NO.

12-30205
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
____________________
UNITED STATES OF AMERICA,
PLAINTIFF-APPELLEE,
V.
EZEQUIEL CASTRO-INZUNZA,
DEFENDANT-APPELLANT.
_____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
THE HONORABLE MALCOLM F. MARSH, SENIOR U.S. DISTRICT JUDGE
D.C. NO. 3:11-CR00418-MA
______________________
BRIEF OF THE PLAINTIFF-APPELLEE IN RESPONSE TO
DEFENDANT-APPELLANT’S FRAP 9(A) & CIRCUIT RULE 9-1.1 APPEAL
_______________________
S. AMANDA MARSHALL
UNITED STATES ATTORNEY
DISTRICT OF OREGON
KELLY A. ZUSMAN
APPELLATE CHIEF
RYAN W. BOUNDS
ASSISTANT U.S. ATTORNEY
1000 SW THIRD AVENUE, SUITE 600
PORTLAND, OREGON 97204-2902
TELEPHONE: (503) 727-1000
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TABLE OF CONTENTS
Page
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Procedural and Factual Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Defendant’s Criminal Charge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. Defendant’s First Appearance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
C. Defendant’s Motion for Release. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
D. District Court’s Review of the Release Order. . . . . . . . . . . . . . . . . . . . 6
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. Defendant was properly detained as a flight risk because
no set of conditions could reasonably assure his
appearance at trial following his release.. . . . . . . . . . . . . . . . . . . . . . . 8
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Statement of Related Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Certificate of Compliance (Brief Format). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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TABLE OF AUTHORITIES
FEDERAL CASES
De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276 (11th Cir. 2006). . . . . . . . . . . . . . 16
Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Maleng v. Cook, 490 U.S. 488 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007). . . . . . . . . . . 7, 16, 17
Padilla v. Kentucky, 130 S. Ct. 1473 (2010). . . . . . . . . . . . . . . . . . . . . . . . . 5, 11, 13
United States v. Aitken, 898 F.2d 104 (9th Cir. 1990). . . . . . . . . . . . . . . . . . . . . 9, 19
United States v. Cardenas, 784 F.2d 937 (9th Cir.),
vacated, 792 F.2d 906 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Cruz-Gramajo, 570 F.3d 1162 (9th Cir. 2009). . . . . . . . . . . . . . . 13
United States v. Gebro, 948 F.2d 1118 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . 9
United States v. Hernandez-Guerrero, 633 F.3d 933 (9th Cir. 2011). . . . . . . . 11, 13
United States v. Hir, 517 F.3d 1081 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Huping Zhou, 678 F.3d 1110 (9th Cir. 2012). . . . . . . . . . . . . . . . 16
United States v. Lozano, No. 1:09-cr-158-WKW, 2009 WL 3052279
(M.D. Ala. Sept. 21, 2009) (unreported). . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985). . . . . . . . . . . . 8, 9, 10, 19
United States v. Townsend, 897 F.2d 989 (9th Cir. 1990). . . . . . . . . . . . . . . . . . 8, 10
United States v. Winsor, 785 F.2d 755 (9th Cir. 1986). . . . . . . . . . 10, 14, 15, 16, 19
ii
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FEDERAL STATUTES, LAWS & RULES
8 U.S.C. § 1101(a)(43) (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Immigration and Nationality Act § 240 (8 U.S.C. § 1230). . . . . . . . . . . . . . . . . . . 16
8 U.S.C. § 1231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 17
8 U.S.C. § 1324. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8 U.S.C. § 1324a(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8 U.S.C. § 1326. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 11, 12, 14
18 U.S.C. § 3142. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
18 U.S.C. § 3559. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Fed. R. App. P. 9(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S.S.G. § 2L1.2(b)(1)(A)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S.S.G. § 4A1.2(e)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iii
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PROCEDURAL AND FACTUAL BACKGROUND
A. Defendant’s Criminal Charge
On October 18, 2011, a federal grand jury in the District of Oregon indicted
defendant on one count of being an alien found in the United States after having
been removed by immigration officials and without the prior consent of the
Secretary of Homeland Security, in violation of 8 U.S.C. § 1326(a).
The facts underlying the Indictment are undisputed. In the 1980s,
1
defendant, a native and citizen of Mexico, was admitted to the United States as a
lawful temporary resident under the Special Agricultural Worker (“SAW”)
Program. (TO 8.) On January 20, 1990, defendant was convicted in the District
2
Court of Clark County, Nevada, of possession with the intent to sell heroin and
sentenced to four years’ imprisonment. (TO 8-9.) This conviction constituted an
aggravated felony for purposes of immigration law. See 8 U.S.C. § 1101(a)(43)
(1990) (defining “aggravated felony” to include “any drug trafficking crime”).
