USA v. Santos

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA , 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CR-26-00035-JD
)
MERLIN ENRIQUE SANTOS, 	)
)
Defendant. 	)
ORDER
United States Magistrate Judge Suzanne Mitchell entered an order releasing
Defendant Merlin Enrique Santos (“Santos”) on bond with conditions of release pending
his criminal jury trial. [Doc. Nos. 17, 18]. The Court stayed the order, [Doc. No. 25],
pending the Government’s Motion to Revoke Magistrate Court’s Order of Release
(“Motion”) [Doc. No. 27], which is now before the Court. Santos filed a Response in
Opposition to Plaintiff’s Motion to Revoke Magistrate Court’s Order of Release. [Doc.
No. 30]. After careful consideration, and for the reasons explained below, the Court
GRANTS the Government’s Motion.
I. 	LEGAL STANDARD
The Court reviews de novo a magistrate judge’s release order. 18 U.S.C.
§ 3145(a). That the district judge performs a “de novo determination” does not mandate
additional or repeat evidentiary hearings. United States v. Raddatz, 447 U.S. 667, 674
(1980). “In our society liberty is the norm, and detention prior to trial or without trial is
the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). And
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so the Bail Reform Act requires the Court to order pretrial release, with or without
conditions, unless it determines “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).
The Government bears the burden of proving risk of flight by a preponderance of
the evidence. United States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003). On danger to
the community, the Government’s burden is clear and convincing evidence. Id.; see also
18 U.S.C. § 3142(f). In making its determination on pretrial release, the Court considers
the four factors articulated in 18 U.S.C. § 3142(g):
(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 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
* * *
(4) the nature and seriousness of the danger to any person or the community
that would be posed by the person’s release.
II. 	DISCUSSION
Santos correctly posits that Congress did not include the charged offense—
8 U.S.C. § 1326—among the offenses subject to a rebuttable presumption of detention
under § 3142(e)(3). [Doc. No. 30 at 2–3]. No presumption of detention applies here, and
the Court proceeds to an individualized assessment of the § 3142(g) factors as they bear
on risk of flight and danger to the community.
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A. 	The Nature and Circumstances of the Offense Charged
Santos is charged with one count of illegal reentry in violation of 8 U.S.C.
§ 1326(a). He has been removed from the United States on two prior occasions and each
time returned without authorization. See [Doc. Nos. 27-4, 27-5].
Santos argues that because Congress excluded § 1326 from the offenses carrying a
presumption of detention, the Court should not treat prior removals as dispositive of
flight risk or allow them to operate as a “de facto presumption of detention.” [Doc. No.
30 at 3]. The Court agrees that no presumption of detention applies and that each case
requires individualized assessment. But that assessment must account for the specific
circumstances of the charged offense. Santos has been ordered removed, has been
removed twice, and has reentered the United States. These facts are relevant to the
Court’s inquiry not because they establish a presumption, but because they constitute
direct evidence of Santos’s demonstrated response to federal removal proceedings.
The Government argues that Santos’s repeated reentries after removal evince a
pattern of defiance and disregard for the authority of the United States. [Doc. No. 27 at
7–8]. Santos responds that removal orders are civil immigration determinations, not an
order by an Article III court, and that noncompliance with the former should not be
treated as equivalent to noncompliance with the latter. [Doc. No. 30 at 3].
The Court is not persuaded by Santos’s distinction. The question under the Bail
Reform Act is whether conditions of release can reasonably assure Santos’s appearance
before this Court. Serial disregard for the lawful orders of one branch of government
probes potential disregard of another. Whether Santos would similarly disregard the
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authority of this Court is precisely the question the Bail Reform Act requires the Court to
assess, and his prior conduct is probative of the answer. 1
Santos also cites data suggesting that undocumented non-citizen defendants
released pretrial have lower rates of failure to appear, technical violations, rearrest, and
revocation than U.S. citizen defendants or documented non-citizen defendants. [Doc. No.
30 at 4–5]. But population level statistics are of limited utility in an individualized
assessment of a particular defendant. The question is whether the totality of the evidence
regarding this defendant supports detention, and that question cannot be answered by
reference to population-level averages. This factor weighs in favor of detention.
