mexican oregonians get no sympathy from us atty amanda marshall

7/28/2019 Mexican Oregonians get no sympathy from US ATTY Amanda Marshall

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NO.12-30205

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT____________________

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

V.

EZEQUIEL CASTRO-INZUNZA,

DEFENDANT-APPELLANT.

_____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

THE HONORABLE MALCOLM F.MARSH,SENIORU.S.DISTRICT JUDGE

D.C.NO.3:11-CR00418-MA

______________________

BRIEF OF THE PLAINTIFF-APPELLEE IN RESPONSE TO

DEFENDANT-APPELLANTS FRAP9(A)&CIRCUIT RULE 9-1.1APPEAL

_______________________

S.AMANDA MARSHALL

UNITED STATES ATTORNEY

DISTRICT OF OREGON

KELLY A.ZUSMAN

APPELLATE CHIEF

RYAN W.BOUNDS

ASSISTANT U.S.ATTORNEY

1000SWTHIRD AVENUE,SUITE 600

PORTLAND,OREGON 97204-2902

TELEPHONE: (503)727-1000

Case: 12-30205 07/09/2012 ID: 8242944 DktEntry: 6-1 Page: 1 of 26 (1 of


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TABLE OF CONTENTS

Page

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Procedural and Factual Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Defendants Criminal Charge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Defendants First Appearance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. Defendants Motion for Release. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

D. District Courts Review of the Release Order. . . . . . . . . . . . . . . . . . . . 6

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. Defendant was properly detained as a flight risk because

no set of conditions could reasonably assure his

appearance at trial following his release.. . . . . . . . . . . . . . . . . . . . . . . 8

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Statement of Related Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Certificate of Compliance (Brief Format). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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TABLE OF AUTHORITIES

FEDERAL CASES

De Sandoval v. U.S. Atty Gen., 440 F.3d 1276 (11th Cir. 2006). . . . . . . . . . . . . . 16

Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Maleng v. Cook, 490 U.S. 488 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007). . . . . . . . . . . 7, 16, 17

Padilla v. Kentucky, 130 S. Ct. 1473 (2010). . . . . . . . . . . . . . . . . . . . . . . . . 5, 11, 13

United States v. Aitken, 898 F.2d 104 (9th Cir. 1990). . . . . . . . . . . . . . . . . . . . . 9, 19

United States v. Cardenas, 784 F.2d 937 (9th Cir.),

vacated, 792 F.2d 906 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Cruz-Gramajo, 570 F.3d 1162 (9th Cir. 2009). . . . . . . . . . . . . . . 13

United States v. Gebro, 948 F.2d 1118 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . 9

United States v. Hernandez-Guerrero, 633 F.3d 933 (9th Cir. 2011). . . . . . . . 11, 13

United States v. Hir, 517 F.3d 1081 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Huping Zhou, 678 F.3d 1110 (9th Cir. 2012). . . . . . . . . . . . . . . . 16

United States v. Lozano, No. 1:09-cr-158-WKW, 2009 WL 3052279

(M.D. Ala. Sept. 21, 2009) (unreported). . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985).. . . . . . . . . . . 8, 9, 10, 19

United States v. Townsend, 897 F.2d 989 (9th Cir. 1990). . . . . . . . . . . . . . . . . . 8, 10

United States v. Winsor, 785 F.2d 755 (9th Cir. 1986). . . . . . . . . . 10, 14, 15, 16, 19

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FEDERAL STATUTES, LAWS & RULES

8 U.S.C. 1101(a)(43) (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Immigration and Nationality Act 240 (8 U.S.C. 1230). . . . . . . . . . . . . . . . . . . 16

8 U.S.C. 1231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 17

8 U.S.C. 1324. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

8 U.S.C. 1324a(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

8 U.S.C. 1326. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 11, 12, 14

18 U.S.C. 3142. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. 3559. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Fed. R. App. P. 9(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

U.S.S.G. 2L1.2(b)(1)(A)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

U.S.S.G. 4A1.2(e)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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PROCEDURAL AND FACTUAL BACKGROUND

A. Defendants Criminal Charge

On October 18, 2011, a federal grand jury in the District of Oregon indicted

defendant on one count of being an alien found in the United States after having

been removed by immigration officials and without the prior consent of the

Secretary of Homeland Security, in violation of 8 U.S.C. 1326(a).

