                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                   PUBLISH                        July 8, 2019
                                                              Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                 Clerk of Court

                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                    No. 19-3031

 JERRY DOBY,

       Defendant - Appellant.


                 Appeal from the United States District Court
                          for the District of Kansas
                     (D.C. No. 5:18-CR-40057-HLT-1)


Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender,
and Carl Folsom, III, with him on the briefs), Office of the Kansas Federal Public
Defender, Kansas City, Kansas, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Stephen R. McAllister, United
States Attorney, and Christine E. Kenney, Assistant United States Attorney, with
him on the briefs), Office of the United States Attorney, Topeka, Kansas, for
Plaintiff-Appellee.


Before HARTZ, HOLMES, and PHILLIPS, Circuit Judges.


HOLMES, Circuit Judge.
      In this appeal, Defendant-Appellant Jerry Doby challenges the district

court’s denial of his motion under 18 U.S.C. § 3145(a)(2) and 18 U.S.C.

§ 3142(c)(3) seeking vacatur of pretrial release conditions imposed by a

magistrate judge. The district court denied the motion as not properly before the

court under these provisions (and also denied the motion as improper under 18

U.S.C. § 3142(f), which Mr. Doby did not rely on in his motion). The district

court ruled, among other things, that Mr. Doby’s motion was improper under

§ 3145(a)(2) because Mr. Doby had not complied with the time limit for

objections set forth in Federal Rule of Criminal Procedure 59(a) (“Rule 59(a)”).

      Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for

further proceedings. We agree with Mr. Doby that the district court erred in

applying Rule 59(a)’s framework to a motion under § 3145(a)(2). Because this is

a sufficient basis, standing alone, upon which to reverse and remand, we do not

reach Mr. Doby’s other arguments.

                                         I

      In June 2018, Mr. Doby was charged with one count of failing to register as

a sex offender in violation of 18 U.S.C. § 2250(a). A detention hearing was held

in July 2018, and a magistrate judge imposed conditions of pretrial release,

including a curfew, location monitoring, and monitoring of Mr. Doby’s computer

use. He did not object to those conditions at that time.


                                         2
      In September 2018, the Probation Office petitioned to modify other pretrial

release conditions, and, after a hearing, a magistrate judge modified Mr. Doby’s

release conditions upon the parties’ stipulation. The magistrate judge’s order did

not identify the legal authority under which he modified the conditions. At that

time, Mr. Doby still did not challenge the conditions now at issue.

      In November 2018, Mr. Doby moved to vacate the curfew, location

monitoring, and computer monitoring conditions as unconstitutional. He did not

address the motion to a specific judge or invoke a specific tier of

decisionmaking—that is, he did not direct his motion to the district court or a

magistrate judge. Instead, he simply addressed it, generically, to “the [c]ourt” or

“this [c]ourt.” See, e.g., Aplt.’s App. at 9, 42 (Mot. to Modify Conditions, dated

Nov. 7, 2018).

      Mr. Doby’s motion was made under two statutes. One was § 3145(a)(2),

which provides that a person ordered released by a magistrate judge may file,

“with the court having original jurisdiction over the offense, a motion for

amendment of the conditions of release,” and that such a motion “shall be

determined promptly.” 18 U.S.C. § 3145(a)(2). The other was § 3142(c)(3),

which states that “[t]he judicial officer may at any time amend the order to

impose additional or different conditions of release.” 18 U.S.C. § 3142(c)(3).




                                         3
      The government responded, conceding that the computer monitoring

condition was unnecessary but opposing on the merits the vacatur of the curfew

and location monitoring conditions. In a single sentence at the very end of the

“Conclusion” section of its response, with no accompanying citations to legal

authority, the government also stated that Mr. Doby “did not object to the

condition at the time it was imposed, did not timely challenge the magistrate

judge’s order, and failed to raise any new basis to revisit his release order.”

Aplt.’s App. at 57 (Resp. in Opp’n, dated Nov. 28, 2018) (emphasis added). Mr.

Doby’s reply addressed this timeliness argument by contending that § 3145(a)(2)

imposes no time limit on a motion to amend and that § 3142(c)(3) specifically

states that the judicial officer may amend his order “at any time.” Id. at 59–60

(Reply to Resp., dated Dec. 7, 2018) (emphasis omitted).

