* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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 Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially 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 argument.
-2-

James Ivey appeals from a district court order denying his motion for

revocation or modification of a detention order entered 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, giving 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 from 28 U.S.C. § 1291; see

18 U.S.C. § 3145(c). 

Defendant stands charged in the District of Colorado on two separate

indictments involving drug trafficking, conspiracy, and use of weapons charges. 

He was arrested in Indiana and brought before a magistrate judge in that district

for an identity and detention hearing. After a hearing, the magistrate judge

ordered defendant detained, concluding that 1) pursuant 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 presumption, and 3) even had

defendant rebutted the presumption, the evidence and information available would

still require his detention, under the factors listed in § 3142(g). Specifically, the

Indiana district court found that defendant posed a serious risk of flight and was a

danger to the community. 
-3-

Defendant was returned to Colorado, and moved to reopen the detention

ruling, seeking revocation or modification of the Indiana order. After a hearing,

the district court denied the motion from the bench, also concluding that the

§ 3142(e) presumption applied, that defendant had not successfully rebutted the

presumption, and finding that defendant was both a flight risk and a danger to the

community. The government orally moved for modification 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 waived invocation of the

§ 3142(e) presumption, argues that, even if the presumption applies, undisputed

evidence at the hearing rebutted the presumption, and contends that the district

court erred by failing to properly consider less restrictive alternatives. In

response, the government contends that the presumption does apply, defendant

failed to rebut the presumption, and the record shows that lesser restraints would

be inappropriate. We need not decide whether the government 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 detained. 
-4-

The district court specifically found that defendant was a flight risk and a

danger to the community, based upon his lack of ties 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 connection with drug transactions. 

The district court also noted that the Indiana magistrate judge’s opinion was very

persuasive. The record shows that the district court considered all of the evidence

presented, including defendant’s offer to reside at a halfway house. Giving due

deference to these factual findings, and after a thorough review of the evidence,

the judgment of the United States District Court for the District of Colorado is

AFFIRMED. 

ENTERED FOR THE COURT

PER CURIAM