FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        January 4, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff−Appellee,

v.                                                         No. 12-7083
                                                 (D.C. No. 6:12-CR-00081-JHP-1)
KENDRA MARIE ROSS,                                         (E.D. Okla.)

             Defendant−Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, KELLY, and O’BRIEN, Circuit Judges.


      Kendra Marie Ross appeals the district court’s order upholding the magistrate

judge’s order for pretrial detention. Ms. Ross is awaiting trial on charges of felony

child abuse and felony child neglect, both in violation of 18 U.S.C. § 1153 and

Oklahoma statutes. She contends that the magistrate judge and the district court (as

well as the government counsel and her own counsel) mistakenly believed that a


*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
rebuttable presumption of detention applied to this case and ordered her detained on

that basis.

       The government concedes on appeal that no rebuttable presumption applies

here. Ms. Ross neither has a prior conviction for a federal offense described in

18 U.S.C. § 3142(f)(1), which is necessary for the rebuttable presumption under

§ 3142(e)(2) to arise, nor is she charged with any of the offenses described in

§ 3142(e)(3), which is necessary for the rebuttable presumption under that subsection

to arise. Accordingly, the government asks that the district court’s detention order be

reversed and remanded. Based upon our review, we agree with the parties that the

circumstances do not give rise to a rebuttable presumption of detention and that the

district court erroneously relied on that presumption in denying Ms. Ross pretrial

release. Accordingly, we must reverse the district court’s order and remand for

further proceedings.

       Ms. Ross asks that the matter be remanded with directions to the district court

to enter an order setting conditions for release, while the government asks that the

matter be remanded with directions to the district court to hold a new evidentiary

hearing. The district court, however, is in the best position to determine what further

proceedings, if any, are necessary for it to enter either an order of detention or an

order of release with conditions that is based on the relevant statutory factors, see

18 U.S.C. § 3142(g).




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      Accordingly, the district court’s order of continued detention pending trial is

reversed and the matter is remanded for further proceedings consistent with this order

and judgment. Ms. Ross’s motion to expedite this appeal is denied as moot.


                                               Entered for the Court
                                               Per Curiam




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