UNITED STATES v. PEREZ HERNANDEZ (2025)

ORDER GRANTING DEFENDANT'S MOTION TO REVOKE DETENTION ORDER

The United States charged Defendant Jose Luis Perez-Hernandez with illegal re-entry after deportation in violation of 8 U.S.C. § 1326. Dkt. 1 (“Compl.”). When the Government moved to detain Defendant as a serious risk of flight at his initial appearance, Dkt. 7, the Magistrate Judge ordered him detained as both a serious risk of flight and a danger to the community. Dkt. 14 (“Order of Detention”). Defendant filed a motion to revoke the Magistrate Judge's detention order. Dkt. 35 (“Def.’s Mot.”). For the following reasons, the Court grants Defendant's motion and orders him released on a $25,000 personal appearance bond to be secured by one financially responsible adult relative.

I. BACKGROUND

Mr. Perez-Hernandez is a 40-year-old Mexican citizen who has lived and worked in Southern California for most of his adult life. Def.’s Mot. at 3:25–4:17. He first entered the United States in 1999 at the age of fourteen and, except for brief periods after removal, has largely resided in Orange County for the past twenty-five years. Id. Before his arrest in this case, he lived with his wife and two-year-old child, both of whom are U.S. citizens. Id. at 4:9–12. They do not own any property other than a vehicle, and Mr. Perez-Hernandez's landscaping business brings in about $1,000 per week, most of which goes towards childcare costs. Dkt. 50-1 at 7:8–10. His father and siblings, and much of his extended family, live and work in Orange County. Def.’s Mot. at 4:8–11. He has been an active member of his church community for at least the past thirteen years. Id. at 4:4–7.

During his time in the United States, Mr. Perez-Hernandez sustained three convictions—in 2006, felonies for vehicular manslaughter and a hit and run stemming from the same incident, and seventeen years later, a 2023 misdemeanor DUI—and was removed from this country as a result. Dkt. 1-1 at 2. On July 18, 2025, Mr. Perez-Hernandez attempted to reenter this country and was apprehended by a border patrol agent. Compl. at 2.

When Mr. Perez-Hernandez made his initial appearance on July 21, 2025, the Government moved to detain him “based on serious risk of flight.” Dkt. 49 (“Initial App. Tr.”) at 6:22–24. It argued for Mr. Perez-Hernandez's detention primarily on the basis of his immigration history (i.e., his prior removal and lack of legal status) and his criminal history. Id. at 7:7–16. In response, Mr. Perez-Hernandez proffered that he had particularly strong ties to the community: he had resided in Orange County, California for decades, and had numerous relatives living there, including his U.S. citizen wife and infant son. Id. at 8:09–19. Defense counsel offered a $20,000 personal appearance bond secured by Mr. Perez-Hernandez's wife to mitigate any risk of flight and reasonably assure his appearance. Id. at 8:20–22.

The Magistrate Judge ordered the detention of Mr. Perez-Hernandez, finding that no condition or combination of conditions could reasonably assure his reappearance as required; and no condition or combination of conditions could reasonably assure the safety of the community. Id. at 8:25–9:10; see also Order of Detention. According to the written detention order, which is a standard form that includes a pre-printed checklist of reasons for detention, the Magistrate Judge checked off the following factors: (1) the weight of the evidence against the defendant; (2) his lack of legal status; (3) the fact that he would be subject to removal after incarceration; (4) a history of alcohol or substance abuse; and (5) prior criminal history. Order of Detention at 3.

Mr. Perez-Hernandez appealed his order of detention to the district court, this time offering a $25,000 personal appearance bond secured by his wife to ensure his appearance in court. Def.’s Mot.

II. DISCUSSION

In considering whether detention is appropriate in this case, the Court first examines whether the Government has established one of the narrow preconditions authorizing a detention hearing under the Bail Reform Act—in this case, proving that Mr. Perez-Hernandez poses a serious risk of flight. Because it determines the Government has not met this initial burden, the Court does not reach the second step of holding a detention hearing to determine whether conditions could reasonably assure Mr. Perez-Hernandez's reappearance or the safety of the community.

