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 ...