NOT RECOMMENDED FOR PUBLICATION
                                File Name: 12a0401n.06

                                           No. 11-2338

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                    Apr 13, 2012
UNITED STATES OF AMERICA,                      )
                                                                             LEONARD GREEN, Clerk
                                               )
       Plaintiff-Appellee,                     )
                                               )
               v.                              )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR THE
CHARLES EARL WATSON,                           )   EASTERN DISTRICT OF MICHIGAN
                                               )
       Defendant-Appellant.                    )
                                               )                   OPINION



Before: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.


       Donald, Circuit Judge. Defendant-Appellant Charles Earl Watson appeals the district court’s

order denying his motion to reopen his detention hearing pursuant to 18 U.S.C. § 3142(f) and its

determination that his due process rights were not violated by his continued detention. For the

following reasons, we affirm.


       I. BACKGROUND


       Charles Earl Watson was arrested on April 20, 2010, and charged with (1) possession with

intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1); (2)

possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1); (3) possession
No. 11-2338


of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and

(4) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).


       After his arrest, Watson made statements to the police claiming possession of drugs and a

bloodied gun seized from the home in which he was staying and indicated that the gun was used in

a potential homicide in Detroit several days prior. Following a hearing on August 10, 2010, a

magistrate judge ordered that Watson be released on bond. The Government appealed the bail

determination to the presiding district court judge. On August 12, 2010, the district court ordered

that Watson be detained pending trial due to the severity of the charges against him, his criminal

history, his possible involvement in a potentially fatal shooting of a third party, an the danger he

posed to the community.


       On December 16, 2010, the district court1 suppressed the items found on Watson’s person

after his arrest, and on January 7, 2011, it suppressed Watson’s post-arrest statements. The district

court did not suppress the gun and drugs seized from the home. In light of the suppressed evidence,

Watson filed his first motion to reopen the detention hearing on January 28, 2011. The district court

denied the motion. On March 14, 2011, the Government filed an interlocutory appeal challenging

the suppression of Watson’s post-arrest statements. On May 27, 2011, Watson filed his second

motion to reopen the detention hearing, but it was also denied. This appeal followed.




       1
         The district court judge that ordered Watson’s detention is not the same district court judge
that suppressed the evidence or that denied Watson’s motions to reopen the detention hearing.

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       II. ANALYSIS


       A. Standard of Review


       Under federal law,“a detention hearing may be reopened” if certain conditions are met. 18

U.S.C. § 3142(f). We have held that the “use of the word ‘may’ as opposed to ‘will,’ for example,

implies that the district court has discretion in determining whether to grant the motion.” Carver v.

Bunch, 

, 453 (6th Cir. 1991) (finding the standard for a motion to dismiss for failure

to respond to be an abuse of discretion standard due to the use of the word “may”); United States v.

Jamal, 246 F. App’x 351, 369 (6th Cir. 2007) (finding that the decision to transfer venue was in the

discretion of the district court by virtue of the word “may” in the Federal Rules of Criminal

Procedure). Thus, we review the denial of a motion to reopen a detention hearing for abuse of

discretion.


       B. Motion to Reopen Detention Hearing


       A detention hearing may be reopened if 1) new information exists that was unknown to the

movant at the time of the hearing; and 2) the new information has a material bearing on the issue of

whether there are conditions of release that will reasonably assure a defendant’s appearance at trial

and the safety of any other person in the community. 18 U.S.C. § 3142(f)(2)(B). In other words, the



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No. 11-2338


new information must be of a nature that would increase the likelihood that the defendant will appear

at trial and would show that the defendant is less likely to pose a danger to the community.


        Watson asserts that the first prong of §3142(f)(2)(B) is satisfied in two respects. Watson first

contends that the district court failed to address the basis for his original detention. He maintains

that the district court should have taken into account the fact that the homicide investigation

involving Watson, which was part of the district court’s basis for finding him dangerous, has not

produced any evidence linking him to that crime. This information is not new. Watson has

consistently argued that the use of the homicide investigation as a basis for detention was improper,

and defense counsel even stated at the bond hearing that it was “not clear that the defendant was in

any way involved” with the homicide. Thus, the failure of this investigation to produce evidence

against him was certainly not unknown to Watson at the time of his original detention hearing, and

Watson cannot claim this was new information sufficient to satisfy the first prong.