B. 	The Weight of the Evidence Against the Defendant
The weight-of-the-evidence factor is relevant to the Court’s inquiry only to the
extent that it “bear[s] on the risk of nonappearance and the risk of harm to the
community.” United States v. Lizardi-Maldonado, 275 F. Supp. 3d 1284, 1292 (D. Utah
2017).
Here the evidence against Santos is strong. He admitted to ICE officers that he is a
citizen of Honduras, that he had been previously deported, and that he reentered the
United States without permission. [Doc. No. 27-7 at 1–2]. His immigration records, prior
1 The Court is not aware of any precedent limiting its ability to consider
Defendant’s prior illegal reentries as a “circumstance” of the offense. The prior entries
are requisite to the offense itself. Thus, the Court notes that as border enforcement
measures intensify and the consequences of prior removals accumulate, the probability of
successful future reentry diminishes. This dynamic cuts toward flight risk: a defendant
who perceives diminishing prospects of returning to the United States after a third
removal has a correspondingly greater incentive to abscond before that removal occurs.
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removal order and removals, and the absence of any record of lawful admission
corroborate these admissions.
Santos argues in response that his minimal sentencing exposure—a proffered
advisory guideline range of zero to six months—substantially reduces any incentive to
flee. [Doc. No. 30 at 2, 5]. That criminal penalty alone may present a limited incentive to
flee. But the consequences Santos faces are not confined to his criminal sentence, as an
ICE detainer has been lodged. [Doc. No. 27-1 at 1]. Conviction (or acquittal) will be
followed by transfer to ICE custody and, in all likelihood, a third removal from the
United States. The combination of strong evidence and a likely subsequent removal
provides context for the flight-risk assessment that the criminal penalty alone does not
capture. This factor weighs in favor of detention.2
C. 	History and Characteristics of the Defendant
On community connections, defense counsel represents (1) that Santos has lived
with a long-term partner in Oklahoma City since 2019; (2) that the household includes
two U.S.-citizen children, ages 15 and 16, for whom Santos serves as a parental figure;
and (3) that Santos is employed as a roofer. [Doc. No. 30 at 8–9]. Two letters from the
children were submitted describing Santos’s role in their lives, and family photographs
2 To the extent the collateral consequences of conviction are beyond the typical
scope of this factor, the Court nonetheless considers those consequences as part of the
nature and circumstances of the offense. Moreover, the presumption of innocence
continues to apply throughout these proceedings, despite the Court’s evaluation of the
weight of the evidence against Defendant at this stage of the proceedings. See 18 U.S.C.
§ 3142(j).
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corroborate the claimed household structure. [Doc. No. 30-1; Doc. No. 30-2]. 3 On foreign
connections, Santos does not dispute representations that he has ongoing connections to
Honduras as a citizen and property owner. [Doc. No. 27 at 11–12].4 Santos also has
immediate family in Honduras with whom he maintains regular contact. Id. at 11.
Santos’s relevant past conduct includes his use of an alternate identity
commensurate with the fraudulent identification card officers located in his personal
property after arrest. Santos argues his fraudulent Mexican identification card bears no
probative value as to his likelihood to abscond because he “did not present it to agents” or
otherwise “attempt to use it to obstruct the investigation.” [Doc. No. 30 at 10]. Santos
argues that no evidence suggests that “he used this [identification card] to create a clean
or durable alternate identity that could facilitate disappearance” and that he simply used it
for the purpose of “survival during regional migration.” Id. at 10–11.
3 The United States Probation Office (“USPO”) was unable to independently
verify Defendant’s address, employment, relationship, or any point of contact in his
claimed household. See [Doc. No. 15 (sealed)]. Defendant’s counsel explained that the
partner’s identifying information was withheld as a strategic decision to protect her from
potential collateral immigration consequences. [Doc. No. 30 at 7–8]. But this decision
still presents a practical limitation, as without a verified address the USPO cannot
conduct the home visits and compliance checks on which conditions of release depend.
GPS monitoring does not cure the problem. It cannot substitute for a verified residence,
in-person supervision, and cooperation with probation. Pre-trial supervision is built
around a verified address. The USPO must confirm where a defendant lives, conduct
home visits, assess who else resides there, and evaluate safety and suitability. If a
defendant does not provide a home address, officers cannot verify where he is actually
staying or whether the residence complies with court-ordered conditions, such as no
firearms. See, e.g., [Doc. No. 17 ¶¶ (3), (7)(k), (7)(u)].