A. The Two-Step Detention Analysis Required by the Bail Reform Act

Mr. Perez-Hernandez first argues that the Government failed to prove he posed a serious risk of flight—a necessary threshold requirement before the Court can proceed to a detention hearing and continue its consideration of whether detention is appropriate. Dkt. 50 at 3:7–10. To determine whether the Bail Reform Act requires such a two-step process, the Court begins by reviewing the text and structure of the statute.

The Bail Reform Act, which repealed and replaced its 1966 predecessor, balances the societal interest in protecting the integrity of the judicial process while respecting the liberty interests of those accused of federal crimes. See S. Rep. No. 98-225 at 7 (1983) (“the societal interest implicated [by risk of flight or witness intimidation is] the need to protect the integrity of the judicial process”), 8 (“the Committee recognizes a pretrial detention statute may [ ] be constitutionally defective if it fails to provide adequate procedural safeguards or if it does not limit pretrial detention to cases in which it is necessary to serve the societal interests it is designed to protect”). Recognizing the paramount importance of the presumption of innocence in criminal cases, and the significant harms that pretrial detention can impose, Congress specified that a person's release pending trial—on personal recognizance or an unsecured bond—is the default position of the law.¹ See 18 U.S.C. § 3142(b) (“The judicial officer shall order the pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond ․ unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.”) (emphasis added); see also S. Rep. No. 98-225 at 12 (“It is anticipated that [the first two forms of pretrial release, personal recognizance or an unsecured bond], will continue to be appropriate for the majority of federal defendants.”); United States v. Santos-Flores, 794 F.3d 1088, 1090 (9th Cir. 2015) (“Only in rare cases should release be denied, and doubts regarding the propriety of release are to be resolved in favor of the defendant.”) (internal citation omitted); United States v. Stone, 608 F.3d 939, 945 (6th Cir. 2010) (“The default position of the law [ ] is that a defendant should be released pending trial.”).

Congress thus authorized detention hearings—i.e., the opportunity to seek an alternative to the pretrial release default—only in limited circumstances. S. Rep. No. 98-225 at 20 (“Because detention may be ordered ․ only after a detention hearing pursuant to subsection (f), the requisite circumstances for invoking a detention hearing in effect serve to limit the types of cases in which detention may be ordered prior to trial.”); see also United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“The Bail Reform Act carefully limits the circumstances under which detention may be sought to the most serious of crimes.”). The only statutorily authorized grounds for a detention hearing under the Bail Reform Act are when the case involves (1) one of the specific, enumerated crimes that Congress deemed to comprise the greatest risk to community safety, § 3142(f)(1)(A)–(C), (E);² (2) a defendant who has previously been convicted of several of these enumerated crimes, § 3142(f)(D); (3) a serious risk that the defendant will flee, § 3142(f)(2)(A); or (4) a serious risk that the person will obstruct justice or tamper with witnesses or jurors. § 3142(f)(2)(B). Thus, only if one or more of these § 3142(f) factors is present do the court and the parties proceed to a “detention hearing,” i.e., a determination of whether there are conditions that can mitigate the risk of non-appearance in court or the safety of the community under § 3142(g).