       Next, Watson argues that the district court’s suppression of evidence and statements is new

information that serves as a basis to reopen the detention hearing. Watson cites to United States v.

Peralta, 

(D.C. Cir. 1988), and United States v. Shareef, 

(D. Kan.

1995), for the proposition that suppression of evidence provides a basis to reopen the bond

determination. In Peralta, the district court reopened the detention hearing after ruling against the

defendant on his motion to suppress drugs and cash found on his 

. The court

reasoned that the adverse ruling may make Peralta more inclined to flee and that repeated cocaine

possession or sale had a material bearing on the safety of another person or the community as a

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whole. 

that the inverse of Peralta applies: the district court’s grant of his motions

to suppress makes him less likely to flee and diminishes the evidence against him. The district court

found that while the suppressed evidence works in Watson’s favor, suppression of evidence is not

a basis to reopen a detention hearing. The district court did not abuse its discretion in making such

a finding.


       Shareef is distinguishable by virtue of the fact that all of the evidence in the case against that

defendant was 

. Only Watson’s post-arrest statements and the

items found on his person were suppressed. The evidence seized from the home Watson was staying

in was not suppressed. Thus, there was still admissible evidence on which the district court could

determine that Watson remained a danger to the community.


       Moreover, Watson cites Shareef as providing a “basis to reopen.” While a basis to reopen

arguably exists, attention must again be turned to the use of the word “may.” See 

all the evidence in the case is information that may form the basis upon which a detention hearing

may be reopened) (citing 

) (emphasis added). As previously mentioned, use

of the word “may” indicates discretion on the part of the district court. Thus, there is no requirement

to reopen a detention hearing on the basis of suppressed evidence.


       Watson’s insistence that the district court should have looked to factors in addition to§

3142(f)’s requirement of new information material to his appearance in court or the safety of the

community is improperly argued in an appeal from a motion to reopen a detention hearing. As the


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No. 11-2338


Government correctly states, this is not an appeal from the initial detention order, where those

arguments would have been more appropriate. See United States v. Hazime, 

(6th Cir.

1985).


         Given the foregoing, the district court did not abuse its discretion in denying Watson’s

motion to reopen his detention hearing.


         C. Due Process


         We next consider whether Watson’s continued pretrial detention violates the Due Process

Clause. Pretrial detention violates the Fifth Amendment when it amounts to “punishment of the

detainee.” Bell v. Wolfish, 

, 535 (1979). “Liberty is the norm, and detention prior to

trial or without trial is the carefully limited exception,” United States v. Salerno, 

, 755

(1987). “A government’s regulatory interest in community safety can, in appropriate circumstances,

outweigh an individual’s liberty interest.” 

          Whether a pretrial detention is

unconstitutionally excessive is determined on a case-by-case basis. United States v. Orena, 

, 630 (2d Cir. 1993). The district court’s factual determinations are reviewed for clear error,

while the ultimate determination of whether due process has been violated is reviewed de novo.

United States v. El-Hage, 

, 79 (2d Cir. 2000).


         While this Court has not specifically addressed this issue, we find the Second Circuit’s case

law on the subject to be particularly instructive. The Second Circuit has identified four factors to

be considered in determining if the pretrial detention is unconstitutionally excessive: (1) the length

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No. 11-2338


of the detention; (2) the extent of the prosecution’s responsibility for the delay of the trial; (3) the

gravity of the charges; and (4) the strength of the evidence upon which the detention was based. See

of pretrial detention is not dispositive, and will, by itself, rarely offend due

process. 

(quoting United States v. Millan, 

, 1044 (2d Cir. 1993). Watson has

been detained awaiting trial since his arrest on April 20, 2010. Courts have found lesser periods of

detention to be a violation of due process, United States v. Melendez-Carrion, 

, 1004

(2d Cir. 1986) (finding detention for eight months without bail on the grounds of dangerousness

violated due process), but they have also found lengthier periods that were not in violation of the

Fifth Amendment. 