Under the SAW Program, defendant’s status was due to be adjusted to that
of lawful permanent resident (“LPR”) by operation of law in December 1990,
See Defendant’s Memorandum in Support of Appeal from Order Revoking
1
Release [hereinafter “Def. Mem.”] at 2 n.1.
Citations to “TO [#]” refer to the page number of the Transcripts and
2
Opinions Concerning Defendant’s Release and Detention, filed with defendant’s
opening Memorandum.
1
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approximately eleven months after he sustained his drug-trafficking conviction.
The Immigration and Naturalization Service (“INS”) erroneously recorded
defendant’s adjustment despite his conviction. (Def. Mem. at 3-4.) In December
1993, however, INS discovered the conviction and rescinded defendant’s LPR
status. (TO 9.) In January 1994, defendant asked an immigration judge (“IJ”) to
reconsider the rescission order, but the IJ denied the request. (Id.) Defendant was
removed from the United States on January 19, 1994. (Id.)
Later that year, defendant petitioned for a Writ of Error Coram Nobis in the
Nevada district court, seeking to withdraw his guilty plea on the grounds that he
had not been advised by counsel that the plea would foreclose his adjustment to
LPR status. (TO 9.) The Nevada district court denied the petition, and the Nevada
Supreme Court rejected defendant’s appeal on December 19, 1995. (Id.)
On February 26, 2003, defendant applied for a waiver of inadmissibility and
admission into the United States. (TO 10.) The Department of Homeland Security
(“DHS”), the successor to INS, denied the application on September 11, 2003.
(Id.) Defendant did not appeal that denial. (Id.) Despite the lack of a lawful
admission or status, defendant has been living in the United States “for nearly 20
years.” (TO 11.)
Defendant came to Oregon in pursuit of work in September 2011. (Def.
2
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Mem. at 3.) He came to the attention of federal agents later that month, after his
arrest for Criminal Trespass in the First Degree in Umatilla, Oregon, on September
26, 2011. (Id.) Two days later, DHS served defendant with a “Notice of Intent /
Decision To Reinstate Prior Order,” which invited defendant to make a statement
contesting the determination that his 1994 order of removal should be reinstated.
(TO 10.) Defendant declined to make a statement, and the order was reinstated the
same day. (Id.) Defendant was also administratively arrested that day by the
Bureau of Immigration and Customs Enforcement (“ICE”) and taken into custody
pending his removal. The grand jury indicted him on the instant charge
approximately three weeks later.
B. Defendant’s First Appearance
Defendant made his first appearance in this case on October 21, 2011, before
a U.S. magistrate judge. At that time, the government moved for defendant’s
pretrial detention on the ground that defendant posed a serious risk of flight. The
Pretrial Services officer recommended detention as well. Defendant did not
oppose detention.
The magistrate judge ordered defendant detained as a flight risk. (TO 11.)
In making the order, the magistrate judge found that “[n]o condition or
combination of conditions will reasonably assure the appearance of the defendant
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as required.” (Oct. 21, 2011, Detention Order [CR #5] [hereinafter “Gov’t Ex.
1”].) That finding was supported by citation to the following facts: defendant’s
status as an illegal alien with a prior deportation, the existence of an ICE detainer,
defendant’s criminal history, and defendant’s “unknown family / employment /
community ties.” (Id.) In addition, the magistrate judge cited defendant’s
“multiple or false identifiers” and “[a]liases.” (Id.) Defendant’s trial was set for
3
December 13, 2011.
C. Defendant’s Motion for Release
Approximately seven months after his arraignment, and after twice moving
to continue the trial date, defendant filed a Motion and Request for Release
Pending Trial on May 3, 2012. (TO 11.) In support of the motion, defendant
participated in an interview with a Pretrial Services officer and submitted
supportive letters from family and friends evincing significant social ties to Las
Vegas, Nevada. (Id.) The Pretrial Services Office continued to recommend
detention notwithstanding this new information. (TO 11-12.)
The magistrate judge held a hearing on defendant’s motion on May 9, 2012.
(TO 12, 63-89.) At the hearing, defendant emphasized that he was again seeking
to have his 1990 drug-trafficking conviction overturned and argued that his success
Defendant presented a false identification document bearing the name
3
“Raul Hernandez Inzunza” when he was arrested on the trespass charge.