The plain text of the statute mandates such a two-step process, requiring the government to first establish the existence of a § 3142(f) factor before seeking detention. § 3142(f) authorizes judicial officers to hold detention hearings “upon motion” of the government or the court and “in a case that involves” one of the enumerated circumstances set forth above such as a specific crime or a serious risk of flight. § 3142(f)(1)–(2). § 3142(e), titled “Detention,” allows a detention “if, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person of the community.” § 3142(e)(1) (emphasis added); see also § 3142(g) (listing “factors to be considered” during detention hearing to determine whether conditions can reasonably assure defendant's appearance and community safety).³ Multiple circuits have held the same. See, e.g., United States v. Ploof, 851 F.2d 7, 11 (1st Cir. 1988) (“Congress did not intend to authorize preventive detention unless the judicial officer first finds that one of the § 3142(f) conditions for holding a detention hearing exists.”); United States v. Friedman, 837 F.2d 48, 50 (2d Cir. 1988) (“After a motion for detention has been filed, the district court must undertake a two-step inquiry. It must first determine by a preponderance of the evidence that the defendant either has been charged with one of the crimes enumerated in Section 3142(f)(1) or that the defendant presents a [serious] risk of flight or obstruction of justice. Once this determination has been made, the court turns to whether any condition or combinations of conditions of release will protect the safety of the community and reasonably assure the defendant's appearance at trial.”) (internal citations omitted); United States v. Himler, 797 F.2d 156, 160 (3d Cir. 1986) (the statute “authoriz[es] detention only upon proof of a likelihood of flight, a threatened obstruction of justice or a danger of recidivism in one or more of the crimes actually specified by the [ ] statute”).

In accord with the above circuits, the Ninth Circuit confirmed in United States v. Twine that the government must, as a threshold requirement, establish the existence of a § 3142(f) factor for an order of detention to be valid. 344 F.3d 987, 987 (9th Cir. 2003). The defendant in that case was charged with being a felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district judge ordered Mr. Twine detained on two alternate bases: first, that he posed a danger to the community on account of his significant criminal history, or alternatively, that his firearm possession constituted a crime of violence under § 3142(f)(1)(A). See United States v. Twine, No. 03-10393 (9th Cir. May 20, 2003) (Excerpt of Record 11-12). The Ninth Circuit reversed, holding that being a felon-in-possession did not qualify as a crime of violence authorizing a detention hearing under § 3142(f)(1)(A). Twine, 344 F.3d at 987. Without a prerequisite (f)(1) or (f)(2) factor, therefore, his detention—even on the basis that he constituted a danger to the community—was simply not authorized under the Bail Reform Act. See id.

By holding that dangerousness alone cannot authorize detention under the Bail Reform Act, the Twine Court confirmed that § 3142(f) is a separate analysis from § 3142(g); and in the absence of a § 3142(f) factor, detention is not authorized, even if the defendant may well pose a danger to the community under § 3142(g). 344 F.3d at 987 (“We are not persuaded that the Bail Reform Act authorizes pretrial detention without bail based solely on a finding of dangerousness. This interpretation of the Act would render meaningless 18 U.S.C. § 3142(f)(1) and (2).”); see also United States v. Byrd, 969 F.2d 106, 109–10 (5th Cir. 1992) (noting that the Bail Reform Act requires the “surprising [ ] conclusion that even after a hearing, detention can be ordered only in certain designated and limited circumstances, irrespective of whether the defendant's release may jeopardize public safety”); Ploof, 851 F.2d at 9 (“To put the matter starkly, even if defendant is indeed a clear danger to the girlfriend's husband․ that does not warrant detention on the present charges. Rather, release can be denied on dangerousness grounds alone only when a person is charged with one of the crimes enumerated in 18 U.S.C. § 3142(f)(1)(A) through (D).”); Himler, 797 F.2d at 159-163.

Thus, only if the government proves the existence of a § 3142(f) factor by a preponderance of the evidence may a court proceed to the second step of the analysis and hold a detention hearing to determine whether there are conditions that can reasonably assure the defendant's reappearance in court or the safety of the community. This two-step process is required by Congressional design to ensure that courts perform an important “gate-keeping function by preventing even the opportunity to seek detention in all but a certain, narrow subset of cases.” United States v. Subil, 2023 WL 3866709, at *4 (W.D. Wash. June 7, 2023) (emphasis in original) (citing United States v. Watkins, 940 F.3d at 158 (2d. Cir. 2019)); S. Rep. No. 98-225 at 20 (“Because detention may be ordered under Section 3142(e) only after a detention hearing pursuant to subsection (f), the requisite circumstances for invoking a detention hearing in effect serve to limit the types of cases in which detention may be ordered prior to trial.”).⁴ But it does not necessarily require courts to conduct two formally separate hearings—i.e., a threshold hearing to determine whether a § 3142(f) factor is present, and then the detention hearing itself—particularly in cases where the government moves for detention and the court proceeds to hold argument on that request on the same day. However, the two steps do require distinct analyses, and can lead to error and impermissible detention when conflated or combined as in Twine.⁵