      A hearing on the motion was set before the district court. 1 Before the

hearing was held, a magistrate judge issued a form order vacating the computer

monitoring condition but not mentioning the other two conditions. The form

order cited no legal authority for the magistrate judge’s action.




      1
             We have not been provided with a transcript of this hearing or with
any argument concerning the events of the hearing. In particular, neither party
suggests that the events of the hearing altered the facts underlying the forfeiture-
and-plain-error analysis performed infra. We thus analyze the issues in this
appeal as though Mr. Doby’s motion was decided solely on the papers.

                                          4
        The district court later denied Mr. Doby’s motion as “not properly before”

the court. Id. at 71–76 (Mem. & Order, dated Jan. 28, 2019). First, the district

court ruled that a request for relief under § 3145(a)(2) is subject to the fourteen-

day time limit for objections in Rule 59(a), rendering Mr. Doby’s November 2018

motion untimely as to conditions of release imposed in July 2018. The court

reasoned that, because Rule 59 was enacted after § 3145(a) was last amended, the

“supersession clause” of the Rules Enabling Act, 28 U.S.C. § 2072(b) (“All laws

in conflict with such rules shall be of no further force or effect after such rules

have taken effect.”), results in Rule 59(a) predominating over § 3145(a)(2)’s

silence regarding the timing of motions filed under it. See Aplt.’s App. at 73 &

n.1. The district court further observed that, “[d]espite Rule 59’s waiver

provision,” district courts have “discretionary authority” to review “release

decisions” of magistrate judges. Id. at 73. It declined to exercise that discretion

here, however, because Mr. Doby had several opportunities to raise his

constitutional arguments earlier (starting with the July 2018 hearing itself) but

instead delayed several months with no explanation.

      The district court then addressed the purported unavailability of relief

under § 3142(f), which Mr. Doby’s motion did not cite and which is not directly

at issue in this appeal. Finally, the district court dispensed with Mr. Doby’s

argument regarding § 3142(c)(3) in a footnote, stating that this provision


                                           5
(1) refers to “proceedings before” the judicial officer that imposed release, i.e.,

the magistrate judge rather than a district judge; (2) specifies only when that

judicial officer may act, not when the defendant may move; and (3) should likely

be read “in conjunction with” certain limitations on relief in § 3142(f). Id. at 76

n.5. Mr. Doby has timely appealed.

                                          II

      In general, “[w]e apply de novo review to mixed questions of law and fact

concerning [a district court’s] detention or release decision, 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); accord United States v. Deppish, 554 F. App’x 753, 754–55 (10th Cir.

2014) (unpublished) (per curiam) (applying this standard in a case involving

pretrial release conditions).

      Mr. Doby’s arguments concern the interplay between § 3145(a)(2), Rule

59(a), and 28 U.S.C. § 636; the last of these specifically governs the powers and

duties of magistrate judges. Aplt.’s Bail Mem. Br. at 10–14. We typically review

purely legal issues, like the proper interpretation of these statutes and rules, de

novo. In re Taylor, 899 F.3d 1126, 1129 (10th Cir. 2018) (“The issue on which

we granted leave to appeal is one of statutory interpretation, a question of law we

review de novo.”); United States v. Davis, 339 F.3d 1223, 1229 (10th Cir. 2003)


                                           6
(“Interpretation of the Federal Rules of Criminal Procedure is a legal issue

subject to de novo review.” (quoting United States v. Roman-Zarate, 115 F.3d

778, 781 (10th Cir. 1997))).

      Initially, the government unreservedly acknowledged that the issues in this

appeal are reviewed de novo. See Aplee.’s Bail Mem. Br. at 4. However, in its

supplemental briefing, the government now suggests, at the outset, that “no

review under any standard is warranted” because Mr. Doby’s claim is moot; that,

alternatively, Mr. Doby’s arguments were initially forfeited because he failed to

make them in district court; and that, because he has made no appellate argument

for plain-error review, his arguments are effectively waived and should not

receive any review—under the plain-error rubric or otherwise. See Aplee.’s

Suppl. Bail Mem. Br. at 5–6.

