The opinion of the court was delivered by: JACK B. WEINSTEIN
Jack B. Weinstein, Senior United States District Judge.
The defendant was convicted of tax evasion. He was sentenced to 24 months in prison. The court of appeals affirmed the conviction but vacated the sentence. It remanded for resentencing. See United States v. Pfeiffer, (2d Cir. 1995) (unpublished).
While awaiting resentencing, the defendant filed a number of motions, including a motion for a new trial. The court scheduled oral arguments on these motions, as well as a Fatico hearing at which evidence relevant to the new sentence would be considered. The defendant remained free on bail.
At the outset of the resentencing proceedings, the government moved to revoke bail under 18 U.S.C. § 3143(b). The defendant opposed the motion, arguing that the applicable provision was 18 U.S.C. § 3143(a). Which provision to apply to a defendant awaiting resentencing appears to be a question of first impression in this circuit.
Section 3143 of Title 18, United States Code -- part of the Bail Reform Act of 1984 -- governs the release or detention of a person pending sentence or appeal. Its first subsection, 18 U.S.C. § 3143(a), applies to "a person who has been found guilty of an offense and who is awaiting imposition or execution of a sentence." Such a person may not be detained if the court finds that he poses no danger to the community and is not likely to flee. Id.
The next subsection, 18 U.S.C. § 3143(b), applies to "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." Such a person may not be detained if the court finds, first, that the person poses no danger and is not likely to flee (i.e., the test of § 3143(a)), and, additionally, "that the appeal is not for the purpose of delay and raises a substantial question of fact or law likely to result in [reversal, a new trial, or a reduced sentence]." Id.
B. Non-controlling caselaw
In support of its interpretation, the government cites United States v. Holzer, 848 F.2d 822 (7th Cir. 1988), cert. denied, 488 U.S. 928, 102 L. Ed. 2d 333, 109 S. Ct. 315 (1988). Holzer is the only published opinion that explicitly addresses the question of whether § 3143(a) or (b) applies to a defendant awaiting resentencing after remand. Cf. United States v. Watkins, 994 F.2d 1192, 1196 n.7 (6th Cir. 1993) (implying, but not stating, that § 3143(a) applies before resentence); United States v. Miller, No. 90-1554, 1990 U.S. App. LEXIS 9342, at *1 (6th Cir. June 7, 1990) (same).
In Holzer, the defendant was convicted of mail fraud and extortion and began serving his sentence. On appeal, his mail fraud conviction was affirmed and his extortion conviction was reversed. The court of appeals then vacated the mail fraud sentence -- 18 years in prison -- "merely on the off-chance that the vacation of the concurrent sentences [for mail fraud] might induce [the trial judge] to give Holzer a slightly shorter sentence for extortion." Holzer, 848 F.2d at 823.
The trial judge released the defendant on bail pending resentencing. Reversing, the court of appeals rehearsed the purposes of bail, see id. at 824, none of which, it determined, would be served by releasing the defendant pending a "slight" adjustment in his sentence. "It is not within the realm of realistically foreseeable circumstances that [the trial court] on remand will reduce Holzer's sentence from eighteen years to eighteen months (the time he has served already); but only if he would, would bail pending resentencing serve the purposes of the statute." Id. For this reason, the court concluded, the more demanding standard of § 3143(b) should be applied. Id. at 825.
In reaching this conclusion, the court of appeals for the Seventh Circuit focused on its desired result -- continued incarceration -- rather than on the language of the statute. It observed: "[A] rule (especially a statutory rule) and its rationale are not always perfectly coextensive." Id. at 824. On the basis of this truism, it chose its view of the rationale over the rule. It concluded: "[W]e do not think that section 3143(a) applies to a case in which the remand is functionally for ...