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Case 1:17-cr-02949-MV Document 306 Filed 02/06/20 Page 7 of 16

hearing, a judicial officer finds that no condition or combination of conditions will reasonably
assure the defendant’s appearance as required and the safety of any other person and the
community. 18 U.S.C. § 3142(e)(1). The government bears the burden of proving flight risk by
a preponderance of the evidence and dangerousness to any other person or the community by clear
and convincing evidence. United States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003). A district
court’s review of a Magistrate Judge’s order of detention is de novo. See Cisneros, 328 F.3d at
616.

Section 3142(e)(2) creates a rebuttable presumption that no condition or combinations of
conditions exist to reasonably assure a defendant’s appearance or the safety of the community
where there is probable cause to believe the defendant violated 18 U.S.C. § 924(c). See 18 U.S.C.
§ 3142(e)(3)(B). As the Tenth Circuit has held:

Once the presumption is invoked, the burden of production shifts to the defendant.
However, the burden of persuasion regarding risk-of-flight and danger to the
community always remains with the government. The defendant’s burden of
production is not heavy, but some evidence must be produced. Even if a
defendant’s burden of production is met, the presumption remains a factor for
consideration by the district court in determining whether to release or detain.

United States v. Stricklin, 932 F.2d 1353, 1354–55 (10th Cir. 1991).

Here, although Mr. Robertson is subject to a presumption of detention due to his § 924(c)
charge, see Doc. 86 at 1–2, the Court finds that he has successfully rebutted the presumption. He
has produced evidence, for example, that he is not a danger to the community nor a flight risk
because he voluntarily turned himself in on the instant offense, despite consistently maintaining
his innocence and knowing the extremely long prison sentence he faced if convicted. Doc. 274 at
5. He has also produced evidence that he will not flee the jurisdiction due to his family’s presence
here. Id. And he has produced evidence that his placement at La Pasada Halfway House is a
condition of release that could reasonably assure his appearance and the safety of the community.

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