      We reject the government’s arguments. As to “mootness,” the government

specifically contends that the Rules of Practice and Procedure for the United

States District Court for the District of Kansas (“Local Rules”) would have

permitted Mr. Doby’s motion to be rejected as untimely, such that a ruling

concerning the provisions he cites would be “merely advisory.” Id. at 8–11. As

we discuss infra note 4, the specific rule that the government cites—Local Rule

72.1.4(e)—was not raised or relied on by the government in district court, and it

is unclear whether this rule applies here. More fundamentally, though, we agree


                                         7
with Mr. Doby that the government argues—not for mootness forestalling

appellate review—but rather for affirmance on the merits on an alternative basis

that turns on the operation and effect of the Local Rules. Aplt.’s Reply Bail

Mem. Br. at 9; see also DTC Energy Grp., Inc. v. Hirschfeld, 912 F.3d 1263, 1269

(10th Cir. 2018) (“The doctrine of mootness in no way depends on the merits of

the plaintiff’s contention.” (quoting Keller Tank Servs. II, Inc. v. Comm’r, 854

F.3d 1178, 1194 (10th Cir. 2017))).

      In other words, the government contends that because the district court

would have been justified in rejecting Mr. Doby’s motion as untimely under Local

Rule 72.1.4(e), we need not opine on the (merits) question of whether the court

was justified in rejecting the motion (as relevant here) as untimely under Rule

59(a). This sort of argument relates to decisional paths on the merits to dispose

of this case; it does not implicate our jurisdiction—i.e., our power to provide

relief to Mr. Doby that has “some effect in the real world.” Abdulhaseeb v.

Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) (quoting Kan. Judicial Review v.

Stout, 562 F.3d 1240, 1246 (10th Cir. 2009)). Therefore, we reject the

government’s mootness contention.

      As for the applicability of plain-error review, we conclude that, on this

record, Mr. Doby had no meaningful opportunity to make before the district court

the arguments he now makes on appeal. See United States v. Middagh, 594 F.3d


                                          8
1291, 1295 (10th Cir. 2010) (“When a party had no opportunity to raise the issue,

we review it as if it had been presented.”); United States v. Uscanga-Mora, 562

F.3d 1289, 1294 (10th Cir. 2009) (“[T]he federal rules provide for plain error

review only when counsel has been given, but has not taken advantage of, an

opportunity to voice his or her objection; where no such opportunity was afforded

in the district court, our normal standards of review pertain.”); see also United

States v. Lewis, 823 F.3d 1075, 1081 (7th Cir. 2016) (“The foundation for these

limits on appellate review [imposed by preservation doctrines like forfeiture or

waiver] is that a district judge needs to ensure that parties have a fair and genuine

opportunity to raise objections in the district court.”); United States v. Mike, 632

F.3d 686, 693 (10th Cir. 2011) (declining to apply plain-error standard where “the

court first announced [the challenged] conditions in its written judgment, thus[]

stripping [the defendant] of an opportunity to object to them”).

      Notably, the government did not invoke Rule 59(a), a fourteen-day time

limit, or any law at all in the single clause of its response concerning the

timeliness of Mr. Doby’s challenge. Instead, Mr. Doby first got notice that Rule

59(a) and its fourteen-day time limit were to be used against him when the district

court entered its order denying his motion. Mr. Doby was not required to object

to this component of the district court’s ruling to preserve this issue for appeal.

Cf. F ED . R. C RIM . P. 51(a) (“Exceptions to rulings or orders of the court are


                                           9
unnecessary.”); United States v. Madrid, 633 F.3d 1222, 1228 (10th Cir. 2011)

(Kelly, J., concurring) (“Plain and simple, the government was under no

obligation to file a motion to reconsider. Neither the federal criminal rules nor

the local rules even mention—let alone require—a motion for reconsideration.”

(citation omitted)). Defense counsel, moreover, need not have independently

recognized the applicability of Rule 59(a); indeed, as we rule infra, Rule 59(a)

should not have been applied to Mr. Doby’s motion.

      Thus, we reject the government’s mootness and plain-error arguments, and

we review the legal questions central to this appeal de novo. See Aplee.’s Suppl.

Bail Mem. Br. at 6 (acknowledging that de novo review applies if Mr. Doby’s

arguments are not moot and preserved).

