FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 16, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA

                Plaintiff!Appellant,

    v.                                                   No. 10-2093
                                               (D.C. No. 1:09-CR-02983-MCA)
    KEITH MUTTE,                                          (D. N.M.)

                Defendant!Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.


Per Curiam


         The Government appeals the district court’s release of defendant Keith

Mutte, pending sentencing on July 6, 2010, for the crime of assault resulting in

serious bodily injury. Because the district court’s determination was in

accordance with the statutory detention scheme, we affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

      Mr. Mutte, a Native American, assaulted his girlfriend and broke her ankle

on April 6, 2007. He was prosecuted in tribal court for the offense and was

convicted. That conviction was overturned on appeal based on juror bias. In

2008 he entered a plea of guilty to simple assault and received probation. He

remained under tribal supervision through March 2010 and complied with all

conditions of probation.

      In an overlapping proceeding involving the same incident, Mr. Mutte was

indicted in federal court on October 9, 2009, for a violation of 18 U.S.C.

§§ 113(a)(6) and 1153. He was convicted by a jury on March 24, 2010. Because

assault resulting in a serious bodily injury is a crime of violence, the government

moved for his detention pending sentencing, pursuant to 18 U.S.C. § 3143(a).

The district court granted the motion but later released Mr. Mutte with conditions.

The government sought reconsideration of the release, but the district court

denied the request.

      Factual findings underlying the court’s determination were that:

(1) Mr. Mutte is not a flight risk or a danger to any other person or the

community, as shown by his pretrial services report; (2) the dual-prosecution

situation, spanning a period of three years, was unusual and uncommon; (3)

Mr. Mutte had lived within the same community as the victim without incident

during the entire period; and (4) he had been under constant supervision and fully

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compliant with all federal and tribal conditions. Further, the court found that

Mr. Mutte’s criminal act was aberrant in that he had not engaged in any such

conduct since the charged assault. The court concluded that, under the totality of

circumstances, Mr. Mutte had demonstrated exceptional reasons supporting his

release pending sentencing.

                                           II.

       The Mandatory Detention Act of 1990 requires that defendants who are

found guilty of certain categories of offenses must be detained pending

sentencing, with three exceptions. First, a defendant may be released if “the

judicial officer finds there is a substantial likelihood that a motion for acquittal or

new trial will be granted.” 18 U.S.C. § 3143(a)(2)(A)(i). Second, a defendant

may be released if “an attorney for the Government has recommended that no

sentence of imprisonment be imposed on the person.” 

The third exception provides, in pertinent part:

       A person subject to detention pursuant to section 3143(a)(2) . . ., and
       who meets the conditions of release set forth in section 3143(a)(1)
       [unlikely to flee or pose a danger], may be ordered released, under
       appropriate conditions, by the judicial officer, if it is clearly shown
       that there are exceptional reasons why such person’s detention would
       not be appropriate.

      Here, no judicial officer has found a substantial likelihood that a motion for

acquittal or a new trial will be granted. And the government attorney has


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recommended a sentence of imprisonment. Thus, only § 3145(c)’s “exceptional

reasons” exception is relevant to Mr. Mutte’s case.

      “Whether the particular circumstances of a case satisfy a prescribed

statutory standard, such as ‘exceptional reasons,’ presents a mixed question of law

and fact.” United States v. Kinslow, 

, 557 (10th Cir. 1997). “[T]he

district court’s determination” on the demonstration of “an ‘exceptional reason’

justifying . . . release” is given de novo review, while “the district court’s findings

of fact which support that determination” are accepted “unless clearly erroneous.”

                                          III.

      A. Government’s Challenges to the District Court’s Factual Findings

      As a threshold manner, the Government asserts that the district court erred

in finding that Mr. Mutte does not pose a danger to the victim or the community.

The government’s brief reprises the girlfriend’s testimony, points to the

girlfriend’s continued concern for her safety, and refers to an investigator’s

affidavit repeating other women’s allegations of abuse that took place before the

charged assault. It also summarizes a study on the high recidivism rate of

domestic-violence offenders.

      Under the clearly-erroneous standard of review, it does not appear that the

district court committed reversible error with regard to its factual findings.

Although there is room for disagreement about Mr. Mutte’s character and

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propensities, the district court provided adequate justification for its determination

that Mr. Mutte is not a present danger to either the girlfriend or society.

      B. Government’s Challenges to the District Court’s Legal Conclusion

      “[E]xceptional means clearly out of the ordinary, uncommon, or rare.”

United States v. Little, 

, 1211 (8th Cir. 2007) (quotation omitted).

An assessment of reasons proffered as the basis for release pending appeal “a case

by case evaluation.” United States v. DiSomma, 

, 497 (2d Cir. 1991)

(referring to “a unique combination of circumstances giving rise to situations that

are out of the ordinary”). “[A] wide range of factors may bear upon the analysis.”

United States v. Garcia, 

, 1018 (9th Cir. 2003). The district court

has “broad discretion . . to consider all the particular circumstances of the case

before it and draw upon its broad experience with the mainsprings of human

conduct.” 

The question is “whether, due to any truly

unusual factors or combination of factors (bearing in mind the congressional

policy that offenders who have committed crimes of violence should not, except in

exceptional cases, be released . . . ) it would be unreasonable to incarcerate the

defendant” pending appeal. 

      The government asserts that the district court’s legal conclusion on the

exceptional-reason issue is wrong on several counts. But in light of the broad

range of factors eligible for the district court’s consideration, we conclude that the

district court properly analyzed the record and identified “exceptional reasons” as

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contemplated by 18 U.S.C. § 3145(c). Thus, we AFFIRM the district court’s

determination that the otherwise mandatory confinement requirement of 18 U.S.C.

§ 3143(a)(2) does not apply to Mr. Mutte.

      O’Brien, J., concurs in the result.




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