UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
February 9, 2009
UNITED STATES OF AMERICA, PLAINTIFF,
CHUL KYOON HAN, DEFENDANT.
The opinion of the court was delivered by: George H. King United States District Judge
ORDER DENYING BAIL PENDING APPEAL
This matter is before us on defendant's Motion for Bail Pending Appeal. We have considered the briefing in support of and in opposition to said motion. We rule as follows:
On November 3, 2008, we sentenced defendant to, among other things, the custody of the Bureau of Prisons ("BOP") for imprisonment for a term of 36 months. We ordered defendant to surrender to either the BOP or the United States Marshal by noon on January 12, 2009. Subsequently, we granted defendant's application for an order extending his surrender to February 12, 2009. To date, defendant has not been in custody on this conviction.
On January 6, 2009, defendant's current counsel filed this Motion for Bail Pending Appeal. He claims that the 36-month term of incarceration is an unwarranted upward variance from the guideline range,*fn1 and is excessive for various reasons, including that the parties agreed that they would recommend that the court sentence defendant to 21 months.*fn2
In order to qualify for release pending appeal, defendant must satisfy the requirements of 18 U.S.C. § 3143(b), which states in pertinent part as follows:
(b) Release or detention pending appeal by the defendant --(1) . . . the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal . . . be detained, unless the judicial officer 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 if released . . . 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 --
(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 than the total of the time already served plus the expected duration of the appeal process.
In this case, the government does not dispute that § 3143(b)(1)(A) is satisfied. It argues that defendant has not satisfied § 3143(b)(1)(B). Because we agree that defendant has not satisfied § 3143(b)(1)(B), we do not decide whether defendant has satisfied § 3143(b)(1)(A) at this time.
As to the sub-parts of § 3143(b)(1)(B), it appears that defendant is only arguing the applicability of sub-part (iv). Indeed, because this conviction was based on a guilty plea which is not challenged on this appeal (Notice of Appeal challenging the sentence only), subparts (i) and (ii) are not applicable. Moreover, inasmuch as defendant's claim is that he should have been sentenced to 21, not 36, months of imprisonment, sub-part (iii) is likewise inapplicable.
Even as to sub-part (iv), we conclude that defendant has not raised a substantial question of law or fact that is likely to result in a reduced sentence to a term of imprisonment less than the total time already served plus the expected duration of the appeal process. For the reasons we set forth at the sentencing, we conclude that it is not debatable as to whether we properly sentenced defendant to 36 months imprisonment, an upward variant from the advisory guideline range of 24 to 30 months imprisonment. Moreover, even if we assumed arguendo that defendant would prevail on appeal and ultimately receive a 21-month sentence, we are required to order his release from detention only at the expiration of the likely reduced sentence. § 3143(b)(1)(last paragraph). In this case, defendant has not served any time in custody arising from this conviction. Even if he prevails on appeal, he would only be entitled to release from detention once he has served 21 months in prison. We are confident that this appeal will be resolved before the expiration of a 21-month sentence, even with any potential good time credits. According to the latest statistics, the median time between filing of notice of appeal to final disposition for criminal appeals in the Ninth Circuit is 12.7 months. See Administrative Office of the United States Courts, Judicial Business of the United States Courts, Table B-4A (2007) available at http://www.uscourts.gov/judbus2007/contents.html.
Based on the foregoing, we deny defendant's Motion for Bail Pending Appeal. Defendant shall surrender himself by noon on February 12, 2009, as previously ordered.
IT IS SO ORDERED.