Opinion
D.C. No. CR-00-00366-JNK
Before: T.G. NELSON, TASHIMA, and FISHER, Circuit Judges.ORDER
Appellant Isadore Dino Gutierrez has moved this court for release pending appeal. He has nearly completed the eight-month sentence the district court imposed after finding that he had violated the terms of his supervised release. We grant his motion and order his immediate release pending the resolution of his appeal.
Appellant made no motion for release before the district court. He argues that the 1994 revisions to Federal Rule of Appellate Procedure 9(b) abolished the requirement, established by previous precedent,that appellants file such motions before the district court in the first instance. We disagree, and adopt the reasoning of our sister circuit in United States v. Hochevar. Rule 9 still requires appellants to move for release pending appeal before the district court in the first instance.
See, e.g., United States v. Zherebchevsky, 849 F.2d 1256 (9th Cir. 1988).
214 F.3d 342, 343§44 (2d Cir. 2000).
However, we also agree with the Second Circuit that §the requirement that a defendant move first in the district court is not a jurisdictional requirement.§ Federal Rule of Appellate Procedure 2 grants us discretion to §suspend any provision§ of the rules in a particular case §for good cause.§ Good cause exists in this case. Appellant is only days away from completing his term of incarceration. When he does so, his appeal may become moot.
Id. at 344.
See 9TH CIR. R. 27-12 (providing that a motion to expedite may include a request for §release of a prisoner pending appeal§ and that good cause exists for granting such a motion if §in the absence of expedited treatment . . . the appeal may become moot.§)
In addition to the existence of good cause, we note that we are in an adequate position to determine if Appellant has satisfied the requirements of 18 U.S.C. § 3143(b)(1) for release pending appeal in this case. Appellant filed his motion after full briefing and oral argument on appeal, and the record contains sufficient evidence to allow us to determine that Appellant satisfies the requirements of § 3143(b)(1). Thus, we apply Rule 2 and suspend the requirements of Rule 9.
Compare Hochevar, 214 F.3d at 344.
Id.
We conclude that Appellant satisfies the requirements set forth in 18 U.S.C. § 3143(b)(1). Accordingly, we GRANT his motion and order him released on personal recognizance pursuant to 18 U.S.C. § 3142(b) pending the resolution of his appeal. Appellant§s release shall be subject to the standard terms and conditions of release, and he shall report to the Pretrial Services Officer of the Southern District of California within 24 hours of his release from custody. He shall also comply with such additional reporting requirements as may be imposed by Pretrial Services. The conditions of release shall be subject to modification by the district court.
18 U.S.C. § 3143(b)(1); United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985).
MOTION GRANTED. THE GOVERNMENT SHALL IMMEDIATELY RELEASE MR. GUTIERREZ FROM CUSTODY PENDING THE RESOLUTION OF HIS APPEAL.