* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 18 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JAMES IVEY,

Defendant-Appellant. No.97-1035 (D.C. Nos. 96-CR-446-1 and 96-CR-448-2) (D. Colo.)

ORDER AND JUDGMENT *
Before PORFILIO, BALDOCK, and BRISCOE, Circuit Judg es.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

James Ivey appeals from a district court order deny ing his motion for revocation or modification of a detention order ent ered by the United States District Court for the Southern District of Indiana . Our review of the district court’s ruling is plenary as to questions of law, g iving due deference to the district court’s factual findings. See United States v. Stricklin , 932 F.2d 1353, 1355 (10th Cir. 1991). Our jurisdiction arises fro m 28 U.S.C. § 1291; see 18 U.S.C. § 3145(c). Defendant stands charged in the District of Colorad o on two separate indictments involving drug trafficking, conspiracy, and use of weapons charges. He was arrested in Indiana and brought before a mag istrate judge in that district for an identity and detention hearing. After a hea ring, the magistrate judge ordered defendant detained, concluding that 1) purs uant to 18 U.S.C. § 3142(e), a presumption arose that no condition or combination of conditions of release would reasonably assure defendant’s appearance and the community’s safety, 2) defendant had offered no evidence to rebut the p resumption, and 3) even had defendant rebutted the presumption, the evidence an d information available would still require his detention, under the factors list ed in § 3142(g). Specifically, the Indiana district court found that defendant posed aserious risk of flight and was a danger to the community.-3-

Defendant was returned to Colorado, and moved to re open the detention ruling, seeking revocation or modification of the I ndiana order. After a hearing, the district court denied the motion from the bench , also concluding that the § 3142(e) presumption applied, that defendant had n ot successfully rebutted the presumption, and finding that defendant was both a flight risk and a danger to the community. The government orally moved for modific ation of the order, contending that the § 3142(e) presumption did not apply. The court agreed, but stated that its alternate findings and conclusions supported its ruling, and ordered defendant detained. This appeal followed. On appeal, defendant claims that the government wai ved invocation of the § 3142(e) presumption, argues that, even if the pre sumption applies, undisputed evidence at the hearing rebutted the presumption, and contends that the district court erred by failing to properly consider less re strictive alternatives. In response, the government contends that the presumpt ion does apply, defendant failed to rebut the presumption, and the record sho ws that lesser restraints would be inappropriate. We need not decide whether the g overnment waived or abandoned invocation of the § 3142(e) presumption, see Stricklin , 932 F.2d at 1355, or consider the parties’ arguments about the presumption because we conclude that, under the alternative analysis, the district court correctly and properly concluded that defendant should be detaine d.-4-

The district court specifically found that defendant was a flight risk and a danger to the community, based upon his lack of tie s to Colorado, probable cause to believe defendant committed the crimes charged, and the nature of the charges against him, specifically the use of weapons in con nection with drug transactions. The district court also noted that the Indiana magi strate judge’s opinion was very persuasive. The record shows that the district cou rt considered all of the evidence presented, including defendant’s offer to reside ata halfway house. Giving due deference to these factual findings, and after a th orough review of the evidence, the judgment of the United States District Court fo r the District of Colorado is
AFFIRMED.

ENTERED FOR THE COURT PER CURIAM