B. Whether § 3142(f) Grounds for a Detention Hearing Exist

Having determined that the Bail Reform Act requires this two-step analysis, the Court examines whether the Government has met its burden at step one to show that Mr. Perez-Hernandez poses a serious risk of flight. The Government's argument relies primarily on the fact that Mr. Perez-Hernandez “has been living illegally in the United States,” which coupled with his criminal history “demonstrate[s] a repeated and brazen disregard to following immigration orders or abiding by the laws of the community.” Dkt. 39 (“Govt.’s Opp'n”) at 6:21–22, 7:9.

The Government must establish a § 3142(f) factor—here, serious flight risk—by a preponderance of the evidence. See, e.g., Watkins, 940 F.3d at 158 (“the Government must establish by a preponderance of the evidence that it is entitled to a detention hearing”); United States v. Molina-Orantes, No. 25-CR-00079-AN, ––– F.Supp.3d ––––, ––––, 2025 WL 1177654, at *4 (D. Or. Apr. 23, 2025) (“Accordingly, the Government is entitled to a detention hearing ․ only if it can establish by a preponderance of the evidence that the defendant poses a serious risk of flight (or obstruction) under Section 3142(f)(2).”). To meet this burden, the Government “must present concrete information” specific to the defendant, not “mere conclusory allegations,” to demonstrate that they are a serious risk of flight. United States v. Figueroa-Alvarez, 681 F. Supp. 3d 1131, 1138 (D. Idaho 2023) (internal citations and quotation marks omitted); see also United States v. Muñoz-Correa, No. 2:23-cr-00302-CW, 2023 WL 5672203, at *3–4 (D. Utah Sept. 1, 2023) (same).

A serious risk of flight means “a great risk—beyond average—that the defendant will intentionally and actively move within or outside the jurisdiction to avoid court proceedings or supervision.” Figueroa-Alvarez, 681 F. Supp. 3d at 1138; see also United States v. Abrego, 787 F.Supp.3d 830, 854 (M.D. Tenn. 2025) (serious risk of flight “requires something more, some extraordinary potential outcome”); United States v. Cobix-Espinoza, 655 F. Supp. 3d 584, 587–94 (E.D. Ky. 2023) (collecting cases); United States v. Romero-Martinez, 2024 WL 965150 (D. Conn. Mar. 3, 2024). Whether a given noncitizen defendant presents a serious risk of flight will depend on the totality of the circumstances, such as the defendant's ties to the jurisdiction, incentives and ability to flee, reliability, and trustworthiness. Figueroa-Alvarez, 681 F. Supp. 3d at 1140; see also Abrego, 787 F.Supp.3d 830, Molina-Orantes, ––– F.Supp.3d ––––, 2025 WL 1177654; United States v. Pavon-Andino, 2025 WL 446143 (D. Colo. Feb. 10, 2025); United States v. Spirea, 2024 WL 4903759 (D. Or. Nov. 27, 2024).

1. Defendant's Incentives to Flee

The Court starts by considering the Defendant's incentives to flee from the possible consequences of this criminal case. Broadly speaking, a defendant has an incentive to flee if he or she is facing a lengthy prison term and is likely to be convicted. See Figueroa-Alvarez, 681 F. Supp. 3d at 1141 (citing Santos-Flores, 794 F.3d at 1092). Thus, the weight of the evidence against the defendant, along with the likely range of imprisonment should he be convicted, most often inform this analysis.⁶ In cases where significant evidence supports a crime with a lengthy sentence, there would be greater incentives to flee. In this case, however, Mr. Perez-Hernandez faces very low sentencing guidelines for his reentry offense in violation of § 1326(a): a base offense level of 0–6 months with a statutory maximum of two years imprisonment. § 1326(a); U.S.S.G. § 2L1.2. Even if the Government's case against him were so strong that conviction would be virtually guaranteed, the likely sentence does not create a significant incentive to purposefully evade the reach of law enforcement, and certainly not one that is demonstrably and significantly greater than the risk of flight attendant to any federal criminal case.