4 See also [Doc. No. 15 (sealed)].
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First, the fact that Santos did not present the fraudulent identification card to
agents in hot pursuit has no bearing on whether he would have presented the card had he
felt it advantageous to evading apprehension by law enforcement. Second, there is a
fundamental timing problem with Santos’s “regional migration” argument. Santos does
not dispute that he most recently entered the United States in 2020, yet his admittedly
fraudulent identification card bears an issue year of 2022. This lends the straightforward
inference that he obtained the card after his most recent illegal entry, as presumably a
fraudulent identification card with an issue date in the future has little utility. And even if
such a card were useful, Santos’s reasoning would not explain why he still had the card
on or near his person six years after his most recent entry into the United States.
Individuals keep items on their person presumably because they intend to use those items.
The record also reflects a pattern of evading law enforcement. In the 2018
domestic incident, Santos fled before police arrived, monitored their presence from a
distance, and refused to return until officers departed. [Doc. No. 27-2 at 1]. Immediately
before the current arrest, Santos ran across interstate traffic to evade law enforcement.
[Doc. No. 27 at 5].
Santos’s community connections in Oklahoma weigh against flight risk. On the
other side of the ledger, Santos has (1) close connections to a foreign country; (2) a
history of using a fictitious alias with a fraudulent identification card; and (3) a history of
evading the police and illegally reentering the United States in contravention of a valid
removal order. These latter facts outweigh Santos’s connections to Oklahoma. His history
and characteristics evince risk of flight.
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D. 	Nature and Seriousness of Danger to the Community
The Government argues that Santos poses a danger to the community on two
theories: (1) his repeated illegal reentries constitute continued criminal conduct “to the
detriment of the community,” and (2) his 2018 domestic violence conviction
demonstrates a risk of physical danger. [Doc. No. 27 at 13]. Santos responds that his
misdemeanor conviction is dated and isolated and that GPS monitoring and reporting
conditions can adequately protect community safety. [Doc. No. 30 at 12–13].
The Court rejects the Government’s first theory. The Tenth Circuit’s broad
construction of community safety in Cook addressed the danger posed by drug
trafficking—unlawful presence is hardly analogous. See United States v. Cook, 880 F.2d
1158, 1161 (10th Cir. 1989). If illegal reentry alone established dangerousness by clear
and convincing evidence, the standard would be meaningless in every § 1326
prosecution.
The domestic violence record, however, carries weight. Santos strangled his
girlfriend during a domestic dispute, restricting her ability to breathe. [Doc. No. 27-2 at
1]. In the lethality assessment, the victim affirmed that Santos had threatened to kill her
and that she believed he was capable of doing so. [Doc. No. 27-3 at 1]. The Government
represents, and Santos does not contest, that this victim is Santos’s current partner—the
person with whom he would reside if released. [Doc. No. 27 at 11]. That the offense
resulted in a misdemeanor disposition does not diminish the severity of the underlying
conduct. GPS monitoring cannot prevent an act of violence against a person in Santos’s
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own household, nor would more restrictive conditions of release, including curfew, home
detention, or home incarceration. This factor weighs toward detention.
III. 	CONCLUSION
The Government has shown by a preponderance of the evidence that Santos’s (1)
repeated reentries after removal, (2) flight from law enforcement, (3) use of a fictitious
identity, and (4) verified foreign ties establish that no condition or combination of
conditions will reasonably assure his appearance. The Government has also shown by
clear and convincing evidence that Santos’s release poses a danger that conditions of
release cannot adequately mitigate.
For these reasons, the Court GRANTS the Motion to Revoke Magistrate Court’s
Order of Release [Doc. No. 27]. Defendant Merlin Enrique Santos is committed to the
custody of the Attorney General or the Attorney General’s designated representative for
confinement in a corrections facility separate, to the extent practicable, from persons
awaiting or serving sentences or being held in custody pending appeal. The Defendant
shall be afforded a reasonable opportunity for private consultation with defense counsel.
On order of a court of the United States or on request of an attorney for the Government,
the person in charge of the corrections facility shall deliver the Defendant to the United
States Marshal for the purpose of an appearance in connection with a court proceeding.
IT IS SO ORDERED this 11th day of February 2026.
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