                                         III

      On the merits, Mr. Doby argues that a magistrate judge’s role in issuing

pretrial release or detention orders is prescribed by § 636(a) and that role is not

controlled by Rule 59(a)’s provisions. Instead, only those powers and duties

eligible for referral under § 636(b) are subject to Rule 59(a). We agree.

      At the heart of this appeal is the proper interpretation of § 636, which

governs the powers and duties of magistrate judges. As relevant here, § 636(a)

lists several “powers” and “duties” that magistrate judges “shall have” within

their districts; these include “the power to . . . issue orders pursuant to [18 U.S.C.


                                          10
§ 3142] concerning release or detention of persons pending trial.” 28 U.S.C.

§ 636(a)(2).

      On the other hand, § 636(b) sets forth procedures by which magistrate

judges “may” be “designate[d]” to consider certain matters, with their rulings or

recommendations subject to district-court review:

               (b)(1) Notwithstanding any provision of law to the
               contrary–

               (A) a judge may designate a magistrate judge to hear and
               determine any pretrial matter pending before the court
               [with exceptions, omitted here]. A judge of the court may
               reconsider any pretrial matter under this subparagraph (A)
               where it has been shown that the magistrate judge’s order
               is clearly erroneous or contrary to law.

               (B) a judge may also designate a magistrate judge to
               conduct hearings, including evidentiary hearings, and to
               submit to a judge of the court proposed findings of fact
               and recommendations for the disposition, by a judge of the
               court, of any motion excepted in subparagraph (A), of
               applications for posttrial relief made by individuals
               convicted of criminal offenses and of prisoner petitions
               challenging conditions of confinement.

               (C) the magistrate judge shall file his proposed findings
               and recommendations under subparagraph (B) with the
               court and a copy shall forthwith be mailed to all parties.

               Within fourteen days after being served with a copy, any
               party may serve and file written objections to such
               proposed findings and recommendations as provided by
               rules of court. A judge of the court shall make a de novo
               determination of those portions of the report or specified
               proposed findings or recommendations to which objection
               is made. A judge of the court may accept, reject, or

                                          11
             modify, in whole or in part, the findings or
             recommendations made by the magistrate judge. The judge
             may also receive further evidence or recommit the matter
             to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1) (emphases added). Congress added the relevant version of

§ 636(b) to this statute in 1976. See United States v. Raddatz, 447 U.S. 667, 674

(1980); see also Act of Oct. 21, 1976, Pub. L. No. 94-577, 90 Stat. 2729, 2729.

      Thus, exercising “power” under § 636(a), a magistrate judge may—without

need of any district-court designation—impose certain pretrial release conditions

on defendants pursuant to § 3142 if release on personal recognizance or an

unsecured appearance bond creates a flight risk or threatens safety. See 18 U.S.C.

§ 3142(c). The Bail Reform Act of 1984, which enacted in part the language

codified in § 3142, permits a defendant to challenge those conditions before the

district court under § 3145(a). Under that provision, entitled “Review of a release

order,” a person ordered released by a magistrate judge may file “a motion for

amendment of the conditions of release” with “the court having original

jurisdiction over the offense.” Id. § 3145(a)(2). This provision does not itself set

a time limit for filing such a “motion,” although it states that the motion “shall be

determined [by the court] promptly.” Id. By contrast, other provisions of the Bail

Reform Act include time limits for different purposes. See, e.g., 18 U.S.C.

§ 3142(d) (limiting temporary detention to ten days); id. § 3142(f)(2)(B)

(delimiting period in which detention hearing must be held).

                                          12
          The district court found, however, that the fourteen-day time limit of Rule

59(a) was applicable here. This provision, entitled “Nondispositive Matters,”

states:

                A district judge may refer to a magistrate judge for
                determination any matter that does not dispose of a charge
                or defense. The magistrate judge must promptly conduct
                the required proceedings and, when appropriate, enter on
                the record an oral or written order stating the
                determination. A party may serve and file objections to the
                order within 14 days after being served with a copy of a
                written order or after the oral order is stated on the record,
                or at some other time the court sets. The district judge
                must consider timely objections and modify or set aside
                any part of the order that is contrary to law or clearly
                erroneous. Failure to object in accordance with this rule
                waives a party’s right to review.

