Date: Feb 13, 2026

Waiver of Unpreserved § 3142(f) Detention-Hearing Challenges; Detention May Be Affirmed on Proffer and Corroborating Investigation

Introduction

In United States v. Jensen (10th Cir. Feb. 11, 2026) (Order and Judgment), the Tenth Circuit affirmed a District of New Mexico order detaining Maxwell Sterling Jensen pending trial under the Bail Reform Act. Jensen faced two separate federal prosecutions: (1) a Southern District of Texas case alleging illegal crude-oil importation since 2022, for which he had been released on bond with travel restrictions; and (2) a District of New Mexico case alleging a 2025 conspiracy to steal crude oil from pipelines, store it in Carlsbad, New Mexico, and transport it across state lines.

The appeal concerned only the New Mexico detention order, but the Texas release conditions and Jensen’s alleged continued criminal activity while on release were central to the detention analysis.

The key issues were: (i) whether Jensen could challenge for the first time on appeal the government’s entitlement to a detention hearing under 18 U.S.C. § 3142(f); and (ii) whether the district court properly evaluated the § 3142(g) factors in finding Jensen both a flight risk and a danger to the community.

Summary of the Opinion

The Tenth Circuit affirmed. It held that Jensen’s argument that the government failed to satisfy § 3142(f) (the statutory triggers for holding a detention hearing) was raised for the first time on appeal and, under circuit forfeiture/plain-error principles, was treated as waived because Jensen did not argue plain error.

On the merits of detention, the court concluded that the district court did not err in finding the evidence “strong” and that, considering the full record (surveillance, intercepted communications, and Jensen’s alleged criminal conduct while on pretrial release), the government met its burdens: flight risk by a preponderance of the evidence and dangerousness by clear and convincing evidence.

Analysis

Precedents Cited

1) United States v. Cisneros, 328 F.3d 610 (10th Cir. 2003)

Cisneros supplied the governing detention standards and appellate review framework applied in Jensen:

Burdens of proof: risk of flight must be shown by a preponderance of the evidence; dangerousness must be shown by clear and convincing evidence.
Standard of review: appellate courts accept “historical” factual findings unless clearly erroneous, but review de novo the application of detention law to those facts.

The Jensen court relied on Cisneros to frame its review and to validate the district court’s dual findings (flight risk and dangerousness) under the correct burdens.

2) United States v. Barrera-Landa, 964 F.3d 912 (10th Cir. 2020)

Barrera-Landa controlled the panel’s disposition of Jensen’s newly raised § 3142(f) argument. The opinion reiterated the Tenth Circuit rule: when an argument is not raised in the district court, it is treated as forfeited; the appellate court will reverse only if the appellant satisfies plain-error review.

Critically, the Jensen panel applied Barrera-Landa to hold that because Jensen did not acknowledge forfeiture and did not argue plain error, “He has therefore waived [the argument].” That procedural holding effectively foreclosed review of whether the detention hearing was properly triggered under § 3142(f).

Legal Reasoning

A) The § 3142(f) “gatekeeping” challenge was procedurally lost

Jensen argued on appeal that the government was not entitled to a detention hearing because its motion allegedly failed to establish a qualifying basis under § 3142(f)(2)(A) (serious flight risk) or § 3142(f)(2)(B) (serious risk of obstruction/witness intimidation). He further pointed to the magistrate judge’s initial statement that he was “not a flight risk” (noting the passport was held) as inconsistent with any § 3142(f)(2)(A) predicate.

The panel did not reach the substance. Instead, it emphasized preservation: Jensen had not raised this statutory “entitlement to a hearing” argument before the magistrate judge or the district judge. Under Barrera-Landa, the issue was forfeited and required a plain-error argument. Jensen offered none; therefore, the panel treated the contention as waived.

Practical effect: Even potentially threshold objections to the existence of statutory grounds for a detention hearing under § 3142(f) must be timely raised and defended under plain-error standards if first raised on appeal.

