Opinion
No. 08-20809 Summary Calendar.
March 18, 2009.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Chris Flood, Flood Flood, Houston, TX, for Defendants-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:04-CR-326-6.
Before DAVIS, GARZA, and PRADO, Circuit Judges.
Jose Luis Zavala appeals the district court's order denying his motion to revoke his pretrial detention order. Zavala has been in custody since his 2004 arrest. In 2008, we reversed Zavala's jury convictions of two counts of conspiracy to possess with intent to distribute and two counts of possession with intent to distribute five or more kilograms of cocaine. Zavala contends that he is not a flight risk and that his continued detention violates his rights under the Eighth Amendment, the Speedy Trial Act, the Bail Reform Act, and the Due Process Clause.
The district court determined that Zavala did not rebut the 18 U.S.C. § 3142 presumption that no condition or combination of conditions would reasonably ensure Zavala's appearance or the safety of the community if Zavala were released. 18 U.S.C. § 3142(e) (f). Absent an error of law, we will uphold a district court's pre-trial detention order if it is supported by the proceedings below. United States v. Rueben, 974 F.2d 580, 585 (5th Cir. 1992); United States v. Hare, 873 F.2d 796, 798 (5th Cir. 1989).
Zavala has not shown that he rebutted the presumption that he is a flight risk and that his release would present a danger to the community. See § 3142. Zavala did not raise his constitutional arguments in the district court. Further, he has abandoned any argument related to the Speedy Trial Act by failing to brief it adequately. See United States v. Stevens, 487 F.3d 232, 242 n. 1 (5th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 336, 169 L.Ed.2d 236 (2007). His Eighth Amendment argument is foreclosed. See Hare, 873 F.2d at 800. The lack of consideration of Zavala's due process claim will not result in a manifest miscarriage of justice as Zavala had ample opportunity to present the argument to the district court. See United States v. Barrett, 837 F.2d 1341, 1344 n. 2 (5th Cir. 1988) (declining to consider due process argument raised for the first time).
The district court's decision is supported by the proceedings below. See Rueben, 974 F.2d at 586. The pretrial detention order is AFFIRMED.