United States v. Ramirez-Lopez

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 12, 2025
• Docket: 25-3109
• Status: Unpublished

Opinion

Appellate Case: 25-3109 Document: 20 Date Filed: 08/12/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 12, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 25-3109 (D.C. No. 2:25-CR-20046-DDC-1) ANTONIO RAMIREZ-LOPEZ, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, KELLY, and McHUGH, Circuit Judges. _________________________________

The government charged Antonio Ramirez-Lopez with reentry of a previously

removed alien convicted of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a)

and (b)(2), and moved for him to be detained pretrial based on flight risk. A

magistrate judge denied the motion, and ordered Ramirez-Lopez released with

conditions. The government moved to revoke the release decision, and the district

court overruled the magistrate judge, ordering Ramirez-Lopez detained pretrial. He

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 25-3109 Document: 20 Date Filed: 08/12/2025 Page: 2

now appeals the district court’s detention decision. Exercising jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), we reverse and remand for further

proceedings consistent with this order and judgment.

I.

At the detention hearing before the magistrate judge on June 6, 2025, the

government did not argue Ramirez-Lopez was a danger to the community; it sought

pretrial detention based solely on flight risk. See Aplt. Bail App. at 61. The

government asserted Ramirez-Lopez was a flight risk based on his Honduran

citizenship, his failure to appear at his initial immigration hearing in 2001, his

conviction for aggravated identity theft in 2011, and his use of different aliases and

identities. Ramirez-Lopez argued that there were conditions the court could impose

to assure his appearance in these criminal proceedings—giving as examples, “house

arrest, . . . a curfew, [and] . . . GPS monitoring.” Id. at 54.

The magistrate judge recognized the government’s argument and the potential

risk of flight because of Ramirez-Lopez’s use of aliases, the aggravated identity theft

conviction, and the fact he has connections to a foreign country. But the magistrate

judge observed that “[o]n the other hand, this is someone who has had no criminal

history . . . since 2010, 2011[,]” “[h]e has family members and loved ones here[,]”

and “[h]e’s chosen to be here for more than a decade and has stayed out of any legal

trouble during that decade.” Id. at 61. The magistrate judge concluded the

government had not shown that Ramirez-Lopez was a flight risk; instead, she agreed

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with Ramirez-Lopez that the court could monitor him and that he would appear in

court.

In the order setting conditions of release, Ramirez-Lopez was ordered to

submit to supervision as directed by Pretrial Services, surrender his passport, not

travel outside Kansas City, be subject to a curfew, and submit to location monitoring.

The government filed a motion asking the district court to revoke the magistrate

judge’s release decision.

At the hearing before the district court on June 18, Ramirez-Lopez appeared in

the custody of Immigration and Customs Enforcement (ICE). The government

acknowledged he was in ICE custody but argued he was a flight risk “without

consideration of what immigration does or does not do,” and further argued it wasn’t

“asking the court to enter a detention order to prevent ICE from deporting him.”

Aplt. Bail App. at 76. Instead, the government argued for detention “because

[Ramirez-Lopez] is a flight risk on his own right.” Id. The government then rested

on the evidence it had proffered with its motion to revoke the magistrate judge’s

release order. See id. at 77.

Ramirez-Lopez argued that the government had not shown flight risk because

(1) he was in ICE custody; and (2) the conditions imposed by the magistrate judge if

he were released from ICE custody would be adequate to assure his appearance.

Defense counsel then detailed those conditions:

[M]ost importantly he would be required to be on location monitoring. So even if he were to be in a position to flee, he would not have his passport, he would be monitored continually to make sure that the government knew

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where he was. And we believe that the support system that he has available to him would be adequate to prevent any additional risk of flight.

Id. at 78.

The court then questioned defense counsel about Ramirez-Lopez being in ICE

custody. Defense counsel argued:

[H]e’s not a flight risk because he’s in the custody of the government. And the only risk that he would pose, in terms of flight, is the risk if the government themselves choose to remove him. In the event that ICE chooses to release him, he would be released under a very, very stringent set of conditions that would be more than adequate to ensure his future appearance.

Id. at 81-82.

In response to further questioning from the court, defense counsel asserted that the

government had not met its burden to show Ramirez-Lopez is a flight risk. Defense

counsel argued:

The criminal history that he has is all quite dated. His previous convictions are 15 years or more old, and since then he has lived peacefully in the United States. He’s raised a family and they’re here in the courtroom today supporting him. My math may have been a little bit wrong. It looks like 14 years is the last time he had any trouble with law enforcement. So although there is some history of him having issues with law enforcement, that’s not reflective of the person that he is today. He is someone who plays an active role in the [life] of his mother. His children are here today. My understanding is that he has been in the community helping his mother to attend her medical appointments and seek medical care and actively parenting his children and playing a role in the life of his grandchild as well.

Id. at 82-83.

