United States of America v. Devear L. Lewis

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
July 5, 2023
By the Court:
No. 23-2137
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEVEAR L. LEWIS,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 22-cr-10025
Joe Billy McDade,
Judge.
O R D E R
Devear Lewis appeals from the district court’s order that he must be detained
while awaiting trial. 18 U.S.C. § 3145(c); F ED. R S. A PP . P. 8(a), 9; C IR . R. 9. This is his
second such appeal; we vacated and remanded the district judge’s first pretrial
detention order because the judge did not explain why Lewis’s proposed conditions of
release would not reasonably mitigate any future danger that he posed to the
community. Lewis argues that the judge still did not address whether he poses a risk of
future danger to the community or, if he does, whether that risk could be reasonably
mitigated by release conditions. We agree, so we vacate and remand again.
After Lewis was charged with unlawfully possessing a weapon as a felon, see
18 U.S.C. § 922(g)(1), the government sought his pretrial detention. At the initial
detention hearing, a magistrate judge concluded that Lewis was not a flight risk,
id. § 3142(f)(2)(A), but was a danger to the community, id. § 3142(f)(2)(B). Based on that
assessment alone, the judge ordered Lewis to be detained pending trial. The district
judge then adopted the magistrate judge’s pretrial detention order without elaboration.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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We vacated that decision because the Bail Reform Act requires not only a finding
of dangerousness, but also a finding that no condition, or combination of conditions,
will reasonably assure the safety of the community if the person is released pending
trial. 18 U.S.C. § 3142(e)(1), (f)(2), (g); United States v. Dominguez, 783 F.2d 702, 706–07
(7th Cir. 1986). We remanded for a “fresh look at whether there is any condition or
combination of conditions of release that will reasonably assure the safety of the
community during the pendency of this case.”
On remand, the district judge again ordered that Lewis must be detained. But the
order omits any discussion of release conditions. Instead, it seems to conclude that
pretrial detention is appropriate because Lewis is likely guilty, and Lewis’s charged
conduct (i.e., putting guns in his trunk before driving a shooting victim to a nearby
hospital) posed a danger to the community.
This was erroneous for three reasons. First, although the pretrial detention
decision may incorporate some consideration of the accused’s guilt, a pretrial detention
decision should not effectively prejudge the merits. Dominguez, 783 F.2d at 706–07.
Whether Lewis may ultimately be found guilty of unlawfully possessing a weapon as a
felon is relevant to the pretrial detention decision only to the extent that his charged
conduct demonstrates that he poses a future risk to the community. See United States v.
Warneke, 199 F.3d 906, 908 (7th Cir. 1999) (pretrial detention is based on “risk of flight
and danger, and not on the determination of guilt and punishment”).
Second, the pretrial detention decision must be based on an assessment of the
risk that Lewis poses to the community in the future, not simply the riskiness of his
alleged offense. See Dominguez, 783 F.2d at 706–07; § 3142(g). The detention orders have,
thus far, focused exclusively on the danger posed by Lewis’s charged conduct. But the
orders have not addressed the important question of whether his release would
endanger the community.
Third, dangerousness alone is an insufficient basis for pretrial detention. For if
that danger can be reasonably mitigated by release conditions, then pretrial release is
required. The government must prove by clear and convincing evidence that “no
condition or combination of conditions will reasonably assure … the safety of any other
person and the community.” § 3142(e)(1), (f)(2). That inquiry is forward looking: “A
defendant cannot be detained as dangerous … based on evidence that he has been a
danger in the past, except to the extent that his past conduct suggests the likelihood of
future misconduct.” Dominguez, 783 F.2d at 706–07. Although Lewis proposed various
release conditions, the judge has not addressed them. The judge must consider whether
any of Lewis’s proposed conditions would mitigate concerns about the danger Lewis

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No. 23-2137 Page 3
might pose. § 3142(f); United States v. Wilks, 15 F.4th 842, 848 (7th Cir. 2021) (requiring
an explanation for why the criteria for pretrial release had not been met).
On remand, the judge must consider whether the government has proven that
Lewis’s release would endanger the community. If the answer is yes, then the judge
must also address whether any condition or combination of conditions, such as those
suggested by Lewis, would reasonably mitigate the identified risk of danger. We leave it
to the judge’s sound discretion to decide these questions in the first instance and
whether to do so after another hearing or based on the present record.
Accordingly, IT IS ORDERED that the motion is GRANTED to the extent that the
district court’s pretrial detention order is VACATED, and the case is REMANDED for
further proceedings consistent with this order. This order resolves the appeal, and the
mandate shall issue forthwith.

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