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United States v. Sexton

United States District Court, D. Utah

March 21, 2019

UNITED STATES OF AMERICA, Plaintiff
v.
BRANDON MICHAEL SEXTON, Defendant.

          Jill Parrish District Judge

          MEMORANDUM DECISION REGARDING ORDER OF RELEASE WITH CONDITIONS

          Evelyn J. Furse United States Magistrate Judge

         I. PROCEDURAL HISTORY

         On August 15, 2018, Mr. Sexton was arrested and charged in two state cases each alleging a first degree felony possession of drugs with intent to distribute and one also alleging eighteen third degree felonies for possession of firearms by a restricted person. The state court released Mr. Sexton on bail on these charges. On February 13, 2019, a federal grand jury indicted Mr. Sexton for this same conduct, and the state dismissed the two pending cases. A federal warrant issued, and on February 27, 2019, Mr. Sexton was arrested following a traffic stop. Mr. Sexton was charged with misdemeanor drug counts in a new state case for allegedly possessing slightly over an ounce of methamphetamine at the time of his arrest. The state again set bail in that case.

         On March 18, 2019, Mr. Sexton appeared for the first time in federal court on this indictment. The Government moved for a detention hearing pursuant to 18 U.S.C. § 3142(f)(1)(C) because the case against Mr. Sexton involves a drug offense for which a maximum term of imprisonment is ten years or more. The Court granted the motion and held the detention hearing that day, considered the information in the Pretrial Services Report, the information proffered during the hearing, and counsel's arguments.

         The Government moved the Court to detain Mr. Sexton because he poses both a risk of flight and danger to the community. The Government primarily argues that Mr. Sexton fails to rebut the presumption of detention because the investigation produced recordings of the drug transactions, lab results confirming the drugs, and a search of the home produced numerous weapons including a semi-automatic rifle.

         Mr. Sexton's counsel contends the Court can mitigate any risk Mr. Sexton poses by imposing conditions. The state court released Mr. Sexton on these charges in August 2018 without incident, and over ten years have passed since he successfully completed probation without incident on his last conviction. Because Mr. Sexton's counsel was just appointed at the hearing, he has not had the opportunity to review the evidence but notes the government charged Mr. Sexton with being a felon in possession of firearms and ammunition but not possession of firearms in furtherance of a drug crime, indicating the government lacks evidence to suggest he used the guns as part of his alleged drug distribution.

         The Court found Mr. Sexton rebutted the presumption of detention. While the information before the Court suggests Mr. Sexton poses both a risk of nonappearance and a risk of danger to the community, the Court can impose a combination of conditions that can reasonably assure both appearance back at court and the safety of the community.

         II. THE LAW

         The Eighth Amendment prohibits the imposition of excessive bail. U.S. Const. amend. VIII. 18 U.S.C. § 3142 governs a defendant's release or detention pending trial. This statute requires the court order the defendant released on his own recognizance or on an unsecured bond pretrial, “unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.” 18 U.S.C. § 3142(b). If the court determines either personal recognizance or an unsecured bond will not reasonably assure either end, 18 U.S.C. § 3142(c)(1)(B) requires the court impose the least restrictive further condition that will reasonably assure the appearance of the defendant and the safety of the community.

         III. THE REBUTTABLE PRESUMPTION

         In this case, a rebuttable presumption arises that no condition of release will reasonably assure the appearance of Mr. Sexton at court and the safety of any other person and the community because probable cause exists to believe he committed a drug offense punishable by more than ten years in prison. 18 U.S.C. § 3142(e)(3)(A). The rebuttable presumption requires the defendant to come forward with evidence to rebut the presumption to obtain release. United States v. Stricklin, 932 F.2d 1353, 1354-55 (10th Cir. 1991). “Once the presumption is invoked, the burden of production shifts to the defendant. However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government.” Id. The defendant does not bear a heavy burden to overcome the rebuttable presumption but must produce some evidence. Id. at 1355; see also United States v. Jessup, 757 F.2d 378, 380-84 (1st Cir. 1985) (leading case regarding the rebuttable presumption explaining the difference between the burden of production and the burden of persuasion). Absent rebuttal, the court will detain the defendant.

         The Court finds Mr. Sexton has rebutted this presumption. As to the presumption of risk of nonappearance back at court, Mr. Sexton was arrested for the underlying offenses in August 2018 and charged in state court. The state court released Mr. Sexton pending trial. He faced a substantial maximum amount of prison time for the charges at that time but did not flee the jurisdiction and did not fail to appear in court. The Court finds Mr. Sexton's actions while on release in state court for these alleged crimes rebut the presumption that he presents and uncontrollable risk of nonappearance.

         As to the presumption of risk of harm to the community, Mr. Sexton had a period of criminal activity in 2003 through 2004 that ended with him serving one year in jail and thirty-six months on probation. Mr. Sexton completed his jail time and probation without incident and had no additional law enforcement contacts until 2017. The Court finds Mr. Sexton's prior compliance with court supervision and the extended period of compliance with the law rebuts the presumption that he presents an uncontrollable risk to the safety of the community.

         The Court also notes the empirical evidence regarding the risk of dangerousness and the presumption of detention as studied by the Administrative Office of the U.S. Courts. Amaryllis Austin, The Presumption for Detention Statute's Relationship to Release Rates, Fed. Probation, Vol. 81 No. 2, Sept. 2017. Pretrial calculated Mr. Sexton's Pretrial Risk Assessment score at category 4. Defendants with that same risk level in non-presumption cases have a higher level of any rearrest and slightly higher level of violent rearrest than defendants in presumption cases. Id. at 56 (Table 2) & 58-59. “[T]his study suggests the presumption is overly broad.” Id. at 60.

         Nonetheless, the Court continues to consider the presumption in determining whether to release or detain Mr. Sexton, as ...


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