UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EZEQUIEL CASTRO-INZUNZA, Defendant-Appellant.

Appeal under FRAP 9 (a) and Circuit Rule 9-1.1 from the United States District Court for the District of Oregon


Francesca Freccero Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 (503) 326-2123 Attorney for Defendant-Appellant

In its Response, the government makes arguments contradicted by the record and relies on cases that are inapposite. Mr. Castro-Inzunza submits this Reply. A. Mr. Castro-Inzunza Already Has Served an Amount of Time in Pretrial Custody That Is Tantamount to His Potential Sentence for the Offense, So His Sentencing Exposure Does Not Provide Any Incentive to Flee. The government exaggerates Mr. Castro-Inzunza’s sentencing exposure. For the first time, it argues that Mr. Castro-Inzunza faces a prison sentence substantially longer than the time he already has spent in custody. Government Brief in Response (Response) at 11. That argument is contradicted by the record and the law. Judge Marsh, who presided over the hearing on the government’s motion to revoke the release order, also would be Mr. Castro-Inzunza’s sentencing judge. Judge Marsh made clear that Mr. Castro-Inzunza already has served most, if not all, of any term of imprisonment that later would be imposed. The following colloquy occurred between counsel for Mr. Castro-Inzunza and Judge Marsh, when counsel expressed her concern that Mr. Castro-Inzunza already had served in pretrial detention an amount of time tantamount to a likely sentence:



...I am concerned about him spending any more time in custody than is lawfully necessary. Let me help you in that regard. The way this has developed, and the information that I have from pretrial services and probation and from the book of letters that you sent me, I have more information right now on this case, if I was to be deciding a sentence, th[a]n I have in most of these cases.


MS. FRECCERO: I agree. THE COURT: And I have to say to you that would bring about an extremely short sentence, if any further at all.

MS. FRECCERO: I have had the confidence, Your Honor, to advise Mr. Castro of that same estimation if he were adjudged guilty. THE COURT: Now, with that in my mind, I have trouble wondering how we delay this matter waiting for some other court a year or more away to decide anything about it.

MS. FRECCERO: What those same facts mean to me is that it’s very difficult to foresee any harm to the Government if he were released, because no further incarceration would actually probably occur to Mr. Castro. TO_41-42. Despite that record, the government argues on appeal that Mr. CastroInzunza faces a significant additional custodial sentence. It characterizes Judge Marsh’s comments as only a “suggestion” that a time-served sentence is a possibility, contingent on the “assumption that defendant would agree to a prompt

resolution of this case.” Response, p. 11 n. 5. The government is wrong. The court’s comments were a serious estimate by an experienced district court judge about what the facts and law indicate would be a reasonable sentence for Mr. Castro-Inzunza. There is no indication anywhere in the record that Judge Marsh would consider imposing a sentence anywhere close to the three- to five-year sentence that the government now endorses for the first time. In addition, the government now argues that Mr. Castro’s advisory Guideline range without their “fast-track” offer would be 57-71 months’ imprisonment, Response at 11, or, at best, a sentence of 41 months’ imprisonment after the acceptance of responsibility reduction, id. at 11, n. 5 (Level 24-3, Criminal History Category II). That is because the government is calculating the Guidelines by using for the first time a “continuing offense” theory – that the crime alleged began to occur when Mr. Castro returned sometime in the mid-90's, when his 1990 conviction would not have been stale for purposes of the Guidelines calculation. Id. at 11, n. 5. That is an approach based on this Court’s decision in United States v. Hernandez-Guerrero, 633 F.3d 933, 937 (9th Cir. 2011). However, that method of calculating Mr. Castro-Inzunza’s criminal history is not the only method available. See United States v. Ramirez-Valencia, 202 F.3d 1106 (9th Cir. 2000) (applying Guidelines based on “found” date in

Indictment). More important, it also is not the method the government has been using throughout the pendency of Mr. Castro-Inzunza’s case. Previously, aware that Mr. Castro-Inzunza re-entered in the mid-90’s (see Form I-213, attachment to Exhibit A, Affidavit of Francesca Freccero), the government asserted that the Guidelines calculation without any fast-track reduction would be Level 17, Category I, resulting in a range of 24-30 months, see Letter dated November 3, 2011, from Assistant U.S. Attorney Ryan W. Bounds to Francesca Freccero, para. 9 (attachment to Exhibit A, Affidavit of Francesca Freccero). This Court should ignore the government’s belated effort on appeal to exaggerate Mr. CastroInzunza’s exposure and to inflate the potential incentive for flight from prosecution. B. The Government’s Argument on Appeal That Mr. Castro-Inzunza Presents a Flight Risk Regardless of the ICE Detainer and Reinstated Removal Order Is Contrary to the Facts Found by the District Court and Barred by the Government’s Own Concession Below. In the district court, the government acknowledged that, but for the detainer against Mr. Castro-Inzunza and the reinstated removal order, he would be a candidate for release on conditions. TO_18 (district court notes that government concedes that release on conditions would be sufficient but for ICE detainer and reinstated removal order); TO_37-38 (prosecutor agrees at motion hearing that,