Near the end of the hearing, the court again inquired about Ramirez-Lopez’s

status in ICE custody, asking: “[a]nd so in your view, when this hearing is over, he’s

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going to leave again with the immigration authorities?” Id. at 83. And defense

counsel responded: “He will be in ICE custody unless and until they decide to

release him.” Id.

At the conclusion of the hearing, the district court stated:

I am not persuaded . . . by [the magistrate judge’s] ruling on the detention issue. I’m going to issue an order on this but it . . . will find that he should be detained pending trial in the pending case. I just am going to present that in a written order so my reasons are clear for that. I think given the history that’s recited about this defendant, he presents both as a risk of flight and as a threat to the community and persons in it, and so that’s the ruling you’ll see in the written order.

Id. at 84. The district court then issued a written order on a checkbox form. It ordered

Ramirez-Lopez detained, finding that no condition or combination of conditions would

reasonably assure his appearance as required or the safety of the community.

Ramirez-Lopez now appeals the detention order.

II.

The Bail Reform Act, 18 U.S.C. § 3142, sets out the framework for evaluating

whether pretrial detention is appropriate. In general, persons charged with a crime

are not detained pretrial. See § 3142(b); see also United States v. Salerno, 481 U.S.

739, 755 (1987) (“In our society liberty is the norm, and detention prior to trial or

without trial is the carefully limited exception.”). And “Congress chose not to

exclude removable aliens from consideration for release or detention in criminal

proceedings.” United States v. Ailon-Ailon, 875 F.3d 1334, 1338 (10th Cir. 2017)

(internal quotation marks omitted). “[A]lthough Congress established a rebuttable

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presumption that certain defendants should be detained, it did not include removable

aliens on that list.” Id. (citing § 3142(e)(3)).

Defendants not subject to the presumption of detention, like Ramirez-Lopez,

may only be detained pending trial if a judicial officer finds that “no condition or

combination of conditions will reasonably assure the appearance of the person as

required and the safety of any other person and the community.” § 3142(e)(1). The

government bears the burden of proving risk of flight by a preponderance of the

evidence and dangerousness to any other person or the community by clear and

convincing evidence. United States v. Cisneros, 328 F.3d 610, 616 (10th Cir 2003).

“‘[I]n determining whether there are conditions of release that will reasonably

assure the appearance of the person as required and the safety of any other person

and the community,’ the judicial officer must consider” the four factors in § 3142(g).

Id. at 617 (quoting § 3142(g)). Those factors are: “(1) the nature and circumstances

of the offense charged . . . ; (2) the weight of the evidence against the person; (3) the

history and characteristics of the person . . . ; and (4) the nature and seriousness of

the danger to any person or the community that would be posed by the person’s

release.” Id. (quoting § 3142(g)). A detention “order must ‘include written findings

of fact and a written statement of the reasons for the detention.’” Id.

(quoting § 3142(i)(1)).

III.

We review the district court’s pretrial detention decision de novo. Id. at 613.

But we review the underlying findings of fact for clear error. Id.

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Ramirez-Lopez argues the district court’s detention order should be vacated

because “[t]he district court failed to address mandatory considerations or possible

conditions of release when it detained [him].” Aplt. Bail Memo Br. at 1. We agree

with Ramirez-Lopez that the district court did not provide sufficient reasons to justify

pretrial detention at the hearing or in its detention order because it did not adequately

address the § 3142(g) factors and why no condition or combination of conditions

could assure his appearance and the safety of the community.1

The district court’s detention order is on a checkbox form. The court first

checked a box that states the court finds “[b]y a preponderance of the evidence that

no condition or combination of conditions will reasonably assure the appearance of

defendant as required, i.e., defendant poses a serious flight risk.” Aplt. Bail App. at

68. The court then added the following sentence: “Defendant poses a serious risk of

flight because he is a citizen of Honduras and he has, in the past, failed to appear as

scheduled for [an] immigration and deportation proceeding.” Id. And the court cited

the government’s brief and noted in a parenthetical that the defendant failed to appear

for his immigration court appearance in 2001. Id.

Next, the district court checked a box that states the court finds “[b]y clear and

convincing evidence, that no condition or combination of conditions will reasonably

1 Because we are remanding on Ramirez-Lopez’s first argument, we need not review his alternative argument that the government did not meet its burden to show that he was a flight risk or a danger to the community and that no conditions could mitigate those risks. 7 Appellate Case: 25-3109 Document: 20 Date Filed: 08/12/2025 Page: 8

assure the safety of any other person or the community.” Id. The court added the

following:

In 2010, defendant drove a vehicle at a high rate of speed in flight from a large physical fight. Defendant and the other occupants of his car were known Mara Salvatrucha gang members, and the vehicle driven by defendant included a firearm and fraudulent documents. More specifically, defendant’s billfold included a fabricated social security card, and he obstructed efforts by law enforcement officers, refusing at first to provide his name and then, later, providing a name other than his own.

Id. The court again cited the government’s brief, noting these facts were proffered

without dispute.

