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United States v. Carey

United States District Court, Ninth Circuit

January 27, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL CAREY (1), Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the Court is the motion for bail pending sentencing (ECF No. 190) filed by Defendant Michael Carey.

BACKGROUND FACTS

On February 23, 2011, an Indictment was filed charging the Defendant Michael Carey and four others with conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846.

On July 14, 2011, the Court set conditions of release, including a bond in the amount of $100, 000 secured by a real property.

On July 14, 2011, bond was posted and the Defendant was released.

On June 21, 2012, Defendant Carey entered a plea of guilty to the charge in the Indictment.

On July 12, 2013, this Court entered an Order accepting the Defendant's Plea of Guilty to the charge in the Indictment. Sentencing was set for September 10, 2012. Sentencing has been reset ten times by the request of the parties. Sentencing is currently scheduled for February 24, 2014. The Government has recommended a sentence of 262 months imprisonment. Defendant has recommended the mandatory minimum sentence of 120 months imprisonment.

On December 16, 2013, the Court held a hearing on status of Defendant's counsel and the Defendant's conditions of release. At the hearing, the Court concluded that the provisions of 18 U.S.C. § 3143(a)(2) applicable to a Defendant pending sentence required that the Court order the Defendant detained. The Court remanded Defendant into custody.

On December 30, 2013, Defendant filed a motion for bail pending sentencing. Defendant asserts that exceptional circumstances support his continued release until judgment is entered and he has been designated to a Federal Bureau of Prisons facility. Defendant recognizes that the provisions of 18 U.S.C. § 3143(b)(2) apply to preclude his release but contends that the provisions of 18 U.S.C. § 3145(c) may authorize his release for "exceptional reasons." Defendant asserts that he is not a risk of flight or a danger to the community. Defendant asserts that exceptional reasons make his detention pending sentencing inappropriate including, his exemplary life prior to the offense, the length of the sentence and the hardship of prison, and his family circumstances.

The Government contends that Section 3143(b)(2) plainly requires the Defendant's detention and that Section 3145(c) applies to the appeal of a detention order to the circuit court. The Government asserts that the exceptional reasons clause in Section 3145(c) is not available to this Defendant prior to filing an appeal of the detention order. The Government further asserts that Defendant has not shown by clear and convincing evidence that he is not a risk of nonappearance or that there are exceptional reasons why his detention is not appropriate.

APPLICABLE LAW

18 U.S.C. § 3143 Release or detention of a defendant pending sentence or appeal states in relevant part:

(a) Release or detention pending sentence.-(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence, other than a person for whom the applicable guideline promulgated pursuant to 28 U.S.C. 994 does not recommend a term of imprisonment, be detained, unless the judicial officer finds 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 under section 3142(b) or (c). ...

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