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United States v. Clemente-Rojo

United States District Court, D. Kansas

April 10, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
SILVIA CLEMENTE-ROJO, Defendant.

MEMORANDUM AND ORDER

MONTI L. BELOT, District Judge.

This case comes before the court on the government's motion (Doc. 21) seeking revocation of the release order entered by Magistrate Kenneth Gale (Doc. 18). The motion has been fully briefed and is ripe for decision. (Docs. 23, 24). The government's motion is denied for the reasons herein.

I. Facts and Procedural History

Defendant, a citizen of Mexico, is 41 years old and has lived in Garden City, Kansas for 22 years. Defendant has three children, ages 24, 22 and 7. Defendant's parents and siblings all reside in Dodge City. Defendant works at her daughter's bakery which is run out of her home.

In August 1998, defendant attempted to enter the United States without authorization. Defendant told the immigration officer that she was a United States citizen. When immigration officials asked for documentation, defendant recanted her claim. Defendant was ordered removed from the United States and she was deported to Mexico. At some point in time, presumably shortly thereafter, defendant entered the United States without inspection. In 2002, defendant applied for employment authorization and resident status with the Department of Immigration. (Exh. 5, 7). Defendant's applications were denied on the basis that defendant was not a member of a certain class under the LIFE Act. (Exh. 6). Defendants' counsel, James S. Phillips Jr, was later convicted in this court (Case No. 06-10001) and disbarred.

On September 11, 2013, defendant applied for a driver's license in Liberal. Defendant provided an old driver's license and a social security card for identification. The social security number listed on the card was not assigned to defendant but belonged to a citizen who lived in Olathe, Kansas. In an interview with a Kansas Department of Revenue agent, defendant admitted that she purchased the social security card from an unidentified individual in Garden City for $200.

On March 18, defendant was arrested on a criminal complaint alleging a violation of 8 U.S.C. § 1326(a), illegal reentry. (Doc.

1). On March 19, the Department of Homeland Security Immigration and Customs Enforcement (ICE) issued an immigration detainer to the Marshals. The detainer stated that ICE had obtained an order for defendant's deportation. On April 1, 2014, the grand jury returned a 15-count indictment charging defendant with illegal reentry, false statements to the government, misuse of a social security number and aggravated identity theft. On April 2, Magistrate Gale denied the government's motion for detention finding that there are conditions that may assure defendant's presence for future proceedings. Magistrate Gale required both defendant's daughter and sister co-sign a $50, 000 appearance bond. The bond was signed by all parties on April 2.[1]

On April 7, the court held a hearing on the government's motion. Defendant declined to testify at the hearing. The court listened to oral argument and took the matter under advisement.

II. Standard

Pursuant to 18 U.S.C. § 3145(a)(1), the government may seek review of a magistrate judge's order of release. The district court's review of a magistrate judge's order of release is de novo. United States v. Cisneros , 328 F.3d 610, 616 n. 1 (10th Cir. 2003). A de novo evidentiary hearing, however, is not required. The district court may either "start from scratch" and take relevant evidence or incorporate the record of the proceedings conducted by the magistrate judge including the exhibits admitted. United States v. Torres , 929 F.2d 291, 292 (7th Cir. 1991).

Under the Bail Reform Act of 1984, the court must order a defendant's pretrial release, with or without conditions, unless it "finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e). In making this determination, the court must take into account the available information concerning

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence... or involves a minor victim or a controlled substance, ...

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