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United States v. Bailey

December 11, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
RICHARD DARYL BAILEY, DEFENDANT.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

VARLAN/SHIRLEY

MEMORANDUM AND ORDER

This criminal action is before the Court on defendant Richard Daryl Bailey's ("Mr. Bailey") Motion for Release Pending Appeal and Incorporated Memorandum of Law [Doc. 197]. Mr. Bailey moves the Court to release him from custody pending appeal with or without the posting of sufficient cash bond. The government opposes Mr. Bailey's motion. [Doc. 202.] For the reasons that follow, Mr. Bailey's motion will be denied.

On July 17, 2007, Mr. Bailey pled guilty the one count indictment [Doc. 1] charging him with being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1). On November 30, 2007, Mr. Bailey was sentenced to a term of imprisonment of 30 months [Doc. 196]. The instant motion followed and is now ripe for adjudication.

18 U.S.C. § 3143(b) sets forth the law governing bond pending a defendant's appeal of a criminal conviction. That law states that:

(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 section 3142(b) or (c) of this title [18 U.S.C. § 3142(b) or (c)]; 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.

If the judicial officer makes such findings, such judicial officer shall order the release of the person in accordance with section 3142(b) or (c) of this title [18 U.S.C. § 3142(b) or (c)], except that in the circumstance described in subparagraph (B)(iv) of this paragraph, the judicial officer shall order the detention terminated at the expiration of the likely reduced sentence.

(2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 [18 U.S.C. ยง 3142] and sentenced to a term of imprisonment, and who has ...


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