UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellant,

v. MIGUEL BUSTAMANTE-CONCHAS, Defendant - Appellee. No. 14-2003 (D.C. No. 1:13-CR-02028-JAP-2) (D. N.M.)

ORDER AND JUDGMENT *

Before HARTZ , MATHESON , and BACHARACH , Circuit Judges.

The government appeals the distri ct court’s order releasing Miguel Bustamante-Conchas (“Bustamante”) into the custody of a halfway house while he awaits trial. We have jurisdiction unde r 28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), and we affirm.

* This panel has determined that oral ar gument 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It ma y be cited, however, for its persuasive value consistent with Fed. R. App. P. 32. 1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 7, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - I. B ACKGROUND Bustamante was arrested in June 2013 for conspiracy to distribute 100 grams or more of heroin in viol ation of 21 U.S.C. § 846. Following his arraignment, and after gathering information about him, Pret rial Services recommended he be released from pretrial detention to a halfway ho use under strict conditions. However, applying the presumption in favor of detention, see 18 U.S.C. § 3142(e)(3)(A), the magistrate judge decided against that recommendation and ordered Bustamante detained. Six months later, in December 2013, Bustamante appealed the magistrate judge’s detention order to the district court. The court held a hearing, during which the parties proffered thei r positions but no testimony was given. Following the hearing, the district court granted Bustamante pretrial release to a halfway house with several conditions, including be ing kept on lockdown, tracked by GPS, restricted to no cell phone access, and limited to landline access for calls w ith his attorney only. In its decision, the court first applied the statutory presumption in favor of detention pursuant to § 3142(e)(3)(A). The court concluded that Bustamante overcame this presumption, however, by fi nding: (1) he had no criminal history; (2) he has lived in the United States si nce 2007 and attained permanent resident status in 2012, which required careful ve tting by the U.S. government; (3) he is married to a U.S. citizen; (4 ) there is no indication he has used illegal drugs or is on- 3 - prescription drugs; and (5) he operated an active business buying, repairing, and selling cars, earning approxi mately $5,000 per month. The court then proceeded to evaluate the four factors outlined in 18 U.S.C. § 3142(g) to decide whether there were c onditions of release th at would reasonably assure Bustamante’s appearan ce in court and the safety of the community: (1) the nature and circumstances of the offense; (2) the wei ght of evidence against the defendant; (3) the history and characteristic s of the defendant; and (4) the nature and seriousness of the danger the defendant woul d present to the community if released. Under the first factor, the court found th at the offense charged was conspiracy to distribute large amounts of heroin, but that there was no evidence of violence or that Bustamante possessed a weapon. Under the second f actor, the court found there was substantial circumstantial evidence, but no direct evid ence, that Bustamante was involved in the heroin distribution enterpri se. Under the third factor, the court found that Bustamante has no prior criminal history, has subs tantial family ties to the United States, had continuous employmen t before his arrest, has resided in Albuquerque for seven years, and has not abused drugs or alcohol. Finally, under the fourth factor, the court took note of the government’s “understandable” concern that Bustamante was allegedly the organizer and leader of the heroin distribution enterprise, thus creating a danger to the community if released because he could continue to direct the enterprise’s ope rations. Aplt. App. Vol. I at 25.- 4 - Based on the record, the court found the government had established by a preponderance of the evidence th at Bustamante was a flight ri sk because of his ties to Mexico, where his adult childre n live and where he traveled frequently in the year prior to his arrest. The court also foun d the government had es tablished by clear and convincing evidence that Bustamante was a danger to the community if released “on other than highly restrictive conditions” becau se of his alleged ro le in the criminal enterprise. Id. ; see also United States v. Cisneros , 328 F.3d 610, 616 (10th Cir. 2003) (“[T]he government must prove risk of flight by a preponderance of the evidence and it must prove dangerousness . . . by clear and convincing evidence.”). However, the court was satisfied that th e halfway house, combined with additional conditions, would sufficiently al leviate the risk of flight or danger to the community. Lastly, the district court discussed Bu stamante’s length of detention as an additional factor in its decisi on. The court expressed con cern over the fact that he will have been detained for over a year be fore his trial, and emphasized that the government’s failure to pr oduce discovery “in a useful , meaningful manner” was largely to blame for the delay. Aplt. A pp. Vol. I at 26. This, the court found, implicated potential due process concerns. The court therefore granted Bustamante pretrial release to a halfwa y house with restrictive cond itions. The government then moved to stay Bustamante’s release, which we granted pe nding the outcome of this appeal.- 5 - II. D ISCUSSION We review mixed questions of law and fact de novo but review the district court’s underlying findings of fact for clea r error. United States v. Cisneros , 328 F.3d 610, 613 (10th Cir. 2003). The district court’s ultimate pretrial release decision is a mixed question of law a nd fact that we review de novo. Id

