Opinion
Case No. 2:08-cr-123(1).
June 29, 2009
ORDER
This matter is before the Court on Defendant's Merle Montgomery's ("Montgomery") Motion for Bond Pending Appeal (doc. no. 42). Montgomery pled guilty of manufacturing marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii) and 18 U.S.C. § 2, and was sentenced to 60 months imprisonment on April 14, 2009. He is currently free on bond pending his self-surrender, which is scheduled for July 1, 2009. In his motion, Montgomery requests that he be permitted to remain free on bond pending his appeal of his sentence pursuant to 18 U.S.C. § 3143(b)(1). The Government opposes.
The Bail Reform Act, 18 U.S.C. § 3143(b), creates a presumption against release pending appeal. United States v. Vance, 851 F.2d 166, 170 (6th Cir. 1988). 18 U.S.C. § 3143(b)(1) provides:
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 [ 18 U.S.C. § 3142(b) or (c)]; 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 [ 18 U.S.C. § 3142(b) or (c)], 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.
(Emphasis added). 18 U.S.C. § 3143(b)(2), however, mandates detention pending appeal if a defendant has been convicted of an offense described in 18 U.S.C. § 3142(f)(1)(A)-(C) and sentenced to a term of imprisonment. 18 U.S.C. § 3142(f)(1)(C) includes offenses "for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 810 et seq.)." In this case, Montgomery was convicted of manufacturing 100 or more marijuana plants in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii) and was sentenced to a 60 month term of imprisonment. The maximum sentence for that violation is 40 years imprisonment. 21 U.S.C. § 841(b)(1)(B)(vii). Consequently, this Court is statutorily directed to detain Montgomery pending appeal.
The Court is aware that section 3145(c) establishes a limited exception to the mandatory detention rule in § 3143(b)(2). According to that provision, a court may order a defendant's release pending appeal if: (1) the defendant meets the conditions of release set forth in § 3143(a)(1) or (b)(1); and (2) the defendant clearly shows that there are "exceptional reasons why such person's detention would not be appropriate." 18 U.S.C. § 3145(c). In other words, this Court, must detain Montgomery pending appeal unless he can show to the Court's satisfaction that: (1) he does not pose a flight risk or a danger to the public; (2) he presents a substantial question on appeal; and (3) he has shown "exceptional reasons" why detention is inappropriate. 18 U.S.C. §§ 3143(b)(1), 3143(b)(2), 3145(c); United States v. Rodriguez, 50 F.Supp.2d 717, 719-20 (N.D. Ohio 1999). Montgomery does not satisfy the requirements necessary to take advantage of the § 3145(c) exception.
Montgomery has not argued that he satisfies the requirements of § 3143(a)(1) and, therefore, this Court will not address that issue.
First, Montgomery has not argued that there are any "exceptional reasons" why his detention would not be appropriate. Second, Montgomery has failed to show to the Court's satisfaction that he meets the conditions of § 3143(b)(1). He argues that he should be released pursuant to § 3143(b)(1) because: (a) his history of attendance at all scheduled hearings, his age (63) and poor health, and his compliance with the terms of his supervised release demonstrate that he is not likely to flee or pose a danger to the safety of other persons; and (b) his appeal raises a substantial question regarding whether the "Safety Valve" provision of 18 U.S.C. § 3553(f)(1)-(5) should have been applied to his case. Montgomery has not raised a "substantial question of law or fact" likely to result in an alteration of his conviction or sentence on appeal. During the sentencing hearing, this Court carefully considered and rejected Montgomery's claim that he was entitled to the benefit of the Safety Valve provision and does not find that this argument presents a close question on appeal. As Montgomery has not shown that he meets the conditions of release set forth in § 3143(b)(1) and has not shown that there are any exceptional circumstances that would make detention inappropriate, he does not qualify for the exception to the mandatory detention rule found in § 3145(c). Consequently, this court lacks discretion under 18 U.S.C. § 3143(b)(2) to grant bond pending appeal. Defendant's motion for bond pending appeal is DENIED.
IT IS SO ORDERED.