Consideration of Mr. Perez-Hernandez's background and ties to Orange County further undercuts any notion that he has incentive to flee by leaving the country. See United States v. Townsend, 897 F.2d 989, 995 (9th Cir. 1990) (“When assessing a [noncitizen] defendant's ties to the United States, factors to be considered include how long the defendant has resided in this country, whether defendant has been employed in the United States, whether defendant owns any property in this country, and whether defendant has any relatives who are United States residents or citizens.”). Mr. Perez-Hernandez came to the United States when he was just fourteen years old, which has meant, unsurprisingly, that he has built his whole life—his family, livelihood, and community—here in this country. Def.’s Mot. at 3:23–4:17. His U.S. citizen wife and two-year-old son provide a powerful incentive to stay in this country, even before factoring in the presence of other family members such as his father, brothers, and uncles in Southern California. Id. at 4:9–13; see also Motamedi, 767 F.2d at 1408 (fact that defendant's “immediate family, including his wife, brothers, mother, and father, all reside in the area” was strong factor favoring release despite his Iranian citizenship). His work history here, including the landscaping business that he started, and the church community he has enjoyed for the past thirteen years, create further ties that anchor him to this country. Def.’s Mot. at 4:1–7; see also Figueroa-Alvarez, 681 F. Supp. 3d at 1143 (community ties such as work and church “are anchors to the jurisdiction and the United States”). Although these ties would provide any person with strong incentives to stay in this country, Mr. Perez-Hernandez has demonstrated the strength of his resolve to do so by illegally crossing the border into the United States more than once in order to maintain his life here. Compl. at 2; see also Figueroa-Alvarez, 681 F. Supp. 3d at 1144 (“the very act of illegally reentering the United States ․ demonstrates a firm resolve to reside in this country, especially when done multiple times”); Muñoz-Correa, 2023 WL 5672203, at *3 n.23 (making similar observation). In sum, the relatively light punishment that Mr. Perez-Hernandez faces, and his strong ties to this country—which are bolstered, rather than undermined, by his immigration history—do not provide incentives to flee the country.

2. Defendant's Ability to Flee

Even if Mr. Perez-Hernandez had the incentive to flee, the Court would still need to take into account whether he had the practical ability to do so—either by fleeing the jurisdiction or by simply evading law enforcement within the jurisdiction. In considering whether he has this ability, courts can consider financial and other resources, such as access to fraudulent identity documents to facilitate clandestine travel and ties to people outside of the jurisdiction who could assist with their flight. See Santos-Flores, 794 F.3d at 1092; see also Motamedi, 767 F.2d at 1408. Here, the Government has shown no concrete evidence that Mr. Perez-Hernandez has the financial or logistical resources to enable him to either leave the country or remain on the run for an extended period of time. He does not own significant property, and while he has a landscaping business that generates approximately $1,000 per week, a significant portion of that amount presumably goes towards childcare costs. Def.’s Mot. at 4:1–3; Initial App. Tr. at 6:9–12. The Government has not shown that he has sophisticated knowledge or means—electronic or otherwise—to establish another identity within this country to evade the reach of law enforcement. Nor has it demonstrated that Mr. Perez-Hernandez has family members or friends outside of the United States who could assist with flight to Mexico; given that he has resided in the United States for most of his life, it seems unlikely he would. Accordingly, Mr. Perez-Hernandez does not appear to have the practical ability to flee the jurisdiction or evade law enforcement even if he wished to do so.

