Opinion
No. 1:05-CR-00082(14).
October 19, 2006
OPINION AND ORDER
This matter is before the Court on Defendant's Motion for Post Conviction Release Pending Appeal (doc. 529), and the government's Response in Opposition (doc. 530).
Defendant requests release pending appeal, arguing that he presents substantial questions regarding possible relief in the Sixth Circuit, that he has made an appearance at each and every court hearing, and that he is in the middle of treatments for cancer (doc. 529). The government responds that the Bail Reform Act, 18 U.S.C. § 3143(b), creates a presumption against release pending appeal (doc. 530). In order to overcome such presumption, argues the government, Defendant must show by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of any other person or the public, and he must show that the appeal raises a substantial question of law or fact likely to result in a reversal (Id.). The government argues Defendant fails to meet either prong (Id.). While Defendant's health is poor, argues the government, it did not prevent him from appearing for sentencing (Id.). Accordingly, argues the government, Defendant does not meet the "clear and convincing" standard that he is not likely to flee or pose a danger to the public (Id.).
Moreover, argues the government, Defendant had not shown his appeal raises a substantial question of law or fact (Id.). Defendant pled guilty in this matter, and signed a written plea agreement and statement of facts (Id.). In such plea agreement, Defendant agreed to waive the right to appeal any sentence imposed (Id.). As such, argues the government, Defendant's appeal is likely doomed (Id.).
Having reviewed this matter, the Court finds the government's position well-taken. Defendant has failed to rebut the presumption against release pending appeal. 18 U.S.C. § 3143(b). Defendant has neither proffered clear and convincing evidence that he is not likely to flee or present a danger to the public, nor shown, beyond his conclusory statements, that he will raise substantial questions as to the possibility of reversal, new trial, or substantial reduction in his sentence. Accordingly, the Court DENIES Defendant's Motion for Post Conviction Release Pending Appeal (doc. 529).
SO ORDERED.