The facts underlying the Indictment are undisputed. In the 1980s,1

defendant, a native and citizen of Mexico, was admitted to the United States as a

lawful temporary resident under the Special Agricultural Worker (SAW)

Program. (TO 8.) On January 20, 1990, defendant was convicted in the District2

Court of Clark County, Nevada, of possession with the intent to sell heroin and

sentenced to four years imprisonment. (TO 8-9.) This conviction constituted an

aggravated felony for purposes of immigration law. See 8 U.S.C. 1101(a)(43)

(1990) (defining aggravated felony to include any drug trafficking crime).

Under the SAW Program, defendants status was due to be adjusted to that

of lawful permanent resident (LPR) by operation of law in December 1990,

See Defendants Memorandum in Support of Appeal from Order Revoking1

Release [hereinafter Def. Mem.] at 2 n.1.

Citations to TO [#] refer to the page number of the Transcripts and2

Opinions Concerning Defendants Release and Detention, filed with defendants

opening Memorandum.

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approximately eleven months after he sustained his drug-trafficking conviction.

The Immigration and Naturalization Service (INS) erroneously recorded

defendants adjustment despite his conviction. (Def. Mem. at 3-4.) In December

1993, however, INS discovered the conviction and rescinded defendants LPR

status. (TO 9.) In January 1994, defendant asked an immigration judge (IJ) to

reconsider the rescission order, but the IJ denied the request. (Id.) Defendant was

removed from the United States on January 19, 1994. (Id.)

Later that year, defendant petitioned for a Writ ofError Coram Nobis in the

Nevada district court, seeking to withdraw his guilty plea on the grounds that he

had not been advised by counsel that the plea would foreclose his adjustment to

LPR status. (TO 9.) The Nevada district court denied the petition, and the Nevada

Supreme Court rejected defendants appeal on December 19, 1995. (Id.)

On February 26, 2003, defendant applied for a waiver of inadmissibility and

admission into the United States. (TO 10.) The Department of Homeland Security

(DHS), the successor to INS, denied the application on September 11, 2003.

(Id.) Defendant did not appeal that denial. (Id.) Despite the lack of a lawful

admission or status, defendant has been living in the United States for nearly 20

years. (TO 11.)

Defendant came to Oregon in pursuit of work in September 2011. (Def.

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Mem. at 3.) He came to the attention of federal agents later that month, after his

arrest for Criminal Trespass in the First Degree in Umatilla, Oregon, on September

26, 2011. (Id.) Two days later, DHS served defendant with a Notice of Intent /

Decision To Reinstate Prior Order, which invited defendant to make a statement

contesting the determination that his 1994 order of removal should be reinstated.

(TO 10.) Defendant declined to make a statement, and the order was reinstated the

same day. (Id.) Defendant was also administratively arrested that day by the

Bureau of Immigration and Customs Enforcement (ICE) and taken into custody

pending his removal. The grand jury indicted him on the instant charge

approximately three weeks later.

B. Defendants First Appearance

Defendant made his first appearance in this case on October 21, 2011, before

a U.S. magistrate judge. At that time, the government moved for defendants

pretrial detention on the ground that defendant posed a serious risk of flight. The

Pretrial Services officer recommended detention as well. Defendant did not

oppose detention.

The magistrate judge ordered defendant detained as a flight risk. (TO 11.)

In making the order, the magistrate judge found that [n]o condition or

combination of conditions will reasonably assure the appearance of the defendant

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as required. (Oct. 21, 2011, Detention Order [CR #5] [hereinafter Govt Ex.

1].) That finding was supported by citation to the following facts: defendants

status as an illegal alien with a prior deportation, the existence of an ICE detainer,

defendants criminal history, and defendants unknown family / employment /

community ties. (Id.) In addition, the magistrate judge cited defendants

multiple or false identifiers and [a]liases. (Id.) Defendants trial was set for3

December 13, 2011.

C. Defendants Motion for Release

Approximately seven months after his arraignment, and after twice moving

to continue the trial date, defendant filed a Motion and Request for Release

Pending Trial on May 3, 2012. (TO 11.) In support of the motion, defendant

participated in an interview with a Pretrial Services officer and submitted

supportive letters from family and friends evincing significant social ties to Las

Vegas, Nevada. (Id.) The Pretrial Services Office continued to recommend

detention notwithstanding this new information. (TO 11-12.)

The magistrate judge held a hearing on defendants motion on May 9, 2012.

(TO 12, 63-89.) At the hearing, defendant emphasized that he was again seeking

to have his 1990 drug-trafficking conviction overturned and argued that his success

Defendant presented a false identification document bearing the name3

Raul Hernandez Inzunza when he was arrested on the trespass charge.

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in that endeavor could provide a basis to have his immigration status restored

and thus, he suggested, to defend against the instant illegal reentry charge. (TO

83-84.)

