ORDER1

SHERI POLSTER CHAPPELL, District Judge.

This matter comes before the Court on the Defendant, Allan Garcia-Enriquez's Motion to Vacate (Doc. #17) filed on August 6, 2015. The United States of America (Government) filed its Response in Opposition (Doc. #24) on August 21, 2014. The Motion is fully briefed and ripe for the Court's consideration.

BACKGROUND

The Defendant was born in Honduras on July 31, 1981, and is a citizen of that country. The Defendant has resided in the United States since approximately 2001. The Defendant lives with his mother, Olga Enriquez, his step-father, an older brother, and a younger sister in a rental apartment in Bonita Springs, Florida. Defendant's mother is a lawfully permanent resident of the United States and his younger sister is a citizen of the United States. His mother and step-father are gainfully employed but no evidence was presented at the detention hearing that the Defendant is gainfully employed, although Counsel stated that he works construction through friends. The Defendant was deported and removed from the United States on or about September 19, 2008.

Pursuant to the Criminal Complaint issued by the Government on July 27, 2015, the Defendant was arrested and taken into custody on or about July 27, 2014. (Doc. #1). On August 5, 2015, a Grand Jury found probable cause to indict the Defendant on one count of illegal reentry of a deported alien. The Indictment reads in pertinent part:

(Doc. 14). A detention hearing was held before the Honorable United States Magistrate Judge, Mac R. McCoy, on July 30, 2015. Judge McCoy ordered the Defendant detained.

In his decision to detain the Defendant, Judge McCoy found that there were no conditions or combination of conditions of release that would reasonably assure the appearance of the Defendant as required or secure the safety of other persons and the community. As grounds for his determination, Judge McCoy noted that the potential term of imprisonment was substantial and that the substantial amount of imprisonment made the Defendant a risk of flight. Judge McCoy also noted that the Defendant had an extensive criminal record including a history of posing a danger to law enforcement, multiple probation violations and multiple warrants being issued for same.

Judge McCoy found the Defendant lacked financial ties to the community. As grounds, the Court noted that the Defendant is not employed and is not employable based upon his immigration status. Defendant stated that he worked construction jobs offered by friends to earn income. However, no evidence of a stable income was presented to the Court at the detention hearing.

The Defendant's mother offered to serve as a third-party custodian and co-sign a bond to secure Defendant's release. After she made her statements at the detention hearing, Judge McCoy held that she would not be a suitable third-party custodian to ensure the Defendant's appearance at future court proceedings.

The Defendant is also subject to an ICE detention administrative hold.

STANDARD OF REVIEW

When requested, the district court must promptly undertake an evaluation of the propriety of a magistrate judge's pre-trial detention order. U.S. v. Arevalo, 2013 WL 625041, *2 (M.D. Fla. February 19, 2013) (citing U.S. v. King, 849 F.2d 485 (11th Cir.1988)). A district court reviews de novo a magistrate judge's pre-trial release order. U.S. v. Megahed, 519 F.Supp.2d 1236, 1241-1242 (M.D.Fla.2007) (citing U.S. v. Hurtado, 779 F.2d 1467, 1481 (11th Cir.1985)). Review by the district court contemplates an "independent consideration of all facts properly before it," Megahed, 519 F.Supp.2d at 1241 (citing U.S. v. Gaviria, 828 F.2d 667, 670 (11th Cir.1987) (citing Hurtado, 779 F.2d at 1480-81)). If the district court concludes after a careful review the magistrate judge's findings of facts based on both the parties' papers and the evidence presented at the detention hearing, and the magistrate judge correctly applied the law, "[t]he court may then explicitly adopt the magistrate's pre-trial [release] order." U.S. v. King, 849 F.2d 485, 490 (11th Cir.1988). However, if necessary to the resolution of an essential issue of fact, the district court may marshal further evidence by convening a hearing. Megahed, 519 F. Supp.2d at 1242.

