The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court are defendant's motion for release pending appeal and stay of his surrender date pending resolution (including any appeal) of this motion (Docket No. 129*fn1 ). After argument of this motion, on November 12, 2008, the Court extended the surrender date from November 14, 2008 (see Docket No. 125, Amended Judg. at 2), to November 28, 2008 (Docket No. 139).
Defendant was indicted on March 22, 2007, for four counts of willful failure to file tax returns for tax years 2000-2003, a misdemeanor in violation of I.R.C. § 7203 (Docket No. 1). The parties consented to proceed before the Magistrate Judge to conduct the misdemeanor trial (Docket No. 71). Following a two-week jury trial in January and February 2008, defendant was convicted of three of the four counts alleged (see Docket No. 84).
After argument of defense objections to the presentence investigation report (Docket No. 95), the Court scheduled the filing of papers regarding sentencing (id.). The Court denied his motion for downward departure or imposition of a non-Guidelines sentence (Docket No. 110) and denied reconsideration of this motion (Docket No. 116). Defendant was released on conditions pending sentencing, see 18 U.S.C. § 3143(a)(1) (see Docket No. 129, Def. Atty. Affirm. ¶ 6). Defendant was sentenced on August 27, 2008, to a prison term of 21 months, followed by supervised release (id. ¶ 7; text minute entry, Aug. 27, 2008). He was granted voluntary surrender and eventually given until November 14, 2008 (Docket No. 125, Am. Judg. at 2) (now November 28, 2008, Docket No. 139), to surrender (Docket No. 129, Def. Atty. Affirm. ¶ 8). Following entry of the initial Judgment (Docket No. 118), defendant filed his Notice of Appeal (Docket No. 122) and the appeal is pending under a briefing schedule based upon the date of the filing of the sentencing transcript (Docket No. 127; see Docket No. 129, Def. Atty. Affirm. ¶¶ 10, 11).
Defendant now moves for release pending appeal, arguing that he meets the four factors for granting such relief. In particular, he contends that his appeal raises a substantial question of law and, if he prevailed, would change his sentence either to a non-jail sentence or one reduced to be equivalent to the time for perfecting an appeal. (Docket No. 130, Def. Memo.)
There is a presumption that, whenever a defendant is found guilty of a federal offense and is sentenced to a term of imprisonment, the defendant shall begin serving that sentence notwithstanding the appeal of that conviction or sentence, United States v. Alston, Criminal Action No. 02-0057, 2006 U.S. Dist. LEXIS 34447, at *3-4 (D.D.C. May 30, 2006); see 18 U.S.C. § 3143(b)(1). For the Court to grant defendant release pending appeal, it must find that, if released, defendant is not likely to flee; that defendant has demonstrated by clear and convincing evidence that he is not likely to pose a danger to the safety of any other person or community; that the appeal is not for the purpose of delay; and, where the appeal challenges the sentence, whether the issue raises a substantial question of law or fact likely to result in a sentence that does not include a term of imprisonment or a reduced sentence to a jail term which is less than the combined total of the time already served by the defendant and the expected duration of the appeal process, 18 U.S.C. § 3143(b)(1)(A), (B) (Docket No. 129, Def. Atty. Affirm. ¶ 12; Docket No. 130, Def. Memo. at 2; Docket No. 138, Gov't Response at 2). The convicted defendant bears a heavy burden in arguing for release pending appeal (Docket No. 138, Gov't Response at 1-2), see United States v. Hart, 906 F. Supp. 102, 104 (N.D.N.Y. 1995).
Most of the statutory factors (defendant's likelihood of flight, his likelihood of danger to others, whether the appeal is for purpose of delay) appear not to be in dispute (see Docket No. 129, Def. Atty. Affirm. ¶¶ 13-19; cf. Docket No. 138, Gov't Response at 2). At issue here is the last finding, that the appeal raises substantial questions that would significantly impact defendant's sentence. This, in turn, can be broken into two sub parts, whether defendant raises a substantial question of law or fact in his appeal and whether the sentence after this appeal process will be reduced (either to no imprisonment or to time served plus the period of the release pending the appeal) as a result of resolution of the substantial factual or legal question.
I. Substantial Question of Law
In this circuit, a "substantial question of law" is "one of more substance than would be necessary to a finding that it was not frivolous. It is a 'close' question or one that very well could be decided the other way," United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985), quoted favorably and adopted in United States v. Randell, 761 F.2d 122, 125 (2d Cir. 1985) (Docket No. 130, Def. Memo. at 3; Docket No. 138, Gov't Response at 3).
Here, the parties rehash the arguments made (and repeated) regarding the scope of the sentencing Court's discretion in the post-Booker*fn2 sentencing environment. Defendant repeats that this Court erred in giving "undue deference" to the Sentencing Guidelines in not granting him a non-Guidelines sentence, concluding that these arguments raise substantial questions of law that warrant his release pending appeal (Docket No. 130, Def. Memo. at 2-3, 4-11). The Government replies that the sentence imposed is correct and that the Court correctly applied the sentencing factors (starting from the Guidelines and reviewing other factors), exercising its discretion in rejecting defendant's grounds for imposition of a non-Guidelines sentence, concluding that defendant has not raised a "close" "substantial question" of law to merit release pending appeal (see Docket No. 138, Gov't Response at 3-6).
The appellate issue is whether this Court abused its discretion under the new post-Booker sentencing regime in not granting defendant a non-Guidelines sentence. For purposes of this motion, the issue further boils down to whether that question is "close" or raises a "substantial question of law" to warrant defendant's release. The exercise of discretion in sentencing in imposing a non-Guidelines sentence may go the other way (or a different way), as is inherent in any discretionary decision. But the question is whether there was the abuse of discretion in not granting the relief defendant seeks and whether he raises even a "close" question to be deemed sufficiently substantial to justify his release pending appeal. That question approaches the merits of the pending appeal and the issue previously considered by this Court in ...