UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4192
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN CLIFFORD SIMMS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (CR-05-00001)
Submitted: February 24, 2005 Decided: April 22, 2005
Before WILKINS, Chief Judge, and LUTTIG and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Thomas Jack Bondurant, Jr., Assistant United States Attorney,
Morgan Eugene Scott, Jr., Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John Clifford Simms appeals a decision of the district court
ordering him detained pending trial. We have jurisdiction to
review the district court order pursuant to 28 U.S.C.A. § 1291
(West 1993). See 18 U.S.C.A. § 3145(c) (West 2000). Finding that
the record supports detention pending trial, we affirm.
Under normal circumstances, we review a district court
detention order for clear error. See United States v. Clark, 865
F.2d 1433, 1437 (4th Cir. 1989) (en banc); United States v.
Williams, 753 F.2d 329, 333 (4th Cir. 1985). Here, however, the
form used by the district court in reporting its reasons for
ordering detention recited an incorrect legal standard. The Bail
Reform Act requires that “clear and convincing evidence” support
the district court conclusion that no conditions other than
detention will reasonably assure the safety of any other person and
the community. 18 U.S.C.A. § 3142(f)(2) (West 2000). But the form
used by the district court here indicated that its findings were
based only on the preponderance of the evidence. Accordingly, we
do not afford the usual deference to the district court conclusion
that releasing Simms would pose a threat to the community. See
Consolidation Coal Co. v. Local 1643, 48 F.3d 125, 128 (4th Cir.
1995) (“[T]he clearly erroneous rule does not protect findings made
on the basis of the application of incorrect legal standards.”
(internal quotation marks omitted)).
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Nevertheless, based on the factors set forth in 18 U.S.C.A.
§ 3142(g) (West 2000) and our own review of the facts as found by
the district court, we conclude that the detention order should be
affirmed. The district court found that Simms has a substantial
criminal history that includes convictions for violent crimes and
a track record of retaliating against those who have reported him
to authorities. See 18 U.S.C.A. § 3142(g)(3)(A). Simms also
conceded that the weight of the Government’s evidence against him
in the instant case is considerable. See id. § 3142(g)(2).
However, we instruct the district court to correct the error in the
form it uses to report its findings in future cases.
AFFIRMED
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