Case No. 2:02CR530
November 14, 2003
MEMORANDUM DECISION AND ORDER
This matter is before the court on Defendant Romero's Motion For Stay of Sentence and Release Pending Appeal.
On April 24, 2003, defendant Romero pleaded guilty to one count of conspiracy to possess and/or distribute a List I precursor chemical controlled substance, knowing or having reasonable cause to believe that the listed chemical would be used to manufacture a controlled substance in violation of 21 U.S.C. § 841(c)(2) and 846, and 19 U.S.C. § 2. Following this court's Memorandum Decision and Order dated October 22, 2003 (Docket No, 145) denying defendant's Motion to Compel Government's Compliance with a Plea Agreement and a Motion to Withdraw the Plea of Guilty, Romero was sentenced to 30 months imprisonment on October 28, 2003, and was immediately remanded to the custody of the United States Marshals. Defendant made an oral motion to stay the execution of the sentence pending appeal at the time of sentencing which was denied. Shortly thereafter, defendant asked the court to reconsider releasing defendant and allowing him to self-surrender after the designation of the BOP facility had been made. The government did not object, and this latter request was granted.
Defendant has now filed a written Motion for Stay of Sentence and Release Pending Appeal with a supporting memorandum. The government has filed a response taking no position on the motion. For the reasons set forth below, defendant's motion is Denied.
Because Romero was convicted of "an offense for which a maximum term of imprisonment often years or more is prescribed in the Controlled Substances Act," 18 U.S.C. § 3142(f)(1)(C), he is subject to detainment unless he can meet the terms of 18 U.S.C. § 3143(b)(1)(A) and (B) as well as "clearly show that there are exceptional reasons why [his] detention would not be appropriate." United States v. Flynn, 16 Fed.Appx. 958, 959 (10th Cir. 2001) (citing 18 U.S.C. § 3145(c)).
Under 18 U.S.C. § 3143(b)(1) the District Court shall order that a person who has been found guilty of an offence and has been sentenced to a term of imprisonment be detained, unless the judge 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 . . . 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 that the total of the time already served plus the expected duration of the appeal process.18 U.S.C. § 3143(b)(1).
Because of the large amount of the precursor drug Ephedrine which was in Romero's possession, and his conspiratorial involvement prior to becoming a government informant, the defendant poses a threat to persons within the community and the court cannot and does not find otherwise by clear and convincing evidence. For the foregoing reasons and because of the incarceration which he faces, this court does not find or rule the he is unlikely to flee by clear and convincing evidence.
The second part of the statutory test requires that defendant's appeal will likely result in one of four outcomes: (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 that the total of the time already served plus the expected duration of the appeal process.
This court finds that defendant has not shown by a "preponderance of evidence" that his appeal is not for the purpose of delay nor has defendant raised a substantial question of law or fact likely to result in one of the four listed outcomes of § 3143(b)(1)(B). United States v. Affleck, 765 F.2d 944, 953 n. 15 (10th Cir. 1985).
Defendant Romero has filed a notice appeal concerning this court's denial of his Motion to Compel Government Compliance with a Plea Agreement as well as his Motion to Withdraw a Plea of Guilty. After due consideration, the court finds that neither question presents an issue on appeal that is substantial for the reasons set forth is this court's Memorandum Decisions and Orders dated August 4, 2003 (Docket No. 116) and October 22, 2003 (Docket No. 145).
In addition to meeting the burden under the statute, defendant Romero must also show that there are exceptional reasons for staying his sentence and releasing him, because he was convicted of an offense for which a maximum term of imprisonment of ten years of more is prescribed in the Controlled Substances Act. See 18 U.S.C. § 3142(f)(1)(C) and 3145(c). Defendant argues that his conduct was "aberrational," that he has up to this point led an exemplary life and that his business would fail without him and cites two Ninth Circuit opinions in support of his contention. Defendant also argues that the mistake in indicting him acknowledged by the government makes this case exceptional. Although this court need not make a finding regarding the exceptional reasons for allowing release pending appeal because defendant has not raised a substantial question on appeal, the court finds that the circumstances of this case are not exceptional. Although this is the first conviction marring an otherwise clean record, defendant freely admitted that he participated in a conspiracy to purchase an enormous amount of ephedrine for purposes of manufacturing methamphetamine which he knew was against the law at the time. A fortiori, the circumstances of the case are not exceptional.
For the foregoing reasons defendant Romero's Motion for Stay of Sentence and Release Pending Appeal is hereby DENIED.
IT IS SO ORDERED.