The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently pending before the court is defendant Anjenette Brown's request for release pending appeal, filed on February 14, 2013. (Dkt. No. 391.) On February 21, 2013, the United States of America ("United States") filed an opposition to defendant's request. (Dkt. No. 395.) A hearing on defendant's request was conducted on February 27, 2013. (Dkt. No. 396.) For the reasons stated at the hearing, the court granted defendant an additional seven days, until March 6, 2013, to file any supplemental briefing in support of the request. (Id.) Although that deadline has now passed, defendant has not filed any such supplemental briefing.
After considering the parties' briefing, the oral argument at the hearing, and other appropriate portions of the record, the court denies defendant's request for release pending appeal.
The facts concerning defendant's sentencing and the associated procedural history are essentially undisputed. On August 29, 2012, defendant was sentenced to a two-month term of imprisonment and other conditions, with an extended self-surrender date of November 16, 2012. (Dkt. No. 331.)*fn1 In the course of the hearing, the court and the parties discussed the possibility of intermittent confinement, permitting defendant to serve her term on weekends. However, there were various logistical concerns that needed to be addressed to accommodate such a sentence. Therefore, the court sentenced defendant to a regular two-month term, but indicated that if a workable intermittent confinement schedule could be worked out prior to the self-surrender date, the court would be willing to entertain such a request. Counsel for the United States agreed to this general framework, and indicated that defense counsel had the United States's consent to file a stipulation and proposed order requesting a modification to intermittent confinement without prior notice to the United States. A judgment was entered on September 10, 2012. (Dkt. No. 336.)
Subsequently, it was determined that intermittent confinement would be feasible, but that modifying defendant's sentence to intermittent confinement could not be accomplished by stipulation as originally intended; instead, the court would have to re-sentence defendant. On October 24, 2012, the undersigned, over the United States's jurisdictional objections, re-sentenced defendant to, inter alia, two months of intermittent confinement. (Dkt. No. 357.) An amended judgment was accordingly entered on October 30, 2012. (Dkt. No. 364.)
On November 7, 2012, the United States appealed the modified sentence imposed by the undersigned to the district judge. (Dkt. No. 368.) The United States primarily argued that the undersigned did not have jurisdiction to re-sentence defendant. Thereafter, the district judge ruled in favor of the United States, found that the undersigned lacked jurisdiction to re-sentence defendant, vacated the amended judgment, and reinstated the original judgment, whereupon defendant filed a notice of appeal in the Ninth Circuit. (Dkt. No. 388, 389.) That appeal remains pending, and the instant request for release pending appeal followed. (Dkt. No. 391.)
Generally, a defendant "who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari" shall be ordered detained, unless the 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 (i) reversal, (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." 18 U.S.C. § 3143(b)(1).
In this case, the United States does not dispute that defendant is neither a flight risk nor a danger to the community. Instead, the United States opposes defendant's request for release pending appeal on the basis that defendant's appeal does not raise a substantial question of law or fact likely to result in reversal.
A court need not find that defendant will probably prevail on appeal to find that a substantial question of law or fact exists; "the word 'substantial' defines the level of merit required in the question raised on appeal, while the phrase 'likely to result in reversal' defines the type of question that must be presented." United States v. Handy, 761 F.2d 1279, 1280-81 (9th Cir. 1985). A substantial question "is one that is fairly debatable, or fairly doubtful. In short, a substantial question is one of more substance than would be necessary to a finding that it was not frivolous." Handy, 761 F.2d at 1283; see also United States v. Montoya, 908 F.2d 450, 450 (9th Cir. 1990).
The undersigned finds that defendant's appeal does not raise a "substantial question of law or fact" for purposes of 18 U.S.C. § 3143(b)(1). To be sure, the undersigned, with the view of accomplishing substantial justice, re-sentenced defendant in an attempt to effectuate the parties' and the court's original intent to allow defendant to serve a sentence of intermittent confinement if such an arrangement could be worked out. Nevertheless, after reversal by the district judge and the benefit of further briefing and oral argument from the parties, the undersigned concludes that he lacked jurisdiction to re-sentence defendant. The Ninth Circuit has held that:
A court generally may not correct or modify a sentence of imprisonment once it has been imposed. 18 U.S.C. § 3582(c). A court may modify such a sentence only "to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." 18 U.S.C. § 3582(c)(1)(B). Federal Rule of Criminal Procedure 35(a) states: "Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." This and other circuit courts have held that the fourteen-day deadline is jurisdictional, thus divesting the district court of the power to amend the sentence after fourteen days.
U.S. v. Aguilar-Reyes, 653 F.3d 1053, 1055 (9th Cir. 2011). Federal Rule of Civil Procedure 35(a) does not aid defendant here, because re-sentencing occurred more than fourteen (14) days after the original sentencing and the original judgment was entered. Furthermore, none of the exceptions in 18 U.S.C. § 3582(c) apply; for example, although 18 U.S.C. § 3582(c)(1)(A)(i) appears to allow, at least under some circumstances, for modification of an imposed term of imprisonment ...