The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
ORDER DENYING MOTION FOR RELEASE PENDING APPEAL*fn1
Defendant Cedric Roberson moves under 18 U.S.C. § 3143(b) for release pending appeal of his sentence, arguing "release is mandated because [he] satisfies each of the [three] conditions for release pending appeal." (Def.'s Mot. 3:19-20, ECF No. 367.) The gravamen of Defendant's motion is his argument that the Court erred in denying his objection to the three level sentencing enhancement under U.S.S.G. § 3B1.1(b) for his role in the offense as a manager or supervisor. Id. at 4:21-9:15. Defendant argues under § 3143(b) that his motion should be granted because his appeal on the § 3B1.1(b) issue will "'raise a substantial question of law or fact likely to result in' 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.'" Id. at 2:7-11 (citing § 3143(b)(1)). In support of this argument, Defendant contends: "the portions of the Pre-Sentence Report [("PSR")] that the Court relied upon in applying the 3 level enhancement" do not evince that he "directed the other individuals involved . . . ." Id. at 5:21-26.
The government opposes the motion, rejoining inter alia, that "[D]efendant fails to present a substantial question of law on appeal that is likely to lead to relief." (Gov'ts Opp'n 1:22, ECF No. 374.) The government argues: "[Defendant's appeal] is an utterly ordinary sentencing appeal that challenges the application of undisputed facts found in the PSR to settled Ninth Circuit law." Id. at 4:1-2. The government further argues: "While the defendant may characterize the facts differently, he does not dispute that these facts are in the record[,]" and those facts "show a level of responsibility over others in the scheme and support the Court's conclusion that he was a manager or supervisor." Id. at 4:12-15.
In general, persons convicted of federal crimes are not eligible for release pending appeal unless a court 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- . . .(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."
United States v. Garcia, 340 F.3d 1013, 1015 (9th Cir. 2003)(quoting § 3143(b)(1)). "A 'substantial question' is one that is fairly debatable or fairly doubtful; it is one of more substance tha[n] would be necessary to a finding that it was not frivolous." United States v. Montoya, 908 F.2d 450, 451 (9th Cir. 1990)(citations and internal quotation marks omitted). "As the moving party, it is [Defendant's] burden" to raise "a 'fairly debatable' issue on appeal." Id.
Defendant's motion is denied since he has not shown that his appeal will raise "a substantial question of law or fact." Defendant does not dispute the factual statements contained in the PSR, upon which the Court relied in applying § 3B1.1(b)'s three level enhancement. Those uncontroverted facts and the inferences that can reasonably drawn therefrom evince that Defendant occupied a managerial or supervisory role in the criminal activity. See United States v. Riley, 335 F.3d 919, 929 (9th Cir. 2003)(affirming application of § 3B1.1(b) enhancement where defendant produced counterfeit money orders for his coconspirators and received a share of the profits); United States v. Hernandez, 952 F.2d 1110, 1119 (9th Cir. 1991)(indicating the recruitment and transportation of others is relevant in determining whether an enhancement under § 3B1.1(b) is appropriate); see also United States v. Egge, 223 F.3d 1128, 1132 (9th Cir. 2000)(stating this enhancement is "appropriate as long as [the defendant] managed at least one participant").
As stated during the sentencing hearing, Defendant recruited others to participate in the conspiracy, and assisted others by bringing checks to them personally, going with them to cash the checks, and/or providing cash payment after the checks were cashed. (PSR ¶¶ 5, 15, 17, 22, 24, 39, 44, 51, 53.) Defendant independently recruited at least three people. (PSR ¶ 17.)
The nature of Defendant's interactions with at least two people involved in the offense also evince his supervisory role. In his interactions with Aisha Stephens, Defendant responded to her questions concerning whether she needed to provide any documentation to obtain the money, and he was given access to her bank account. (PSR ¶¶ 25-26.) During one occasion when Defendant accompanied Felicia Edwards to cash a check, Defendant provided verification information to the teller during the transaction. (PSR ¶¶ 44.)
Further, the sentencing factual record supports drawing the reasonable inference that Defendant himself received proceeds from the conspiracy: Defendant stated he and his mother decided to proceed with the conspiracy despite the risk of criminal prosecution for financial reasons, including Defendant's college education and the expense of his recent criminal case (PSR ¶ 14); Defendant and his mother handled finances together (PSR ¶ 16); Defendant made cash deposits obtained from cashing the checks into a checking account he held jointly with his mother (PSR ¶ 53); and Defendant sued Alexa Orellen in small claims court over the proceeds from one check (PSR ¶6).
For the stated reasons, Defendant's motion for release pending ...