*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 _____________________

No. 95-50607

Summary Calendar

 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DELIA GARCIA,

Defendant-Appellant.

_______________________________________________________

Appeal from the United States District Court for

the Western District of Texas

(SA-95-CR-199)

_______________________________________________________

(September 25, 1995)

Before REAVLEY, SMITH and PARKER, Circuit Judges.

PER CURIAM:*

Delia Garcia appeals her court ordered pretrial detention. 

18 U.S.C. § 3142(e) and (f). She also complains of certain

procedural irregularities at her detention hearing. We affirm.

Garcia is awaiting trial for possession of heroin with

intent to distribute, conspiracy to distribute, and aiding and

abetting the distribution of heroin. The district court found
2

"by clear and convincing evidence that there exists no condition

or combination of conditions that will reasonably assure the

safety of other persons and the safety of the community" if

Garcia were to be released prior to trial. See 18 U.S.C. §

3142(e). We must determine if the court's finding is supported

by the record. United States v. Ruben, 974 F.2d 580, 586 (5th

Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1336 (1993).

Pretrial detention may be imposed if Garcia poses either a

risk of flight before trial or a danger to the community. Ruben,

974 F.2d at 586; United States v. Hare, 873 F.2d 796, 798 (5th

Cir. 1989). Under the Bail Reform Act there is a rebuttable

presumption this is true where a judicial officer finds probable

cause to believe that Garcia committed an offense for which a

maximum term of imprisonment of ten years or more is prescribed

in the Controlled Substances Act. 18 U.S.C. § 3142(e). The

punishment range for the charges Garcia faces is five to 40 years

in prison. Garcia asserts that there is not clear and convincing

evidence which would establish probable cause to believe that she

committed acts that are punishable by more than ten years in

prison. Specifically, she claims that she was only present

during the initial sale of four ounces of heroin and during the

sale of the one pound of heroine. However, our review of the

evidence indicates that there is credible evidence that she

arranged the sale of the pound of heroin. Therefore, her term of

imprisonment could exceed ten years.
3

"The rebuttable presumption of § 3142(e) shifts to the

defendant only the burden of producing rebutting evidence, not

the burden of persuasion; however, the mere production of

evidence does not completely rebut the presumption." Ruben, 974

F.2d. at 586 (citing Hare, 873 F.2d at 798-99). The trial court

did not abuse its discretion.

At the detention hearing, Garcia has failed to rebut the

presumption that she is a danger. Ruben, 974 F.2d at 586. The

evidence indicated that in three separate instances Garcia was

present when an alleged co-conspirator sold four ounces of

heroin, that Garcia sold seven ounces of heroin, that she

arranged for the sale of a pound of heroin, and that she was

present during that sale. Garcia was sentenced to eight years

probation on July 28, 1992 for possession of heroin. On December

7, 1992, Garcia was sentenced to ten years probation, again for

possession of heroin. The defendant's only witness was Garcia's

probation officer who testified that he believed she was not a

danger to the community nor was she a flight risk. However, his

testimony was prior to learning of the instant offense. While

Garcia had improved since her last two arrests, the probation

officer recognized that a drug dealer was a danger to the

community. The evidence presented by Garcia at the hearing does

not rebut the presumption that she is a danger to the community. 

Accordingly, the trial court did not err in ordering her to be

detained pending trial.
4

Garcia also asserts that more than ten days passed between

the time of her initial appearance and her detention hearing as

required by statute. 18 U.S.C. § 3142(d). At Garcia's initial

hearing on June 9, 1995, Garcia informed the court that she

intended to retain counsel. Based upon this representation, the

trial court set the hearing date for June 22, 1995, within the

prescribed time specified by the statute. However, on June 22,

Garcia requested the appointment of counsel. The court promptly

appointed counsel and reset the hearing date. Any delay in the

hearing was caused by Garcia herself. The failure to comply with

the Act's ten-day requirement does not require that Garcia be

released, especially where the noncompliance was a direct result

of her desire to pursue retained counsel. See United States v.

Montalvo-Murillo, 495 U.S. 711, 716-717 (1990) (failure to follow

time requirements for first appearance does not require the

defendant to be released); United States v. Clark, 865 F.2d 1433,

1436 (4th Cir. 1989) (the time requirements and the detention

hearing itself provided for in § 3142 are waivable). 

The noncompliance with the ten-day requirement did not have

a "substantial influence" on the outcome of the proceeding. 

Based on these facts, any error was harmless. See MontalvoMurillo, 495 U.S. at 722. 

AFFIRMED.