Opinion
Case No. 1:01CR47C.
July 21, 2004
Stephen R. McCaughey, Salt Lake City, Utah, Attorney for Defendant — Johnny Lang.
Stewart Walz, Veda Travis, Assistant U.S. Attorneys Salt Lake City, Utah.
MOTION FOR STAY OF SENTENCE AND RELEASE PENDING APPEAL AND MEMORANDUM IN SUPPORT
Pursuant to Federal Rule of Criminal Procedure 38, Federal Rules of Appellate Procedure 8 and 9, and 18 U.S.C. § 3141 and § 3143(b), the Defendant, JOHNNY LANG, by and through counsel, hereby moves this Court to stay the sentence imposed in this matter and allow the release of Mr. Lang pending appeal of the sentence, judgment and conviction to the Tenth Circuit.
18 U.S.C. § 3143(b) provides:
(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, 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.
If the judicial officer makes such findings, such judicial officer shall order the release of the person in accordance with section 3142(b) or (c) of this title, except that in the circumstance described in subparagraph (B)(iv) of this paragraph, the judicial officer shall order the detention terminated at the expiration of the likely reduced sentence.
(2) 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 sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained.
The basis for this Motion is set forth below:
ARGUMENT
In order for this Court to grant the Defendant's requested relief, the "[d]efendant must first establish by clear and convincing evidence that, if released, [he] is not likely to flee or pose a danger to the safety of any other person or to the community." See United States v. Revis, 22 F. Supp.2d 1242, 1246 (N.D. Ok 1998); 18 U.S.C. § 3143(b)(1)(A). The defendant must further establish by a preponderance of the evidence that the appeal was not filed for purposes of delay. Revis, 22 F. Supp.2d at 1246; 18 U.S.C. § 3143(b)(1)(B).
Once the defendant has satisfied these threshold requirements, the Court then follows the two-step analysis set forth in United States v. Affleck, 765 F.2d 944, 952 (10th Cir. 1985); see also Revis, 22 F. Supp.2d at 1246. "Under this analysis, the Court must make two determinations: first, whether the appeal raises a `substantial' question of law or fact; and, second, `if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.'" Id. (quoting Affleck, 765 F.2d at 952). A "substantial question" is not one that is guaranteed to win on appeal, but one that "is a `close question or one that very well could be decided the other way.'" Revis, 22 F. Supp.2d at 1246; see also United States v. Banta, 165 F.R.D. 102, 104-105 (D. Utah 1996) (noting that under Affleck, "substantial question" means that "the defendant's claim be substantial or close"). Whether a particular question is "substantial" is determined on a case-by-case basis. See Affleck, 765 F.2d at 952; see also United States v. Bayko, 774 F.2d 516 (1st Cir. 1985) (noting that "close question" for purposes of determining release or detention of defendant pending sentence or appeal is one that very well could be decided other way and must be determined on case by case basis).
See also United States v. Randell, 761 F.2d 122, (2nd Cir. 1985), cert. denied, 474 U.S. 1008 (1985) (discussing factors to consider); United States v. Bilanzich, 771 F.2d 292 (7th Cir. 1985) (same).
One commentator has noted that "substantial" does not require a showing that the case is likely to be reversed on appeal.
In early cases, the government took the position that the provision required the trial judge to find that the case would likely be reversed on appeal. Courts rejected that interpretation because it had the effect of reading the word "substantial" out of the statute. It would also require that trial courts certify that their rulings were erroneous. In that situation, a new trial should be granted at the district court to correct the error.See Fred Metos, Column: Appellate Advocacy: Release of Defendant Pending Appeal, 22 Champion 25, 26 (July 1998).
Finally, defendant acknowledges that generally a person convicted of a drug offense with a maximum sentence of ten years or more cannot be released pending appeal. See 18 U.S.C. § 3143(b)(2). However, 18 U.S.C. § 3145(c) allows for a release of a person convicted of such offenses if the defendant is able to show "exceptional reasons" why detention would not be appropriate. See, e.g., United States v. Jones, 979 F.2d 804 (10th Cir. 1992) (district court has authority to consider whether "exceptional reasons" exist to release defendant pending appeal pursuant to 18 U.S.C. § 3145(c), the statute governing release from detention).
The provision states in relevant part:
. . . A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.18 U.S.C. § 3145(c).
In this case, Mr. Lang meets these criteria, and therefore, should be released pending appeal.
A. Mr. Lang Will Not Flee Nor Pose A Danger to the Community During the Pendency of Appeal
A review of the defendant's criminal history demonstrates that Mr. Lang poses no threat to the community nor is he a flight risk. Mr. Lang has no criminal history points, and he has not been arrested for any offense other than the instant offense in the past two decades. In the years proceeding the instant offense, Mr. Lang had maintained steady employment, although he had been laid off shortly before the offense due to a workforce reduction. In addition, Mr. Lang has family members in the Salt Lake area that further diminish the chances of his flight. Accordingly, this Court should find that there is clear and convincing evidence that, if released, Mr. Lang is not likely to flee or pose a danger to the safety of any other person or to the community.
