838 F.2d 889 | 7th Cir. | 1988
UNITED STATES of America, Plaintiff-Appellant,
v.
Armando MANSO-PORTES and Carlos Luis Picon, Defendants-Appellees.
No. 87-2875.
United States Court of Appeals,
Seventh Circuit.
Submitted Dec. 1, 1987.
Decided Dec. 4, 1987.
Opinion Jan. 14, 1988.*
Lawrence E. Rosenthal, Bobbie McGee Gregg, Asst. U.S. Attys., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellant.
Stephen M. Komie, Komie & Associates, Raymond D. Pijon, Chicago, Ill., for defendants-appellees.
Before FLAUM, EASTERBROOK and RIPPLE, Circuit Judges.
PER CURIAM.
Armando Manso-Portes and Carlos Luis Picon have been convicted of distributing cocaine and are awaiting sentencing. The district judge enlarged them on small bonds pending sentencing, and the government has taken this appeal (pending which the district court stayed the release). We reverse the decision. The defendants should remain incarcerated pending imposition of sentence.
The district court essentially concluded that because the defendants appeared for trial while released on bond, they are sure to appear for sentencing. The prosecutor observes that once the defendants have been convicted, their incentive to show up is reduced because there is no longer a possibility of obtaining vindication. What was before a possibility of imprisonment has become a certainty.
The controlling consideration, however, is that 18 U.S.C. Sec. 3143(a) provides that a defendant who has been convicted "shall ... be detained" pending the imposition of sentence unless the court finds that he "is not likely to flee or pose a danger to the safety of any other person or the community if released" (emphasis added). The district court did not consider the statutory presumption that these defendants will "pose a danger to ... the community" if released--a presumption that may be rebutted only by "clear and convincing evidence" under the terms of Sec. 3143(a) itself. Defendants stand convicted of serious drug offenses, and under Sec. 3143 drug offenders are presumed to pose a continuing danger to the community. United States v. Strong, 775 F.2d 504, 506-08 (3d Cir.1985). See also 18 U.S.C. Sec. 3142(f)(1)(C). The defendants have presented no evidence to rebut this presumption; it is perforce not "clear and convincing". Although the district judge said that he thought these defendants were not dangerous, this statement does not reflect consideration of the fact that the continued sale of drugs is itself dangerous; the statute does not limit "danger to ... the community" to the threat of violence. Although we do not hold that it would be impossible for the district court to find the presumption rebutted with respect to these defendants, the court did not do so.
REVERSED.
Pursuant to Circuit Rule 53, this opinion was originally issued as an unpublished order. The government subsequently filed a motion requesting that the order be issued as a published opinion. The motion is hereby granted