Defendants argument was predicated on his second petition to the Nevada

district court, which he had filed on December 1, 2011, approximately six weeks

after the Indictment was filed in this case. (TO 12.) In the petition, defendant

sought once again to withdraw his 1990 guilty plea on the grounds that he had been

inadequately advised about the immigration consequences of his drug-trafficking

conviction. (Id.) Defendant relied for the first time on the Supreme Courts

decision twenty months before inPadilla v. Kentucky, 130 S. Ct. 1473, 1483

(2010) (holding that failure to advise criminal defendant of truly clear

consequences of guilty plea constitutes ineffective assistance of counsel).

Notwithstanding thePadilla case, the Nevada district court had denied the

second petition on March 12, 2012. (TO 11.) Defendant indicated, however, that

he was pursuing another appeal to the Nevada Supreme Court. (TO 81.)

Defendant also indicated that he would seek release from ICE custody during the

pendency of the appeal. (Id.)

On May 14, 2012, the magistrate judge ordered defendant released. (TO 50-

62.) The magistrate judge concluded that defendant did not pose a serious risk of

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flight on his own volition, noting, inter alia, that the Governments position on

flight is undermined by Defendants demonstrated desire to remain in this

country. (TO 56.) The magistrate judge further emphasized defendants strong4

ties to the community, limited criminal record, and the fact that defendant was

formerly a lawful permanent resident. (TO 61.) The magistrate judge discounted

the risk that defendant would fail to appear simply because ICE would execute the

reinstated removal order and deport defendant to Mexico. (TO 58.)

D. District Courts Review of the Release Order

The government appealed the magistrate judges release decision to the

district court. (TO 12.) The district court orally granted the motion following

argument on May 22, 2012 (27-50), and filed a written order on May 30, 2012.

(TO 7-25.)

The district court held that defendant posed a serious risk of flight for

purposes of the Bail Reform Act, because there were no conditions that could

reasonably assure his appearance for trial. (TO 25.) Specifically, the court

concluded that the ICE detainer and outstanding removal order lodged against

defendant made it likely that defendant, upon release, would be taken into ICE

Contrary to the magistrate judges observation, the government never4

argued that defendant was likely to flee the country but that he would flee to avoid

being removed from the country. (TO 31 (governments emphasis that its not

that [defendant] will move to Mexico).)

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custody and removed from the United States before his trial date. The court

concluded that this result was particularly likely because defendants outstanding

removal order had been administratively reinstated. (TO 19.) Reinstatement, the

court emphasized, sharply curtailed any prospect of challenging the order and

triggered the statutory requirement that it be executed within 90 days. (Id. (citing 8

U.S.C. 1231(a)(1)(A);Morales-Izquierdo v. Gonzales, 486 F.3d 484, 491 (9th

Cir. 2007) (en banc));Ixcot v. Holder, 646 F.3d 1202, 1207 (9th Cir. 2011).)

The district court made clear that it was interpreting the Bail Reform Act so

as to harmonize it with the Immigration and Nationality Acts provisions that

prohibit illegal reentry and provide for the streamlined execution of reinstated

removal orders. (TO 24.) The court thus emphasized that the Bail Reform Act is

designed to assure a defendants presence for trial while presuming a defendants

innocence and concluded that weighing the risk that a defendant will be removed

before trial even involuntarily is consistent with that purpose. (TO 21.)

Defendant filed a motion for reconsideration of the district courts detention

order. Defendant argued that the government could prevent defendants removal

from the United States by issuing a departure control order pursuant to

regulation. (TO 1.) The district court denied the motion in a written order filed

June 11, 2012. (TO 1-6.) The district court noted the lack of authority for ICEs

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reliance on a departure control order to overcome the statutory requirement for

the prompt execution of reinstated removal orders. (TO 5.) In the absence of such

authority, the district court reaffirmed its conclusion that there were no conditions

which w[ould] reasonably assure defendants presence for trial. (Id.)

Defendant filed a timely notice of appeal under Fed. R. App. P. 9(a) on

June 15, 2012.

ARGUMENT

A. Standard of Review

This court reviews a district courts factual findings in support of detention

under a deferential clearly erroneous standard. United States v. Hir, 517 F.3d

1081, 1086 (9th Cir. 2008) (quoting United States v. Townsend, 897 F.2d 989, 994

(9th Cir. 1990)). [T]he question of whether the district courts factual

determinations justify the pretrial detention order is reviewed de novo. Id.; see

also United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985).

B. Defendant was properly detained as a flight risk because no set of

conditions could reasonably assure his appearance at trial

following his release.