4
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in that endeavor could provide a basis to have his “immigration status restored”
and thus, he suggested, to defend against the instant illegal reentry charge. (TO
83-84.)
Defendant’s argument was predicated on his second petition to the Nevada
district court, which he had filed on December 1, 2011, approximately six weeks
after the Indictment was filed in this case. (TO 12.) In the petition, defendant
sought once again to withdraw his 1990 guilty plea on the grounds that he had been
inadequately advised about the immigration consequences of his drug-trafficking
conviction. (Id.) Defendant relied for the first time on the Supreme Court’s
decision twenty months before in Padilla v. Kentucky, 130 S. Ct. 1473, 1483
(2010) (holding that failure to advise criminal defendant of “truly clear”
consequences of guilty plea constitutes ineffective assistance of counsel).
Notwithstanding the Padilla case, the Nevada district court had denied the
second petition on March 12, 2012. (TO 11.) Defendant indicated, however, that
he was pursuing another appeal to the Nevada Supreme Court. (TO 81.)
Defendant also indicated that he would seek release from ICE custody during the
pendency of the appeal. (Id.)
On May 14, 2012, the magistrate judge ordered defendant released. (TO 50-
62.) The magistrate judge concluded that defendant did not pose a serious risk of
5
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flight on his own volition, noting, inter alia, that “the Government’s position on
flight is undermined by Defendant’s demonstrated desire to remain in this
country.” (TO 56.) The magistrate judge further emphasized defendant’s “strong
4
ties to the community,” limited criminal record, and the fact that defendant was
formerly a lawful permanent resident. (TO 61.) The magistrate judge discounted
the risk that defendant would fail to appear simply because ICE would execute the
reinstated removal order and deport defendant to Mexico. (TO 58.)
D. District Court’s Review of the Release Order
The government appealed the magistrate judge’s release decision to the
district court. (TO 12.) The district court orally granted the motion following
argument on May 22, 2012 (27-50), and filed a written order on May 30, 2012.
(TO 7-25.)
The district court held that defendant posed a serious risk of flight for
purposes of the Bail Reform Act, because there were no conditions that could
reasonably assure his appearance for trial. (TO 25.) Specifically, the court
concluded that the ICE detainer and outstanding removal order lodged against
defendant made it likely that defendant, upon release, would be taken into ICE
Contrary to the magistrate judge’s observation, the government never
4
argued that defendant was likely to flee the country but that he would flee to avoid
being removed from the country. (TO 31 (government’s emphasis that “it’s not
that [defendant] will move to Mexico”).)
6
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custody and removed from the United States before his trial date. The court
concluded that this result was particularly likely because defendant’s outstanding
removal order had been administratively reinstated. (TO 19.) Reinstatement, the
court emphasized, sharply curtailed any prospect of challenging the order and
triggered the statutory requirement that it be executed within 90 days. (Id. (citing 8
U.S.C. § 1231(a)(1)(A); Morales-Izquierdo v. Gonzales, 486 F.3d 484, 491 (9th
Cir. 2007) (en banc)); Ixcot v. Holder, 646 F.3d 1202, 1207 (9th Cir. 2011).)
The district court made clear that it was interpreting the Bail Reform Act so
as to harmonize it with the Immigration and Nationality Act’s provisions that
prohibit illegal reentry and provide for the streamlined execution of reinstated
removal orders. (TO 24.) The court thus emphasized that the Bail Reform Act “is
designed to assure a defendant’s presence for trial while presuming a defendant’s
innocence” and concluded that weighing the risk that a defendant will be removed
before trial — even involuntarily — is consistent with that purpose. (TO 21.)
Defendant filed a motion for reconsideration of the district court’s detention
order. Defendant argued that the government could prevent defendant’s removal
from the United States by issuing a “departure control order” pursuant to
regulation. (TO 1.) The district court denied the motion in a written order filed
June 11, 2012. (TO 1-6.) The district court noted the lack of authority for ICE’s
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reliance on a “departure control order” to overcome the statutory requirement for
the prompt execution of reinstated removal orders. (TO 5.) In the absence of such
authority, the district court reaffirmed its conclusion that there were “no conditions
which w[ould] reasonably assure defendant’s presence for trial.” (Id.)
Defendant filed a timely notice of appeal under Fed. R. App. P. 9(a) on
June 15, 2012.
ARGUMENT
A. Standard of Review
This court reviews a district court’s factual findings in support of detention
“under a ‘deferential clearly erroneous standard.’” United States v. Hir, 517 F.3d
1081, 1086 (9th Cir. 2008) (quoting United States v. Townsend, 897 F.2d 989, 994
(9th Cir. 1990)). “[T]he question of whether the district court’s factual
determinations justify the pretrial detention order is reviewed de novo.” Id.; see
also United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985).
