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United States v. McKany

United States District Court, S.D. California

November 12, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT MCKANY, Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the Court is the motion for bail pending appeal filed by Defendant Robert McKany. (ECF No. 88)

BACKGROUND FACTS

On February 20, 2013, the grand jury returned a seven count Indictment charging Defendant with distribution, and receipt of images of minors engaged in sexually explicit conduct, and possession of materials containing images of minors engaged in sexually explicit conduct.

On December 4, 2013, this Court entered an order denying the motion to suppress statements and the motion to suppress evidence filed by the Defendant. (ECF No. 43).

On February 18, 2014, Defendant entered pleas of guilty to Count 3 receipt of images of minors engaged in sexually explicit conduct and Count 5 possession of matters containing images of minors engaged in sexually explicit conduct. In the Conditional Plea Agreement, Defendant agreed to plead guilty to Count 3 and Count 5 of the Indictment and the Government agreed to dismiss the remaining counts of the Indictment at sentencing. The Conditional Plea Agreement provides that Defendant waived the right to appeal or collaterally attack his conviction, "except (1) a post-conviction collateral attack based upon a claim of ineffective assistance of counsel; (2) an appeal of the Court's order (Docket No. 43)... in which the Court denied defendant's motion to suppress; or (3) a custodial sentence above the high end of the guideline range recommended by the Government pursuant to this agreement at the time of sentencing." (ECF No. 47 at 15).

On July 11, 2014, the Court entered an order denying the request for the Court to vacate one of his two convictions prior to sentencing filed by Defendant. (ECF No. 63). The parties further agreed that Defendant has the right to appeal this order.

On October 17, 2014, this Court entered judgment sentencing Defendant to serve a seventy-two month term of imprisonment in the custody of the United States Bureau of Prisons on each count, concurrently. (ECF No. 84 at 2). Upon his release, the Judgment provides that Defendant is placed on supervised release for a term of 8 years on each count, concurrently. Id. at 3.

On October 22, 2014, Defendant filed Notice of Appeal from the final judgment. (ECF No. 85).

On October 24, 2014, Defendant filed a motion for bail pending appeal. (ECF No. 88). The Government opposes the motion for release pending appeal.

APPLICABLE LAW

18 U.S.C. ยง 3143 states in relevant part:

(b) Release or detention pending appeal by the defendant.-(1) Except as provided in paragraph (2), 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 or a petition for a writ of certiorari, 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 under ...

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