B) The § 3142(g) factor analysis supported detention on both flight risk and dangerousness

Jensen also attacked the district court’s evaluation of the § 3142(g) factors, focusing on the court’s statement that “the weight of the evidence is strong.” Jensen characterized the government’s showing as no more than a “bland admission” by counsel that a codefendant said he worked with Jensen, while disputing knowledge that the oil was stolen.

The Tenth Circuit rejected the “single-exchange” framing. It emphasized that the district court had additional proffered investigative information: surveillance of truck movements consistent with theft operations, transport of oil from the Carlsbad yard to a Texas transfer station, and intercepted calls in which Jensen discussed buyers, profit-splitting with the yard operator, and avoiding sting operations. The panel also highlighted Jensen’s status of being on pretrial release in the Texas case at the time of the alleged New Mexico conduct—an explicit factor under § 3142(g)(3)(B).

On that combined record, the court held (on de novo review of the detention decision’s application of law to facts) that: (i) flight risk existed by a preponderance of the evidence, and (ii) community danger existed by clear and convincing evidence. The government’s flight-risk theory included Jensen’s alleged noncompliance with court orders and foreign ties (a family home and bank account in the Bahamas).

C) Proffers are permitted at detention hearings

Jensen complained that the government relied on proffer rather than live testimony. The panel answered with the statutory rule: “[t]he rules concerning admissibility of evidence in criminal trials do not apply” at detention hearings (§ 3142(f)). While acknowledging that proceeding by proffer could affect weight in some circumstances, the court held the government still met its burdens here.

Impact

Preservation is decisive for § 3142(f) challenges: The opinion underscores that defendants must raise the “detention hearing not authorized” argument in the district court. Otherwise, appellate review will be constrained by forfeiture and plain-error doctrine—and may be functionally unavailable absent a developed plain-error argument.
Strength-of-evidence disputes must address the full proffered record: The panel signaled that courts assessing § 3142(g)(2) may rely on a mix of surveillance, intercepted communications, and codefendant statements; isolating one piece of proffer will not carry the day if the broader record supports detention.
“Crime while on release” substantially increases detention exposure: The court’s reasoning reflects that alleged new criminal conduct during pretrial release is powerful evidence of dangerousness (and can also inform risk-of-flight analysis), consistent with § 3142(g)(3)(B).
Nonprecedential but instructive: As an “Order and Judgment,” it is not binding precedent (except law of the case/res judicata/collateral estoppel), but it provides persuasive guidance on preservation and typical evidentiary showings in detention appeals.

Complex Concepts Simplified

Bail Reform Act detention: A defendant can be held before trial if no release conditions can reasonably assure both (i) appearance in court and (ii) community safety. The court considers the § 3142(g) factors.
§ 3142(f) vs. § 3142(g): § 3142(f) identifies when a detention hearing may be held (a “gatekeeping” step). § 3142(g) lists factors the court weighs to decide whether detention is warranted.
Forfeiture, waiver, and plain error: If an argument is not raised in the district court, it is usually forfeited. On appeal, the appellant must ask for relief under “plain error” review. In Jensen, the failure to argue plain error led the court to treat the issue as waived and decline review.
Proffer: A proffer is a summary presentation of what evidence would show, without calling live witnesses. Detention hearings permit proffers because trial evidentiary rules do not apply.
Standards of proof: “Preponderance” means more likely than not (used for flight risk). “Clear and convincing” is a higher level of certainty (used for dangerousness).

Conclusion

United States v. Jensen is chiefly a procedural and practical detention decision: a defendant who fails to raise a § 3142(f) challenge in the district court, and then fails to argue plain error on appeal, will not obtain appellate review of that threshold issue. On the merits, the case illustrates how courts may find both flight risk and dangerousness based on a consolidated proffer (surveillance, intercepted communications, and codefendant admissions), especially where the alleged conduct occurred while the defendant was already on pretrial release in another federal case.