B. Defendant was properly detained as a flight risk because no set of
conditions could reasonably assure his appearance at trial
following his release.
The Bail Reform Act, 18 U.S.C. § 3142, “requires the release of a person
facing trial under the least restrictive condition or combination of conditions that
will reasonably assure the appearance of the person as required and the safety of
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the community.” United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991)
(emphasis added). If, however, the court finds after a hearing that “no condition or
combination of conditions will” provide such assurance, the Act unambiguously
directs the court to “order the detention of the person before trial.” 18 U.S.C.
§ 3142(e)(1). Although the government bears the burden of establishing a risk to
community safety by clear and convincing evidence, risk of flight need only be
proved by a preponderance of the evidence. See United States v. Aitken, 898 F.2d
104, 107 (9th Cir. 1990); Motamedi, 767 F.2d at 1407.
This Court first “ascertain[ed] the standard of proof properly applicable to
findings of flight risk under the [Bail Reform] Act” in Motamedi. Id. at 1406. In
that case, which also involved an alien defendant, the court made clear that “flight
risk” was established for purposes of the Act upon the absence of conditions that
will reasonably assure the defendant’s appearance at trial. See id. at 1407 (“[w]e
must consider whether the Government has demonstrated . . . that no condition or
combination of conditions will reasonably assure Motamedi’s appearance”
(emphasis added)). In determining whether such conditions are available, this
Court held that “court[s] must take into account” the factors identified under 18
U.S.C. § 3142(g). Id. (emphasis added).
By the Act’s own terms, the factors in subsection 3142(g) are not exclusive.
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See 18 U.S.C. § 3142(g)(3) (directing consideration of “history and characteristics
of the person, including . . .”). Accordingly, the Motamedi Court acknowledged
that a defendant’s alienage “may be taken into account,” even though it is nowhere
listed as a factor under § 3142(g). 767 F.2d at 1408; accord Townsend, 897 F.2d at
995 (listing factors to consider in “assessing an alien defendant’s ties to the United
States”). Nor are the statutory factors relevant only to whether a defendant may
pose a danger to the community or fail to appear through some voluntary act. See,
e.g., 18 U.S.C. § 3142(g)(3)(A) (requiring consideration of defendant’s “physical
and mental condition”).
The district court properly held in this case that defendant posed a serious
risk of flight, because there is no combination of conditions that will reasonably
assure defendant’s appearance for trial in the District of Oregon. None of the
statutory factors suggest otherwise:
“In ascertaining whether to detain or release a defendant, the
judicial officer is directed by the statute to consider: (1) the nature
and seriousness of the offense charged; (2) the weight of the evidence
against the defendant; (3) the defendant’s character, physical and
mental condition, family and community ties, past conduct, history
relating to drug or alcohol abuse, and criminal history; and (4) the
nature and seriousness of the danger to any person or the community
that would be posed by the defendant’s release.”
United States v. Winsor, 785 F.2d 755, 757 (9th Cir. 1986) (quoting United States
v. Cardenas, 784 F.2d 937, 938-39 (9th Cir.), vacated, 792 F.2d 906 (1986)).
10
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Defendant is charged with illegal reentry following conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). This is a serious
offense: It is a Class C felony with a maximum sentence of 20 years’
imprisonment. Id.; 18 U.S.C. § 3559(a)(3). Although the district court noted that
the offense is not a crime of violence (TO 17), the statutory maximum and
Guideline sentences are consistent with many such offenses. Defendant faces a
Guideline sentence of 57 to 71 months’ imprisonment.
5
In addition, as the district court noted, the evidence against defendant is
strong. (TO 17.) Indeed, defendant’s commission of the offense itself is
undisputed. The only issue defendant raises with respect to his legal liability is the
constitutionality of his Nevada drug-trafficking conviction in light of the Supreme
Court’s decision in Padilla. (TO 41 (defense counsel’s assertion that “if that
Defendant declined a fast-track resolution of this case with a substantially
5
reduced sentence. As a result, even assuming defendant qualifies for acceptance of
responsibility, the low-end Guideline sentence will be 41 months’ imprisonment.
(These calculations are predicated on an adjusted offense level of 24. See U.S.S.G.
§ 2L1.2(b)(1)(A)(i); United States v. Hernandez-Guerrero, 633 F.3d 933, 937 (9th
Cir. 2011 (“For the purpose of calculating criminal history points under U.S.S.G.
