F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 22 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4253
(D.C. No. 1:03-CR-27-ST)
KENNETH CHARLES ROGERS, (D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY , and McCONNELL , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
Kenneth Charles Rogers appeals from an order denying his request to be
released on bail pending trial. We reverse and remand for further proceedings.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
As we explained in an earlier opinion, Rogers has been charged with
violations of 18 U.S.C. § 922(g)(8) (possession of a firearm while subject to a
protection order) and 18 U.S.C. § 922(g)(9) (possession of a firearm following
conviction of a domestic violence offense). See United States v. Rogers,
371 F.3d 1225, 1226 (10th Cir. 2004) (“Rogers I”). After Rogers was arrested,
the district court conducted a detention hearing and found by clear and convincing
evidence that Rogers posed a danger to others. See id. For this reason, and
because we determined in Rogers I that violations of § 922(g)(8) and § 922(g)(9)
constitute crimes of violence for purposes of the Bail Reform Act, see Rogers I,
371 F.3d at 1232, Rogers has been detained continuously since his arrest on
February 14, 2003.
This appeal arises from the denial of Rogers’s most recent motion for
review of the district court’s detention order. The district court denied this
motion on the ground that our opinion in Rogers I precluded it from releasing
Rogers from pre-trial detention. This was error. In Rogers I, we overturned a
legal determination made by the district court that ostensibly prevented Rogers
from being detained; then, having eliminated the only asserted legal obstacle to
Rogers’s detention, we ordered the district court to give effect to its prior factual
finding that detention pending trial was appropriate. See Rogers I, 371 F.3d at
1232. We did not, however, foreclose the court from considering new
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circumstances or new legal arguments that would justify revocation of the
detention order.
Because the district court incorrectly characterized the extent of its
authority, we vacate its order denying Rogers’s motion for review of his detention
status. We remand for the district court to conduct a further hearing on the claim
that denying bail is punitive. Upon remand, the court should exercise its
discretion after considering all relevant factors, including the government’s view
that the appropriate sentence if Rogers is convicted will likely exceed forty
months.
Accordingly, the district court order denying Rogers’s motion for release is
REVERSED and REMANDED for further proceedings consistent with this order
and judgment.
ENTERED FOR THE COURT
PER CURIAM
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