United States v. Ailon-Ailon

FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS November 22, 2017 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-3178 MARIO AILON-AILON, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 6:17-CR-10104-EFM-1) _________________________________ Paige A. Nichols, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, and Jennifer A. Amyx, Assistant Federal Public Defender, with counsel on the briefs), Kansas Federal Public Defender’s Office, Topeka, Kansas, for Defendant-Appellant. Brent I. Anderson, Assistant United States Attorney (Thomas E. Beall, United States Attorney, with counsel on the brief), United States Attorney’s Office, District of Kansas, Wichita, Kansas, for Plaintiff-Appellee. _________________________________ Before LUCERO, O’BRIEN, and PHILLIPS, Circuit Judges. _________________________________ PER CURIAM. _________________________________ We expedited consideration of this bail appeal to consider Mario Ailon- Ailon’s argument that the government has misinterpreted the word “flee” as it appears in 18 U.S.C. § 3142(f)(2), resulting in his illegal pre-trial detention. He argues that involuntary removal by the Bureau of Immigration and Customs Enforcement (“ICE”) does not constitute flight of the sort that would justify detention. On initial consideration, a magistrate judge agreed and determined that Ailon-Ailon should not be detained before trial. On review of the magistrate judge, the district court reversed, ordering that he be detained. We conclude that the plain meaning of “flee” refers to a volitional act rather than involuntary removal, and that the structure of the Bail Reform Act supports this plain-text reading. Exercising jurisdiction under 18 U.S.C. § 3145(c), we reverse and remand for further proceedings. I Ailon-Ailon, a citizen of Guatemala, has lived in Dodge City, Kansas, for at least seven years. In July 2017, he was arrested by ICE agents, who determined that he had reentered the United States illegally after he was ordered removed in 2001. Rather than immediately removing him again, ICE referred the matter for criminal prosecution. Ailon-Ailon was charged with one count of illegal reentry in violation of 8 U.S.C. § 1326(a), as enhanced by § 1326(b)(1). He is subject to a reinstated removal order, and ICE has lodged a detainer with the United States Marshals Service, requesting custody of Ailon-Ailon if he is released from the Marshals’ custody. The government moved to detain Ailon-Ailon prior to trial on the ground that, if he was released, he would be removed from the country by ICE before trial. It 2 argued that because he is subject to a reinstated order of removal, ICE would be obligated to remove him within ninety days. He would therefore not be present for trial. A magistrate judge denied the government’s motion, concluding that Ailon- Ailon was not a flight risk because “the risk of flight that the [Bail Reform Act] is concerned with is not a flight paid for by the U.S. Government, and if the Government can’t decide whether to keep him and prosecute him or deport him, that’s on them.” The magistrate ...

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