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- 7090 United States v. Perez

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 3 r d day of N o v e m b e r , two thousand twenty

- three

. 3 4 PRESENT : 5 AMALYA L. KEARSE, 6 SUSAN L. CARNEY, 7 MYRNA PÉREZ, 8 Circuit Judges

. 9 10 11 United States of America , 12 13 Appellee , 14 15

v. No. 23

- 7090 16 17 Steven Perez, 18 a/k/a Sealed Defendant 2 19 a/k/ a Lucha , 20 21 Defendant

- Appellant, 22 23 Keith Vereen , 24 a/k/a Sealed Defendant 1 , 25 26 Defendant

. 27 28 292 FOR APPELLEE : A SHLEY C. N ICOLAS , Assistant United States 1 Attorney (Madison Reddick Smyser, on the brief )
, 2 for Damian Williams , United States Attorney for the 3 Southern District of New York, New York, NY

. 4 5 FOR DEFENDANT

- APPELLANT : K ENDRA L. H UTCHINSON , Assistant Federal 6 Defender
, Federal Defenders of New York, 7 New York
, NY

. 8 9 Appeal from the United States District Court for the Southern District of New York ( Jed 10

S. Rakoff, Judge ). 11

Petitioner appeals the district court’s order of detention pending sentenc ing and requests 12
that this Court issue an order releasing the Petitioner pursuant to 18 U.S.C. § 3143(a), 18 U.S.C. 13
§3145(c), and Fed. R. App. P. 9( a ). Petitioner also moves for immediate release pending 14
disposition of this motion pursuant to Fed. R. App. P. 9(a)(3). Upon due consideration, it is 15
hereby ORDERED that the judgment of the district court is AFFIRMED and the motion for 16
release under Fed. R. App. P. 9(a)(3) is DENIED

. 17
A person who has been convicted of an offense with a suggested sentence of a term of 18
imprisonment is not entitled to release pending sentencing unless the district court finds, inter alia
, 19
“by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety 20
of any other person o r the community.” 18 U.S.C. § 3143(a)(1) ; § 3143(a)(2)(B)

. A person 21

convicted of a crime o f violence is generally to be detained pending sentencing unless the 22
government recommends no prison term, or the defendant

— in addition to meeting the above no

23

risks

- of

- flight

- or

- danger requirements, see id. § 3143(a)(2)(B)

— shows a substantial likelihood 24
that the district court will grant a new trial or a judgment of acquittal, see id. § 3143(a)(2)(A)(i). 25

While a court may order that a person “subject to detention under section 3143(a)(2)” be released 263 pending sentencing “if it is clearly shown that there are exceptional reasons why such person’s 1
detention would not be appropriate
, ” that provision is by its terms applicable only to a person “ who 2
meets the conditions of release set forth in section 3143(a)(1),” a section that includes the no

- risks

3

of

- flight

- or

- danger requirements

. 18 U.S.C. § 3145(c)

. 4
In reviewing a detention order, we review the district court’s “specific predicate factual 5
findings” and “overall assessment, based on those predicate facts
, ” for clear error. United States 6

v. Abuhamra , 389 F.3d 309, 317 (2d Cir. 2004). 7
This court need not reach the question of whether Petitioner’s conviction under 18 U.S.C. 8
§ 922(a)(3) qualifies as a “crime of violence” because we cannot say that the district court clearly 9
erred in finding that Petitioner failed to provide clear and convincing evidence that he did not pose 10
a flight risk or danger to the community. The district court found that Petitioner “totally

. . . 11
disrespects the law when it comes to firearms” and held a “deep

- seeded [sic] belief that he is the 12

law when it comes to dangerous weapons.” Tr. 578

- 79. Given the circumstances of the 13
underlying offense in this case and Petitioner ’s improper pro se communications to the district 14

court, we cannot conclude that the court clearly erred in finding that Perez did not produce clear 15
and convincing evidence that, if release d , he would neither be a flight risk nor pose a danger to the 16
community

. 17
Accordingly, we AFFIRM the judgment of the district court
, and the motion for release 18
under Fed. R. App. P. 9(a)(3) is DENIED

. 19

20 FOR THE COURT: 21 Catherine O ’ Hagan Wolfe, Clerk of Court 22 23