United States District Court, D. Kansas
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
Defendant Jerold D. Fisher filed a contested Motion for Appeal Bond (Doc. 90), which the Court heard on April 27, 2015. Because Defendant has failed to establish that the appeal raises a substantial question of law or fact likely to result in a reduced sentence, the Court denies Defendant's request to release him on bond pending his appeal.
On May 27, 2014, this Court held a sentencing hearing and entertained the parties' joint recommendation, pursuant to their plea agreement,  that the Court sentence Defendant to 36 months' imprisonment. This Court expressed concern about that non-binding recommendation, given that the Sentencing Guidelines range was 41 to 51 months' custody, and given that there was no explanation as to Defendant's disposition of much of the $4 million in proceeds of the tax fraud-there was no evidence that it was dissipated though substance abuse or gambling, and in fact, there was no explanation with respect to much of the money. The Court advised the parties that the sentencing hearing would be continued because of the Court's concern about the disposition of the fraudulent tax refunds. The procedural history and circumstances are well detailed in the Court's August 27, 2014 Memorandum and Order granting the Government's motion for a determination that Defendant had breached the plea agreement, as well as in the Court's October 28, 2014 Memorandum and Order granting Defendant's motion for reconsideration. In its October 28 Memorandum and Order, this Court concluded that Defendant had not breached the plea agreement, such that the parties were bound by the plea agreement and such that the Government could not advocate for a sentence greater than the parties' agreed upon joint recommendation of 36 months; the Court further concluded that the Court was not bound by the terms of the parties' non-binding plea agreement.
At the final sentencing hearing on November 4, 2014, Defendant objected that the Government had also breached the plea agreement by filing new charges against him. The Court overruled that objection, finding that the proper consideration of Defendant's concern would be in the context of a motion to dismiss filed in the new case, wherein the Court could hear evidence as to whether the new charges were based on information gained in a manner that was violative of the plea agreement. The Court heard the parties' joint recommendations for a sentence of 36 months, five months below the bottom of the 41-51 month Sentencing Guidelines range. The Court found, based on the Guidelines and the 18 U.S.C. § 3553 factors, that the appropriate sentence was 41 months. Defendant thereafter appealed the sentence to the Tenth Circuit Court of Appeals, and now moves the Court to release him on bond pending his appeal.
Defendant claims that he should be released pending appeal, pursuant to 18 U.S.C. § 3143(b), arguing specifically that his appeal raises a substantial question of law or fact likely to result in a reduced sentence to a term of imprisonment less than the time served plus expected duration of the appeal process. Though the Government objects to this motion, it did not argue that there was clear and convincing evidence that there are no conditions or combination of conditions that would assure Defendant's appearance or the safety of the community. Rather, the Government focuses on, as does Defendant, the issue of whether the appeal presents a substantial question of law or fact likely to result in a materially reduced sentence. The Court agrees with the Government that it does not.
First, Defendant entered into a plea agreement, in which he waived most of his rights of appeal. The plea agreement provided that Defendant "knowingly waives any right to appeal a sentence imposed which is within the guideline range determined appropriate by the court." The plea agreement provided three exceptions to Defendant's waiver of his right to appeal the sentence: (1) the Court departs upward from the applicable Sentencing Guidelines range determined by the court; (2) the United States exercises its right to appeal the sentence imposed; or (3) the appeal is based on claims with regards to ineffective assistance of counsel or prosecutorial misconduct. Here, the Court sentenced Defendant to the bottom of the applicable Sentencing Guidelines range and the Government did not exercise its right, under the terms of the plea agreement, to appeal the sentence imposed. Moreover, Defendant raised three grounds in his appeal, all relating to whether the Government breached the plea agreement, and none of which relates to ineffective assistance of counsel or prosecutorial misconduct. Because the appeal does not appear to be outside the scope of Defendant's appellate waiver, the appeal does not raise a substantial question of fact or law that would likely result in a reduced sentence.
Nonetheless, for purposes of this motion, the Court will assume that Defendant's appeal is outside the scope of the appellate waiver. That is, this Court will assume that Defendant may properly appeal the sentence based on his stated grounds that the Government breached the plea agreement, that this Court violated Fed. R. Crim. P. 32(i)(3)(B) by not ruling on Defendant's sentencing objections that the Government had breached the plea agreement, and that the Court's specific performance of the plea agreement required the Court to impose a sentence not exceeding 36 months. For the reasons discussed below, the Court finds that Defendant's appeal does not raise a substantial question of law or fact that will result in a reduced sentence as required by 18 U.S.C. § 3143(b)(1)(B)(iv).
A. Defendant's Objection that Government breached by advocating for greater sentence
Defendant claims that the Court erred in failing to rule upon his objection that the Government had breached the plea agreement by advocating for a sentence exceeding 36 months.
But based on the procedural course of this case, such an objection was moot. In its August 27 Memorandum Order, this Court found that Defendant had breached the plea agreement. In the plea agreement, the parties had agreed to make a joint recommendation to the Court that Defendant not receive a sentence exceeding 36 months. Based on the Court's August 27 ruling that Defendant had breached the plea agreement, the Government took the position that it was no longer bound by the plea agreement, and that it could properly advocate for a sentence exceeding 36 months. But, the Court later granted Defendant's motion to reconsider its ruling, and in its October 28 Memorandum Order, the Court concluded that Defendant had not breached the plea agreement; the Court further concluded that both parties were bound by the terms in the plea agreement. In response, the Government ceased advocating for a sentence exceeding 36 months. Thus, at the time of the final sentencing hearing in November, any objection that the Government was breaching the plea agreement by advocating for a sentence exceeding 36 months, was moot. The Government no longer was advocating for a sentence exceeding 36 months, in light of the Court's October decision that the parties were bound by their agreement to jointly recommend a sentence of no more than 36 months. In fact, at the sentencing hearing, the Government recommended a sentence of 36 months, consistent with the plea agreement.
B. Defendant's Objection that Government breached by filing new charges
At the November final sentencing hearing, Defendant argued that the Government had also breached the plea agreement by filing new charges. Defendant mistakenly argues that the Court failed to rule on this objection. In fact, the Court ruled that this objection was more properly raised as a motion to dismiss filed in the new case. In the context of such a motion to dismiss, the Court could hear evidence as to whether the new charges were based on information gained in a manner that was violative of the plea agreement. If they were, the proper remedy would be dismissal of that case. Thus, in essence the Court denied this objection, without ...