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United States District Court, S.D. New York

August 15, 2005.

PINHAS BEN-ARI, Defendant.

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


This matter comes before the Court on Defendant's motion for bail pending re-sentencing and following oral argument on August 4, 2005. Because this appeared to be a novel issue in this Circuit, I reserved decision and have now concluded that, for the reasons discussed below, the petition must be DENIED.


  Defendant Pinhas Ben-Ari ("Ben-Ari") pled guilty on February 4, 2005, to violation of 18 U.S.C. 371, Conspiracy to Commit Bank Fraud. This Court sentenced Ben-Ari on January 18, 2005 to 24 months of incarceration, and a joint and several obligation in the nature of restitution in the amount of $1,360,100. Ben-Ari appealed his sentence, and on March 3, 2005, moved this Court for a stay of bail pending appeal pursuant to 18 U.S.C. § 3143. On March 16, 2005, I denied this motion. On April 29, 2005, the Second Circuit Court of Appeals granted the Defendant's motion for an expedited appeal. At the same time, the Court affirmed my denial of his motion for release pending appeal. Ben-Ari began to serve his sentence on May 2, 2005.

  On July 19, 2005, the Second Circuit remanded the case with instruction to this Court to "vacate the sentence and re-sentence" the Defendant in conformity with the "Booker, Crosby, and Fagans" decisions. United States v. Ben-Ari, No. 05-0675-cr (2d Cir. July 19, 2005).

  Defendant now petitions the Court to be released on bail pending re-sentencing.


  The statute that governs release or detention of a defendant pending sentence or appeal is 18 U.S.C. § 3143. Section 3143 (a) applies when a defendant has "been found guilty of an offense" and is "awaiting imposition or execution of a sentence." Such defendants may be released where the Court finds that they pose no danger to the community and are not likely to flee. Id. Section 3143(b) applies to "a person who has been found guilty of an offense and [has been] sentenced to a term of imprisonment, and . . . has filed an appeal or a petition for a writ of certiorari." This is a higher standard for release and such defendants will be detained unless the Court finds that (1) the defendant poses no danger and is not likely to flee, plus (2) "the appeal is not for the purpose of delay and raises a substantial question of fact or law likely to result" in a reversal, new trial, or a reduced sentence. Id.

  The facts of this case present a conundrum because Ben-Ari pled guilty, has been sentenced, and yet is at the same time awaiting sentence, so the issue becomes which Subsection of 3143 is applicable. Ben-Ari argues that he should be released now because he was allowed to remain free on bail pending his original sentencing. But this was before he surrendered to the Bureau of Prisons, and this Court and the Second Circuit denied him bail pending appeal. Indeed, I have found no case with this fact pattern in the Second Circuit.

  In United States v. Pfeiffer, 886 F. Supp. 303, 304 (E.D.N.Y. 1995), the case relied upon by the Defendant, Judge Weinstein held that § 3143(a) should apply to a situation where the Circuit vacates and remands for re-sentence because the defendant should constructively be put in the same position he was in before sentence was imposed. Pfeiffer, 886 F. Supp. at 304 (citing United States v. Maldonado, 996 F.2d 598, 599 (2d Cir. 1999).

  The Seventh Circuit has taken a contrary position and held that defendants like Ben-Ari are subject to the stricter 3143(b) standard because the remand does not negate the fact that the defendant has already been sentenced, and reads the statutory language of 3143(b) to include persons awaiting sentence on remand. See e.g., United States v. Krilich, 178 F.3d 859, 861 (7th Cir. 1999). Cases in the Seventh Circuit have reasoned that this is the correct application because it is not the conviction that has been remanded, but only the sentence. Id.

