passport. But we

are satisfied that the district court carefully weighed both parties’ positions.

                                            5
      This is a complicated case, with a parallel proceeding underway in the District

of Nevada, and the district court has the benefit of a five-year history with

Mr. Johnson. Based on this extensive experience, the court expressed “serious

concerns” regarding the risk of non-appearance. Id. at 157. The minute entry for the

detention hearing references Mr. Johnson’s “patterns of deception,” “compliance

with authority,” and “ability to evade or push to not follow court orders.” Id. at 2.

The court provided numerous examples to substantiate its concerns during the

hearing, including the fact that Mr. Johnson had a one-way ticket to Costa Rica and

over $25,000 of cash at the time of his arrest. Mr. Johnson explains in his reply brief

that he has a habit of buying one-way tickets; even so, the district court was

understandably concerned by Mr. Johnson’s travel behavior and access to large

quantities of cash.

      Against this backdrop, the district court explained in detail why Mr. Johnson’s

risk assessment score was not dispositive. It highlighted his “access to large sums of

money and . . . concealed assets,” as well as his “very wide support network,” his

travel experience, and his access to other countries and private aircraft. Id. at 131; id.

at 157-59 (same). It discussed his gambling history and his participation in several

questionable business deals pending trial, which raise “concern about deception and

compliance with authority.” Id. at 131-33; see also id. at 159 (discussing his

“patterns of deception”). And it characterized him as having “an almost complete

lack of integrity.” Id. at 161-62; see also id. (“He always has a reason, and he always

has an excuse, and he can’t be trusted.”).

                                             6
      Deferring to the district court’s factual findings as we must, our review of the

entire record does not leave us “with the definite and firm conviction that a mistake

has been committed.” See Gilgert, 314 F.3d at 515 (internal quotation marks

omitted). Besides, we cannot reweigh the evidence on clear-error review, see id. at

515-16, and a factfinder’s choice between two permissible views of the evidence

cannot be clearly erroneous, see Anderson v. City of Bessemer City, 470 U.S. 564,

574 (1985). The district court considered the evidence presented in conjunction with

the detention presumption and made the required factual findings to support its order.

C. Constitutional Issues

      Finally, Mr. Johnson advises that “substantial constitutional and other legal

issues exist in the case” such that he has filed a motion for a new trial and

contemplates an appeal. Aplt. Memo. at 18 (boldface and capitalization omitted). He

states, for example, that the seizure of his assets deprived him of his Sixth

Amendment right to counsel of his choice and that the trial court prejudiced him by

referencing his appeal in the jury’s presence and not admitting certain evidence.

Mr. Johnson has not explained how a motion for a new trial or a possible appeal is

relevant to his presentencing detention, so we decline to consider his last argument.

                                   III.   Conclusion

      For these reasons, we affirm the district court’s presentencing detention order.


                                            Entered for the Court
                                            Per Curiam



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