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Magistrate Judge Acosta's Opinion Granting Pretrial Release

Magistrate Judge Acosta's Opinion Granting Pretrial Release

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Published by: mary eng on Apr 09, 2013
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04/09/2013

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UNITED STATES DISTRICT COURTDISTRICT COURT OF OREGONPORTLAND DIVISIONUNITED STATES OF AMERICA, Case No.:3:11-CR-00418-MAPlaintiff,ORDER ONDEFENDANT’S MOTIONFOR PRETRIAL RELEASEv.EZEQUIEL CASTRO-INUNZA,Defendants. __________________________________ ACOSTA, Magistrate Judge:Defendant Ezequiel Castro-Inunza (“Defendant”) moves for release pending trial on chargesof illegally reentering the United States of America without authorization from the Attorney General.The United States of America (the “Government”) objects to Defendant’s pretrial release and asksthe court to detain the Defendant until his trial on May 15, 2012. Because Defendant does not posea serious risk of flight given the conditions the court can impose for his pretrial release, Defendant’sPage 1 - ORDER ON DEFENDANT’S MOTION FOR PRETRIAL RELEASE {RMD}
Case 3:11-cr-00418-MA Document 24 Filed 05/14/12 Page 1 of 12 Page ID#: 100
 
motion (Dkt. #20) is GRANTED and Defendant is ordered RELEASED pending his trial in this case.
 Background 
The Defendant came to the United States from Mexico in the late 1980s as a temporaryresident under the Special Agricultural Worker program. Under that program, temporary residentswould automatically become lawful permanent residents as of December 1, 1990.In March 1989, Defendant was charged with possession of heroin with intent to sell, anaggravated felony. On the advice of his attorney, Defendant pleaded guilty to the charge. Neither his attorney nor the court advised Defendant that pleading guilty to the charge would almost certainlyresult in his deportation from the United States. The trial judge accepted Defendant’s plea andsentenced him to four years imprisonment. As a result of his conviction for an aggravated felony,the predecessor agency to ICE, the Immigration and Naturalization Service, revoked Defendant’sgreen card, took him into custody, and deported him in January 1994.In September of 2011, Defendant was found in Umatilla, Oregon, and arrested. ICE issueda Notice of Intent to reinstate a deportation order against him. The Defendant signed that form, inwhich he indicated he did not wish to make a statement contesting the determination that he wasunlawfully in the United States. Subsequently, Defendant was charged in the District of Oregon withillegal reentry into the United States without permission of the Attorney General. He now requestsrelease pending his trial, which is set to begin May 15, 2012.Defendant has filed a petition for a writ of 
error coram nobis
to vacate his drug convictionand reinstate his lawful permanent resident status on the basis of the U.S. Supreme Court’s rulingin
 Padilla v. State of Kentucky
, — U.S. —, 130 S. Ct. 1473, 1486 (2010). In
 Padilla
, the Courtdetermined that failure by an attorney to advise the client of the possibility of deportation uponPage 2 - ORDER ON DEFENDANT’S MOTION FOR PRETRIAL RELEASE {RMD}
Case 3:11-cr-00418-MA Document 24 Filed 05/14/12 Page 2 of 12 Page ID#: 101
 
entering a guilty plea to a criminal charge constitutes ineffective assistance of counsel in violationof the Sixth Amendment. To date, Defendant’s petition has been denied, although he continues to pursue legal proceedings to obtain reinstatement of his permanent resident status. Defendant has notsought to stay or vacate the ICE deportation order or detainer lodged against him.
Standards
The Bail Reform Act of 1984 (“Act”) requires the court to release the accused pending trialif there are conditions or a combination of conditions that “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)(2008). The court must hold a hearing to determine whether such conditions exist that willreasonably assure a defendant’s appearance. 18 U.S.C. § 3142(f). In making its determination, thecourt must “take into account all available information concerning”:(1) [T]he nature and circumstances of the offense charged, including whether the offense isa crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves aminor victim or a controlled substance, firearm, explosive, or destructive device;(2) the weight of the evidence against the person;(3) the history and characteristics of the person, including:(A) the person’s character, physical and mental condition, family ties, employment,financial resources, length of residence in the community, community ties, pastconduct, history relating to drug or alcohol abuse, criminal history, and recordconcerning appearance at court proceedings; and(B) whether, at the time of the current offense or arrest, the person was on probation,on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and(4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.18 U.S.C. § 3142(g).Page 3 - ORDER ON DEFENDANT’S MOTION FOR PRETRIAL RELEASE {RMD}
Case 3:11-cr-00418-MA Document 24 Filed 05/14/12 Page 3 of 12 Page ID#: 102

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