United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Defendant Clayton High Wolf, Sr., filed an appeal from a denial of a motion for pretrial release entered by Magistrate Judge Daneta Wollmann. (Docket 41). Following briefing by the parties, the court held a hearing on Friday, October 2, 2015, on defendant’s motion. For the reasons stated below, defendant’s appeal is denied.
Mr. High Wolf seeks review of the magistrate judge’s detention order “pursuant to the provisions of 18 U.S.C. § 3145(b) and (c).” Id. at p. 1. A defendant “ordered detained by a magistrate judge . . . may file, with the court having original jurisdiction over the offense, a motion for . . . amendment of [a detention] order.” 18 U.S.C. § 3145(b). “An appeal from a . . . detention order . . . is governed by the provisions of section 1291 of title 28 and section 3731 of [title 18]. A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person’s detention would not be appropriate.” 18 U.S.C. § 3145(c). Section 3143 is not applicable to Mr. High Wolf’s case as he has not been convicted of any offense. Similarly, 18 U.S.C. § 3731 and 28 U.S.C. § 1291 are not applicable because Mr. High Wolf has not been granted release pending trial.
The district court must conduct a de novo review in determining whether to allow pretrial release pursuant to 18 U.S.C. § 3142. United States v. Maull, 773 F.2d 1479, 1481 (8th Cir. 1985). “To engage in a meaningful de novo review, the district court must have available the options open to the magistrate. The act requires a progression from one choice to the next in a judicial officer’s determination of whether pretrial detention is called for.” Id. at p. 1482 (referencing United States v. Orta, 760 F.2d 887, 890 (8th Cir. 1985) (en banc)). “Only after determining that release upon personal recognizance or an unsecured appearance bond will not reasonably assure appearance or will endanger the safety of others (see 18 U.S.C. § 3142(b)), may the judicial officer then proceed to consider the conditions set out in section 3142(c)(2)(A)-(N). In reviewing the order of the magistrate, the district court must engage in this same analysis.” Id.
The factors to be considered by the court in determining pretrial release include the following:
(1) the nature and circumstances of the offense charged, including whether the offense . . . involves a . . . firearm . .;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including-
(A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the ...