§ 4A1.2(e)(1) based on a prior conviction and sentence, . . . the operative date of a
§ 1326 offense is the date of reentry . . . .”).)
Although the district court suggested at oral argument that defendant could
receive a sentence of time-served, that suggestion appeared to rest on the court’s
assumption that defendant would agree to a prompt resolution of the case — the
opposite of what defendant has in mind. (TO 41 (defense counsel’s assertion that
“[w]hat he needs is for [the Nevada Supreme Court’s review of his second
collateral attack on his conviction] to be resolved before this one”).)
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conviction were gone completely[,] the criminal case would be in a new posture”).)
The Nevada conviction has been final for more than twenty years, and defendant’s
custody was terminated in 1993. The conviction has already survived one round of
collateral review and is not subject to a habeas claim. The relief defendant desires
6
is patently unlikely as a matter of law. Not even defendant’s counsel entertains the
notion that such relief could be afforded before defendant is to be tried and
sentenced in this case. (TO 44 (district court informing counsel that “[t]his case
will try on the 14th of August with no further extensions.”); TO 37 (defense
counsel’s statement that she expects the Nevada Supreme court’s decision at “the
end of 2012”).) Defendant’s conviction on this charge is all but inevitable.
Defendant’s character and background also militate strongly against release.
Defendant is a convicted felon. He has no ties to the District of Oregon
whatsoever. (TO 11 (“Defendant informed Pretrial Services that he had moved to
Oregon two weeks before his arrest to find work.”).) Although he has social ties to
Las Vegas, Nevada, he has absolutely no legal right or privilege to return there.
See, e.g., 8 U.S.C. § 1326(a). Indeed, it would be a felony for any of his friends or
family members in Las Vegas to harbor defendant or even to “encourage[]” him to
See Maleng v. Cook, 490 U.S. 488, 492 (1989) (holding that petitioner is
6
not “in custody” on a fully expired sentence for purposes of federal habeas
jurisdiction “merely because of the possibility that the prior conviction will be used
to enhance the sentences imposed for any subsequent crimes”).
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continue to “reside in the United States.” 8 U.S.C. § 1324(a)(1)(A)(iii)-(iv),
(a)(1)(B)(ii) (establishing five-year maximum sentence for noncommercial
harboring of certain aliens). Defendant has no employment, and it would be
unlawful for anyone in the United States to hire him. See 8 U.S.C. § 1324a(a)(1).
Most important, defendant has demonstrated both the means and the will to evade
detection by law enforcement while engaged in the ongoing commission of this
felony offense. See United States v. Cruz-Gramajo, 570 F.3d 1162, 1164 (9th Cir.
2009) (“Illegal reentry is a continuing offense . . . .”); (TO 11 (“Defendant has
been living in the United States for nearly 20 years.”); Gov’t Ex. 1 (noting
defendant’s use of “multiple or false identifiers” and “aliases”).)
Defendant’s past conduct has made it abundantly clear that remaining in the
United States is simply more important to him than obeying the law. He has
7
freely elected to live “for nearly 20 years” (TO 11) with the unremitting risk of
detection and punishment by United States authorities rather than return to Mexico
voluntarily. See Hernandez-Guerrero, 633 F.3d at 937 (“The continuous nature of
The government thus agrees with defendant’s assertion that he “has amply
7
demonstrated his desire to remain in the United States” (Def. Mem. at 12) but
rejects his self-serving claim that this desire arises from his motivation to “pursue
his post-conviction litigation” (id.). The facts belie this contention: Defendant did
not initiate the present litigation until after his arrest in the instant case (TO 11) —
almost two years after the Supreme Court decided Padilla — and nothing
prevented him from pursuing the litigation while residing in Mexico.
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the § 1326 offense puts defendants on notice that they are in violation each day
they remain illegally in the United States.”). If defendant would not return to his
native country to avoid the risk of federal prison, this Court cannot reasonably
conclude that he would appear for trial and potential imprisonment in addition to
removal to his native country in order to avoid that risk. This is particularly true
where the fact of the new conviction alone would have adverse implications for
defendant’s ultimate aim of obtaining legal immigration status. (TO 42-43
(defense counsel’s assertion that a second conviction “changes his application” for
immigration relief).) Defendant’s background and characteristics leave no room
for meaningful doubt: He poses a serious risk of flight with or without regard to
whether ICE will remove him from the United States before trial.