On the next page of the checkbox form, there are four sections that align with

the four mandatory factors under § 3142(g). Under the first section, there are six

boxes related to the nature and circumstances of the offense. The district court

checked the first box, which simply states “The offense(s):”—but did not include any

information after the colon identifying the offense or explaining why the offense here

weighed in favor of detention. Aplt. Bail App. at 69.

Under the second section, there is only one box, and the district court did not

check that box, which is next to the following sentence: “The record indicates the

Government has a strong case against defendant.” Id. There is nothing else indicated

on the form in this section.

Under the third section, there are eighteen boxes related to the history and

characteristics of the defendant. The district court checked four of the boxes next to

the following: (1) “Past conduct of the defendant,” adding, “as noted above”;

(2) “Defendant has a significant prior criminal record”; (3) “Defendant has a prior

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record of failing to appear at court proceedings”; and (4) “Defendant is an illegal

alien and is subject to deportation.” Id.

Under the fourth category, there is only one box, and the district court did not

check that box, which is next to the following sentence: “The threat of continued

____________ if defendant were released poses a serious risk of danger to the

community.” Id. The district court did not fill in the blank space in the sentence or

include any other information in this section.

There is a section titled “Legal Discussion,” on the last page of the form. Id.

at 71 (boldface omitted). In that section, the district court discussed our holding in

United States v. Ailon-Ailon, 875 F.3d 1334, 1337 (10th Cir. 2017), that “a risk of

involuntary removal does not establish a serious risk that the defendant will flee and

thus furnish a basis for detention under § 3142(f)(2)(A).” Aplt. Bail App. at 71

(brackets and internal quotation marks omitted). And the court explained that “a

potential for removal plays no role in [its] decision to detain this defendant.” Id.

Although the court stated it “wasn’t persuaded by Ramirez-Lopez’s reliance on

[Ailon-Ailon],” because that case “doesn’t address the situation here,” its order did

not acknowledge the fact that Ramirez-Lopez was already in ICE custody or address

his argument that being in ICE custody meant that he did not pose a flight risk. Id.

And the district court did not discuss the § 3142(g) factors in this section.

Reviewing the district court’s detention order de novo, we find its statement of the

reasons for detention inadequate. Except for § 3142(g)(3)—the history and

characteristics of the defendant—the district court failed to meaningfully address the

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§ 3142(g) factors. And in checking boxes applicable to Ramirez-Lopez’s history and

characteristics, the district court appeared to overstate his prior criminal record,2 and did

not acknowledge any of his favorable characteristics, as the magistrate judge did, see

Aplt. Bail App. at 61 (noting “this is someone who has had no criminal history . . . since

2010, 2011[,]” “[h]e has family members and loved ones here[,]” and “[h]e’s chosen to

be here for more than a decade and has stayed out of any legal trouble during that

decade.”). That may be due in part to the fact that the checkbox form does not include

any checkboxes for factors that would favor release. See id. at 69. But the statute directs

a judicial officer to consider characteristics that would favor release, “including . . . the

person’s character . . . , family ties, employment, length of residence in the community,

[and] community ties . . . .” § 3142(g)(3)(A); see also e.g., Cisneros, 328 F.3d at 618

(discussing “evidence going both ways” concerning the history and characteristics of the

defendant, and noting that the defendant had children she was responsible for and had

complied with the terms of conditional release imposed by the magistrate judge).

The district court did not adequately address the § 3142(g) factors and its

reasons for concluding that no conditions or combination of conditions could assure

Ramirez-Lopez’s appearance in court or the safety of the community. “When a

district court is revoking a magistrate judge’s pretrial release order, as is the case

2 The court checked the box indicating “Defendant has a significant prior criminal record.” Aplt. Bail App. at 69. But the record only establishes one prior criminal conviction for aggravated identity theft, based on possession of a falsified social security card. Id. at 20-21. Ramirez-Lopez pleaded guilty to that charge and was sentenced to two years in prison. Id. at 21. 10 Appellate Case: 25-3109 Document: 20 Date Filed: 08/12/2025 Page: 11

here, it is especially important that the court provide adequate findings and an

explanation for its detention decision.” United States v. Campas, No. 24-4003,

2024 WL 687716, at *4 (10th Cir. Feb. 20, 2024) (unpublished); United States v.

Cortez, 12 F. App’x 708, 711 (10th Cir. 2001) (“[N]either the district court’s

statements at the hearing nor its written order adequately set out its reasons for a

determination that [the defendant] is a danger to the community. The lack of an

explanation is particularly troubling where, as here, the district court reversed the

magistrate judge’s release order without receiving any additional evidence or

listening to substantive oral argument.”).

IV.

We reverse and remand to the district court to issue findings of fact and to

explain the reasoning behind its detention decision or, alternatively, to order

Ramirez-Lopez’s pretrial release subject to appropriate conditions. The mandate

shall issue forthwith.

Entered for the Court

Per Curiam