United States v. Dahda (Los)

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 10, 2020
• Docket: 20-3097
• Status: Unpublished

Opinion

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

FOR THE TENTH CIRCUIT August 10, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-3097 (D.C. No. 2:12-CR-20083-DDC-1) LOS ROVELL DAHDA, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before LUCERO, MATHESON, and McHUGH, Circuit Judges. _________________________________

Proceeding pro se, Los Rovell Dahda appeals the district court’s denial of

release on bail pending his appeal of the sentence imposed on resentencing for

convictions stemming from his participation in a marijuana distribution network. 1

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), we affirm.

Background

As pertinent here, Dahda’s convictions included one count of conspiring to

manufacture, distribute, and possess with intent to distribute 1,000 kilograms or more

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Because Dahda is representing himself, we construe his pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). of marijuana, and to maintain a drug-involved premises, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(vii), 846, and 856, and 18 U.S.C. § 2 (the conspiracy

conviction), and one count of maintaining a drug-involved premises, in violation of

§ 856 (the substantive drug-involved premises conviction). The district court

initially sentenced him to 189, 60, and 40 months’ imprisonment and imposed a fine

of almost $17 million. On direct appeal, Dahda challenged his convictions, the fine,

and the 189-month sentence on the conspiracy conviction. We affirmed the

convictions and the challenged sentence, but we reversed the fine and remanded for

reconsideration of the amount because the amount of the fine exceeded the statutory

maximum. United States v. Dahda, 853 F.3d 1101, 1118 (10th Cir. 2017), aff’d,

138 S. Ct. 1491 (2018) (Dahda I). Dahda’s brother, Roosevelt Dahda, was a

codefendant and in a separate opinion, we affirmed Roosevelt Dahda’s convictions

but remanded for a reassessment of the quantity of marijuana attributable to him and

for resentencing. See United States v. Dahda, 852 F.3d 1282, 1287, 1295, 1298

(10th Cir. 2017), aff’d, 138 S. Ct. 1491 (2018).

On remand, Dahda argued that, in addition to recalculating his fine, the district

court should recalculate the drug quantity attributable to him in light of this court’s

ruling in his brother’s appeal. More specifically, relying on Alleyne v. United States,

2 570 U.S. 99 (2013), 2 and United States v. Ellis, 868 F.3d 1155 (10th Cir. 2017), 3

which was decided shortly after we issued Dahda I, he argued that because the jury

did not make a specific finding on attributable drug quantity on the conspiracy

charge, the court should resentence him on that conviction based on the five-year

statutory maximum applicable to a drug offense involving less than 50 grams of

marijuana, see 21 U.S.C. § 841(b)(1)(D). He also filed a motion for immediate

release from custody under § 3145(c) pending resentencing. Like the motion to

expand the scope of the remand, Dahda’s motion for immediate release relied on

Ellis—he maintained that he should be released because, under Ellis, the maximum

prison sentence the court could impose for the conspiracy count at resentencing was

five years and he had already served almost seven years.

The district court denied the motion for release, concluding that even under the

reasoning in Ellis, a five-year statutory maximum sentence was inapplicable to the

conspiracy conviction because the jury found Dahda guilty of conspiracy to maintain

a drug-involved premises, which, like the substantive drug-involved premises

conviction, carries a statutory maximum penalty of twenty years’ imprisonment

2 In Alleyne, the court held that “any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury” “and found beyond a reasonable doubt.” 570 U.S. at 103. 3 In Ellis, the defendant was convicted on drug conspiracy charges under §§ 841(a)(1), (b)(1)(A), 846, and 851, and the district court imposed a mandatory- minimum life sentence. 868 F.3d at 1160. Based on Alleyne, we held that the sentence violated Ellis’s Sixth Amendment rights because the conspiracy-cocaine amounts were an element of the offense for sentencing purposes and the jury had not made a finding of the amounts individually attributable to him. Ellis, 868 F.3d at 1169-70. 3 regardless of drug quantity, see id. § 856(b). We affirmed the denial of the motion

for release on the alternative basis that the “patently deficient motion” failed to show

that he met the conditions for release in 18 U.S.C. § 3143(a)(1). United States v.