3. How Immigration and Criminal History Bear on Defendant's Reliability and Trustworthiness

The Government largely focuses its flight risk argument on Mr. Perez-Hernandez's immigration and criminal history, asserting that his previous violation of removal orders and “disregard for the law,” evince a “clearly demonstrated [ ] inability to abide by Court orders.” Id. at 9:6–7, 12.

As an initial matter, the Court disagrees with the Government's proposition that Mr. Perez-Hernandez's prior unauthorized entries into the country, which were likely driven by his desire to reunite with his family and regain the life he had lived in the United States since he was fourteen, equate to generalized lawlessness and an inability to abide by court orders. Nor is it persuaded by the contention that Mr. Perez-Hernandez's previous willingness to live under the radar undocumented foretells a willingness and ability to abscond prior to trial, because the attendant motivations and consequences are significantly different. If Mr. Perez-Hernandez were to actively flee a federal warrant, the authorities’ information about his family, current and prior residences, employment, and finances would make it extraordinarily difficult for him to resume his regular life here. And in federal criminal case involving a significant bond like this one, disobeying a court order would mean devastating financial loss for his family: a consequence not present for the violation of removal orders. Finally, the Government's assertion that undocumented status—and the violation of immigration laws that such lack of status entails—equates to a higher risk of flight or re-arrest is not borne out in the data. As a general matter, very few undocumented defendants released pretrial ever fail to appear or are re-arrested: around 0.7% nationally, which is significantly lower than the 3.4% rate for U.S. citizens in the same time period.⁷

The Court also disagrees with the contention that Mr. Perez-Hernandez's criminal history shows a serious risk of flight. First, the 2006 convictions for vehicular manslaughter and hit and run, while serious, do not involve fraud, deceit, or other history that would indicate an unusual lack of trustworthiness.⁸ His hit and run offense does involve an element of flight, but the Court gives that conduct less weight because those convictions are nearly two decades old, and Mr. Perez-Hernandez was twenty-one at the time. And the Court does not agree that the single DUI conviction seventeen years later, standing alone, equates to a “history of alcohol or substance abuse.” Govt.’s Opp'n at 8:16. Finally, there is no evidence that Mr. Perez-Hernandez, despite these prior convictions, has ever failed to appear in court or to obey a court order. Therefore, even when combined with his immigration history, his criminal history does not amount to a serious risk of flight.

In sum, Mr. Perez-Hernandez does not have significant incentive to flee, given the low sentence he faces and the compelling ties he has to this country, nor the ability to do so, given his limited financial resources. And neither his immigration nor criminal history demonstrates a fundamental inability to comply with the law, even putting aside the logistical difficulties of evading a federal warrant and the devastating consequence to his family that would result. Therefore, because the government has failed to carry its burden to show the presence of a § 3142(f) factor by a preponderance of the evidence, a detention hearing was not authorized, and danger to the community should not have been considered in this case at all. The Court orders Mr. Perez-Hernandez released on the conditions he proposed: a $25,000 personal appearance bond secured by his wife. The Court believes that these conditions are sufficient to reasonably assure his reappearance at future proceedings.

III. CONCLUSION AND ORDER

For the reasons described above, the Court GRANTS Defendant's motion to revoke the detention order, and ORDERS him released on a $25,000 personal appearance bond to be secured by one financially responsible adult relative.

IT IS SO ORDERED.

FOOTNOTES

1.   This was also the default position in the 1966 Act; any defendant in a federal noncapital case was to be ordered released pretrial under those minimal conditions reasonably required to assure his presence at trial. See 18 U.S.C. §§ 3146(a), 3148 (1966) (repealed 1984), https://www.congress.gov/89/statute/STATUTE-80/STATUTE-80-Pg214.pdf.