F ED . R. C RIM . P. 59(a) (emphasis added). Notably, the portion of Rule 59(a)

italicized supra makes “refer[ral]” by a district judge an essential antecedent to

the operation of its framework. Indeed, although Rule 59 is broadly entitled

“Matters Before a Magistrate Judge,” such referral is contemplated throughout the

rule. In this regard, Rule 59(b), entitled “Dispositive Matters,” similarly states

that a district judge may “refer to a magistrate judge for recommendation” a

dispositive matter, with parties having the opportunity to object and receive

district-court review. F ED . R. C RIM . P. 59(b).

          An advisory committee’s note accompanying the 2005 adoption of Rule 59

provides additional insight into the rule’s scope. See United States v. Jones, 818


                                             13
F.3d 1091, 1100 n.6 (10th Cir. 2016) (observing that “[c]ourts give weight to the

advisory committee notes unless they contradict the plain language of the rule”).

Particularly, the portion of that note addressing Rule 59(a) reinforces the idea that

Rule 59(a)’s framework is premised wholly on referral and, indeed, is intended to

incorporate or mirror the “designat[ion]” framework laid out in § 636(b):

             Rule 59(a) sets out procedures to be used in reviewing
             nondispositive matters, that is, those matters that do not
             dispose of the case. The rule requires that if the district
             judge has referred a matter to a magistrate judge, the
             magistrate judge must issue an oral or written order on the
             record. To preserve the issue for further review, a party
             must object to that order within 10 days[ 2] after being
             served with a copy of the order or after the oral order is
             stated on the record or at some other time set by the court.
             If an objection is made, the district court is required to
             consider the objection. If the court determines that the
             magistrate judge’s order, or a portion of the order, is
             contrary to law or is clearly erroneous, the court must set
             aside the order, or the affected part of the order. See also
             28 U.S.C. § 636(b)(1)(A).

F ED . R. C RIM . P. 59, advisory committee’s note to 2005 amendment (emphasis

added).

      The same advisory committee’s note states that Rule 59 is “derived in part

from Federal Rule of Civil Procedure 72.” Id. That rule similarly distinguishes

between “nondispositive” and “dispositive” matters. And, notably, its own



      2
             This rule was amended in 2009 to provide for a fourteen-day time
limit. See F ED . R. C RIM . P. 59, advisory committee’s note to 2009 amendment.

                                          14
advisory committee’s notes expressly state that the two provisions of the rule are

meant to address “court-ordered referrals” of matters under § 636(b), i.e., under

§ 636(b)(1)(A) (for nondispositive matters) and § 636(b)(1)(B) (for dispositive

matters). F ED . R. C IV . P. 72, advisory committee’s note to 1983 amendment.

      In light of the foregoing, Mr. Doby argues that the district court improperly

applied Rule 59(a) to his motion. This rule applies only to matters “refer[red] to”

a magistrate judge. And, particularly in light of the text of the rule’s 2005

advisory committee’s note and Federal Rule of Civil Procedure 72 (and its notes),

Mr. Doby concludes that this “refer to” phrase means matters “designated” under

§ 636(b), not powers falling under § 636(a). Aplt.’s Bail Mem. Br. at 10–11.

And there was no such referral or designation here; instead, the magistrate judge

acted pursuant to powers granted by § 636(a). Moreover, as Mr. Doby points out,

§ 3145(a)(2) contains no express time limit for filing a motion under its ambit,

even though Congress showed elsewhere in the Bail Reform Act that it can set

time limits for certain actions and did provide that a motion under § 3145 shall be

determined “promptly.” Id. at 10.

      We are persuaded by the foregoing reasoning of Mr. Doby. The text of

Rule 59(a)—indeed, the text of both provisions of Rule 59—states that the rule

applies to matters that “may” be “refer[red] to” a magistrate judge by a district

judge. F ED . R. C RIM . P. 59(a) & (b). This implicates the “may designate”


                                         15
language of § 636(b), but it bears no resemblance to § 636(a)’s description of the

“powers” and “duties” that a magistrate judge “shall have.” It is true that Rule

59(a) says that referral can encompass “any matter that does not dispose of a

charge or defense,” while § 636(b)(1) states that, “[n]otwithstanding any

provision of law to the contrary,” a district judge may “designate” a magistrate

judge to hear “any pretrial matter” (with exceptions not relevant here). However,

it would not be reasonable to include among those “matters” that “may” be

referred to a magistrate judge, or designated for such a judge, the “powers” and

“duties” that a magistrate judge already “shall have” under § 636(a).

