UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ADALBERTO HERN ANDEZ-MEDINA, a/k/a Beto, a/k/a Babeto, Defendant - Appellant. No. 16-3026 (D.C. No. 6:15-CR-10152-JTM-5) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before GORSUCH , MATHESON , and McHUGH , Circuit Judges.

________________ _________________ Adalberto Hernandez-Medina was arrest ed in Arizona on a drug conspiracy charge out of the federal dist rict court in Kansas. Becaus e he is an illegal alien, the Bureau of Immigration and Customs Enfo rcement of the Department of Homeland Security also lodged a detainer (“ICE detainer”). After a pr etrial detention hearing, a magistrate judge in the Arizona federal dist rict court ordered hi s conditional release, but stayed the order to perm it review. The government promptly moved to revoke

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 17, 2016
Elisabeth A. Shumaker Clerk of Court2 the order. Following Mr. Hernandez-Medina’s transfer to Kansas , the district court there granted the government’s motion and or dered him detained. He now appeals, challenging the district court’s decision on substantive and proce dural grounds. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), and affirm. Mr. Hernandez-Medina is charged with conspiracy to dist ribute 500 grams or more of methamphetamine. If convicted, he faces a sentence of at least ten years to life. 21 U.S.C. § 841(b)(1)(A ). Pursuant to 18 U.S.C. § 3142(e)(3)(A), (f)(1)(C), the seriousness of this charge triggers a presumption that no condition(s) of release will reasonably assure his a ppearance for trial and the sa fety of the community, as required to warrant pretrial release under 18 U.S.C. § 3142( e)(1). Nevertheless, the magistrate judge in Arizona ordered his release on cer tain conditions, including maintaining/actively seeking employment and complying with federal, state and local law. On de novo reconsideration of the matter, see United States v. Cisneros , 328 F.3d 610, 616 n.1 (10th Ci r. 2003), the district court revoked the release order. Its rationale for doing so included (a) the seriousness of the char ge, (b) the evidence supporting the charge, (c ) the fact that, as an illegal alien prohibited from working in the United States, Mr. Herna ndez-Medina could not simulta neously meet the routine employment and compliance-with-law conditi ons relied on by the magistrate judge, and (d) the likelihood that if Mr. Hern andez-Medina were released, DHS would execute the ICE detainer and ultimately rem ove him to Mexico, taking him out of the jurisdiction as effectively as if he voluntarily fled (which the district court did not deem as likely). See Dist. Ct. Doc. 92, at 18-19, 22-24.3 On appeal from a pretrial detention or der, we review que stions of law and mixed questions of law and fact de novo, but defer to the di strict court’s findings of fact unless clearly erroneous. Cisneros , 328 F.3d at 613. Mr. Hernandez-Medina raises two broad objections to the district court’s order. Fi rst, he contends the district court erroneously relied on the ICE detainer in finding him a potential flight risk, arguing that “[t]he government cannot create the flight ri sk and then advocate for a defendant’s detention because he is a fli ght risk.” Bail Memo. Br. at 10. As recounted above, the district court did not rely solely on this consideration but cited several circumstances pertin ent to the detention determination under 18 U.S.C. § 3142(g). What this court said under similar circumstances in United States v. Salas-Urenas , 430 F. App’x 721 (10th Cir. 2011), 1 is equally apt here: We need not resolve wh ether pre-trial detention would be proper based solely on a defendant’s immigr ation status or an ICE detainer because that situation is not before us. A defendant’s immigration status and the existence of an ICE detainer are relevant to the detention decision as part of the history and characteristic s of the defendant. The district court here properly weighed those considera tions along with the nature of the charges and the weight of the evidence, both of which favored detention, in concluding that [the defe ndant] should not be released pending trial. Id. at 723. In this same vein, Mr. Hernandez-Medina contends the district court erroneously found that nothing could stop his removal pursuant to the ICE detainer if he were released before the government had a chance to prosecute. But the district court never found or stated that Mr. Hernandez-Medina would necessarily be removed if

1 While Salas-Urenas is an unpublished decision, we consider it relevant and persuasive. See Fed. R. App. P. 32.1 an d 10th Cir. R. 32.1.4 released on bail. 2 Rather, the district court merely observed it was more likely that Mr. Hernandez-Medina would leave the count ry involuntarily through removal than voluntarily through personal flight. Mr. Hernandez-Medina’s second general obj ection is procedural . He contends the eight-week delay in resolution of the government’s motion to revoke the release order violated the statutory directive that th e matter “shall be determined promptly.” 18 U.S.C. § 3145(a). The de lay was a function of complic ations with the marshal service completing Mr. Hernandez-Medina’s transfer from Arizona to Kansas. See Dist. Ct. Doc. 92 at 25-26. As the district court found, the dela y did not bespeak any bad faith interference with the judicial process that might c onceivably warrant a dismissal of the case with prejudice (and a dismissal wit hout prejudice would have no practical consequence): I am finding that Mr. Hernandez was br ought here as quickly as possible. There was nothing more that I’m awar e of that could have been done on this end to get him from Arizona to Ka nsas and [even] if . . . there was a violation, the only way that I would ever dismiss with prejudice is if I found that there was bad faith . . . in cr eating the delay and so if . . . there is a dismissal, it would be without prej udice to refiling, which simply means that we go through some of the same steps, of course. Id. at 27. Further, the district court stated that its “decision w ould not have been any different” had the government’s motion been heard earlier. Id. On appeal, Mr. Hernandez-Medina does not challenge the district court’s findings about the lack of bad faith and th e lack of any effect of the delay on the

2 Indeed, a final order of removal—the threshold trigger fo r commencement of the removal period, see 8 U.S.C. § 1231(a)(1)(B)(i)—has not even been issued yet.5 outcome of the government’s motion. 3 In our view, that is essentially the end of the matter. The Supreme Court has held that dela ys in review of pret rial detention—even if they clearly violate time prescripti ons in the Bail Reform Act—are properly deemed harmless “unless the court concl udes from the record as a whole that the error may have had a ‘substa ntial influence’ on the outcome of the proceeding.” United States v. Montalvo-Murillo , 495 U.S. 711, 722 (1990). 4 In other words, if the defendant “would have been detained” anyway , the procedural delay in reaching that conclusion is harmless. Id. The order of the district court is affirmed.

Entered for the Court Per Curiam

3 He does complain in general terms th at his detention in Arizona “deprived him and counsel of the ability to meet and wo rk together to prepare for his defense at trial without undue inconvenience or hardship .” Bail Memo. Br. at 15. If defense preparation for trial were adversely affect ed and Mr. Hernandez-Medina convicted as a result, the appropriate time to advance these complaints would be on appeal from the conviction.

4 While Montalvo-Murillo involved time limits in 18 U.S.C. § 3142(f) for the initial detention hearing (whi ch are more specific and st ringent than § 3145’s broad command for promptness in the district c ourt’s determination of detention appeals), we have invoked its guidance in c onnection with the latter as well, see United States v. Meyers , 95 F.3d 1475, 1488 & n. 5 (10th Cir. 1996).