Opinion
02 Cr. 1385 (TPG).
January 8, 2007
OPINION
On December 4, 2006 the Court resentenced defendant following remand by the Court of Appeals.
It appears that defendant will appeal from the new sentence. Defendant requests that the Court continue his release on bail pending the outcome of the new appeal. The Government opposes.
Defendant's application is granted.
The matter is governed by 18 U.S.C. § 3143(b), which provides:
(b) Release or detention pending appeal by the defendant. — (1) Except as provided in paragraph (2) the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds —
(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,
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration fo the appeal process.
In the present case the Government concedes that there is no problem about flight or danger to the community. But the Government urges that the appeal here is for the purpose of delay and raises no substantial question of law or fact within the meaning of the statute.
The history of this matter is unusual, and it is certainly entirely reasonable for defendant to take an appeal. The original sentence did not involve a prison term. The Court of Appeals reversed and remanded, with a strong indication in favor of a prison term, but leaving the ultimate decision again in the hands of the District Court.
For the District Court, a principal issue as to sentence had always been the possibility that a prison sentence would destroy defendant's business, which employed several persons in addition to defendant himself. The District Court believed that a prison sentence would, in fact, destroy the business, and this was an important reason, although not the only reason, why a non-prison sentence was originally imposed. One of the points made by the Court of Appeals was that there was an insufficient showing about the destruction of the business.
On remand, the District Court took testimony on this subject, which showed that it was highly likely that a prison sentence would end the business. Mainly for this reason, the District Court seriously considered the possibility of again imposing a non-prison sentence, or at least using intermittent sentencing in order to preserve the business. However, for reasons stated in the record, the District Court finally decided to impose an 18 month prison sentence.
Of course, the District Court's ultimate decision was mainly to comply with the Court of Appeals, although the District Court stated, as a secondary consideration, that the sentence was also based on the court's discretion.
There is sufficient doubt about the propriety of the sentence, and the application of the Court of Appeals ruling, to provide ample justification for another resort to the Court of Appeals, this time by defendant. In this context the District Court finds that the appeal is not for the purpose of delay and that there are substantial questions of law as grounds for appeal.
The application for defendant to remain at liberty on bail pending the outcome of the new appeal is granted.
SO ORDERED.