UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ADALBERTO HERNANDEZ-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 arrested in Arizona on a drug conspiracy 

charge out of the federal district court in Kansas. Because he is an illegal alien, the 

Bureau of Immigration and Customs Enforcement of the Department of Homeland 

Security also lodged a detainer (“ICE detainer”). After a pretrial detention hearing, a 

magistrate judge in the Arizona federal district court ordered his conditional release, 

but stayed the order to permit review. The government promptly moved to revoke 

 *

 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

March 17, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

the order. Following Mr. Hernandez-Medina’s transfer to Kansas, the district court 

there granted the government’s motion and ordered him detained. He now appeals, 

challenging the district court’s decision on substantive and procedural 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 distribute 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 appearance for trial and the safety 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 certain 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 Cir. 2003), the district court revoked the release order. 

Its rationale for doing so included (a) the seriousness of the charge, (b) the evidence 

supporting the charge, (c) the fact that, as an illegal alien prohibited from working in 

the United States, Mr. Hernandez-Medina could not simultaneously meet the routine 

employment and compliance-with-law conditions relied on by the magistrate judge, 

and (d) the likelihood that if Mr. Hernandez-Medina were released, DHS would 

execute the ICE detainer and ultimately remove 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 order, we review questions of law and 

mixed questions of law and fact de novo, but defer to the district 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. First, 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 risk and then advocate for a 

defendant’s detention because he is a flight risk.” Bail Memo. Br. at 10. As 

recounted above, the district court did not rely solely on this consideration but cited 

several circumstances pertinent 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 whether pre-trial detention would be proper 

based solely on a defendant’s immigration 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 characteristics of the defendant. The district court 

here properly weighed those considerations along with the nature of the 

charges and the weight of the evidence, both of which favored detention, in 

concluding that [the defendant] 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 and 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 country involuntarily through removal than 

voluntarily through personal flight. 

Mr. Hernandez-Medina’s second general objection 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 the matter “shall be determined promptly.” 

18 U.S.C. § 3145(a). The delay was a function of complications 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 delay did not bespeak any 

bad faith interference with the judicial process that might conceivably warrant a 

dismissal of the case with prejudice (and a dismissal without prejudice would have no 

practical consequence): 

I am finding that Mr. Hernandez was brought here as quickly as possible. 

There was nothing more that I’m aware of that could have been done on 

this end to get him from Arizona to Kansas 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 creating the delay and so if . . . there is 

a dismissal, it would be without prejudice 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 would 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 the lack of any effect of the delay on the 

 2

 Indeed, a final order of removal—the threshold trigger for 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 delays in review of pretrial detention—even 

if they clearly violate time prescriptions in the Bail Reform Act—are properly 

deemed harmless “unless the court concludes from the record as a whole that the 

error may have had a ‘substantial 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 that his detention in Arizona “deprived 

him and counsel of the ability to meet and work 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 affected 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 (which are more specific and stringent than § 3145’s broad 

command for promptness in the district court’s determination of detention appeals), 

we have invoked its guidance in connection with the latter as well, see United States 

v. Meyers, 95 F.3d 1475, 1488 & n.5 (10th Cir. 1996).