UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. LOS ROVELL DAHDA, Defendant - Appellant. No. 19-3099 (D.C. No. 2:12-CR-20083-KHV-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , PHILLIPS , and McHUGH , Circuit Judges.

________________ _________________ Los Rovell Dahda appeals the dist rict court’s denial of his pro se Motion for Immediate Release pending his r e-sentencing. Exercising jurisd iction pursuant to 28 U.S.C. § 1291, we affirm t he denial of his motion. Dahda was charged in 2012 with m ultiple drug-rela ted counts inc luding maintaining a drug involved prem ises, and conspiring to do so, in violation of 21 U.S.C. § 856 and 18 U.S.C. § 2. Dahda’s brother, Roosevelt Dahda, was a

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 co-defendant in the same criminal case. United States v. Dahda , 853 F.3d 1101, 1105 n.1 (10th Cir. 2017). The district c ourt ordered Dahda to be detained pending his trial after finding that he posed a serious flight risk “in terms of not being reasonably amenable to supervis ion,” and that “no condition or combination of conditions [would] reasonably assu re the safety of the communit y.” Aplee. Bail Mem. Br., Attach. A at 1. Dahda was ultimately convicted on 15 counts. Dahda , 853 F.3d at 1106. The district court sentenced him to concurrent terms of 189, 60, an d 40 months’ imprisonment. Supp. App., Vol. 1 at 664. On appeal, this cour t affirmed Dahda’s convictions. Dahda , 853 F.3d at 1105. We also a ffirmed his 189- month prison sentence on count one, which charg ed a conspiracy involving 1,0 00 kilograms or more of marijuana (the only se ntence that Dahda challenged on a ppeal). Id. at 1105-06, 1116. But we vacated t he almost $17 million fine impo sed by the district court because it exceeded the st atutory maximum, and we remande d for reconsideration of the amount of the fine. Id. at 1118. 1 On remand, the district court granted Dahda’s motion to proceed pro se. The court also directed the parties t o file memoranda regarding the scope of the remand. In addition to recalculating his fine, Dahda argued that (1) th e district court should recalculate the drug quantity att ributable to him in light of t his court’s ruling in his

1 Addressing a wiretap issue unrel ated to this appeal, the Supre me Court affirmed this court’s judgment in Dahda v. United States , 138 S. Ct. 1491, 1494, 1500 (2018).3 brother’s appeal, and (2) due to the absence of a jury finding on attributable drug quantity, the court should resent ence him based on the five-yea r statutory maximum applicable to a drug offense invo lving less than 50 grams of ma rijuana, in accordance with United States v. Ellis , 868 F.3d 1155 (10th Cir. 2017), cert. denied , 138 S. Ct. 1038 (2018). Dahda also filed a Motion for Imme diate Release, in which he so ught release from custody under 18 U.S.C. § 31 45(c) pending his re-sentencin g. He acknowledged in his motion that h e “must meet the conditions of release required of any convicted person under [18 U.S.C.] § 3143(a)(1) . . . and . . . must demonstrate exceptional reasons why detention would not be appropriate.” A plee. Bail Mem. Br., Attach. B at 1. As to the ex ceptional reasons supporting his r elease, Dahda argued that, under Ellis , the maximum sentence the dist rict court could impose for coun t one at his re-sentencing is five year s’ imprisonment. Dahda theref ore sought his immediate release because he had already served almost seven ye ars. As to the conditions for release set forth in § 3143(a)(1), Dahda stated only that he “can establish he is not likely to f lee or to pose a danger to the s afety of any other person or the community” if released. Id. at 5. The district court agreed with D ahda that the scope of the rema nd was not limited to recalculating his fine. But it denied his Motion fo r Immediate Release. The court was not persuaded tha t he demonstrated exceptional re asons for his release on the basis that he would be sub ject to a five-year maximum se ntence upon re-sentencing. See Aplee. Bail Mem. Br ., Attach. C at 3-5. In particular, the co urt4 held that, even unde r the reasoning in Ellis , a five-year statutory maximum sentence would not apply because the jury foun d Dahda guilty of maintain ing a drug-involved premises, and conspiring to do so , both of which are offenses t hat carry a statutory maximum penalty of 20 years’ imprisonment. Id. , Attach D. at 8-9. The district court made no explicit findings r egarding whether Dahda meets t he conditions for relief set forth in § 3143(a)(1). Appearing pro se, Dahda appeals the district court’s denial of his Motion for Immediate Release pendi ng his re-sentencing. 2 “[A]ppellate review of detention or release orders is plenary, at l east as to mixed questions of la w and fact, and independent, with due deference t o the trial court’s purely fac tual findings.” United States v. Cook , 880 F.2d 1158, 1160 (10th Cir. 1989). A district court has the author ity to release a defendant pendi ng sentencing under the “exceptional reasons” provision of 18 U.S.C. § 1345(c ). United States v.
Jones , 979 F.2d 804, 806 (10th Cir. 1992) (per curiam). To obtain r elease under that section, a defendant must both me et the conditions set forth in § 3145(a)(1) and make “a clear showing of exceptional reasons why his detention would not be appropriate.”
United States v. Kinslow , 105 F.3d 555, 557 (10th Cir. 1997) (per curiam). Although the district court focu sed on rejecting Dahda’s “excep tional reasons” argument, we affirm the denial of his motion for release on the alternative basis that

2 In his appeal brief, Dahda ref erences the standard for obtaini ng release pending appeal, see 18 U.S.C. § 3143(b), but he ha s not moved for that relief in t his court.5 he failed to demonstrate that h e meets the conditions for relea se in § 3143(a)(1). Dahda contends, without citation to authority, that the burden of persuasion regarding risk of flight and danger to the community always remains with the government. But in this context, where he sought release pending sentencing und er § 3145(c), Dahda “was required to show, by clear a nd convincing evidence, that h e was not likely to flee or pose a danger to the saf ety of any other person or the community if released,”
Kinslow , 105 F.3d at 557 (internal quota tion marks omitted). Yet Dahd a offered no evidence supporting such a findi ng in his Motion for Immediate Release, in which he made only a conclusory assertion that he can establish these fa ctors. On appeal, he points us to the evidence presen ted at his initial detention he aring. But the district court ordered him detained pendi ng trial, finding that he posed a serious flight risk and that no conditions would reas onably assure the safety of th e community. Dahda cannot secure release p ending his re-sentencing “ unless ” the district court finds by clear and convinci ng evidence that he meets the conditions in § 3143(a)(1). The district court made no such finding here—nor could it have based upon Dahda’s patently deficient motion. We therefore affirm th e district court’s denial of Dahda’s Motion for Imme diate Release. We also deny D ahda’s motion to consolidate this appeal with his s eparate appeal in Case No. 19 -3114.

Entered for the Court Per Curiam