United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER OF DETENTION PENDING
J. Furse United States Magistrate Judge
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).
No Rebuttable Presumption
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.
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(10thCir. 2008) (unpublished).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.
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
(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.
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
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.
Clear and Convincing Evidence of Danger to 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