United States of America, Plaintiff-appellee, v. Leandro Rubalcava; Sergio Rubalcava, Defendants-appellants, 92 F.3d 1186 (6th Cir. 1996)

ORDER

The defendants, Leandro Rubalcava and Sergio Rubalcava, are charged with conspiracy to distribute marijuana and possession of the same with intent to distribute in violation of 21 U.S.C. § 841(a) (1). They have appealed from the district court's order of detention entered June 12, 1996. The appellants' and appellee's brief address only the propriety of the detention of Leandro Rubalcava, and we consider only those arguments herein. Oral argument has been waived.

At the preliminary hearing, the magistrate found that probable cause existed that the defendant had committed the crime as charged. Release or detention pending trial is governed by 18 U.S.C. § 3142, which directs that an order of detention shall issue if the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the defendant and the safety of any other person and the community. In the case of a defendant charged with an offense for which a maximum term of ten years or more is prescribed in the Controlled Substances Act, 21 U.S.C. § 801, et seq., it shall be presumed, subject to rebuttal by the defendant, that there are no conditions which will reasonably assure appearance or safety. 18 U.S.C. § 3142(e). The offense charged, violation of 21 U.S.C. § 846, is one for which a maximum sentence of more than ten years may be prescribed and this presumption is thus applicable. Both the magistrate and the district court judge concluded that the defendant had not rebutted the presumption of detention in this case. Specifically, they relied upon the serious nature of the crime charged, the defendant's past record, and the fact that a conviction would likely lead to deportation proceedings. A finding of fact in support of pretrial detention shall not be disturbed on appeal unless clearly erroneous. United States v. Hazime, 762 F.2d 34 (6th Cir. 1985). The defendant's brief does not establish any error in the district court's findings.

Therefore, the district court's order of detention of June 12, 1996, is AFFIRMED.