The Bail Reform Act, 18 U.S.C. 3142, requires the release of a person

facing trial under the least restrictive condition or combination of conditions that

will reasonably assure the appearance of the person as requiredand the safety of

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the community. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991)

(emphasis added). If, however, the court finds after a hearing that no condition or

combination of conditions will provide such assurance, the Act unambiguously

directs the court to order the detention of the person before trial. 18 U.S.C.

3142(e)(1). Although the government bears the burden of establishing a risk to

community safety by clear and convincing evidence, risk of flight need only be

proved by a preponderance of the evidence. See United States v. Aitken, 898 F.2d

104, 107 (9th Cir. 1990);Motamedi, 767 F.2d at 1407.

This Court first ascertain[ed] the standard of proof properly applicable to

findings of flight risk under the [Bail Reform] Act inMotamedi. Id. at 1406. In

that case, which also involved an alien defendant, the court made clear that flight

risk was established for purposes of the Act upon the absence of conditions that

will reasonably assure the defendants appearance at trial. See id. at 1407 ([w]e

must consider whether the Government has demonstrated . . . that no condition or

combination of conditions will reasonably assure Motamedis appearance

(emphasis added)). In determining whether such conditions are available, this

Court held that court[s] musttake into account the factors identified under 18

U.S.C. 3142(g). Id. (emphasis added).

By the Acts own terms, the factors in subsection 3142(g) are not exclusive.

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See 18 U.S.C. 3142(g)(3) (directing consideration of history and characteristics

of the person, including. . .). Accordingly, theMotamedi Court acknowledged

that a defendants alienage may be taken into account, even though it is nowhere

listed as a factor under 3142(g). 767 F.2d at 1408; accord Townsend, 897 F.2d at

995 (listing factors to consider in assessing an alien defendants ties to the United

States). Nor are the statutory factors relevant only to whether a defendant may

pose a danger to the community or fail to appear through some voluntary act. See,

e.g., 18 U.S.C. 3142(g)(3)(A) (requiring consideration of defendants physical

and mental condition).

The district court properly held in this case that defendant posed a serious

risk of flight, because there is no combination of conditions that will reasonably

assure defendants appearance for trial in the District of Oregon. None of the

statutory factors suggest otherwise:

In ascertaining whether to detain or release a defendant, the

judicial officer is directed by the statute to consider: (1) the nature

and seriousness of the offense charged; (2) the weight of the evidence

against the defendant; (3) the defendants character, physical and

mental condition, family and community ties, past conduct, history

relating to drug or alcohol abuse, and criminal history; and (4) the

nature and seriousness of the danger to any person or the community

that would be posed by the defendants release.

United States v. Winsor, 785 F.2d 755, 757 (9th Cir. 1986) (quoting United States

v. Cardenas, 784 F.2d 937, 938-39 (9th Cir.), vacated, 792 F.2d 906 (1986)).

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Defendant is charged with illegal reentry following conviction for an

aggravated felony, in violation of 8 U.S.C. 1326(a), (b)(2). This is a serious

offense: It is a Class C felony with a maximum sentence of 20 years

imprisonment. Id.; 18 U.S.C. 3559(a)(3). Although the district court noted that

the offense is not a crime of violence (TO 17), the statutory maximum and

Guideline sentences are consistent with many such offenses. Defendant faces a

Guideline sentence of 57 to 71 months imprisonment.5

In addition, as the district court noted, the evidence against defendant is

strong. (TO 17.) Indeed, defendants commission of the offense itself is

undisputed. The only issue defendant raises with respect to his legal liability is the

constitutionality of his Nevada drug-trafficking conviction in light of the Supreme

Courts decision inPadilla. (TO 41 (defense counsels assertion that if that

Defendant declined a fast-track resolution of this case with a substantially5

reduced sentence. As a result, even assuming defendant qualifies for acceptance of

responsibility, the low-end Guideline sentence will be 41 months imprisonment.

(These calculations are predicated on an adjusted offense level of 24. See U.S.S.G.

2L1.2(b)(1)(A)(i); United States v. Hernandez-Guerrero, 633 F.3d 933, 937 (9th

Cir. 2011 (For the purpose of calculating criminal history points under U.S.S.G.

4A1.2(e)(1) based on a prior conviction and sentence, . . . the operative date of a

1326 offense is the date of reentry . . . .).)

