The opinion of the court was delivered by: William M. Skretny United States District Judge
1. On May 31, 2005, a federal Grand Jury in the Western District of New York charged Defendant John J. Mikula in a two-count Indictment with knowingly being an unlawful user of marijuana in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2), and with knowingly, intentionally, and unlawfully possessing marijuana in violation of 21 U.S.C. § 844(a).
2. Following his arraignment on June 8, 2005, Defendant, who was then incarcerated on state criminal charges, conceded detention, but reserved the right to move for release at a later date. After being remanded to primary federal custody in October 2005, Defendant moved for release on bond and a hearing was held before United States Magistrate Judge H. Kenneth Schroeder, Jr. On October 27, 2005, Judge Schroeder ordered that Defendant undergo a psychiatric examination. A Forensic Mental Health Evaluation was completed and submitted to Judge Schroeder on February 21, 2006.
3. By written order filed on March 13, 2006, Judge Schroeder concluded that Defendant constituted a danger to members of the community and should be detained pending trial. Approximately six months later, Defendant moved for reconsideration of the detention Order. On September 26, 2006, after hearing argument, Judge Schroeder orally granted Defendant's Motion and ordered him released subject to certain conditions.
Currently before this Court is the Government's Motion to Revoke Judge Schroeder's Release Order pursuant to 18 U.S.C. § 3145(a).*fn1
4. Section 3145(a) provides the mechanism by which the Government may seek review of a magistrate judge's release order by a district judge. See United States v. Harrison, 396 F.3d 1280, 1281 (2d Cir. 2005) (per curiam). A district court's review of a magistrate judge's order is de novo. See United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985); United States v. Goba, 240 F. Supp. 2d 242, 245 (W.D.N.Y. 2003).
5. Under the Bail Reform Act, 18 U.S.C. §§ 3141, et seq., pretrial detention is available only pursuant to Section 3142(e). See 18 U.S.C. § 3142(a)(4); United States v. Dillard, 214 F.3d 88, 90-91 (2d Cir. 2000). That subsection expressly authorizes the pretrial detention of a defendant upon a judicial finding 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).
6. The Government may move for detention in cases that involve certain categories of crimes which are enumerated in 18 U.S.C. § 3142(f). A recent amendment to this statute permits detention where a defendant is charged with "any felony that is not otherwise a crime of violence that involves . . . the possession or use of a firearm or destructive device." 18 U.S.C. § 3142(f)(1)(E). If a defendant is charged with such a crime, the court must examine the factors set forth in Section 3142(g) to determine whether any condition or combination of conditions set forth in Section 3142(c) will reasonably assure the defendant's appearance and the safety of other persons and the community.
See 18 U.S.C. §§ 3142(c) and (g); see also United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988).
7. In the instant case, Defendant is charged with being an unlawful user of marijuana in possession of a firearm, a felony which involves possession of a firearm. See 18 U.S.C. § 3142(f)(1)(E). Consequently, Defendant is subject to pretrial detention under Section 3142(e) if the Government carries its burden of proving that there are no release conditions that can reasonably assure his appearance and protect the community. See 18 U.S.C. § 3142(f); United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001) (per curiam).
8. In examining the Government's evidence, a court must weigh the following factors to determine if a defendant's pretrial detention is warranted: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence; (3) the defendant's personal circumstances, including family and community ties, criminal history, any indication of drug and alcohol abuse, and whether at the time of the offense or arrest the defendant was on probation, parole, or conditional release; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. See 18 U.S.C. § 3142(g).
9. In considering these factors, the court is not bound by the rules of evidence, and may rely on hearsay evidence. United States v. Ferranti, 66 F.3d 540, 542 (2d Cir.1995); Goba, 240 F. Supp. 2d at 247.To order detention, the court must find that the Government has established a defendant's dangerousness to others and the community by clear and convincing evidence.*fn2 See Ferranti, 66 F.3d at 542. The Second Circuit has defined clear and convincing evidence as "something more than a 'preponderance of the evidence' and something less than 'beyond a reasonable doubt;'" in other words, evidence that supports a conclusion of dangerousness "with a high degree of certainty." United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985).
10. This Court has thoroughly reviewed the record in this case and has carefully considered the parties' submissions on this motion, along with the Pretrial Service Recommendation which was updated on October 17, 2006. The following constitute this Court's findings on the relevant factors.
With respect to the first factor, Defendant argues that the offense of unlawful possession of a firearm by a substance abuser is not serious, as evidenced by its treatment under the United States Sentencing Guidelines. This Court does not agree. While the Guidelines assign a relatively low base offense level of 14 for this crime, U.S.S.G. § 2K2.1(a)(6), Defendant nonetheless faces a statutory maximum of ten years if he is convicted. See 18 U.S.C. § 924(a)(2). Moreover, although the facts relating to Defendant's weapons possession standing alone may not definitively support a finding of dangerousness, the circumstances under ...