(finding that a detention period of 30-33 months did

not violate due process where the prosecution bore little responsibility for the delay, trial preparation

was time-consuming, the case involved complex legal issues, and the charges against the defendant

were grave). Therefore, we must look to the other factors in conjunction with length of detention.


        In addressing the second factor, the prosecution’s responsibility for delay, we recognize that

the Government’s appeal of the district court’s order granting of the motion to suppress Watson’s

post-arrest statements accounted for seven months of Watson’s continued detention. Pursuant to 18

U.S.C. § 3731, the government is required to certify to the district court that an appeal of its order

suppressing evidence issued before a verdict is rendered is not taken for the purposes of delay. Here,

the Government complied with this requirement of § 3731 and filed a timely interlocutory appeal

to this Court. See United States v. Young, 

, 417 (6th Cir. 2011). Further, Watson did

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No. 11-2338


not object to the Government’s request to stay the proceedings pending our ruling on the motion to

suppress, and, therefore, the second factor weighs against Watson.


       Concerning the gravity of the charges, Watson argues that Count I carries a minimum

sentence of five years’ imprisonment and that Count II carries a maximum sentence of five years’

imprisonment. However, Watson has a prior conviction for intent to distribute marijuana and was

serving a two-year term of probation when the was arrested for the instant offense. Under 21 U.S.C.

§ 841(b)(1)(D), “any person [who] commits [] a violation [of this section] after a prior conviction

for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment

of not more than 10 years.”


       While it is still to be determined which statutory guidelines will be used when Watson is

sentenced,2 it is important to note that the district court mistakenly stated the sentencing mandatory

minimums for some of the counts with which Watson was charged.3 But despite the district court’s



       2
          The district court that denied Watson’s motion to reopen the detention hearing that is now
on appeal based its calculation of the statutory sentencing guidelines on the district court’s (the one
that presided over Watson’s detention hearing) conclusion that the Fair Sentencing Act of 2010
(FSA) does not apply in this case. The Supreme Court has granted certiorari. to determine the issue
of whether the FSA applies to sentencings that occurred after its enactment but the conduct occurred
before its enactment. If the FSA is found to apply, Count III will no longer carry a minimum sentence
of life in prison. See 18 U.S.C. § 924 (c)(1)(A)(i).
       3
          The district court’s order denying Watson’s motion to reopen the detention hearing
mistakenly found that Counts II and IV carry a minimum sentence of 10 years and that Count III
carries a minimum sentence of life in prison. Counts II and IV carry a maximum of 10 years and
Count III carries a maximum of life in prison. See 21 U.S.C. § 841(b)(1)(D); 18 U.S.C. § § 922 (g)
and 924 (a)(2); 18 U.S.C. § 924 (c)(1)(A)(i) (emphasis added).

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mistake regarding the sentencing range, the charges against Watson are still very grave and

potentially carry considerable sentences. Moreover, 18 U.S.C. § 3142(e)(3)(A) states that there is

a presumption of detention where an offense prescribed in the Controlled Substances Act carries a

maximum term of 10 years imprisonment. 18 U.S.C. § 3142(e)(3)(A); see also United States v.

Stone, 

, 947 (6th Cir. 2010). As such, the gravity of the charges weighs against Watson

as well.


       Lastly, we must consider the strength of the evidence. As previously mentioned, the district

court’s suppression of evidence and statements weighs in Watson’s favor; however, the issue of

dangerousness still exists based on Watson’s potential connection to the ongoing homicide

investigation.


       Balancing all of the applicable factors, we conclude that Watson’s pretrial detention is not

unconstitutionally excessive and does not violate his due process rights.


       III. CONCLUSION


       The district court’s order denying the defendant’s motion to reopen his detention hearing and

its finding that his prolonged pretrial detention is not excessive in violation of the Fifth Amendment

is AFFIRMED.




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