Although the district court suggested at oral argument that defendant couldreceive a sentence of time-served, that suggestion appeared to rest on the courts

assumption that defendant would agree to a prompt resolution of the case the

opposite of what defendant has in mind. (TO 41 (defense counsels assertion that

[w]hat he needs is for [the Nevada Supreme Courts review of his second

collateral attack on his conviction] to be resolved before this one).)

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conviction were gone completely[,] the criminal case would be in a new posture).)

The Nevada conviction has been final for more than twenty years, and defendants

custody was terminated in 1993. The conviction has already survived one round of

collateral review and is not subject to a habeas claim. The relief defendant desires6

is patently unlikely as a matter of law. Not even defendants counsel entertains the

notion that such relief could be afforded before defendant is to be tried and

sentenced in this case. (TO 44 (district court informing counsel that [t]his case

will try on the 14th of August with no further extensions.); TO 37 (defense

counsels statement that she expects the Nevada Supreme courts decision at the

end of 2012).) Defendants conviction on this charge is all but inevitable.

Defendants character and background also militate strongly against release.

Defendant is a convicted felon. He has no ties to the District of Oregon

whatsoever. (TO 11 (Defendant informed Pretrial Services that he had moved to

Oregon two weeks before his arrest to find work.).) Although he has social ties to

Las Vegas, Nevada, he has absolutely no legal right or privilege to return there.

See, e.g., 8 U.S.C. 1326(a). Indeed, it would be a felony for any of his friends or

family members in Las Vegas to harbor defendant or even to encourage[] him to

See Maleng v. Cook, 490 U.S. 488, 492 (1989) (holding that petitioner is6

not in custody on a fully expired sentence for purposes of federal habeas

jurisdiction merely because of the possibility that the prior conviction will be used

to enhance the sentences imposed for any subsequent crimes).

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continue to reside in the United States. 8 U.S.C. 1324(a)(1)(A)(iii)-(iv),

(a)(1)(B)(ii) (establishing five-year maximum sentence for noncommercial

harboring of certain aliens). Defendant has no employment, and it would be

unlawful for anyone in the United States to hire him. See 8 U.S.C. 1324a(a)(1).

Most important, defendant has demonstrated both the means and the will to evade

detection by law enforcement while engaged in the ongoing commission of this

felony offense. See United States v. Cruz-Gramajo, 570 F.3d 1162, 1164 (9th Cir.

2009) (Illegal reentry is a continuing offense . . . .); (TO 11 (Defendant has

been living in the United States for nearly 20 years.); Govt Ex. 1 (noting

defendants use of multiple or false identifiers and aliases).)

Defendants past conduct has made it abundantly clear that remaining in the

United States is simply more important to him than obeying the law. He has7

freely elected to live for nearly 20 years (TO 11) with the unremitting risk of

detection and punishment by United States authorities rather than return to Mexico

voluntarily. See Hernandez-Guerrero, 633 F.3d at 937 (The continuous nature of

The government thus agrees with defendants assertion that he has amply7

demonstrated his desire to remain in the United States (Def. Mem. at 12) butrejects his self-serving claim that this desire arises from his motivation to pursue

his post-conviction litigation (id.). The facts belie this contention: Defendant did

not initiate the present litigation until after his arrest in the instant case (TO 11)

almost two years after the Supreme Court decidedPadilla and nothing

prevented him from pursuing the litigation while residing in Mexico.

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the 1326 offense puts defendants on notice that they are in violation each day

they remain illegally in the United States.). If defendant would not return to his

native country to avoid the risk of federal prison, this Court cannot reasonably

conclude that he would appear for trial and potential imprisonment in addition to

removal to his native country in order to avoid that risk. This is particularly true

where the fact of the new conviction alone would have adverse implications for

defendants ultimate aim of obtaining legal immigration status. (TO 42-43

(defense counsels assertion that a second conviction changes his application for

immigration relief).) Defendants background and characteristics leave no room

for meaningful doubt: He poses a serious risk of flight with or without regard to

whether ICE will remove him from the United States before trial.8

Indeed, defendants circumstances mirror those at issue in Winsor, where

this Court agreed with the district court that no condition or combination of

conditions would reasonably assure [the appellants] appearance for further

proceedings in the case. See 785 F.2d at 757. The Court relied on the following

facts:

Defendants dangerousness to the community, the fourth factor for the8

court to consider under 3142(g), has no substantial relevance in assessing

defendants risk of flight, but it is undisputed that defendant poses no significant

danger to the community for purposes of the Bail Reform Act. (TO 16.)

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Winsor has been in the Los Angeles area only since January

1986 [about three months]. He is unemployed. He has no ties to the

community. He is currently on parole or probation from another

jurisdiction. The weight of the evidence against him is strong. He has

admitted his presence in a bank surveillance photograph and his

participation in the bank robbery.