The policy underlying the Bail Reform Act "is to permit release under the least restrictive condition compatible with assuring the future appearance of the defendant." U.S. v. Price, 773 F.2d 1526, 1527 (11th Cir.1985) (per curiam). When the United States seeks to detain a criminal defendant pending trial based on his status as a flight risk, it must prove by a preponderance of the evidence that no condition or set of conditions will reasonably assure his presence at trial. U.S. v. Ramos, 2014 WL 1515264, *1 (S.D.Fla. April 7, 2014) (citing U.S. v. Medina, 775 F.2d 1398, 1402 (11th Cir.1985)). By contrast, where the Government seeks to detain a defendant based on a contention that he is a danger to the community, it must show by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of the community. Id.

Pursuant to 18 U.S.C. § 3142(g), there are several factors the Court shall consider in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and secure the safety of the community. Those factors to be considered are:

U.S. v. Alverez-Lopez, WL 2563646, *2-3 (M.D. Fla. June 6, 2014).

DISCUSSION

The Defendant moves the Court to reverse the decision of the Magistrate Judge detaining the Defendant pending trial. The Government argues the Defendant is a risk of flight and a danger to the community as outlined in the Bail Reform Act 18 U.S.C. § 3142. The Court will review the factors to determine the propriety of Judge McCoy's pre-trial detention order.

In this particular instance, the Court will not simply rely on the record before the Magistrate Judge, but will conduct a de novo review of the matter by reviewing the entire docket, the papers filed by the parties, and the transcript of the evidentiary hearing held at 2:00pm on July 30, 2015.

As to the nature and circumstances of the offense charged, the Defendant was indicted on August 5, 2015, on charges of illegal reentry into the United States. The offense is not a crime of violence, a violation of 21 U.S.C. § 951, a Federal crime of terrorism, nor does it involve a minor victim or a controlled substance, firearm, explosive, or destructive device.

Reviewing the factors as they relate to the Defendant, it is clear the Defendant has numerous felony convictions on his record including violent crimes such as assault on a law enforcement officer and aggravated assault with a deadly weapon.2 Although there is not a presumption in this case, specifically pointing to the Defendant's prior criminal offenses, this Court agrees with the Magistrate Judge's determination that the Defendant is a danger to the community.

Defense Counsel argues that the Defendant is not a risk of flight because of the extensive family connections he has to Southwest Florida. The Government argues while the Defendant may not be a risk of flight to leave the area, he is a risk of failing to appear for court proceedings. The Defendant has at least four bench warrants issued by the State Court for failure to appear and three violations of probation. Clearly the Defendant has a history of failing to appear and for violating court ordered conditions attached to his probation. Defendant's prior failures to appear and disregard of probation conditions present a strong indicator to this Court that he would also disobey this Court's orders to appear. Further, the Defendant has no financial ties to the community and given his immigration status he cannot legally obtain work in the United States.

Additionally, the Government noted at the detention hearing that ICE has a detainer in place against the Defendant. (Doc. #22, pp. 14:21-24). Courts have held that an ICE detainer is a factor in considering the issue of detention. U.S. v. Alverez-Lopez, 2014 WL 2563646, *4 (M.D. Fla. June 6, 2014) (citing U.S. v. Al'Sagga, 2014, WL 252035, *3 (S.D. Fla. January 7, 2014) (finding "although not presumptively determinative, the fact that a defendant has an ICE detainer is also factor to consider when evaluating the appropriateness of the pretrial detention)). While an ICE detainer is not the only factor to consider when applying the Bail Reform Act, the Court considers and ICE detainer just as it would any other evidence presented in this case regarding the Defendant's history and characteristics. Thus, the ICE detainer weighs in favor of detaining the Defendant. This Court finds the Defendant is a risk of flight and agrees with the Magistrate Judge's findings on this matter.

CONCLUSION

The Court has considered the briefs of the parties, the Pretrial Services Report, the transcript of the detention hearing, and Judge McCoy's Detention Order. For reasons stated on the record by Judge McCoy, and those enumerated above, the Court finds by a preponderance of the evidence that no condition or combination of conditions will reasonably assure the safety of any other person and the community and assure the Defendant's presence at trial. Thus, the Court finds the Defendant should be detained and the decision of the Magistrate Judge is affirmed.

Accordingly, it is now

ORDERED:

The Defendant Allan Garcia-Enriquez's Motion to Vacate (Doc. 17) is DENIED.

DONE AND ORDERED.