Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Moore

United States District Court, D. Nevada

August 26, 2019

UNITED STATES OF AMERICA, Plaintiffs,
v.
DEQUANE MOORE, Defendants.

          ORDER

         Presently before the court is defendant Dequane Moore's[1] (“defendant”) motion for review of Magistrate Judge Ferenbach's detention order. (ECF No. 17). The United States of America (the “government”) did not file a response, and the time to do so has passed. On August 26, 2019, defendant filed a notice of non-opposition. (ECF No. 20).

         I. Facts

         Defendant is charged with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (ECF No. 1). In 2014, defendant was convicted of attempted possession of a controlled substance with intent to sell, a felony offense. Id. On June 26, 2019, law enforcement conducted a traffic stop and found defendant in possession of a Taurus G2C, 9mm handgun with an altered and obliterated serial number. (ECF Nos. 1, 16 at 11-12). Defendant was indicted on July 16, 2019, and an arrest warrant was issued. (ECF Nos. 1, 4).

         On July 25, 2019, defendant was arrested by a Las Vegas Metropolitan Police Department officer and turned over to federal custody. (ECF Nos. 12, 17 at 4). The next day, defendant appeared before Magistrate Judge Ferenbach and was detained pending trial. (ECF Nos. 15, 16). Defendant now seeks review of Judge Ferenbach's detention order. (ECF No. 17).

         II. Legal Standard

         This court's review of a magistrate judge's detention order is governed by Local Rule, Part IB, 3-5, which provides, in pertinent part:

Any party seeking review of a release or detention order by a district judge must, within 14 days from the date of service of the release or detention order, file and serve a motion for review. . . The district judge must conduct a de novo review, and it may, but need not, hold an evidentiary hearing to make this determination.

LR IB 3-5. The court's de novo review “is to be conducted without deference to the magistrate's factual findings.” United States v. Koenig, 912 F.2d 1190, 1192 (9th Cir. 1990). The court may hold an evidentiary hearing to “explore and redetermine factual issues if that proves necessary.” Id.

         However, “the district court is not required to start over in every case, and proceed as if the magistrate's decision and findings did not exist.” Id. at 1193. “The point is that the district court is to make its own ‘de novo' determination of facts, whether different from or an adoption of the findings of the magistrate.” Id.

         III. Discussion

         Local Criminal Rule 47-3 provides that “[t]he failure of an opposing party to include points and authorities in response to any motion constitutes a consent to granting the motion.” LCR 47-3. In this case, the government has failed to file a response to defendant's motion and therefore consents to the granting of defendant's motion. The court nevertheless conducts a de novo review of Judge Ferenbach's determination “that no condition or combination of conditions will reasonably assure the appearance of the defendant as required.” (ECF No. 16 at 17).

         Judge Ferenbach noted on the record that “[t]his [case] is a really close one.” Id. at 15. The court agrees. As an initial matter, the court notes that Judge Ferenbach found “by a preponderance of the evidence that no condition or combination of conditions will reasonably assure the appearance of the defendant as required”; he did not determine by clear and convincing evidence that defendant poses a danger to the community. Id.; see also United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991) (“On a motion for pretrial detention, the government bears the burden of showing by a preponderance of the evidence that the defendant poses a flight risk, and by clear and convincing evidence that the defendant poses a danger to the community.”). Considering this is a close case, the court-like Judge Ferenbach-does not find clear and convincing evidence that defendant is a danger to the community.

         Thus, this court considers whether the government showed, by a preponderance of the evidence, that defendant is a flight risk. Importantly, “doubts regarding the propriety of release should be resolved in the defendant's favor.” Gebro, 948 F.2d at 1121 (citing United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir.1985)). Consequently, the court will, when possible, release a defendant “subject to the least restrictive further condition, or combination of conditions, that [the court] determines will reasonably assure the appearance of the person as required . . . .” 18 U.S.C. § 3142(c)(1)(B).

         This is, indeed, a close case. Defendant concedes his record includes “a prior history of drugs and weapons, failures to appear in some traffic cases, two probation violations, and a current warrant from Georgia.” (ECF No. 17 at 7). Regarding defendant's prior history of drugs and guns, defense counsel indicated that none of defendant's prior convictions constituted a crime of violence. (ECF No. 16 at 12). Indeed, his first felony offense was attempted possession ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.