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United States v. Phillips

United States District Court, D. Utah

April 10, 2018

United States of America
v.
Jordan Jorge Phillips Defendant

          MEMORANDUM DECISION AND ORDER OF DETENTION PENDING TRIAL

          Evelyn J. Furse United States Magistrate Judge

         Upon the Motion of the Government attorney pursuant to 18 U.S.C. § 3142(f)(1), because defendant is charged with a crime of violence, the Court held a detention hearing and found that detention is warranted. This order sets forth the Court's findings of fact and conclusions of law, as required by 18 U.S.C. § 3142(i).

         I. No Rebuttable Presumption

         The Grand Jury Indicted the Defendant with Murder in the Second Degree While Within Indian Country pursuant to 18 U.S.C. §§ 1111(a), 1153(a). The Government contends a rebuttable presumption arises under 18 U.S.C. § 3142(e)(2) because “cases ‘described in subsection (f)(1)' of Section 3142 are to have a rebuttable presumption for detention.” (ECF No. 14 at 2.) Mr. Phillips contends no rebuttable presumption applies to his case as he does not qualify under either 18 U.S.C. § 3142(e)(2) or (e)(3). (ECF No. 12.) Because the Government only contends 18 U.S.C. § 3142(e)(2) applies, the Court will only address that prong.

         Courts refer to the 18 U.S.C. § 3142(e)(2) rebuttable presumption as the previous-violator presumption. United States v. Vorrice, 277 Fed.Appx. 762, 762-63 (10thCir. 2008) (unpublished). Courts have given this presumption its name because it arises when a defendant has prior criminal convictions of a certain nature in combination with the particular nature of the current charge. Id.; 18 U.S.C. § 3142(e)(2). As correctly noted by the Government § 3142(e)(2) only applies when a person is charged with a crime listed in § 3142(f)(1). In this case, the Defendant is charged with a crime of violence as defined in § 3156(a)(4)(A) because Murder has as one of its elements “killing” which involves the use of physical force against the person of another. Because crimes of violence constitute one of the enumerated crimes in § 3142(f)(1), the presumption in § 3142(e)(2) may apply. Nonetheless, charging someone with a crime listed in § 3142(f)(1) does not automatically give rise to the presumption.

         The statute clearly reads:

(2) In a case described in subsection (f)(1) of this section, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community if such judicial officer finds that-
(A) the person has been convicted of a Federal offense that is described in subsection (f)(1) of this section, or of a State or local offense that would have been an offense described in subsection (f)(1) of this section if a circumstance giving rise to Federal jurisdiction had existed;
(B) the offense described in subparagraph (A) was committed while the person was on release pending trial for a Federal, State, or local offense; and(C) a period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense described in subparagraph (A), whichever is later.

18 U.S.C. § 3142(e)(2) (emphasis added). The Government contends that the statue is to be understood “as disjunctive and not in the conjunctive, by its use of the word ‘or.'” (ECF No. 14 n. 1.) The statute employs the word “and”, not “or”, as the connector between the subsections, and the Tenth Circuit has confirmed exactly this reading. Vorrice, 277 Fed.Appx. at 763.

         As to subsection § 3142(e)(2)(A), the Defendant has no prior federal conviction. He does have three prior convictions for misdemeanor driving under the influence. These convictions, however, are not for crimes listed in § 3142(f)(1). Section 3142(f)(1) includes violent crimes; certain acts of terrorism with a maximum sentence of ten years or more; crimes with maximum sentence of life or death; drug crimes with a maximum sentence of ten years or more; a felony charge with two prior convictions for violent crimes, drug crimes, or crimes carrying a maximum sentence of life or death; crimes involving minor victims; crimes involving dangerous weapons; or failure to register as a sex offender. Misdemeanor driving under the influence meets none of these categories.

         The remainder of the test at subsections (B) and (C) build off of the conviction found to satisfy subsection (A). Specifically the crime satisfying subsection (A) must have occurred while the defendant was on pretrial release for another crime, § 3142(e)(2)(B), and the defendant must have been convicted and released from prison for the crime satisfying subsection (A) within the last five years, § 3142(e)(2)(C). Because Mr. Phillips has no qualifying prior convictions, the rebuttable presumption in § 3142(e)(2) does not arise.

         II. Clear and Convincing Evidence of Danger to the Community

         The Court shall order detention of a defendant pending trial if it finds “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). The Government has the burden of proving the defendant poses an ...


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