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April 5, 2005.


The opinion of the court was delivered by: CHARLES HAIGHT, District Judge


Defendant Anthony Capanelli has applied to this Court for bail pending the resolution of his direct appeal from this Court's judgment of conviction and sentence. The appeal was argued before the Second Circuit on December 10, 2004. The Court of Appeals reserved judgment and has not yet decided the case.

Capanelli's present application was argued before this Court on March 1, 2005, following which counsel for defendant and the government have filed helpful letter briefs. Counsel for Capanelli aptly summarizes the threshold question as whether the Court has "jurisdiction to hear a successive application for bail pending appeal based on changed circumstances, in the absence of an intervening bail motion in the Second Circuit." Letter brief of Scott E. Leemon, Esq., dated March 4, 2005 at 1.*fn1 Counsel's characterization of the instant application as "successive" is appropriate because, in an opinion reported at 2004 WL 1542247 (S.D.N.Y. July 9, 2004) ("Capanelli I"), I denied Capanelli's application for release on bail pending his appeal. Capanelli had filed his notice of appeal on July 16, 2003. In Capanelli I I held, contrary to the government's assertion, that notwithstanding the pendency of the appeal, this Court had jurisdiction under the Bail Reform Act, specifically 18 U.S.C. § 3143(b), to consider Capanelli's bail application. However, I denied the application on the merits. Capanelli did not appeal from that denial, although it is common ground that an appeal to the Second Circuit would have lain under 18 U.S.C. § 3145(c)).

  Capanelli bases his present, successive application to this Court upon "changed circumstances, "summarized by his counsel as "(a) the recent decisions in United States v. Booker*fn2 and United States v. Crosby,*fn3 and (b) the strong possibility of a reduced sentence given the tenor of oral argument in the Second Circuit." Leemon letter brief dated March 4, 2005, at 2. The second of these asserted changed circumstances proceeds from counsel's perception, based upon his evaluation of the questions asked by the Second Circuit panel hearing the appeal, that the Court of Appeals "will remand the matter for either further fact finding or a total elimination of the gun enhancement." Mr. Leemon's letter to the Court dated February 9, 2005 at 1. Counsel is referring to a five-level pre-Booker Guidelines enhancement which I included in the sentencing calculus for the following reason:
So I think that what the question comes down to is whether the evidence shows that the conspirators in this case, which, according to the jury's verdict, includes Mr. Capanelli, could have reasonably foreseen the use or brandishing by at least one coconspirator during the course of the contemplated robbery, and it seems to me that the answer to that question must be yes.
Transcript of Sentencing Hearing, June 16, 2003, at 23. At the argument on the present application Mr. Leemon, clearly contemplating a post-appeal resentencing of Capanelli by this Court, said that
[t]he question is what are the factors that the court is going to consider at that time. I think one of the important things revolves around that five-point enhancement given for the gun. While I don't want to predict what's going to happen in the Second Circuit, it's clear based on that argument they were focused on that point.
Tr. 3.

  The calculus defense counsel has in mind is clear enough. If the Court of Appeals in its decision eliminates the five-level gun enhancement as a matter of law, Capanelli's Guidelines sentencing range (advisory now, not mandatory) would be decreased from 51-63 months*fn4 to 30-37 months, and his counsel asserts without contradiction that Capanelli would now be eligible for release to a halfway house. Tr. 4. If the Court of Appeals regards the gun enhancement as impermissible judicial fact finding and remands the case to this Court for a post-Booker, Crosby-model resentencing, counsel can at least be heard anew on the question.

  While the parties offer able discussions of this Court's power vel non to entertain Capanelli's successive bail application, I need not decide the question because, assuming without deciding that such power exists, I agree with the government that in the present posture of the case, it is more appropriate for Capanelli to apply to the Court of Appeals for release on bail while that Court is pondering his appeal. The procedural vehicle for such an application is found in Rule 9(b) of the Federal Rules of Appellate Procedure, which provides in pertinent part that a party "may obtain review of a district-court order regarding release after a judgment of conviction by filing a notice of appeal from that order in the district court, or by filing a motion in the court of appeals if the party has already filed a notice of appeal from the judgment of conviction." (emphasis added). The emphasized provision describes the present posture of this case.*fn5 I do not understand Capanelli's counsel to contend that a Rule 9(b) motion is not presently available to him. Presumably Capanelli's Rule 9(b) motion for bail pending decision on his appeal and possible resentencing would be referred to the Second Circuit panel which heard the appeal. Whether or not such a reference would be made, the Court of Appeals is in a better position than this Court to evaluate whether Capanelli's prospects on appeal, coupled with the potential repercussions of Booker and Crosby, bring about changed circumstances sufficient to entitle Capanelli to release on bail at this time.

  For the foregoing reasons, this Court denies the present application.

  It is SO ...

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