Id. This Court readily concluded from these facts that the appellant should be

detained [a]s a flight risk. In doing so, the Court emphasized his lack of any

ties to the community and the fact that he is currently on parole or probation from

another jurisdiction. Id.

Defendants circumstances are, if anything, less compatible with release than

the appellants in Winsor. Neither man could claim ties to the local area, but

defendant, as a previously removed alien, has no ties of which he may legally avail

himself anywhere in the United States. Neither man could claim employment, but

defendant is not even eligible to procure it. The evidence was strong in Winsor,

but the relevant facts are uncontroverted here. Finally, the appellant in Winsor9

was on parole or probation from another jurisdiction with unelaborated

consequences, id., whereas defendant is under an ICE detainer for the execution of

Defendant claimed (citing no authority on point) that success in his state9

litigation may create a defense to the instant charge, but the appellant in Winsorlikewise asserted that he had grounds to challenge his arrest and to suppress

evidence against him. See 785 F.2d at 757 (noting appellants desire to delve into

the validity of the arrest and the likelihood of success on a suppression motion).

A defense that is both contingent and implausible cannot outweigh strong evidence

of the factual commission of the offense for purposes of a bail determination.

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a reinstated removal order from which there is no plausible relief. See Morales-

Izquierdo, 486 F.3d at 491 ([R]einstatement unlike INA 240 first-instance

removal deprives aliens of any relief, reopening, or review at the reinstatement

stage. (quotingDe Sandoval v. U.S. Atty Gen., 440 F.3d 1276, 1281 (11th Cir.

2006)). As with the appellant in Winsor, defendant plainly is a flight risk, 78510

F.2d at 757, without regard to whether ICE will deport him before trial. This Court

may affirm the district courts detention order on that basis alone.11

Here, of course, the district court had before it not only the obvious risk that

defendant would flee if left to his own devices. The court also properly considered

the fact that defendant is facing statutorily mandated removal from the United

States within a period of 90 days upon his release from criminal custody.

The Bail Reform Act treats outstanding probation and parole as analogous10

to pending removal proceedings. See 18 U.S.C. 3142(d) (providing for

temporary detention to permit other government or agency to take custody for

revocation of conditional release, deportation or exclusion). Contrary to

defendants and amicis claim (TO 14-16; Brief of ACLU at 6-9), this Courts

reliance on the outstanding probation matter in Winsormakes clear that such

factors inform the risk of nonappearance without regard to whether the competing

claim for custody has actually been invoked under 3142(d).

It is well established that this Court may affirm a district courts legal11

ruling on any basis supported by the record, United States v. Huping Zhou, 678

F.3d 1110, 1115 n.2 (9th Cir. 2012), particularly where, as here, the standard of

review is de novo.

16



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8 U.S.C. 1231(a)(1)(A); (TO 19). From this fact (in light of defendants other12

circumstances), the district court properly found by a preponderance of the

evidence that no condition or combination of conditions w[ould] reasonably

assure the appearance of [defendant] as required. 18 U.S.C. 3142(e); (TO 25).

Defendant does not seriously contest thefactualcorrectness of this finding.

Defendant protests instead that the court erred in focusing on the risk of his

nonappearance as opposed to the risk that he would flee. (Def. Mem. at 13.)

This argument is misplaced for several reasons.

The term serious risk that [defendant] will flee, appears only once in

3142, where it is identified as a basis for holding a detention hearing at the

defendants first appearance. See 18 U.S.C. 3142(f)(2)(A). The term

reasonabl[e] assur[ance] of . . . appearance, in contrast, appears throughout the

Defendant and amici spend a dozen pages explaining how ICE could12

exercise its own discretion to avoid defendants removal prior to the resolution of

this case. (Def. Mem. at 17-18; Brief of ACLU at 13-23.) Even if such arguments

were legally valid despite the mandatory wording of the statute, ICEs exercise of

such discretion is not subject to any condition or combination of conditions that

a judicial officer may impose. 18 U.S.C. 3142(c);Morales-Izquierdo, 486

F.3d at 491 (noting that reinstated removal orders are not subject to any relief,

reopening, or review). As a result, any such discretion which ICE has not

invoked in this case is irrelevant for purposes of detention under the BailReform Act, which directs the court to consider only conditions it may impose

and the circumstances of the defendant himself. See id. 3142(e) (directing

detention of defendant if the judicial officer finds that no condition or

combination of conditions will reasonably assure the appearance of the person as

required (emphasis added)).