8
Indeed, defendant’s circumstances mirror those at issue in Winsor, where
this Court agreed with the district court that “no condition or combination of
conditions would reasonably assure [the appellant’s] appearance for further
proceedings in the case.” See 785 F.2d at 757. The Court relied on the following
facts:
Defendant’s dangerousness to the community, the fourth factor for the
8
court to consider under § 3142(g), has no substantial relevance in assessing
defendant’s risk of flight, but it is undisputed that defendant poses no significant
danger to the community for purposes of the Bail Reform Act. (TO 16.)
14
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Winsor has been in the Los Angeles area only since January
1986 [about three months]. He is unemployed. He has no ties to the
community. He is currently on parole or probation from another
jurisdiction. The weight of the evidence against him is strong. He has
admitted his presence in a bank surveillance photograph and his
participation in the bank robbery.
Id. This Court readily concluded from these facts that the appellant should be
detained “[a]s a flight risk.” In doing so, the Court emphasized his “lack of any
ties to the community and the fact that he is currently on parole or probation from
another jurisdiction.” Id.
Defendant’s circumstances are, if anything, less compatible with release than
the appellant’s in Winsor. Neither man could claim ties to the local area, but
defendant, as a previously removed alien, has no ties of which he may legally avail
himself anywhere in the United States. Neither man could claim employment, but
defendant is not even eligible to procure it. The evidence was “strong” in Winsor,
but the relevant facts are uncontroverted here. Finally, the appellant in Winsor
9
was on “parole or probation from another jurisdiction” with unelaborated
consequences, id., whereas defendant is under an ICE detainer for the execution of
Defendant claimed (citing no authority on point) that success in his state
9
litigation may create a defense to the instant charge, but the appellant in Winsor
likewise asserted that he had grounds to challenge his arrest and to suppress
evidence against him. See 785 F.2d at 757 (noting appellant’s desire to “delve into
the validity of the arrest and the likelihood of success on a suppression motion”).
A defense that is both contingent and implausible cannot outweigh strong evidence
of the factual commission of the offense for purposes of a bail determination.
15
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a reinstated removal order from which there is no plausible relief. See Morales-
Izquierdo, 486 F.3d at 491 (“[R]einstatement — unlike INA § 240 first-instance
removal — ‘deprives aliens of any relief, reopening, or review at the reinstatement
stage.’” (quoting De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1281 (11th Cir.
2006)). As with the appellant in Winsor, defendant plainly “is a flight risk,” 785
10
F.2d at 757, without regard to whether ICE will deport him before trial. This Court
may affirm the district court’s detention order on that basis alone.
11
Here, of course, the district court had before it not only the obvious risk that
defendant would flee if left to his own devices. The court also properly considered
the fact that defendant is facing statutorily mandated removal from the United
States “within a period of 90 days” upon his release from criminal custody.
The Bail Reform Act treats outstanding probation and parole as analogous
10
to pending removal proceedings. See 18 U.S.C. § 3142(d) (providing for
temporary detention to permit other government or agency to take custody for
“revocation of conditional release, deportation or exclusion”). Contrary to
defendant’s and amici’s claim (TO 14-16; Brief of ACLU at 6-9), this Court’s
reliance on the outstanding probation matter in Winsor makes clear that such
factors inform the risk of nonappearance without regard to whether the competing
claim for custody has actually been invoked under § 3142(d).
It is well established that this Court may affirm a district court’s legal
11
ruling “on any basis supported by the record,” United States v. Huping Zhou, 678
F.3d 1110, 1115 n.2 (9th Cir. 2012), particularly where, as here, the standard of
review is de novo.
16
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8 U.S.C. § 1231(a)(1)(A); (TO 19). From this fact (in light of defendant’s other
12
circumstances), the district court properly found by a preponderance of the
evidence that “no condition or combination of conditions w[ould] reasonably
assure the appearance of [defendant] as required.” 18 U.S.C. § 3142(e); (TO 25).
Defendant does not seriously contest the factual correctness of this finding.
Defendant protests instead that the court erred in focusing on the risk of his
nonappearance as opposed to the risk that he would “flee.” (Def. Mem. at 13.)
This argument is misplaced for several reasons.
