UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALVIN PETERSON, SR.,

Defendant-Appellant.

No. 99-2080

(D.C. No. CR-98-228-LH)

(D. N.M.)

ORDER AND JUDGMENT*

Before PORFILIO, BALDOCK, and KELLY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Defendant Alvin Peterson, Sr. appeals the district court's denial of his motion for release pending appeal under 18 U.S.C. § 3145(c). We affirm.

Pursuant to § 3143(b)(1), a defendant requesting release pending appeal must be detained unless the court finds that (1) the defendant has established by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of any other person or to the community, and (2) the defendant has established by a preponderance of the evidence that the appeal is not for purpose of delay, the appeal raises a substantial question of law or fact, and if that substantial question is determined favorably to defendant on appeal, the decision is likely to result in reversal, an order for a new trial, a sentence with no term of imprisonment, or a reduced sentence. See United States v. Affleck, 765 F.2d 944, 952-53 (10th Cir. 1985). A defendant's detention is not mandatory if he both meets the conditions of § 3143(b)(1) and clearly shows exceptional reasons why detention is inappropriate. See 18 U.S.C. § 3145(c).

Upon consideration, we determine that defendant has failed to show that he is entitled to the relief sought. Therefore, the judgment of the United States District Court for the District of New Mexico denying release pending appeal is AFFIRMED.

Judge Porfilio would grant release pending appeal.

ENTERED FOR THE COURT

PER CURIAM