. A defendant cannot be detained pending trial unless the court finds that no conditions, or combination of conditions, will reasonably assure the appearance of the person and the safety of the community. 18 U.S.C. § 3142. Generally, courts apply a presumption in favor of pretrial release. Id . § 3142(b). But there is a presumption in favor of detention— i.e ., that no conditions will reasonably assure the appearance of the defendant and the safe ty of the community—when a defendant is charged with a drug offense which the court finds is supported by probable cause and for which the maximum term of imprisonmen t is ten years or mo re, as Bustamante has been in this case. See id . § 3142(e)(3)(A). Once the presumption is invoked, the burden of production shifts to the defendant. United States v. Stricklin , 932 F.2d 1353, 1354-55 (10th Cir. 1991) (per curiam). Nevertheless, the burde n of persuasion alwa ys remains on the government to establish that the defendant should be detain ed as a flight risk and a- 6 - danger to the community. Id . In deciding whether this is so, the district court is required to consider the four factors outlined in § 3142(g). 1
Because the district court found th ere was probable cause to believe Bustamante committed an o ffense for which a term of imprisonment of 10 or more years is prescribed, a rebuttable presumpt ion arises that no conditions assure his appearance in court and the safety of the community. Bu t Bustamante overcame this presumption by producing evidence of his l ack of criminal history, his permanent resident status in the U.S., a nd his family ties to the U.S. See Stricklin , 932 F.2d at 1355 (“The defendant’s burden of producti on is not heavy, but some evidence must be produced.”). The government contends, however, that contrary to the district court’s conclusion there are no conditions that will reasonably assure Bustamante’s appearance and the safety of the community. The government makes several allegations that the conditions the dist rict court imposed on Bustamante are insufficient. For example, the government contends that Bustamante would remain a danger to the community becau se he frequently used the telephone to direct the activities of the heroin distribut ion enterprise. It claims the district court’s restriction

1 We note that our review is limited to the assertions alleged by each of the parties without the benefit of testimony or evidence. A mo re fully developed record would have made our task of assessing Bustam ante’s risk of flight and danger to the community under the conditions imposed fa r easier. In particular, testimony from Pretrial Services regarding why it believ ed the arrangements at the halfway house were adequate safeguards would have b een especially useful to our review.- 7 - on Bustamante using cell phones or a landlin e other than to cal l his attorney are impractical and would allow him to continue his criminal operations. In support of this claim, the government argues that ot her halfway house residents are allowed to use cell phones and that the staff does not m onitor their use. Thus, the government asserts that Bustamante woul d be able to use other resi dents’ cell phones or employ other residents to do his bidding. We are not convinced by the government’ s allegations that the conditions the district court imposed on Bust amante will not reasonably assure the safety of the community. The district cour t ordered, consistent with Pretrial Services’ previous recommendation based on its investigation, that Bustamante be released with considerable restrictions on his movement and communications. The district court added further conditions—that Pretrial Se rvices did not recommend—by absolutely restricting Bustamante from us ing any kind of telephone ex cept to call hi s attorney. While each resident’s cell phone may not be monitored, there is no evidence the halfway house is inadequately staffed with people to oversee Bu stamante’s activities in general. And the landlin e phone is indeed monitored. We thus conclude the government has not demonstrated the need fo r pretrial detention in order to safeguard the community. Nor has the government shown that the conditions the district court imposed on Bustamante will not alleviate his risk of flight. The government argues that because the doors to the halfway house ar e often unlocked and are not guarded by- 8 - armed security—though staff members are stationed ther e—the conditions of the halfway house allow for an easy escape. The government also cl aims that the GPS devices used at the halfway house are easily removed with scissors or a knife. It further notes that five re sidents have absconded within the last year, though the government did not say whether those absconders had GPS devices or were on lockdown (or both). The government thus contends that given the ease with which Bustamante could escape and the fact that the halfway hous e is only a four-hour drive to Mexico, combined with the serious nature of the charges against him, the conditions at the halfway house do not adequa tely protect against his risk of flight. While we agree Bustamante presents a flight risk, the government supports its claim that the restrictiv e conditions in the halfwa y house are insufficient by identifying characteristics of the house and speculating on scen arios that could conceivably occur. The government does not address the fact th at if Bustamante were to succeed in cutting off his GPS monitor, aut horities would be notified immediately. The government does not a ssert that anyone in the halfway house under 24-hour lockdown with a GPS monitor ha s failed to appear fo r court. And yet it is the government that bears the burden of persuasion to show that those conditions cannot reasonably assure Bust amante’s appearance in cour t. Between the lockdown and GPS monitoring, the conditions the dist rict court imposed on Bustamante are unquestionably rigorous to prot ect against his risk of f light. If effective, such conditions would reasonably assure his a ppearance. We are not convinced the- 9 - government’s proffers ar e enough to carry its burde n of showing that those conditions would be ineffective. In sum, it is eviden t that the district court consider ed all of the factors relevant to pretrial release decisions li sted in § 3142(g), received proffers as to those factors listed in § 3142(g)(3)(A), and appropriat ely weighed them against the remaining factors in favor of Bustamante’s release, subject to various cond itions. We conclude the district court did not err in releasi ng Bustamante to a halfway house under the restrictive conditi ons it imposed. Accordingly, the district court’s pr etrial release order is affirmed.

Entered for the Court Per Curiam- 10 - No. 14-2003, United States v. Bustamante-Conchas HARTZ , Circuit Judge, concurring: I join the order and judgment. I add onl y one comment. Even if our review is de novo, it is appropriate to defer to fact-fi nding by the district cour t. It is important to me that the district cour t credited the expert opinion of Pretrial Services regarding the adequacy of the conditions at the halfway house.