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section. Seeid. 3142(c)(1), (e), (f), (g). As the district court held, the Bail

Reform Act at bottom is designed to assure a defendantspresence for trialwhile

presuming a persons innocence. (TO 21 (emphasis added) (citing United States

v. Lozano,No. 1:09-cr-158-WKW, 2009 WL 3052279 (M.D. Ala. Sept. 21,

2009)).)

The context of the reference to the risk that the defendant will flee in

3142(f)(2), which authorizes a detention hearing in a case that involves . . . a

serious risk that the defendant will flee, id. (emphasis added), makes clear that the

risk is determined with reference to the nature of the case rather than the

circumstances and subjective intentions of the defendant. Common sense compels

such a reading. Neither the attorney for the Government nor the judicial

officer[], id., the only parties authorized to invoke this provision, can be expected

to assess the latter considerations at defendants initial appearance before the

detention hearing has been held. A serious risk that [the defendant] will flee, id.,

is objectively established by the nature of the case.

Consistent with that interpretation, this Court has consistently focused on the

risk of nonappearance the question to be addressed within the detention hearing

rather than any threshold issue of voluntariness of flight. Indeed, the Court has

repeatedly directed courts to consider the factors identified in 3142(g) which

18



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are expressly for the purpose of determining whether there are conditions of

release that will reasonably assure the appearance of the person to determine

whether the defendant is a flight risk. Winsor, 785 F.2d 757 (citing defendants

lack of community ties);Aitken, 898 F.2d at 107 (citing community ties, length of

residence, and financial resources to affirm finding of flight risk);Motamedi,

767 F.2d at 1407 ([W]e must consider whether the Government has

demonstrated . . . that no condition or combination of conditions will reasonably

assure Motamedis appearance. (emphasis added)).

Defendants reliance on the appearance of the term flee in 3142(f)(2) is

misplaced for another reason: He did not oppose the holding of a detention hearing

(or even the entry of an order of detention) at his first appearance, and he

demanded the more recent reopening of the hearing himself. (TO 11.) In other

words, the issue of whether the detention hearing was authorized (under

3142(f)(2) or otherwise) was never contested. Defendant thus cannot plausibly

fault the court for considering the factors relating to risk ofnonappearance, which

are precisely the factors relating to flight that the Act requires to be considered at

such a hearing. See 18 U.S.C. 3142(g). The district court did nothing more.

(TO 20-21.)

19



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The district court properly concluded that release on bail in this case posed a

serious risk of nonappearance. That finding is fully supported by this record both

because of defendants reinstated removal order, and because of defendants

history, his lack of any relevant ties to the community, the seriousness of the

offense, and the absence of any foreseeable defense to the charge. Defendant is

scheduled for trial just over one month from now; he should remain in custody

until trial.

CONCLUSION

For the foregoing reasons, this Court should affirm the district courts order

of detention. The defendant is a flight risk.

DATED this 9th day of July 2012.

Respectfully submitted,

S. AMANDA MARSHALL

United States Attorney

District of Oregon

s/ Ryan W. Bounds

RYAN W. BOUNDS

Assistant U.S. Attorney

20



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STATEMENT OF RELATED CASES

Pursuant to 9th Cir. R. 28-2.6, the United States represents that it knows of

no cases related to this appeal.

21



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CERTIFICATE OF COMPLIANCE

This response is 20 pages in length pursuant to Fed. R. App. P. 27(d)(2), and

complies with the typeface requirements of Fed. R. App. P. 32(a)(5)(C) and the

type style requirements of Fed. R. App. P. 32(a)(6). It has been prepared in a

proportionally spaced typeface (14 point, Times New Roman font) using

WordPerfect X5, and contains 4,812 words, according to the word processing

system used to produce the text.

s/ Ryan W. Bounds

RYAN W. BOUNDS

Assistant United States Attorney

22



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NO.12-30205

IN THE UNITED STATES COURT OFAPPEALS

FOR THE NINTH CIRCUIT

____________________

UNITED STATES OFAMERICA,

PLAINTIFF-APPELLEE,

V.

EZEQUIEL CASTRO-INZUNZA,

DEFENDANT-APPELLANT.

