Opinion
Case No. C1-03-46-03, Docket Number: 146
February 5, 2004
ORDER DENYING DEFENDANT'S RELEASE PENDING SENTENCING
Summary: The defendant filed a motion for release pending sentencing following her conviction of the offense of conspiracy to possess with intent to distribute and intent to distribute methamphetamine. The Court denied the defendant's motion, finding that she had failed to satisfy the criteria warranting release set forth in 18 U.S.C. § 3143(a)(2).
Before the Court is defendant Nancy Ferneau's Motion for Release Pending Sentencing filed on January 29, 2004. Ferneau was convicted of the offense of Conspiracy to Possess with Intent to Distribute and Distribute Methamphetamine in violation of 21 U.S.C. § 846. The jury found that the offense involved 500 grams or more of a mixture containing a detectable amount of methamphetamine, or 50 grams or more of methamphetamine (actual). Ferneau requests that the Court release her from detention until her sentencing hearing which is presently scheduled for March 8, 2004. Ferneau has assured the Court that she is not likely to flee and poses no safety risk to the community. However, such assurances are insufficient to warrant her release.
18 U.S.C. § 3143(a)(2) provides as follows:
The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless
(A)(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or
(ii) an attorney for the government has recommended that no sentence of imprisonment will be imposed on the person; and
(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community. (emphasis added)
Ferneau was found guilty of an offense "described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142" in that the offense at issue carries a minimum sentence of 10 years imprisonment and a maximum sentence of life imprisonment as prescribed in the Controlled Substances Act. See 21 U.S.C. § 841(b)(1)(A)(vii) and 846.
Therefore, before the Court may order Ferneau's release, the Court must find by clear and convincing evidence that Ferneau is unlikely to flee and poses no danger to society. See 18 U.S.C. § 3143(a)(2)(B). In addition, the Court must also find that either (1) there is a substantial likelihood that a motion for acquittal or a new trial will be granted; or (2) that the Government has recommended that no sentence of imprisonment be imposed upon Ferneau. See 18 U.S.C. § 3143(a)(2)(A)(i) or (ii).
Ferneau's Motion for Release Pending Sentencing does not address 18 U.S.C. § 3143(a)(2)(A)(i). Ferneau has not filed a motion for a new trial. Ferneau did move for acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure at the close of the Government's case-in-chief and again at the conclusion of the trial. The Court denied both motions for acquittal.
In addition, Ferneau's Motion for Release Pending Sentencing does not address 18 U.S.C. § 3143(a)(2)(A)(ii). The Government has clearly indicated that it intends to recommend a sentence of imprisonment in this case. The Government has pointed out that the offense for which Ferneau was convicted carries a minimum sentence of ten (10) years of imprisonment in instances where the defendant has no prior drug felony convictions. With an enhancement pursuant to 21 U.S.C. § 851 for a prior drug felony conviction, as was noticed through an Information filed by the Government prior to trial, the minimum sentence is twenty (20) years of imprisonment.
In summary, since Ferneau has not addressed 18 U.S.C. § 3143(a)(2)(A)(i) or (ii) in her motion, and since there is no evidence to support a finding in her favor under either subsection, the Court is required to detain Ferneau until the sentencing hearing. Accordingly, Ferneau's Motion for Release Pending Sentencing (Docket No. 143) is DENIED.
IT IS SO ORDERED.