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Defendant Appllate Brief

Defendant Appllate Brief

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Published by mary eng

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Published by: mary eng on May 19, 2013
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No. 12-30205 UNITED STATES COURT OF APPEALSFOR THENINTH CIRCUIT UNITED STATES OF AMERICA,Plaintiff-Appellee,v.EZEQUIEL CASTRO-INZUNZA,Defendant-Appellant. Appeal under FRAP 9 (a) and Circuit Rule 9-1.1 from theUnited States District Court for the District of Oregon MEMORANDUM IN SUPPORT OF APPEAL FROMORDER REVOKING RELEASE Francesca FrecceroAssistant Federal Public Defender101 SW Main Street, Suite 1700Portland, Oregon 97204(503) 326-2123Attorney for Defendant-Appellant
Ezequiel Castro-Inzunza appeals to this Court under Rule 9 (a) and CircuitRule 9-1.1 from a pretrial order of the district court revoking the magistrate judge’s order of release pending trial. Mr. Castro-Inzunza seeks an order from thisCourt reinstating his pretrial release order.Mr. Castro-Inzunza is charged with unlawfully re-entering the United Statesafter deportation. After a hearing on May 14, 2012, the Honorable John V.Acosta, United States Magistrate Judge, found that Mr. Castro-Inzunza did not pose a danger to the community or a serious risk of flight and ordered his releasefrom custody. Upon the government’s motion under 18 U.S.C. § 3145 (a)(1), theHonorable Malcolm F. Marsh, Senior United States District Judge, revoked therelease order and detained Mr. Castro-Inzunza pending trial.Where the defendant is denied pretrial release, the “Fifth and EighthAmendments’ prohibitions of deprivation of liberty without due process and of excessive bail require careful review” of the detention order “to ensure that thestatutory mandate has been respected.”
United States v. Motamedi
767 F.2d1403, 1405 (9
Cir. 1985). In his opinion dated May 30, 2012, Judge Marshconcluded that Mr. Castro-Inzunza was not a danger and did not pose a risk of flight, but that the risk of nonappearance created by an immigration detainer andreinstated order of removal warranted detention under 18 U.S.C. § 3142. Because1
 both the magistrate judge and Judge Marsh found that Mr. Castro-Inzunza doesnot pose a danger or a serious risk of flight, the Bail Reform Act does not permit pretrial detention. The risk of nonappearance created by the chance that thegovernment may decline to use its discretion to postpone Mr. Castro-Inzunza’sremoval proceedings is a matter wholly within the government’s control and not astatutorily authorized reason for detention.
Mr. Castro-Inzunza is a 44-year-old Mexican national. He has been marriedfor twenty years and is the father of three children. His wife, mother, sisters, andchildren are all citizens of the United States. Their home is Las Vegas, Nevada,where his wife has run a hair salon for approximately ten years. Mr. Castro-Inzunza has worked in the autobody business and as a minister in the Las Vegasarea. The Pretrial Services Office and the district court received and reviewed alarge number of letters supporting Mr. Castro-Inzunza in connection with hisrelease hearings. Mr. Castro-Inzunza has a single criminal conviction, possessionwith intent to sell heroin, resulting from an arrest in 1989.
The facts concerning Mr. Castro-Inzunza’s characteristics and historyare not in dispute.
Govt Motion to Revoke, CR 28, p. 1. All assertionsoffered in this Memorandum were established in the district court, by means of thereport by the Pretrial Services Office and material submitted by both parties insupport of pleadings.2

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