United States District Court, E.D. California
ORDER DENYING MOTION FOR BAIL PENDING APPEAL
JOHN
A. MENDEZ JUDGE
I.
FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Defendant
Cesar Caballero ("Caballero") was convicted at a
jury trial of violating 18 U.S.C. § 3146(a)(2)
("Section 3146"), failure to surrender for the
service of a sentence (Doc. #44). Caballero was sentenced to
75 days in prison and was immediately remanded to serve his
sentence (Doc. #62). Three days later, Caballero filed a
notice of appeal (Doc. #60). Caballero now moves for release
pending appeal pursuant to 18 U.S.C. § 3143(b)
("Section 3143") (Doc. #68). The Government opposes
Caballero's motion (Doc. #71). Because the matter has
been thoroughly briefed by the parties, the Court has
determined that this motion is suitable for decision without
oral argument. As explained below, the motion is denied.
II.
OPINION
A.
Legal Standard
Pursuant
to the Bail Reform Act, a Court shall detain an individual
who has been found guilty and sentenced to a term of
imprisonment while that person appeals his conviction 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" reversal, an order for a new trial, or a
reduced sentence. 18 U.S.C. § 3143(b)(1)(A)-(B).
B.
Analysis
1.
Likelihood of Fleeing or Danger
Caballero
argues that he is not likely to flee and not a danger to the
community because his most recent convictions were for
non-violent offenses and he voluntarily appeared at the
sentencing hearing in this case. The Government concedes that
Caballero is not a danger to the community but argues that
Caballero has failed to demonstrate by clear and convincing
evidence that he is not a flight risk, pointing to his
history of disobeying court orders, the circumstances of this
conviction, and his criminal history.
At this
point, Caballero is not a threat to the safety of his
community. However, the Government is correct that Caballero
has failed to demonstrate by clear and convincing evidence
that he is not a flight risk. Caballero is in prison for
intentionally failing to appear to serve a prison sentence.
The
evidence at trial demonstrated that Caballero knew he was
supposed to appear to serve his sentence and simply decided
not to show up. The Court's decision to immediately
remand Caballero following the sentencing hearing so he could
serve the current 75-day sentence reflects the Court's
concern regarding Caballero's well documented history of
disrespecting and disobeying this Court's orders. For
these reasons, the Court finds that Caballero has not
demonstrated that he is unlikely to flee. Bail pending appeal
is therefore inappropriate pursuant to Section 3143(b)(1)(A).
2.
Substantial Questions of Law or Fact
Caballero
intends to raise two issues on appeal: (1) ineffective
assistance of counsel ("IAC") based on his
counsel's faulty advice at trial that Caballero did not
have the right to request to testify on surrebuttal and (2)
insufficiency of the evidence based on the Government's
failure to prove that Caballero was released under the Bail
Reform Act. Caballero contends that these are substantial
questions of law or fact that would result in a reversal or
new trial if resolved in his favor.
Caballero's
IAC claim does not raise any substantial question of law or
fact that will likely result in a reversal of his conviction,
new trial, or reduced sentence. To prevail on his IAC claim,
Caballero must prove that his attorney's performance fell
below an objective standard of reasonableness and that the
attorney's mistake caused him prejudice. Strickland
v. Washington, 466 U.S. 668 (1984). Even assuming that
Caballero's counsel erred in advising Caballero that he
did not have the right to request to testify on surrebuttal,
Caballero has not demonstrated that this ...