      Rule 59’s advisory committee’s notes, as well as Federal Rule of Civil

Procedure 72 and its advisory committee’s notes, lend additional support to our

reading. In particular, they suggest that Rule 59 is meant to be read in harmony

with—and not to supersede or modify—the distinctions drawn in § 636. Even the

government acknowledges that Mr. Doby has offered a “plausible interpretation

of the scope of Rule 59(a).” Aplee.’s Suppl. Bail Mem. Br. at 12. And, although

it suggests that the reading is not “clear[]” or “obvious[]” and that “other courts

have rejected it,” it does not say which ones or cite any cases grappling

specifically with Mr. Doby’s argument under § 636. 3 Id.


      3
             We note that cases like United States v. Tooze, 236 F.R.D. 442 (D.
Ariz. 2006), which held that Rule 59(a)’s time limit applied to § 3145(a) via the
                                                                     (continued...)

                                          16
      The government contends that the “better interpretation” of Rule 59(a)

applies this provision to all nondispositive matters ruled on by a magistrate judge.

Id. In its view, the “referral” language in Rule 59(a) “does not facially limit the

scope of” the rule to designated matters, but instead “speaks only to a district

judge’s authority to refer a nondispositive matter to a magistrate judge.” Id.

Instead, the government believes that the only language limiting Rule 59(a) is its

heading—“Nondispositive Matters,” which encompasses imposition of pretrial

release conditions. Id.

      We reject this argument. As we observed supra, both the text of the

provision and the advisory committee’s notes make clear that the operation of

Rule 59(a) is premised upon the referral of a matter to a magistrate judge by a

district judge, consistent with § 636(b)—but not with § 636(a). Compare F ED . R.

C RIM . P. 59(a) (“A district judge may refer to a magistrate judge for determination

any matter that does not dispose of a charge or defense. The magistrate judge

must promptly conduct the required proceedings and, when appropriate, enter on



      3
       (...continued)
“supersession clause,” did not analyze § 636. Id. at 444–45; see also United
States v. Bell, No. SACR 08–00087–MMM, 2008 WL 11411709, at *1 & n.2
(C.D. Cal. June 6, 2008) (unpublished); United States v. Curtis, No.
3:07-cr-59-WHB, 2007 WL 3124610, at *1 (S.D. Miss. Oct. 25, 2007)
(unpublished). Relatedly, the district court did not apply Tooze and its progeny to
§ 636, nor does the government now make a supersession argument concerning
§ 636.

                                          17
the record an oral or written order stating the determination. . . . ” (emphasis

added)), with F ED . R. C RIM . P. 59, advisory committee’s note to 2005 amendment

(“Rule 59(a) sets out procedures to be used in reviewing nondispositive matters,

that is, those matters that do not dispose of the case. The rule requires that if the

district judge has referred a matter to a magistrate judge, the magistrate judge

must issue an oral or written order on the record. . . . ” (emphasis added)). The

title of Rule 59(a) does not much inform our analysis in light of the clear thrust of

the text. See Bhd. of R.R. Trainmen v. Baltimore & O.R. Co., 331 U.S. 519,

528–29 (1947) (stating that headings and titles are “tools available for the

resolution of a doubt” but they “cannot undo or limit that which the text makes

plain”). Moreover, the use of the words “Nondispositive Matters” as Rule 59(a)’s

title does not tell us whether all nondispositive matters fall within its scope. 4


