PUBLISH UNITED STATES COURT OF APPEALS Filed 1/22/97 TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ROBERT KINSLOW,

Defendant-Appellant. No. 96-7124

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 96-CR-45-1-S)

Submitted on the briefs: Stephen J. Knorr, Federal Public Defender, Stephen J. Greubel, Assistant Federal Public Defender, Tulsa, Oklahoma, for Defendant-App ellant. John Raley, United States Attorney, D. Michael Litt lefield, Assistant United States Attorney, Muskogee, Oklahoma, for Plaintiff- Appellee.
Before ANDERSON, HENRY, and MURPHY, Circuit Judges.

PER CURIAM.1 After examining the briefs and materials submitted, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral ar gument. -2- Defendant-Appellant Robert Kinslow appeals 1 the district court’s order denying him release pending sentencing. He contend s that the district court imposed improper conditions on the determination of his eligibility for release under 18 U.S.C. § 3145(c). The United States conce des that the district court misread § 3145(c), but argues that its order denyin g release should be affirmed on the alternate basis that appellant failed to show a ny “exceptional reason” justifying release.

I. It is uncontroverted, on appeal, that appellant was found guilty of a “crime of violence,” for purposes of 18 U.S.C. § 3142(f)(1 )(A). Under 18 U.S.C. § 3143(a)(2), he is therefore subject to detention pending imposition of sentence unless: (A)(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or (ii) an attorney for the Government has recommendedthat no sentence of imprisonment be imposed on [appellant]; and (B) the judicial officer finds by clear and convinc ing evidence that [appellant] is not likely to flee or pose a danger to any other person or the community.-3-

Alternatively, appellant could obtain release under18 U.S.C. § 3145(c), by meeting the conditions of release set forth in 18 U .S.C. § 3143(a)(1) and by making a clear showing of exceptional reasons why h is detention would not be appropriate. Appellant chose this route to attemptto obtain continued release pending sentencing. Under § 3143(a)(1), he was req uired to show, by clear and convincing evidence, that he was not “likely to fle e or pose a danger to the safety of any other person or the community if released.” He did not have to show, however, as he would have under § 3143(a)(2), that he was likely to prevail on a motion for acquittal or new trial, or that the gove rnment had recommended no sentence of imprisonment. The district court, relying on the language of § 31 43(a)(1), which makes it applicable “except as provided in paragraph (2),” c oncluded that appellant had to satisfy the requirements of § 3143(a)(2) in order t o obtain release under § 3145(c). As the United States concedes, this is a misreading of §§ 3143(a) and 3145(c). The clear language of § 3145(c) requires a person subject to detention under § 3143(a)(2) to meet the conditions of releas e under § 3143(a)(1), not § 3143(a)(2). We conclude that the district court erred in requiring appellant to satisfy the additional conditions imposed by § 3143 (a)(2).-4- II. Our analysis does not end with our conclusion that the district court misapplied §§ 3143(a) and 3145(c), however. The di strict court went on to consider whether appellant had met the other requir ement of § 3145(c), of showing “exceptional reasons” to justify his releas e pending sentencing. It concluded that he had not. If this determination i s correct, it provides an alternative basis for affirmance. We have given careful consideration to the standard of review to be applied to the district court’s determination that appellan t showed no exceptional reason for release. Whether the particular circumstances of a case satisfy a prescribed statutory standard, such as “exceptional reasons,” presents a mixed question of law and fact. Campbell v. Bartlett , 975 F.2d 1569, 1574 n.9 (10th Cir. 1992). “We review mixed questions under the clearly errone ous or de novo standard, depending on whether the mixed question involves pr imarily a factual inquiry or the consideration of legal principles.” Armstrong v. Commissioner , 15 F.3d 970, 973 (10th Cir. 1994). The issue of whether the determination of “exceptio nal reasons” is primarily factual or legal is resolved for us by Un ited States v. Stricklin , 932 F.2d 1353 (10th Cir. 1991). Stricklinrequires us to apply de novo review to mixed questions of law and fact concerning the detention or release decision, while-5-

accepting the district court’s findings of historic al fact which support that decision, unless they are clearly erroneous. Id. at 1354 (citing United States v. Montalvo-Murillo , 876 F.2d 826, 830 (10th Cir. 1989), rev’d on othe r grounds , 495 U.S. 711 (1990)); see also United States v. Hurtado , 779 F.2d 1467, 1471-72 (11th Cir. 1985) (discussing and adopting similar t est). Thus, we review de novo the district court’s determination that appellant f ailed to demonstrate an “exceptional reason” justifying his release, while accepting the district court’s findings of fact which support that determination, unless “clearly erroneous.” Based upon our review of the record and briefs on appeal, we conclude that the district court did not err in determining that the circumstances of this case did not present an exceptional reason for appellant’s r elease pending sentencing. Therefore, the order of the United States District Court for the Eastern District of Oklahoma denying appellant release pending sentenci ng is AFFIRMED.