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United States v. Alarcon

United States District Court, Tenth Circuit

October 16, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
PHILLIP ALARCON, Defendant.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL United States District Judge

This matter is before the Court on defendant’s Motion To Review Detention Order (Doc. #1055) filed October 4, 2013. On October 15, 2013, the Court held a hearing on the motion.

Procedural Background

A grand jury charged Phillip Alarcon and some 42 other defendants with conspiracy to possess with intent to distribute and to distribute five kilograms or more of a mixture and substance containing cocaine and 1, 000 kilograms or more of marijuana, and with conspiracy to maintain drug-involved premises in Kansas, Missouri and California. Sealed Superseding Indictment (Doc. #462) filed October 31, 2012, Count 1. It also charged defendant with knowingly and intentionally possessing with intent to distribute marijuana, id., Count 43; and using a cellular telephone in committing, causing, and facilitating the offence in Count 1, id., Counts 39, 46. Under 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii) and (b)(1)(A)(iii), the conspiracy charged in Count 1 carries a statutory mandatory minimum term of imprisonment of ten years and a maximum term of life, with a presumption of detention. See 18 U.S.C. § 3142(e)(3)(A).

On July 3, 2012, United States Magistrate Judge Donna Ryu held a detention hearing. Over the government’s objection, Judge Ryu granted a $100, 000 bond and ordered that defendant be released from custody to his aunt, Elida Segundo. Order Setting Conditions Of Release And Appearance Bond (Doc. #239-3). On August 16, 2012, on the government’s motion for review, the Honorable Beth Phillips ordered the defendant detained pending trial.

On January 29, 2013, before United States Magistrate Judge James P. O’Hara, defendant entered a plea of guilty to Count 1. Judge O’Hara ordered defendant detained pending sentencing.

On September 25, 2013, defendant sought review and release from custody. Defendant sought release to visit his mother, Maria Barrera, who was recently diagnosed with a terminal illness. Defendant notes that his mother is now living with his aunt, Ms. Segundo, and that they are caring for his two children, ages 6 and 9. Defendant seeks release so that he can find alternative custody arrangements for his children. On October 3, 2013, Judge O’Hara overruled defendant’s motion for release and ordered defendant detained pending sentencing.

On October 8, 2013, defendant filed a motion for review of Judge O’Hara’s detention order.

Analysis

Defendant seeks release pending sentence. Title 18, United States Code, Section 3145(c) provides as follows:

A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person’s detention would not be appropriate.

18 U.S.C. § 3145(c). The parties agree that defendant is subject to detention pursuant to Section 3143(a)(2). To warrant release in these circumstances, defendant must (1) show by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of any other person or the community if released, 18 U.S.C. § 3143(a)(1), and (2) clearly show exceptional reasons why his detention would not be appropriate, 18 U.S.C. § 3145(c).

The Court takes judicial notice of and incorporates the Pretrial Services Report for defendant and the record of the various ...


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