      4
              The government also makes arguments based on the Local Rules,
which, in its view, do designate the determination of all nondispositive matters in
criminal cases (including § 636(a) matters) to magistrate judges. See Aplee.’s
Suppl. Bail Mem. Br. at 13–14. As Mr. Doby observes, however, the Local Rules
were not advanced by the government in district court or cited in the district
court’s ruling, nor were they much discussed in the government’s initial appellate
brief. See Aplt.’s Reply Bail Mem. Br. at 5–6; see also Aplee.’s Bail Mem. Br. at
5–6 (mentioning one Local Rule). Although we can affirm on alternative grounds
if the record is adequately developed, United States v. Gaines, 918 F.3d 793, 800
(10th Cir. 2019), the complexity of the issue—including how the Local Rules
interact with the federal statutes and procedural rules primarily at issue
here—counsels for declining to do so here. See, e.g., United States v. Leaverton,
895 F.3d 1251, 1258 n.3 (10th Cir. 2018) (declining to consider government’s
alternative argument for affirmance “[g]iven the complexity of the issue”).
                                                                        (continued...)

                                          18
      Furthermore, as Mr. Doby points out, it will often be a “misnomer” to

characterize a “motion for amendment of the conditions of release” under

§ 3145(a) as lodging “objections” to a magistrate judge’s order, which Rule 59

contemplates. Aplt.’s Reply Bail Mem. Br. at 13. In this regard, we have ruled

that § 3145(a), which has no express time limit for filing motions, allows an

amendment of conditions of release (or revocation of release) by the district court

based on facts and considerations that were not, and often could not have been,

before the magistrate judge when the original order was entered. See, e.g.,

Cisneros, 328 F.3d at 613, 615 (ruling that § 3145(a) was “an appropriate basis”

for government motion seeking revocation of release, more than fourteen days

after it was ordered, based on information learned by the government subsequent

to the detention hearing); cf. United States v. Garcia, 445 F. App’x 105, 108–09

(10th Cir. 2011) (unpublished) (per curiam) (ruling that district court did not err

in receiving new evidence during review of a release order under § 3145). In

such circumstances, the district court’s action could not reasonably be viewed as

consisting of review of objections to issues that the magistrate judge addressed.




      4
       (...continued)
Indeed, we lack the district court’s interpretation of its own local rules.
Therefore, we decline to reach the government’s alternative arguments for
affirmance based on the Local Rules.

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That is because those issues would not have emerged at the time of the magistrate

judge’s decision.

      We also reject the government’s invitation to deem any error here harmless

in light of the district court’s decision not to “exercise its discretion” to consider

Mr. Doby’s motion. Aplee.’s Suppl. Bail Mem. Br. at 16–17. The district court

declined to exercise its discretion to consider Mr. Doby’s motion, “[d]espite Rule

59’s waiver provision.” Aplt.’s App. at 73. Significantly, the district court’s

express reference to Rule 59 immediately preceding its decision not to exercise its

discretion demonstrates that the court situated its analysis regarding discretion

within Rule 59’s framework. But, as we have demonstrated, applying this

framework was error. The government gives no compelling reason to believe that

the court’s discretionary analysis would have been identical or similar had

§ 3145(a)(2) been properly applied, without reference to Rule 59, nor has the

government shown that Mr. Doby’s prior opportunities to make his arguments

could properly be held against him.

      The district court therefore erred in applying Rule 59(a)’s fourteen-day

time limit to a motion under § 3145(a)(2). We remand on this basis alone, and we

do not consider Mr. Doby’s arguments under § 3142(c)(3). We also decline Mr.

Doby’s invitation to opine, “as a matter of judicial economy,” on whether his

motion required “proof of the same material change in circumstances” required

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for a motion under § 3142(f). Aplt.’s Bail Mem. Br. at 17–18. Although the

district court’s § 3145(a)(2) ruling cited delay in filing, it did not analogize such a

motion to one under § 3142(f) or state that a § 3145(a)(2) motion required “the

same material change in circumstances” as one under § 3142(f). Compare Aplt.’s

App. at 76 n.5 (suggesting that § 3142(c) “should be read in conjunction with”

§ 3142(f)’s limitations), with id. at 72–74 (not mentioning § 3142(f) in analyzing

§ 3145(a)(2) issues). On remand, in resolving Mr. Doby’s request for relief, to

the extent necessary or appropriate, the district court is free to consider these

other statutory arguments, as well as any other arguments predicated on the

federal procedural rules or Local Rules, that are not inconsistent with this

opinion.

                                          IV

      For the foregoing reasons, we REVERSE the district court’s order and

REMAND for further proceedings.




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