2.   The specifically enumerated types of offenses are: (A) a crime of violence carrying a maximum penalty of ten years or more; (B) an offense carrying a maximum penalty of life imprisonment or death; (C) a federal drug offense carrying a penalty of ten years or more; (D) any felony following convictions for two or more of the above three types of offenses, two or more comparable state or local offenses, or a combination of such offenses; or (E) any other felony that involves a minor victim, possession or use of a firearm, destructive device, or other dangerous weapon, or failure to follow the federal sex offender registration statute. § 3142(f)(1). An illegal re-entry offense does not fall into any of these categories except § 3142(f)(1)(D), which does not apply to Mr. Perez-Hernandez in this case because he has no scoring felony convictions.

3.   Notably, the language of “reasonable assurance” of reappearance in court is nowhere to be found in the enumerated § 3142(f) factors. Instead, § 3142(f)(2) authorizes a detention hearing in a case that involves “a serious risk that such person will flee,” or a serious risk of obstruction of justice or witness intimidation. §§ 3142(f)(2)(A), (B). And later in § 3142(f), when describing the procedures and evidentiary standards for detention hearings, Congress again clearly stated that the main inquiry is “whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community.” This language is plainly distinct from “a serious risk that such person will flee,” § 3142(f)(2)(A), and further supports the conclusion that the Bail Reform Act mandates a two-step process before a person can be detained, and that different standards govern each step.

4.   It is only because of these carefully proscribed circumstances for seeking detention that the Bail Reform Act withstood a facial due process challenge in Salerno, given the weighty liberty interests of individuals who have not even had a criminal trial or conviction. See 481 U.S. at 747, 107 S.Ct. 2095 (citing § 3142(f)) (explaining that pretrial detention under the Bail Reform Act “is not [constitutionally] excessive in relation to the regulatory goal Congress sought to achieve,” because the “Act carefully limits the circumstances under which detention may be sought to the most serious of crimes”).

5.   While the two-step process does not necessarily mandate separate hearings in every case, it may require two separate hearings under certain circumstances. For example, when the government moves for detention at an initial appearance but seeks a continuance of the detention hearing, the Bail Reform Act would first require a proper § 3142(f) basis to hold the detention hearing before detaining the defendant pending the continued hearing. The Act mandates that a detention hearing “shall be held immediately upon the person's first appearance before the judicial officer unless [either side] seeks a continuance” and mandates detention while the continued detention hearing is pending. § 3142(f)(2)(B). While the statute explicitly allows for the continuance of the detention hearing, there are no provisions that allow the government to defer showing § 3142(f) grounds for a detention hearing in the first place, let alone detain an individual without such a showing. Even § 3142(d)(2), which permits temporary detention for the purposes of revocation of probation or parole, or for deportation, first requires a showing that “such person may flee or pose a danger to any other person or the community.”

6.   The weight of the evidence “may be considered only in terms of the likelihood that the person will fail to appear.” United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985). In the § 3142(g) context, this factor has been noted to be the “least important of the various factors” to be considered. Id. (citing United States v. Honeyman, 470 F.2d 473, 474 (9th Cir. 1972)).

7.   George E. Browne & Suzanne M. Strong, Pretrial Release and Misconduct in Federal District Courts, Fiscal Years 2011–2018, Bureau of Just. Stat. at 1 (Mar. 2022), https://bjs.ojp.gov/content/pub/pdf/prmfdcfy1118.pdf [https://perma.cc/C7CP-LYAN] (analyzing 8 years of release rate statistics published by the Administrative Office of the U.S. Courts); see also Table H-15 (2022), Pretrial Services Violations Summary Report, Admin. Office of the U.S. Courts, https://www.uscourts.gov/sites/default/files/data_tables/jb_h15_0930.2022.pdf.

8.   While these convictions have some bearing on whether Mr. Perez-Hernandez is a danger to the community, they do not enter step one of the analysis, which focuses on whether a § 3142(f) factor like serious flight risk is present. See Twine, 344 F.3d at 987 (“We are not persuaded that the Bail Reform Act authorizes pretrial detention without bail based solely on a finding of dangerousness. This interpretation of the Act would render meaningless 18 U.S.C. § 3142(f)(1) and (2).”)

Jinsook Ohta, United States District Judge