14-1700-cr
United States v. Blanco
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 23rd day of June, two thousand fourteen.
PRESENT: REENA RAGGI,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 14-1700-cr
ANDRES BLANCO,
Defendant-Appellant.*
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APPEARING FOR APPELLANT: BRENDAN WHITE (Mitchell C. Elman, Esq.,
Port Washington, New York, on the brief),
White & White, New York, New York.
APPEARING FOR APPELLEE: DANIEL P. FILOR, Assistant United States
Attorney, for Preet Bharara, United States
Attorney for the Southern District of New York,
New York, New York.
*
The Clerk of Court is directed to amend the official caption as shown above.
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Appeal from an order of the United States District Court for the Southern District of
New York (Lisa Margaret Smith, Magistrate Judge; Nelson S. Román, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order entered on May 22, 2014, is AFFIRMED.
Defendant Andres Blanco appeals from an order denying him bail pending trial on
a charge of conspiracy to possess with intent to distribute 500 grams or more of cocaine in
violation of 21 U.S.C. § 841(b)(1)(B). We review a district court’s bail determination,
including its findings of fact pertaining to risk of flight, danger to the community, and the
adequacy of proposed bail conditions, for clear error. See United States v. English, 629
F.3d 311, 319 (2d Cir. 2011); United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995).
We will not reverse “unless on the entire evidence we are left with the definite and firm
conviction that a mistake has been committed.” United States v. Sabhnani, 493 F.3d 63,
75 (2d Cir. 2007) (internal quotation marks omitted). In applying these standards, we
assume the parties’ familiarity with the facts and record of prior proceedings, which we
reference only as necessary to explain our decision to affirm.
Pretrial detention may be ordered upon a showing 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.” 18 U.S.C. § 3142(e). Factors relevant to this
determination include (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
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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. § 3142(g). Where, as here, a defendant
is charged with a serious drug offense, a rebuttable presumption arises that “no condition or
combination of conditions will reasonably assure” his appearance or “the safety of any
other person and the community.” Id.; see United States v. English, 629 F.3d at 319.
Even with this presumption, however, “the government retains the ultimate burden of
persuasion by clear and convincing evidence that the defendant presents a danger to the
community, and by the lesser standard of a preponderance of the evidence that the
defendant presents a risk of flight.” United States v. English, 629 F.3d at 319 (internal
quotation marks omitted).
Blanco contends that, despite this presumption, the district court could not here find
a risk of flight or danger warranting detention because (1) he demonstrated strong family
ties in the community through his wife, children, and mother, all of whom are United States
citizens; (2) he proffered a substantial bail package, including a $700,000 bond secured by
family residences; and (3) his crime did not involve violence and, in any event, (4) he
agreed to electronic surveillance. Like the district court, we recognize that these factors
warrant careful consideration. See United States v. Mercedes, 254 F.3d 433, 436 (2d Cir.
2001). Nevertheless, we cannot firmly and definitely conclude that the district court erred
in ordering detention in light of other factors demonstrating a risk of flight, notably
(1) Blanco himself is a citizen not of the United States but of Colombia; (2) if convicted of
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the charged conspiracy (on what appears to be strong evidence), Blanco faces a mandatory
minimum prison sentence of five years, a possible maximum sentence of 40 years, and
likely removal from the United States, factors providing him with a strong motive to flee
before trial; (3) although Blanco appears not to have steady lawful employment, at times
relevant to the charged conspiracy, he was driving an expensive sports car registered in his
name, a circumstance raising questions as to financial resources; and (4) Blanco’s criminal
history reveals repeated failures to appear in court, resulting in the issuance of four bench
warrants. On this record, the district court acted well within its discretion in ordering bail
based on the risk of flight. We need not, therefore, consider whether a risk of danger to
the community also supported detention. See generally United States v. Leon, 766 F.2d
77, 81 (2d Cir. 1985) (recognizing that statutory concern is not limited to acts of violence,
but also includes “the harm to society caused by narcotics trafficking”).
Nor did Blanco’s sleep apnea compel release on bail. Blanco raised this chronic
condition only in seeking reconsideration of detention, and he fails to demonstrate that the
district court erred in finding that that it was not a “new” circumstance so as to support
reconsideration. See 18 U.S.C. § 3142(f)(2)(B) (providing that bail hearing may be
reopened if court finds information exists material to issues of risk of flight or danger to
community “that was not known to the movant at the time of the hearing”). Moreover, he
fails to demonstrate clear error in the district court’s finding that Blanco could receive
adequate treatment for sleep apnea at the facility where he was detained.
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We have considered Blanco’s remaining arguments on appeal and conclude that
they are without merit. Accordingly, the district court’s order of pretrial detention is
AFFIRMED.
FOR THE COURT:
CATHERINE O=HAGAN WOLFE, Clerk of Court
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