Dahda, No. 19-3099, Order and Judgment at 5 (10th Cir. July. 3, 2019) (Dahda II).

In particular, we noted that Dahda’s motion “offered no evidence supporting [] a

finding” that he was not likely to flee or pose a danger to the community if released,

and that on appeal, he relied only on the evidence presented at his initial detention

hearing despite the fact that the district court had found based on that evidence that

he posed a serious flight risk and that no conditions would reasonably assure the

safety of the community. Id.

On resentencing, the district court sentenced Dahda to 135 months’

imprisonment for the conspiracy and drug-involved premises convictions, and

imposed lesser terms on the remaining counts, all to run concurrently. The court

rejected Dahda’s argument that his sentence on the conspiracy count was capped at

five years under § 841(b)(1)(D). His appeal of that sentence is pending.

After resentencing, Dahda filed a motion in the district court for release

pending appeal. The court denied the motion for reasons discussed more fully below,

and Dahda now seeks review of that order.

Discussion

1. Legal Standards

We review the district court’s ultimate detention decision de novo because it

presents mixed questions of law and fact, but we review the underlying findings of

4 fact for clear error. United States v. Cisneros, 328 F.3d 610, 613 (10th Cir. 2003).

“A finding is clearly erroneous when, although there is evidence to support it, the

reviewing court, on review of the entire record, is left with the definite and firm

conviction that a mistake has been committed.” United States v. Gilgert, 314 F.3d

506, 515 (10th Cir. 2002) (brackets and internal quotation marks omitted).

Because Dahda was convicted of a drug-related offense that carries a

maximum term of imprisonment of ten years or more, he needed to satisfy the

requirements of both 18 U.S.C. § 3143(b)(1) and § 3145(c) to obtain his release

pending appeal. See id. § 3143(b)(2) (detention mandatory for person convicted of

offense in § 3142(f), which includes drug offenses with a maximum term of

imprisonment of ten years or more); § 3145(c) (person otherwise subject to

mandatory detention under § 3143(b)(2) may be ordered released for exceptional

reasons). First, he was required to demonstrate by clear and convincing evidence that

he is “not likely to flee or pose a danger to the safety of any other person or the

community if released,” Id. § 3143(b)(1)(A). He was also required to demonstrate

(1) that “the appeal is not for the purpose of delay and raises a substantial question of

law or fact likely to result in . . . a reduced sentence to a term of imprisonment less

than the total of the time already served plus the expected duration of the appeal

process,” id. § 3143(b)(1)(B)(iv); 4 and (2) that “there are exceptional reasons why

4 Dahda seeks immediate release pending his appeal. We note, however, that the only relief he can obtain under § 3143(b)(1)(B)(iv) is an order terminating his detention “at the expiration of the likely reduced sentence.” 5 [his] detention would not be appropriate,” id. § 3145(c). But when a defendant fails

to meet any one of the requirements of § 3143(b)(1), the inquiry ends and the court

need not address whether § 3145(c) showing has been made.

2. District Court Motion and Order

In support of his motion for release in the district court, Dahda presented

evidence that he would not be a flight risk and, based primarily on his good behavior

while in custody and his disagreement with the factual findings that underpinned the

district court’s initial detention order, he maintained that he would not pose a danger

to the community if released. He further maintained that his appeal presents a

substantial question of law (the Alleyne/Ellis argument) that is likely to result in a

shorter sentence than the amount of time he has already served. And he maintained

that exceptional reasons justify his release pending appeal, including that he risks

overserving his sentence; his appellate counsel was ineffective; he needs to be tested

to determine whether he is a possible match to his sister, who needs a kidney

transplant; and he suffers from an auto-immune disease that increases the risks of

severe illness if he contracts the COVID-19 virus.

