FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 19 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50336 Plaintiff-Appellee, D.C. No. 3:19-cr-04083-LAB v. JOSE DIAZ-HERNANDEZ, ORDER Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, Chief Judge, Presiding Submitted to Motions Panel November 15, 2019* Before: RAWLINSON, BYBEE, and IKUTA, Circuit Judges. ORDER Defendant Jose Diaz-Hernandez appeals the district court’s order of detention pending trial. We have jurisdiction pursuant to 18 U.S.C. § 3145(c) and 28 U.S.C. § 1291. We hold that the district court properly declined to consider the fact that Diaz-Hernandez was subject to an immigration detainer in assessing whether Diaz-Hernandez posed a risk of flight. We therefore affirm the district * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). court’s pretrial detention order. I Diaz-Hernandez is charged with one count of being a removed alien found in the United States, in violation of 8 U.S.C. § 1326(a). At the initial appearance, the magistrate judge denied the government’s motion for detention, and ordered Diaz-Hernandez released on conditions which included a $10,000 appearance bond secured by a $2,500 cash deposit. The government appealed the magistrate judge’s order to the district court, arguing that Diaz-Hernandez lacked legal status in the United States, the weight of evidence against him was heavy, and he was therefore facing a substantial prison sentence before being removed from the country. The government also noted that Diaz-Hernandez had previously served a 51-month sentence following a prior conviction for illegal reentry. During the hearing before the district court, Diaz-Hernandez’s counsel claimed that Diaz-Hernandez was subject to an immigration detainer — a request from the United States Immigration and Customs Enforcement (ICE) to detain Diaz-Hernandez should he be released. Counsel argued that this detainer negated any risk of flight because if the district court released Diaz-Hernandez, he would be detained by ICE. Counsel thus contended that the government could not meet its burden of establishing that Diaz-Hernandez was a flight risk. The district court, however, declined to “wade into the likelihood that the detainer would be withheld 2 19-50336 or filed” and thus did not consider the effect of any immigration detainer in assessing whether pre-trial release was proper. Ultimately, the court concluded that the $2,500 cash deposit ordered by the magistrate judge was insufficient to guarantee Diaz-Hernandez’s presence, given his criminal and immigration history as well as his lack of legal status. While the court indicated that a $100,000 or $150,000 bond could be sufficient, it found that Diaz-Hernandez would not be able to post such a bond if it were imposed and thus ordered him detained. II Under the Bail Reform Act, pretrial detention is permitted only if a judicial officer determines that there is no condition of release, or combination of conditions, which would reasonably assure the appearance of the defendant and the safety of ...
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