  In United States v. Holzer, 848 F.2d 822 (7th Cir. 1988), a defendant convicted of mail fraud, and who had begun to serve his sentence, successfully sought to have part of his conviction reversed. The Court of Appeals vacated part of his sentence and remanded to the trial court to re-sentence. The trial court released the defendant on bail pending the re-sentencing but the Court of Appeals reversed and held that the "reason for not imprisoning a convicted defendant (unless he is likely to flee or is a public menace) before he is sentenced is that the sentence may not be a sentence of imprisonment, or may be a sentence for a shorter period of imprisonment than the interval between conviction and sentencing; or that the defendant needs some time to get his affairs in order . . . The reason has no application to a case where the defendant's conviction . . . has been upheld and a sentence . . . remanded solely to give the judge a chance to consider a possible, though doubtless modest, reduction because the court of appeals has vacated a . . . sentence." Id. (citing S. Rep. No. 225, 98th Cong., 2d Sess. 26 (1984). This is the pattern before me. I share the view that no purpose behind the bail statute will be served were I to release Ben-Ari from custody only to have him appear within a few weeks for re-sentencing, where he will likely receive at best, "a modest reduction" of his sentence.

  In Pfeiffer, the Second Circuit vacated the defendant's sentence while he remained free on bail. 886 F. Supp. at 304. It was at the outset of re-sentencing proceedings that the Government moved to revoke bail pursuant to § 3143(b). Id. Here, as in both Holzer and Krilich, the Defendant is already incarcerated and has begun to serve his sentence.

  Also, the instruction from the Second Circuit to this Court is to vacate the sentence and to re-sentence. There was no direction from the Court that suggested some immediacy to the vacateur. In Pfeiffer, the Second Circuit vacated the sentence and directed the district court to re-sentence. Under the Pfeiffer reasoning, Ben-Ari will only be subject to 3143(a) for the time it takes to re-sentence. My proposed plan, as I noted at oral argument, will include a vacateur and re-sentence for Ben-Ari on October 31, 2005, at 10:00 a.m. (Oral Argument Tr. 24:06-23, Aug. 4, 2005.) This, by the way, was the timetable sought by the Defendant. While it is far too long in my view, it likely stems from defense counsel's hope that his client would be released and preferably for as long as possible. Nonetheless, I agreed to the schedule as urged by the Defendant. It certainly provides time to submit arguments as to what the applicable sentence should be. I keep in mind too that this appeal is from the sentence only. There was no trial and no likelihood that the conviction will be overturned. Indeed, it is worth noting that the Circuit took no position with respect to the restitution argument made by the Government, and with which I agreed. For good measure, let me add that based on the restitution amount, an incarcerative term of 30 to 37 months was appropriate and I chose a lesser non-Guidelines term of 24 months.

  To vacate the sentence and re-sentence the Defendant at the same time, also comports with the reasoning advanced by Judge Weinstein and the Second Circuit cases he cites. They all rest on the notion that once a sentence is vacated, the defendant should be placed in the same position as before the original sentence was passed. Pfeiffer, 886 F. Supp. at 304 (citing United States v. Maldonado, 996 F.2d 598, 599 (2d Cir. 1999).

  Finally, in this post-Booker, FanFan, and Crosby era there are a number of cases like this one, where the Second Circuit remands due to the changes to the Sentencing Guidelines enunciated in those cases. This remand stems from the fact that I originally sentenced Ben-Ari after the Supreme Court excised the Sentencing Guidelines in Booker and FanFan, but before the Second Circuit issued its instructive Crosby opinion. As such the Second Circuit remanded this case for me to re-sentence because it was not clearly spelled out in the record whether I considered the lower of two possible Sentencing Guideline ranges, before I imposed a non-Guideline sentence. Remands on this basis were not part of the landscape when Judge Weinstein decided his well-reasoned decision over a decade ago. III. CONCLUSION

  For the reasons stated above, the Defendant's application for bail pending his re-sentence is DENIED. Defendant's sentence will be vacated and he will be re-sentenced on October 31, 2005, at 10:00 a.m. The Government is instructed to make the necessary arrangements so that the Defendant will be writted down in time to be present on that day.



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