but for ICE, release on conditions would be appropriate). Mr. Castro-Inzunza’s character, background, and overwhelming support in the community favored release. TO_ 18, 42, 46 (“without that detainer I’d let him go”). Mr. CastroInzunza’s eligibility for pretrial release on conditions, were it not for the factors introduced by the removal order and ICE detainer, is beyond dispute. On appeal, however, the government argues that Mr. Castro-Inzunza’s “character and background also militate strongly against release,” Response at 12, that he “poses a serious flight risk with or without regard to whether ICE will remove him,” id. at 14, and that “the district court had before it ... the obvious risk that defendant would flee if left to his own devices,” id. At 16. Those assertions are flatly contradicted by the record and are barred by the government’s concession below. C. No Legal Position Can Be Inferred from Mr. Castro-Inzunza’s Lack of Argument Against Detention When He First Appeared in Court on October 21, 2011. This Court also should reject the government’s argument that Mr. CastroInzunza waived his interpretation of the Bail Reform Act by not contesting his detention at his first appearance in October 2011. Response at 19. First, the government has not offered this Court a transcript of that hearing; the government’s representations here about Mr. Castro-Inzunza’s position at that initial hearing are unsupported. More important, however, as Magistrate Judge

Acosta indicated at the May 9, 2012, release hearing (and Judge Acosta also was the judicial officer at Mr. Castro-Inzunza’s first appearance on October 21, 2011), the practice in the Portland Division of the District of Oregon is to permit reopening of the detention hearing after the defendant and counsel have obtained discovery, evidence, and other information to support a request for pretrial release. TO_74-75. It is understood that defendants “submit” the issue of detention at their first appearance with leave to re-open at a later date. Id. Nothing of relevance can be inferred from the defendant’s decision not to contest detention at the first appearance. D. Neither United States v. Gebro Nor United States v. Winsor Supports the Government’s Argument That a Risk of Removal by the Government Constitutes a “Flight Risk” Within the Meaning of the Bail Reform Act. The government asks this Court to conclude that the risk of flight addressed by the Bail Reform Act includes any risk of nonappearance, even one caused by government action such as deportation. It relies on United States v. Gebro, 948 F. 2d 1118 (9th Cir. 1991), and United States v. Winsor, 785 F. 2d 755 (9th Cir. 1986), two cases concerning the pretrial detention of defendants accused of bank robbery. Neither case supports the government’s interpretation of 18 U.S.C § 3142.


The defendant in Gebro faced retrial for aiding and abetting armed bank robbery. 948 F. 2d at 1119. He was alleged to have driven the getaway car. Id. at 1119 n. 1. After the first trial, he had been sentenced to 132 months’ imprisonment, but the conviction was reversed on appeal because of an erroneous jury instruction. Id. at 1119. After his conviction had been reversed and the case remanded to the district court, the defendant had re-established contact with his sister and children and had been sober for 16 months. Id. at 1121. However, before that, he had been transient for several years, had rejected all contact with family, had been unemployed for many years, and was an admitted user of drugs who had several times failed to break his addictions. Id. He also had convictions for multiple drug-abuse related offenses during the decade preceding the detention hearing. Id. The district court held, and this Court affirmed, that those facts were sufficient to prove both that the defendant presented a serious risk of flight and that he was a danger to the community. Id. at 1122. Mr. Castro-Inzunza, by contrast, has no criminal history other than the 1990 conviction, no history of drug abuse, no history of transience. He has deep family ties, solid employment history, and certainly never has acted as a getaway driver and he does not face a potential sentence of 132 months. Nothing about this Court’s analysis in Gebro is relevant to the instant case.

The unarmed bank robbery defendant in Winsor challenged the government’s right to proceed by proffered information at the detention hearing. 785 F. 2d at 756. This Court affirmed the district court’s holding that the government could proceed by way of proffer only. Id. at 757. It also affirmed the district court’s conclusion that the defendant posed a serious risk of flight within the meaning of the Bail Reform Act, based on the crime charged, the defendant’s transience, his lack of ties to the community (by implication, to any community), and his status as a probationer or parolee in another jurisdiction at the time of crime alleged. Id. It was not a case where the court was addressing any risk of non-appearance beyond the defendant’s control. Nevertheless, the government argues on appeal that Winsor supports its argument, and, remarkably, that Mr. Castro’s circumstances are even less compatible with release than were the circumstances of the defendant in Winsor. Response at 15. The facts do not support that assertion. Mr. Castro-Inzunza: (1) has deep ties to his home community, amply demonstrated and commented on by both judicial officers who reviewed the case; (2) was not on probation or parole for any offense at the time he was cited for trespassing; (3) has no criminal history other than the 1990 conviction in Nevada; and (4) is not facing trial or sentencing for a serious crime of violence. Winsor is utterly inapposite.

For the reasons described in his Memorandum in Support and in this Reply, Mr. Castro-Inzunza respectfully requests that this Court reverse the order of the district court revoking the release order of May 14, 2012, and remand with instructions to reinstate that release order forthwith. Respectfully submitted on July 11, 2012. /s/ Francesca Freccero Francesca Freccero Attorney for Defendant-Appellant


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