United States District Court, S.D. Illinois
MEMORANDUM & ORDER
DAVID R. HERNDON, District Judge.
Now before the Court is Defendant Christopher Robert Garten's pro se motion to stay judgment pending appeal (Doc. 63), to which the government filed its opposition (Doc. 67). Defendant seeks to continue his release during the pendency of his case in the Court of Appeals, based on the claim that the "sentence imposed is both procedurally and substantially unreasonable" (Doc. 63, pg. 8). The government's response opposing the motion specifically highlighted defendant's waiver of his appellate rights, in lieu of the plea agreement, as a key basis for denial (Doc. 67). For the reasons set forth below, defendant's motion is DENIED.
I. INTRODUCTION AND BACKGROUND
On January 21, 2015, defendant pled guilty to the offense of conspiracy to commit mail and wire fraud in connection with telemarketing in violation of 18 U.S.C. § 1349 (Doc. 38), pursuant to a written plea agreement (Doc. 40) and stipulation of facts (Doc. 41). Following his guilty plea, on April 24, 2015, defendant was sentenced to a term of imprisonment of one year and one day for the offense (Doc. 47) with judgment entered the same day (Doc. 50) and an amended judgment to include restitution amounts attributable to his victims entered on April 30, 2015 (Doc. 52). The Court assigned Garten a total offense level of 13 with a sentencing range of 12 to 18 months.
Based on various factors set forth under 18 U.S.C. § 3553(a), the Court imposed a sentence of twelve months and one day, two years of supervised release, restitution in the amount of $32, 508 payable to his victims, and a special assessment of $100 (Doc. 52). Thereafter, Garten filed a notice of appeal on May 13, 2014 (Doc. 55). Defendant Garten now moves to stay judgment and remain on release pending appeal of his sentence pursuant to 18 U.S.C. § 3143(b)(1).
II. LEGAL STANDARD
The Bail Reform Act of 1984, 18 U.S.C. § 3143(b), governs the issue of release pending appeal by the defendant. Pursuant to 18 U.S.C. § 3143(b), a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal, must be detained unless (1) there is clear and convincing evidence that the defendant is not likely to flee or pose a risk of danger to the safety of any other person or the community, (2) the appeal is not for the purpose of delay, and (3) the appeal raises a substantial question of law or fact likely to result in reversal. See 18 U.S.C. § 3143(b). The statute creates a presumption against release pending appeal United States v. Bilanzich, 771 F.2d 292, 298 (7th Cir.1985). By enacting the Bail Reform Act of 1984, Congress "demonstrates its recognition that harm results not only when someone is imprisoned erroneously, but also when execution of sentence is delayed because of arguments that in the end prove to be without merit. " United States v. Shoffner, 791 F.2d 586, 589 (7th Cir.1986) (emphasis added). Therefore, in order to overcome the presumption against release pending appeal, defendant bears the burden of showing that the conditions set forth in § 3143(b) are met. Bilanzich, 771 F.2d at 298.
The defendant asserts various arguments relating to his sentence. First, the defendant contends that he was entitled to the entire three point reduction available under U.S.S.G. § 3E1.1(a) and (b) for acceptance of responsibility, instead of the two point reduction he received. Second, the defendant argues that overpopulation of prisons and the cost of incarceration make his sentence substantively unreasonable when confinements to a halfway house or his home are viable options. Third, the defendant believes he will suffer financial harm from incarceration due to his inability to work and support his family (Doc. 63). Pursuant to 18 U.S.C. § 3143(b), a judicial officer shall order that a defendant who has been found guilty be detained pending appeal unless the specific factors discussed above are satisfied. However, in this case, defendant Garten fails to show by clear and convincing evidence that that the conditions set forth in § 3143(b) are satisfied.
a. Waiver of Appellate Rights
Prior to defendant's change of plea to guilty, Garten entered into a written plea agreement with government that included specific conditions and waivers, one of which being a waiver of appellate rights (Doc. 40). In the plea agreement signed by defendant, Garten unambiguously waived his appellate rights " except that if the sentence imposed is in excess of the Sentencing Guidelines as determined by the Court (or any applicable statutory minimum, whichever is greater), the Defendant reserves the right to appeal the reasonableness of the sentence" (Doc. 40). Under the U.S.S.G., Garten was given a sentencing range of 12 to 18 months, and sentenced to 12 months and 1 day, well within that range. The agreement explicitly states:
" 1. The Defendant understands that by pleading guilty in accordance with this plea agreement, the Defendant is waiving all appellate issues that might have been available if the Defendant had exercised the right to trial. The Defendant is fully satisfied with the representation received from defense counsel. The Defendant acknowledges that the United States has provided complete discovery compliance in this case. The Defendant has reviewed the United States' evidence and has discussed the United States' case, possible defenses and defense witnesses with defense counsel.
2. The Defendant is aware that Title 18, Title 28, and other provisions of the United States Code afford every defendant limited rights to contest a conviction and/or sentence through appeal or collateral attack. However, in exchange for the recommendations and concessions made by the United States in this plea agreement, the Defendant knowingly and voluntarily waives the right to contest any aspect of this conviction and sentence that could be contested under Title 18 or Title 28, or under any other provision of federal law, except that if the sentence imposed is in excess of the Sentencing Guidelines as determined by the Court (or any applicable statutory minimum, whichever is greater), the Defendant reserves the right to appeal the reasonableness of the sentence. The Defendant acknowledges that in the event such an appeal is taken, the United States reserves the right to fully and completely defend the sentence imposed, including any and all factual and legal findings supporting the sentence, even if the sentence imposed is more severe than that recommended by the United States.
3. The Defendant's waiver of the right to appeal or bring collateral challenges shall not apply to: 1) claims of ineffective assistance of counsel; 2) any subsequent change in the interpretation of the law by the United States Supreme Court or the United States Court of Appeals for the Seventh Circuit that is declared retroactive by those Courts and that renders the defendant actually innocent of the charges covered herein; and 3) appeals based upon Sentencing Guideline amendments that are made retroactive by ...