_____________________

ONAPPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

THE HONORABLE MALCOLM F.MARSH,SENIOR U.S.DISTRICT JUDGE

D.C.NO.3:11-CR00418-MA

______________________

EXHIBIT TO PLAINTIFF-APPELLEES RESPONSE TO

DEFENDANT-APPELLANTS FRAP9(A)&CIRCUIT RULE 9-1.1APPEAL

_______________________

S.AMANDAMARSHALL

UNITED STATESATTORNEY

DISTRICT OF OREGON

KELLYA.ZUSMAN

APPELLATE CHIEF

RYANW.BOUNDS

ASSISTANT U.S.ATTORNEY

1000SWTHIRDAVENUE,SUITE 600

PORTLAND,OREGON 97204-2902

TELEPHONE: (503)727-1000



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TABLE OF CONTENTS

Docket No. Page

5 Detention Order (10-21-2011).. . . . . . . . . . . . . . . . . . . . . . . . 1

i



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ORP DET ORO (08106) N TIIE UNITED STATES DISTRIC. ,OURTFOR TIIE DISTRICT OF OREGON

U N I T E D S T A T E S O F A M E R I C ~Plaintiff, CR IVCR418-HA

v.CASTRO-Inzunza, EzequieJDefendantCsl

~ n motigp-of the Government involving an a l l e ~ d :

ORDER OF DETENTION AFTERHEARING (18 USC 3142(i

E'f t k to the safety of any other person or the community for cases involving crimes described in 18 USC 3142(f)(1)rr serious risk defendant will flee:o serious risk defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate a prospective witness orjuror or attempt to do so,o Upon consideration by the court sua sponte involving a:o serious risk defendant will flee:o serious risk defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate a prospective witness orjuror or attempt to do so,Having considered the nature and circumstances of the offense charged, the weight of evidence against the defendant, the history andcharacteristics of the defendant, and the nature and seriousness of the danger to any person and to the community that would be posed bythe defendant's release, the court finds that:o The offense charged creates a rebuttable presumption in 18 USC 3142(e) that no combination of conditions will reasonably assure thesafety of the community_

~ o condition or combination of conditions will reasonably assure the appearance of defendant as required due to:rtoreign citizenship andlor illegal alien 0 In custody/serving sentence 0 SJlbstance use/abuseortCE Detainer D Outstanding warrant(s) I>"(jnknown family/employment/community ties~ e p o r t a t i o n ( s ) D Prior failure(s) to appear D Unstable/ no residence available~ u l t i p l e or false identifiers D Mental health issues Iit1nfortn3.tion unverified/unverifiable~ i a s e sortS'rior criminal history, D inCluding drug/drug related offense D including alcohol/alcohol related offenseo Prior supervision failure(s), D including illicit drug use 0 including alcohol abuseD Other:_______________

o No condition or combination of conditions will reasonably assure the safety of other persons and the community due to:o Nature of offense 0 Prior supervision failuresD Arrest behavior D Substance use/abuseD Possession of weapon(s) D Mental health issuesD Violent behavior D Alleged offense involves child pornography on the internetD Prior criminal history D including drug/drug related offense D including alcohol/alcohol related offenseD Prior probation/parole violation(s) D including illicit drug use D including alcohol abuseD O t h e r : ~ ______________

o Defendant has not rebutted by sufficient evidence to the contrary the presumption provided in 18 USC 3142(e).THEREFORE, IT IS ORDERED that:

1. Defendant is detained prior to trial;2. Defendant is committed to the custody of the Attorney General for confinement in a corrections facility separated, asfar as practicable, from persons awaiting or serving sentences or being held in custody pending appeal;3. Defendant sball be afforded a reasonable opportunity for private consultation with bis counsel;4. The superintendent of the corrections facility in which defendant is confined sball make the defendant available to the

DAttO /0 : : - - ~ ~ - - . - - ' - ;;"(2'-"1 DETENTION ORDER

Case 3:11-cr-00418-MA Document 5 Filed 10/21/11 Page 1 of 1 Page ID#: 4

Gov't Exhibit 1



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I hereby certify that I electronically filed the foregoing with the Clerk of the Court for theUnited States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF systemon (date) .

I certify that all participants in the case are registered CM/ECF users and that service will beaccomplished by the appellate CM/ECF system.

CERTIFICATE OF SERVICEWhen All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for theUnited States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system

on (date) .

Participants in the case who are registered CM/ECF users will be served by the appellateCM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. Ihave mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched itto a third party commercial carrier for delivery within 3 calendar days to the followingnon-CM/ECF participants:

Signature (use "s/" format)

CERTIFICATE OF SERVICEWhen Not All Case Participants are Registered for the Appellate CM/ECF System

9th Circuit Case Number(s)

*******************************************************************************

NOTE:To secure your input, you should print the filled-in form to PDF (File >Print >PDF Printer/Creator).

*******************************************************************************

s/Ryan W. Bounds

CA 12-30205

Jul 9, 2012


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