USA v. Dilmar Pivaral-Deleon

Filing

UNPUBLISHED OPINION FILED. [17-60084 Affirmed] Judge: EGJ , Judge: JES , Judge: JEG Mandate pull date is 03/29/2017 [17-60084]

Case: 17-60084

Document: 00513902414

Page: 1

Date Filed: 03/08/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit

No. 17-60084
Summary Calendar

FILED
March 8, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DILMAR PIVARAL-DELEON,

Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:17-CR-1-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Dilmar Pivaral-DeLeon pleaded guilty on January
18, 2017, to illegal reentry after having previously been convicted of a felony.
A sentencing hearing is currently scheduled for April 14, 2017. Although he
was initially released after his guilty plea, on January 19, 2017, a warrant was
issued for his arrest, and he was arrested on January 20, 2017. The district

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 17-60084

Document: 00513902414

Page: 2

Date Filed: 03/08/2017

No. 17-60084
court held a detention hearing and ultimately ordered him to be detained.
Pivaral-DeLeon appeal the district court’s detention order.
A defendant who has been convicted “shall . . . be detained” pending
sentencing “unless the judicial officer finds by clear and convincing evidence
that the person is not likely to flee or pose a danger to the safety of any other
person or the community if released.” 18 U.S.C. § 3143(a). Section 3143
creates a presumption against release pending sentencing. See United States
v. Morrison, 833 F.3d 491, 506 (5th Cir. 2016), cert. denied, __S. Ct.__, 2017
WL 670543 (Feb. 21, 2017) (No. 16-7280). Appellate review of the district
court’s denial of release is limited, and the detention order must be sustained
if it is supported by the proceedings in the district court. See United States v.
Cantu-Salinas, 789 F.2d 1145, 1146 (5th Cir. 1986). We review a district
court’s decision regarding release only for abuse of discretion and will not
overturn the district court’s order unless it is clearly erroneous unless it
involves an “error of law that entails statutory interpretation,” in which case
our review is de novo. See United States v. Olis, 450 F.3d 583, 585 (5th Cir.
2006); Cantu-Salinas, 789 F.2d at 1146 & n.1.
Considering both the burden on Pivaral-DeLeon to show by clear and
convincing evidence that he is not likely to flee and our deferential standard of
review, we are reluctant to reverse the district court’s decision. The detention
order is supported by the proceedings in the district court, and we cannot say
that the district court’s finding that Pivaral-DeLeon failed to present clear and
convincing evidence that he is unlikely to flee was an abuse of discretion or
clearly erroneous.
AFFIRMED.

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