The term “serious risk that [defendant] will flee,” appears only once in
§ 3142, where it is identified as a basis for holding a detention hearing at the
defendant’s first appearance. See 18 U.S.C. § 3142(f)(2)(A). The term
“reasonabl[e] assur[ance] of . . . appearance,” in contrast, appears throughout the
Defendant and amici spend a dozen pages explaining how ICE could
12
exercise its own discretion to avoid defendant’s removal prior to the resolution of
this case. (Def. Mem. at 17-18; Brief of ACLU at 13-23.) Even if such arguments
were legally valid despite the mandatory wording of the statute, ICE’s exercise of
such discretion is not subject to any “condition or combination of conditions” that
a “judicial officer” may impose. 18 U.S.C. § 3142(c); Morales-Izquierdo, 486
F.3d at 491 (noting that reinstated removal orders are not subject to “any relief,
reopening, or review”). As a result, any such discretion — which ICE has not
invoked in this case — is irrelevant for purposes of detention under the Bail
Reform Act, which directs the court to consider only “conditions” it may impose
and the circumstances of the defendant himself. See id. § 3142(e) (directing
detention of defendant if “the judicial officer finds that no condition or
combination of conditions will reasonably assure the appearance of the person as
required” (emphasis added)).
17
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section. See id. § 3142(c)(1), (e), (f), (g). As the district court held, the Bail
Reform Act “at bottom is designed to assure a defendant’s presence for trial while
presuming a person’s innocence.” (TO 21 (emphasis added) (citing United States
v. Lozano, No. 1:09-cr-158-WKW, 2009 WL 3052279 (M.D. Ala. Sept. 21,
2009)).)
The context of the reference to the risk that the defendant “will flee” in
§ 3142(f)(2), which authorizes a detention hearing “in a case that involves . . . a
serious risk that the defendant will flee,” id. (emphasis added), makes clear that the
“risk” is determined with reference to the nature of the “case” rather than the
circumstances and subjective intentions of the defendant. Common sense compels
such a reading. Neither “the attorney for the Government” nor the “judicial
officer[],” id., the only parties authorized to invoke this provision, can be expected
to assess the latter considerations at defendant’s initial appearance — before the
detention hearing has been held. A “serious risk that [the defendant] will flee,” id.,
is objectively established by the nature of the case.
Consistent with that interpretation, this Court has consistently focused on the
risk of nonappearance — the question to be addressed within the detention hearing
— rather than any threshold issue of voluntariness of flight. Indeed, the Court has
repeatedly directed courts to consider the factors identified in § 3142(g) — which
18
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are expressly for the purpose of “determining whether there are conditions of
release that will reasonably assure the appearance of the person” — to determine
whether the defendant “is a flight risk.” Winsor, 785 F.2d 757 (citing defendant’s
lack of community ties); Aitken, 898 F.2d at 107 (citing community ties, length of
residence, and financial resources to affirm finding of “flight risk”); Motamedi,
767 F.2d at 1407 (“[W]e must consider whether the Government has
demonstrated . . . that no condition or combination of conditions will reasonably
assure Motamedi’s appearance.” (emphasis added)).
Defendant’s reliance on the appearance of the term “flee” in § 3142(f)(2) is
misplaced for another reason: He did not oppose the holding of a detention hearing
(or even the entry of an order of detention) at his first appearance, and he
demanded the more recent reopening of the hearing himself. (TO 11.) In other
words, the issue of whether the detention hearing was authorized (under
§ 3142(f)(2) or otherwise) was never contested. Defendant thus cannot plausibly
fault the court for considering the factors relating to risk of nonappearance, which
are precisely the factors relating to flight that the Act requires to be considered at
such a hearing. See 18 U.S.C. § 3142(g). The district court did nothing more.
(TO 20-21.)
19
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The district court properly concluded that release on bail in this case posed a
serious risk of nonappearance. That finding is fully supported by this record both
because of defendant’s reinstated removal order, and because of defendant’s
history, his lack of any relevant ties to the community, the seriousness of the
offense, and the absence of any foreseeable defense to the charge. Defendant is
scheduled for trial just over one month from now; he should remain in custody
until trial.
CONCLUSION
For the foregoing reasons, this Court should affirm the district court’s order
of detention. The defendant is a flight risk.
DATED this 9th day of July 2012.
Respectfully submitted,
S. AMANDA MARSHALL
United States Attorney
District of Oregon
s/ Ryan W. Bounds
RYAN W. BOUNDS
Assistant U.S. Attorney
20
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STATEMENT OF RELATED CASES
Pursuant to 9th Cir. R. 28-2.6, the United States represents that it knows of
no cases related to this appeal.
21
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CERTIFICATE OF COMPLIANCE
This response is 20 pages in length pursuant to Fed. R. App. P. 27(d)(2), and
complies with the typeface requirements of Fed. R. App. P. 32(a)(5)(C) and the
type style requirements of Fed. R. App. P. 32(a)(6). It has been prepared in a
proportionally spaced typeface (14 point, Times New Roman font) using
WordPerfect X5, and contains 4,812 words, according to the word processing
system used to produce the text.
s/ Ryan W. Bounds
RYAN W. BOUNDS
Assistant United States Attorney
22
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NO. 12-30205
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
____________________
UNITED STATES OF AMERICA,
PLAINTIFF-APPELLEE,
V.
