UNITED STATES COURT 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 district court’s order releasing Miguel 

Bustamante-Conchas (“Bustamante”) into the custody of a halfway house while he 

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

and we 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is not binding precedent, except under the doctrines of law of the case, res judicata, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 7, 2014

Elisabeth A. Shumaker 

Clerk of Court
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I. BACKGROUND

Bustamante was arrested in June 2013 for conspiracy to distribute 100 grams 

or more of heroin in violation of 21 U.S.C. § 846. Following his arraignment, and 

after gathering information about him, Pretrial Services recommended he be released 

from pretrial detention to a halfway house 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 their positions but no testimony was given. Following the 

hearing, the district court granted Bustamante pretrial release to a halfway house with 

several conditions, including being kept on lockdown, tracked by GPS, restricted to 

no cell phone access, and limited to landline access for calls with 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 finding: (1) he had no criminal history; 

(2) he has lived in the United States since 2007 and attained permanent resident 

status in 2012, which required careful vetting 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 
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prescription drugs; and (5) he operated an active business buying, repairing, and 

selling cars, earning approximately $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 conditions of release that would reasonably 

assure Bustamante’s appearance in court and the safety of the community: (1) the 

nature and circumstances of the offense; (2) the weight of evidence against the 

defendant; (3) the history and characteristics of the defendant; and (4) the nature and 

seriousness of the danger the defendant would present to the community if released. 

Under the first factor, the court found that 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 factor, the court found there 

was substantial circumstantial evidence, but no direct evidence, that Bustamante was 

involved in the heroin distribution enterprise. Under the third factor, the court found 

that Bustamante has no prior criminal history, has substantial family ties to the 

United States, had continuous employment 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 operations. Aplt. App. Vol. I at 25. 
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Based on the record, the court found the government had established by a 

preponderance of the evidence that Bustamante was a flight risk because of his ties to 

Mexico, where his adult children live and where he traveled frequently in the year 

prior to his arrest. The court also found the government had established by clear and 

convincing evidence that Bustamante was a danger to the community if released “on 

other than highly restrictive conditions” because of his alleged role 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 the halfway house, combined with additional 

conditions, would sufficiently alleviate the risk of flight or danger to the community. 

Lastly, the district court discussed Bustamante’s length of detention as an 

additional factor in its decision. The court expressed concern over the fact that he 

will have been detained for over a year before his trial, and emphasized that the 

government’s failure to produce discovery “in a useful, meaningful manner” was 

largely to blame for the delay. Aplt. App. Vol. I at 26. This, the court found, 

implicated potential due process concerns. The court therefore granted Bustamante 

pretrial release to a halfway house with restrictive conditions. The government then 

moved to stay Bustamante’s release, which we granted pending the outcome of this 

appeal. 
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II. DISCUSSION

We review mixed questions of law and fact de novo but review the district 

court’s underlying findings of fact for clear 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 and 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 safety 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 imprisonment is ten years or more, 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 burden of persuasion always remains on the 

government to establish that the defendant should be detained as a flight risk and a 
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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 there was probable cause to believe 

Bustamante committed an offense for which a term of imprisonment of 10 or more 

years is prescribed, a rebuttable presumption arises that no conditions assure his 

appearance in court and the safety of the community. But Bustamante overcame this 

presumption by producing evidence of his lack of criminal history, his permanent 

resident status in the U.S., and his family ties to the U.S. See Stricklin, 932 F.2d 

at 1355 (“The defendant’s burden of production 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 district court imposed on Bustamante are 

insufficient. For example, the government contends that Bustamante would remain a 

danger to the community because he frequently used the telephone to direct the 

activities of the heroin distribution 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 more fully developed record 

would have made our task of assessing Bustamante’s risk of flight and danger to the 

community under the conditions imposed far easier. In particular, testimony from 

Pretrial Services regarding why it believed the arrangements at the halfway house 

were adequate safeguards would have been especially useful to our review. 
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on Bustamante using cell phones or a landline other than to call his attorney are 

impractical and would allow him to continue his criminal operations. In support of 

this claim, the government argues that other halfway house residents are allowed to 

use cell phones and that the staff does not monitor their use. Thus, the government 

asserts that Bustamante would be able to use other residents’ 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 Bustamante will not reasonably assure the safety of the 

community. The district court 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 Services did not recommend—by absolutely 

restricting Bustamante from using any kind of telephone except to call his 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 Bustamante’s activities 

in general. And the landline phone is indeed monitored. We thus conclude the 

government has not demonstrated the need for 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 are often unlocked and are not guarded by 
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armed security—though staff members are stationed there—the conditions of the 

halfway house allow for an easy escape. The government also claims that the GPS 

devices used at the halfway house are easily removed with scissors or a knife. It 

further notes that five residents 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 house 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 adequately protect against his risk of flight. 

While we agree Bustamante presents a flight risk, the government supports its 

claim that the restrictive conditions in the halfway house are insufficient by 

identifying characteristics of the house and speculating on scenarios that could 

conceivably occur. The government does not address the fact that if Bustamante 

were to succeed in cutting off his GPS monitor, authorities would be notified 

immediately. The government does not assert that anyone in the halfway house 

under 24-hour lockdown with a GPS monitor has failed to appear for court. And yet 

it is the government that bears the burden of persuasion to show that those conditions 

cannot reasonably assure Bustamante’s appearance in court. Between the lockdown 

and GPS monitoring, the conditions the district court imposed on Bustamante are 

unquestionably rigorous to protect against his risk of flight. If effective, such 

conditions would reasonably assure his appearance. We are not convinced the 
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government’s proffers are enough to carry its burden of showing that those 

conditions would be ineffective. 

In sum, it is evident that the district court considered all of the factors relevant 

to pretrial release decisions listed in § 3142(g), received proffers as to those factors 

listed in § 3142(g)(3)(A), and appropriately weighed them against the remaining 

factors in favor of Bustamante’s release, subject to various conditions. We conclude 

the district court did not err in releasing Bustamante to a halfway house under the 

restrictive conditions it imposed. 

 Accordingly, the district court’s pretrial release order is affirmed. 

 Entered for the Court 

 Per Curiam 
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No. 14-2003, United States v. Bustamante-Conchas 

HARTZ, Circuit Judge, concurring: 

 I join the order and judgment. I add only one comment. Even if our review is 

de novo, it is appropriate to defer to fact-finding by the district court. It is important 

to me that the district court credited the expert opinion of Pretrial Services regarding 

the adequacy of the conditions at the halfway house.