If the facts cited above are deemed insufficient to warrant release of the defendant, the defendant requests that an evidentiary hearing be conducted by the court to better assess any flight risk or danger that might preclude the defendant from being released pending appeal.
B. An Appeal of This Court's Sentence Is Not Being Filed for Purposes Of Delay.
Defendant has raised and preserved a number of issues in this case for subsequent appellate review, including the denial of this Court's application of the United States Supreme Court decision in Blakely v. Washington, 2004 WL 1402697 (2004) to the determination of Mr. Lang's base offense level based on drug quantity and an adjustment for obstruction of justice based on perjury. Because of the issues surrounding the application of Blakely to the circumstances of this case, counsel certifies that this appeal is not being taken for purposes of delay, but in order to resolve substantial issues of law and fact that have arisen during this matter. Thus, this Court should appropriately find that the appeal in this case has not been filed for purposes of delay.
C. The Appeal Raises "Substantial Questions" Of Law Or Fact That, If Decided in Favor of Defendant On Appeal, Would Likely Result In a Reversal of Sentencing.
The appeal of this case raises substantial questions of law and fact, that, if determined in Mr. Lang's favor, would result in a reversal of the sentence this Court imposed on July 20, 2004.
As this Court noted during the re-sentencing process, various courts have taken various positions on the application of Blakely to the federal sentencing guidelines. Some have found the guidelines as a whole unconstitutional. See United States v. Croxford, 2004 WL 1462111 (D.Utah, 2004). Some courts are simply refusing to apply enhancements or any adjustment based on facts that Blakely guides should be decided by a jury. See United States v. Booker, Appellate No. 03-4225 (7th Cir. July 9, 2004); United States v. Montgomery, 2004 WL 1535646 (D. Utah July 8, 2004); United States v. Shamblin, Dist. No. 2:03-00217 (S.D.W.Va. June 30, 2004). This Court, however, has chosen not to apply Blakely and its teachings on sentencing and the Sixth Amendment to the federal guidelines without further guidance from the Tenth Circuit or the United States Supreme Court. In doing so, this Court noted that it was hopeful that the question will soon be answered more clearly and guidance will be given. As such, guidance from the Tenth Circuit or the United States Supreme Court on Blakely, if found applicable to the federal sentencing guidelines and thereby in favor of Mr. Lang on appeal, will clearly result in remand and reversal of this Court's July 20, 2004 sentence.
Therefore, this Court should find that this appeal poses a "substantial question" in that it is a "close question or one that very well could be decided the other way."
D. The Facts of This Case Constitute "Exceptional Circumstances" That Justify Release Pending Appeal
Because Mr. Lang was convicted as an "accessory after the fact" of the drug distribution ring, he has been placed into a category of criminals of which the federal statute usually requires detainment. See 18 U.S.C. § 3143(b)(2). However, as noted above, 18 U.S.C. § 3145(c) allows for a release of a person convicted of such an offense if able to show exceptional reasons why further detention would not be appropriate. See, e.g., U.S. v. Jones, 979 F.2d 804 (10th Cir. 1992) (District court has authority to consider whether "exceptional reasons" exist to release defendant pending sentencing or appeal pursuant to statute governing release from detention).
In this case, exceptional circumstances exist. Importantly, if Blakely and its Sixth Amendment reasoning is found to apply to the application of the federal sentencing guidelines, Mr. Lang will be irreparably harmed in serving more time than constitutionally permissible. See 18 U.S.C. § 3143(b)(2)(iv). If the mandates of Blakely are applicable, the defendant's lawful guideline range will be 10-16 months instead of the 78 months imposed at re-sentencing. Indeed, if the future appeal determines that this Court has improperly re-sentenced Mr. Lang and based his sentence on factors inconsistent with his Sixth Amendment rights, he will have served a substantial term of imprisonment unjustly as he has already exceeded the term of imprisonment provided by the guideline range under Blakely. The government, however, will suffer no hardship in any manner if a stay is granted. Should an appeal determine that Blakely and its reasoning has no impact on the federal guidelines and this case, then Mr. Lang will dutifully report to serve his sentence of 78 months. As such, the balance of equities weights in favor of a stay until this Court has been sufficiently guided as to the effect of Blakely on this case.
CONCLUSION
Based on the unique facts and circumstances of this case, and due to the irreparable harm that Mr. Lang will suffer when the Tenth Circuit or the United States Supreme Court guides that Blakely, and its reasoning surrounding the Sixth Amendment application to sentencing factors, applies to federal sentencing, the defendant urges this Court to stay the sentence imposed on July 20, 2004 and release Mr. Lang upon proper conditions and/or a bond pending appeal.
Further, Mr. Lang respectfully requests that the determination on this motion be set forth in written findings, and made as expeditiously as possible. Accord United States v. Fisher, 55 F.3d 481 (10th Cir. 1995); United States v. Hart, 779 F.2d 575 (10th Cir. 1985).