United States v. Lopez-Camacho

          MEMORANDUM OPINION

          BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

         BEFORE the Court is the Motion to Detain filed herein by the Government. ECF No. 8. The Motion was made on the day of Defendant's initial appearance. ECF No. 5. On that same day, Defendant waived an immediate hearing but requested a later hearing be set on the issue of whether he should be detained without bail pending trial in this matter. A hearing was scheduled for today's date, December 19, 2019.

         1. Procedural Background:

         Defendant was taken into custody on December 5, 2019, by a Special Agent with the Department of Homeland Security in DeQueen, Arkansas. He was charged by Criminal Complaint on December 11, 2019, with violation of 8 U.S.C. § 1326, illegal re-entry into the United States following a prior removal without having obtained the permission of the Attorney General or Secretary of Homeland Security of the United States. ECF No. 1. He appeared for an initial appearance on December 13, 2019. On December 19, 2019, a hearing was held regarding the Government's Motion to Detain.

         2. Factual Background:

         At the hearing on December 19, 2019, HSI Special Agent Jeremy Ridenour testified he arrested Defendant on December 5, 2019, for being illegally in the United States. SA Ridenour encountered Defendant in a convenience store in DeQueen, Arkansas. SA Ridenour was in DeQueen, in part, looking for Defendant. At the time Defendant was taken into custody, he admitted he was a native of Mexico and was illegally present in the United States. While still at the scene of the arrest, SA Ridenour also talked to Defendant's employer, Anthony Worthy, who stated the Defendant had been working for the employer for a period of 15 years. Further, Defendant's wife, Barbara Lopez, also arrived at the scene and stated to SA Ridenour that she was aware of Defendant's illegal status and of his prior deportations from the United States.

         SA Ridenour later checked Defendant's immigration and criminal histories. Defendant had been removed from the United States on three (3) prior occasions. Defendant had a prior arrest and conviction for DWI and public intoxication in DeQueen, Sevier County, Arkansas. SA Ridenour indicated Defendant had numerous other contacts with law enforcement consisting mainly of traffic citations. Finally, SA Ridenour indicated that in 2009, Defendant's wife had filed the appropriate form with the Department of Homeland Security to establish that Defendant was in a “bona fide” relationship with her. The Department approved this form and found there was a “bona fide” relationship between Defendant and Barbara Lopez. Mrs. Lopez is a United States Citizen.

         The Government also introduced copies of an IRS employment form and a Social Security Card. SA Ridenour testified these documents were received from Mr. Worthy at the Special Agent's request for employment documents related to the Defendant. Both documents purported to be for an individual named Pablo Castillo Ramirez.

         Defendant introduced evidence that he and his wife were living in DeQueen, Arkansas. Defendant's stepson, Jorge Chabelo, also testified at the hearing. Mr. Chabelo testified he was 19 years old and that he had known Defendant since he was one (1). He testified Defendant had previously worked for “Pilgram's” and later for Anthony Worthy. He stated Defendant lived in DeQueen with Ms. Lopez and their two (2) minor children.

         3. Applicable Law:

         I first note the charge in this case, a violation of 8 U.S.C. § 1326, illegal re-entry into the United States does not carry the presumption of detention found at 18 U.S.C. § 3142(e). Further, the Court is governed in its decision by the Bail Reform Act (BRA). Specifically, 18 U.S.C. §3142(g) sets out four (4) factors to consider when making the release determination. I will consider each of those factors in turn.

         a. Nature and Circumstance of the Offense: In this case, Defendant is neither charged with a crime of violence nor a drug trafficking crime. The nature of charge here is one of status. This factor weighs in favor or release.

         b. Weight of the Evidence Against the Defendant: At this stage of the proceeding, the weight of the evidence appears to be heavily in favor of a finding of guilt. Defendant's immigration record indicates three (3) prior removals. He has not obtained permission to return to the United States. He admitted to the SA Ridenour he was a citizen of Mexico and was here illegally. Accordingly, this factor weighs in favor of detention.

         c. History and Characteristics of Defendant: Defendant has strong and long ties to the Community. He has lived in DeQueen, Arkansas for approximately 18 years. He is employed and has been for many years. He is married to a citizen of the United States. He has two (2) children who appear to be citizens of the United States. His criminal history is minor. He was convicted of DWI in 2014 and public intoxication in 2016. In neither case ...