EZEQUIEL CASTRO-INZUNZA,
DEFENDANT-APPELLANT.
_____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
THE HONORABLE MALCOLM F. MARSH, SENIOR U.S. DISTRICT JUDGE
D.C. NO. 3:11-CR00418-MA
______________________
EXHIBIT TO PLAINTIFF-APPELLEE’S RESPONSE TO
DEFENDANT-APPELLANT’S FRAP 9(A) & CIRCUIT RULE 9-1.1 APPEAL
_______________________
S. AMANDA MARSHALL
UNITED STATES ATTORNEY
DISTRICT OF OREGON
KELLY A. ZUSMAN
APPELLATE CHIEF
RYAN W. BOUNDS
ASSISTANT U.S. ATTORNEY
1000 SW THIRD AVENUE, SUITE 600
PORTLAND, OREGON 97204-2902
TELEPHONE: (503) 727-1000
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TABLE OF CONTENTS
Docket No. Page
5 Detention Order (10-21-2011).. . . . . . . . . . . . . . . . . . . . . . . . 1
i
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ORP DET ORO (08106)
N TIIE UNITED STATES DISTRIC. ,OURT
FOR TIIE DISTRICT OF OREGON

Plaintiff, CR
IV
CR418-HA
v.
CASTRO-Inzunza, EzequieJ
DefendantCsl
motigp-of the Government involving an
ORDER OF DETENTION AFTER
HEARING (18 USC § 3142(i»
E'f ftk to the safety of any other person or the community for cases involving crimes described in 18 USC § 3142(f)(1)
rr serious risk defendant will flee:
o serious risk defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate a prospective witness or
juror or attempt to do so,
o Upon consideration by the court sua sponte involving a:
o serious risk defendant will flee:
o serious risk defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate a prospective witness or
juror or attempt to do so,
Having considered the nature and circumstances of the offense charged, the weight of evidence against the defendant, the history and
characteristics of the defendant, and the nature and seriousness of the danger to any person and to the community that would be posed by
the defendant's release, the court finds that:
o The offense charged creates a rebuttable presumption in 18 USC § 3142(e) that no combination of conditions will reasonably assure the
safety of the community_
condition or combination of conditions will reasonably assure the appearance of defendant as required due to:
rtoreign citizenship andlor illegal alien 0 In custody/serving sentence 0 SJlbstance use/abuse
ortCE Detainer D Outstanding warrant(s) I>"(jnknown family/employment/community ties
D Prior failure(s) to appear D Unstable/ no residence available
or false identifiers D Mental health issues Iit1nfortn3.tion unverified/unverifiable

ortS'rior criminal history, D inCluding drug/drug related offense D including alcohol/alcohol related offense
o Prior supervision failure(s), D including illicit drug use 0 including alcohol abuse
D Other: _______________ _
o No condition or combination of conditions will reasonably assure the safety of other persons and the community due to:
o Nature of offense 0 Prior supervision failures
D Arrest behavior D Substance use/abuse
D Possession of weapon(s) D Mental health issues
D Violent behavior D Alleged offense involves child pornography on the internet
D Prior criminal history D including drug/drug related offense D including alcohol/alcohol related offense
D Prior probation/parole violation(s) D including illicit drug use D including alcohol abuse
D ______________ _
o Defendant has not rebutted by sufficient evidence to the contrary the presumption provided in 18 USC § 3142(e).
THEREFORE, IT IS ORDERED that:
1. Defendant is detained prior to trial;
2. Defendant is committed to the custody of the Attorney General for confinement in a corrections facility separated, as
far as practicable, from persons awaiting or serving sentences or being held in custody pending appeal;
3. Defendant sball be afforded a reasonable opportunity for private consultation with bis counsel;
4. The superintendent of the corrections facility in which defendant is confined sball make the defendant available to the
DAttO /0 ;;"(2'-"
1 • DETENTION ORDER
Case 3:11-cr-00418-MA Document 5 Filed 10/21/11 Page 1 of 1 Page ID#: 4
Gov't Exhibit 1
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I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .

I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .

Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:
Signature (use "s/" format)
CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
9th Circuit Case Number(s)
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s/Ryan W. Bounds
CA 12-30205
J ul 9, 2012
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