Opinion
2:03CR00099TC.
December 3, 2004
ORDER
On February 12, 2003, the Grand Jury indicted the Defendant, Mr. Troy W. Stringham, for bank fraud, among other crimes, resulting from loans he made while employed as an assistant vice president with Central Bank, in Provo, Utah. Mr. Stringham pleaded guilty to bank fraud, as alleged in count 13 of the indictment, on August 13, 2003. On April 13, 2004, the court sentenced Mr. Stringham to thirty months in the custody of the United States Bureau of Prisons to be followed by 36 months of supervised release. Mr. Stringham appealed his conviction and sentence, and now moves the court to be released during the pendency of his appeal.
For the reasons set forth below, Mr. Stringham's motion is DENIED.
Background
Mr. Stringham admitted that from August 2001 through February 2002 he participated with Michael Douros in obtaining various vehicle loans for amounts $10,000 to $30,000 more than the actual value of the vehicles. Mr. Stringham and Mr. Douros used the names of the latter's family members as borrowers, and deliberately set the value of the loans below $40,000 because Central Bank authorized Mr. Stringham, as assistant vice president of the bank, to make loans up to that amount without additional approval. Mr. Douros provided the loan applications to Mr. Stringham, who then approved and facilitated the fraudulent loans.
Analysis
Mr. Stringham moves under Federal rule of Appellate Procedure 9 for release pending his appeal because he contends that he is not a flight risk or a danger to others, his appeal is not taken for the purposes of delay, and his appeal raises substantial questions of law or fact that if decided in Mr. Stringham's favor, will result in a reversal of his conviction, an order for a new trial, or a reduced sentence or one without imprisonment.
Rule 9(b) reads:
A party entitled to do so may obtain review of a district-court order regarding release after a judgment of conviction by filing a notice of appeal from that order in the district court, or by filing a motion in the court of appeals if the party has already filed a notice of appeal from the judgment of conviction. Both the order and the review are subject to Rule 9(a).
A person convicted of a crime and sentenced to imprisonment shall "be detained, unless" the court finds the following:
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in —
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.18 U.S.C. § 3143(b). Because the parties do not dispute that Mr. Stringham is not likely to flee, poses no danger to others, or that his appeal is not taken for delay, the only issue before the court is whether Mr. Strinham's appeal raises a substantial question of law or fact likely to result in a reversal, a new trial, or a reduced sentence or one without imprisonment.
Mr. Stringham argues that this court violated his Sixth Amendment rights by using facts determined by the judge to enhance his sentence as allowed by the provisions of the Federal Sentencing Guidelines. Mr. Stringham argues this practice runs afoul of the Supreme Court's decision of Blakely v. Washington, 124 S. Ct. 2531 (2004), in which the Court struck down the State of Washington's sentencing system because it unconstitutionally violated a defendant's right to a jury trial. Although theBlakely Court expressly stated that "[t]he Federal Guidelines are not before us, and we express no opinion on them," Blakely, 124 S. Ct. at 2538, Mr. Stringham contends the "federal sentencing regime is materially similar to that of Washington." (Def.'s Mem. in Supp. at 13.) Thus, according to Mr. Stringham, the concepts of Blakely apply in this case and warrant a "reversal," "an order for a new trial, a sentence that does not include a term of imprisonment," or "a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process." 18 U.S.C. § 3143(b).
Mr. Stringham's motion is not persuasive, however, because he cannot show that the Blakely decision raises a substantial question of law or fact that is likely to result in a reversal, or reduced sentence. First, although Mr. Stringham contends reversal or an order for a new trial is likely, he points to no specific reasons why his Blakely argument, even assuming that the Supreme Court ultimately agrees that the Federal Sentencing Guidelines are unconstitutional, would require a reversal or a new trial. Rather, the more likely scenario, should the Court declare the Federal Sentencing Guidelines unconstitutional, would be that the court would be required to sentence Mr. Stringham without application of the Guidelines.
Second, Mr. Stringham cannot show that a reduced sentence is likely. Again, assuming that the Supreme Court ultimately declares the Federal Sentencing Guidelines unconstitutional, it is not likely Mr. Stringham will receive a reduced sentence. Under such a scenario, the court would have discretion to sentence Mr. Stringham according to 18 U.S.C. § 1344 — the bank fraud statute — without application of the Federal Sentencing Guidelines. This statute provides that those who commit bank fraud "shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both." 18 U.S.C. § 1344.
Given this discretion to impose up to a thirty-year sentence, Mr. Stringham has not shown why or how it is likely that the court would sentence him to "less than the total of the time already served plus the expected duration of the appeal process." Although Mr. Stringham suggests that his sentence would be probation or at most six months or time served, he arrives at this sentence (ironically) using the Federal Sentencing Guidelines. Absent the Guidelines, he fails to demonstrate why the court would exercise its discretion to impose a reduced sentence.
Accordingly, Mr. Stringham's motion is DENIED.