United States District Court, D. Arizona
G. Campbell United States District Judge
Indictment in this case charges Defendant Agustin Lopez with
Conspiracy to Possess with Intent to Distribute
Methamphetamine, Possession with Intent to Distribute
Methamphetamine, and Possession of a Firearm in Furtherance
of a Drug Trafficking Offense. Magistrate Judge Eileen
Willett ordered Defendant detained pending trial. Doc. 12.
Defendant now asks the Court to set aside the detention order
and permit him to reside at a drug treatment facility pending
trial. The Court has reviewed the materials filed by the
parties (Docs. 14, 19) and heard oral argument on January 11,
2017. For the following reasons, the Court will deny the
Court reviews Judge Willett's decision de novo. See
United States v. Koenig, 912 F.2d 1190, 1192-93 (9th
Cir. 1990). The Court must “review the evidence before
the magistrate” and any additional evidence submitted
by the parties “and make its own independent
determination whether the magistrate's findings are
correct, with no deference.” Id. at 1193.
Under the Bail Reform Act, Defendant must be detained if the
Court finds that no condition or combination of conditions
will reasonably assure the safety of the community or his
appearance at trial. 18 U.S.C. § 3142(e).
government contends that Defendant should be detained as both
a danger to the community and a flight risk. The government
must prove that Defendant is a danger by clear and convincing
evidence. 18 U.S.C. § 3142(f). It must prove flight risk
by a preponderance of the evidence. See United States v.
Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985).
parties agree that the Bail Reform Act establishes a
rebuttable presumption in this case that no condition or
combination of conditions will reasonably assure the
appearance of Defendant and the safety of the community.
Docs. 14, 19; 18 U.S.C. § 3142(e); United States v.
Hir, 517 F.3d 1081, 1086 (9th Cir. 2008). This statutory
presumption imposes a burden of production on Defendant, but
the burden of persuasion remains with the government.
Id. The presumption does not disappear if it is
rebutted, but instead “‘remains in the case as an
evidentiary finding militating against release, to be weighed
along with other evidence relevant to factors listed in
§ 3142(g).'” Id. (quoting United
States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986)).
notes that he has no prior criminal history of any
significance, that he has been consistently employed, and
that he resided with his common law wife and their two
children (along with her three other children) before his
arrest. Defendant is a citizen of the United States, and his
parents and four siblings live in the Phoenix area. Defendant
seeks drug treatment through placement in a residential
Should Defendant Be Detained as a Danger to the
identifies four general factors to be considered in deciding
whether a defendant should be detained: the nature and
circumstances of the offense charged, the weight of the
evidence against the defendant, the history and
characteristics of the defendant, and the nature and
seriousness of the danger to the community. 18 U.S.C. §
3142(g). Considering these factors, the Court finds that
Defendant does present a significant danger to the community.
made two sales of methamphetamine, in excess of one pound
each, to undercover law enforcement officers. In the first
transaction, Defendant was armed with an assault rifle and
kept it pointed at the undercover officer with his finger on
the trigger. In the second transaction, the assault rifle was
present in the vehicle next to Defendant. Thousands of
dollars were exchanged in each transaction.
scheduled a third drug sale to the undercover officer, but
failed to appear after thinking he saw a police officer near
the transaction site. Defendant attempted to reschedule the
transaction, but was arrested. After his arrest, Defendant
told agents he had planned not to sell drugs to the
undercover officer, but to rob him of the money he brought to
evidence suggests that Defendant was a substantial drug
dealer. The pound-quantities of methamphetamine sold during
the first two transactions have been tested in laboratories
and found to be highly pure. Following Defendant's
arrest, more than two kilograms of marijuana were found in
his house along with 23 cell phones and an assault rifle.
Defendant told the undercover agent during one of the
transactions that the methamphetamine being transferred had
just come from Mexico and was of a very high quality.
Defendant appears to have been trusted with negotiating the
terms of the sales, the locations of the sales, and the
quantities of the drugs. He was not merely a low-level
functionary in the drug trafficking organization. During the
second transaction, Defendant was accompanied by his common
law wife and another Hispanic individual, showing that
Defendant was not acting alone.
evidence thus suggests that Defendant has engaged in
high-level, and highly dangerous, drug trafficking activity.
Selling large quantities of pure methamphetamine promises
harm to thousands of individuals. Bringing an assault rifle
to the sales raises a significant risk of gun violence.
Pointing an assault rifle at another individual in a drug
trafficking transaction creates the same risk. Further
evidence of Defendant's recklessness is found in the fact
that he possessed multi-pound quantities of drugs and an
assault weapon in a house where he lived with five children.
Defendant has a history of substance abuse and mental health
issues. He has received treatment for neither. Defendant also
appears to have lied about his cocaine use upon arrest.
Finally, the presumption established by the ...