The district court rejected Dahda’s arguments and denied his motion. With

respect to the § 3143(b)(1) requirements, the court found that although Dahda

successfully demonstrated that he is not a flight risk, he failed to show by clear and

convincing evidence that he would not pose a danger to the community. The court

explained that, while a “positive factor,” the fact that he “has served several years in

prison with no significant disciplinary incidents” did not “lessen the court’s concern

6 that if released, he poses a serious risk to the safety of the community.” Aplee. Bail

Mem. Br., Attach. B at 6. The court found it significant that early in the charged

conspiracy, Dahda was on supervised release in another case in which he pleaded

guilty to providing false information to acquire a firearm and possession of an

unregistered sawed-off shotgun. Reiterating its finding in the initial detention order,

the court again held that Dahda “poses a serious risk of sophisticated, large-scale

drug trafficking based in part on [his] long-term history of assaultive behavior,

history relating to drug abuse, significant prior criminal record, committing the

charged conduct while on supervised release in this court[,] and an unverified release

plan.” Id. Although the district court could have denied Dahda’s motion based

solely on its dangerousness determination, see § 3145(c), the court also considered

and rejected his other arguments.

3. Arguments on Appeal

Dahda’s arguments on appeal focus primarily on the district court’s findings

that his appeal does not raise a substantial question and that he did not show

exceptional reasons why his detention is inappropriate. But we need not address

those arguments because we agree with the district court’s determination that he did

not meet his burden to show by clear and convincing evidence that he would not pose

a danger to the community if released.

Dahda challenges the district court’s dangerousness determination on two

grounds. First, he downplays the dangerousness of marijuana distribution, claiming

that “marijuana offenses raise fewer concerns than other offenses that carry similar

7 penalties.” Aplt. Bail Memo. Br. at 2. Second, he contends that the district court

denied his motion for release based on what he characterizes as a “dated detention

order” that he contends was based on findings that were “clearly incorrect based on

the record of the case.” Id. at 1 (capitalization omitted). In other words, he disagrees

with the fact findings that underpinned the district court’s initial detention order.

For example, Dahda disputes that he presents a risk of “sophisticated, large-

scale drug trafficking,” id. at 2 (capitalization omitted), noting that “there is nothing

special about using a cell phone” to facilitate drug distribution, id., and that the jury

did not make a finding of drug quantity attributable to him. He also disputes the

district court’s finding that he had a history of assaultive behavior, explaining that he

committed an assault in self-defense when he was a young man and has not

committed any violent offenses since then. He quibbles with the court’s finding that

he had a history of drug abuse, claiming he only “smoked marijuana on two

occasions during his lifetime,” drank alcohol once every few months “but never to

the point of intoxication,” and “never failed or refused a urinalysis while in custody

or on supervision.” Id. at 3 (emphasis omitted). Next, while he offers to “defer to

the court on whether this prior criminal record is significant or not,” id., he points out

that the revised presentence report rated his recidivism risk as low. And finally, he

disagrees with the district court’s finding that he was involved in the conspiracy that

led to his convictions in this case while on supervised release for firearms offenses in

another case, ignoring the fact that, as the district court explained, although the

prosecution’s evidence at trial focused on events that occurred after his supervision

8 in the other case had ended, the jury found him guilty of a conspiracy that began

eight months before he was released from prison and almost three years before his

supervision ended.

As was the case with his motion for release pending resentencing, see

Dahda II, he presented no new evidence in the district court, much less clear and

convincing evidence, that would support a finding that he was not likely to pose a

danger to the community if released, and his arguments on appeal consist primarily

of disputes about the district court’s factual findings in his initial detention order.

But his attacks on those findings do not establish that they are clearly erroneous.

Accepting the district court’s findings of historical fact and based on our de novo

review of the record, we agree with the district court’s determination that Dahda

presents a danger to the community, despite his view that, unlike other drug-related

crimes, marijuana offenses do not pose a threat to society. In any event, there is

ample evidence of his potential dangerousness apart from his involvement with

marijuana distribution, including his previous firearms convictions and other criminal

history.

We affirm the district court’s order denying Dahda’s motion for release

pending appeal.

Entered for the Court Per Curiam