United States v. Bowers

UNITED STATES OF AMERICA v. JONATHAN BOWERS

No. 1:16-cr-000151-JAW

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

April 2, 2021

ORDER ON MOTION FOR RELEASE PENDING APPEAL

A defendant serving a one hundred eighty-month term of incarceration for possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1) moves for release pending appeal. The Court concludes that although the defendant has met his burden to show that he is not a danger or flight risk and that his appeal is not for purposes of delay, he failed to demonstrate the appeal presents a substantial question of law or fact sufficient to warrant his release and similarly failed to demonstrate exceptional reasons to justify his release. Accordingly, the Court denies the motion because the defendant fails to meet the statutory conditions for release pending appeal.

I. BACKGROUND

On November 16, 2020, the Court sentenced Jonathan Bowers to one hundred eighty months imprisonment, two years of supervised release, and a $100.00 special assessment. Min. Entry (ECF No. 118). The Court imposed this sentence following Mr. Bowers' September 14, 2017 guilty plea to one count of possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1). Min. Entry (ECF No. 56); J. at 2 (ECF No. 120). As the Court explained to Mr. Bowers and the Government at sentencing, it would not have imposed this sentence but for the statutory mandatory minimum.

Despite reservations about the length of the sentence, the Court resolved that it was required to impose the one-hundred-and-eighty-month sentence because the statute mandated it. The Court concluded that Mr. Bowers had more than three prior convictions for a violent felony and fit within the definition of armed career criminal under U.S.S.G. § 4B1.4(b)(3)(B) and 18 U.S.C. § 924(e)(1) (ACCA). Findings Affecting Sentencing ¶ 3 (ECF No. 121); Suppl. Order on Sentencing Issues and Order on Mot. for Video Hearing at 13-17 (ECF No. 109) (Second Sentencing Order); Order on Sentencing Issues at 12 (ECF No. 91) (First Sentencing Order). Mr. Bowers' Guideline range for imprisonment was one hundred sixty-eight to two hundred ten months because he had a Total Offense Level of thirty and a Criminal History Category VI. Findings Affecting Sentencing ¶ 8. However, as an armed career criminal, the statute triggered a mandatory minimum sentence of one hundred eighty months under 18 U.S.C. § 924(e)(1). Id. The armed career criminal designation also affected Mr. Bowers' guideline sentence range, increasing his base offense level to 33, which was reduced to 30 because of his acceptance of responsibility, and his criminal history category, which would have been III, was increased to VI, resulting in a guideline sentence range of 180 to 210 months.¹

Without the ACCA and U.S.S.G. § 4B1.4, Mr. Bowers would have had a Total Offense Level of nineteen and a Criminal History Category III. First Sentencing Order at 26. The applicable guideline range would have been thirty-seven to forty-six months, a fine between $10,000 and $100,000, and a period of supervised release between one and three years. Id.

On November 17, 2020, Mr. Bowers appealed his sentence to the Court of Appeals for the First Circuit. Notice of Appeal (ECF No. 122). Two days later, he moved for release pending appeal. Mot. for Release Pending Appeal (ECF No. 126) (Def.'s Mot.). On December 10, 2020, the Government responded in opposition. Gov't's Obj. to Def.'s Mot. for Release Pending Appeal (ECF No. 127) (Gov't's Opp'n). Mr. Bowers replied on December 24, 2020. Def.'s Reply to Gov't's Obj. to Mot. for Release Pending Appeal (ECF No. 129) (Def.'s Reply). On December 31, 2020, Mr. Bowers supplemented his filings with relevant medical records. Winthrop Family Medicine Records (ECF No. 134) (Med. Records).

II. THE PARTIES' POSITIONS

A. Jonathan Bowers' Motion

Mr. Bowers contends that he qualifies for release pending appeal pursuant to 18 U.S.C. § 3143 and United States v. Bayko, 774 F.2d 516, 522 (1st Cir. 1985). Def.'s Mot. at 2. He states that to qualify for release pending appeal a defendant must show "(1) he is not a flight risk or danger to public safety; (2) the appeal is not for purposes of delay; and (3) the appeal 'raises a substantial question of law or fact likely to resultin [a] reversal [or] an order for a new trial.'" Id. (alteration in original) (quoting 18 U.S.C. § 3143(b)(1)(B)(i)-(ii); Bayko, 774 F.2d at 522).

First, Mr. Bowers asserts that he "is not a flight risk or danger to public safety." Id. He notes that he "was monitored by Pretrial Services for nearly 1 year until he appeared and pled on September 14, 2017" and during that time he "was monitored without any issues beyond taking one single trip out of state without permission" for which he "admitted wrong-doing and addressed this issue with Pretrial Services." Id. He further states that he has completed programs since entering custody. Id. He also cites his health as weighing against finding he is a flight risk or dangerous. Id. Mr. Bowers reminds the Court that he suffered a traumatic brain injury during the event which led to his conviction, and now walks with a cane for support. Id. He also argues that his "limited financial resources," as documented in the Presentence Investigation Report (PSR), and his willingness to surrender any passport "alleviates any concerns that he is a flight risk." Id. at 3.

Second, Mr. Bowers argues that his "appeal is not imposed for purposes of delay." Id. He states that he "has pursued his appeal rights regarding ACCA since nearly the inception of the charges against him." Id. Moreover, he states that the appeal presents an issue that the First Circuit has previously "discussed, but not decided" in Bender v. United States, No. 16-2602, J. at 2 (1st Cir. Jan. 28, 2020) and is therefore not an attempt to delay his incarceration. Id.

Third, Mr. Bowers asserts that his "appeal raises a substantial question of law or fact likely to result in reversal." Id. He acknowledges that Bayko, 774 F.2d 516,provides the relevant test and "requires a finding that the appeal presents a close question or one that very well could be decided the other way." Id. (internal quotation marks omitted) (citing Bayko, 774 F.2d at 523). According to Mr. Bowers, "[t]his is a more rigorous standard than 'fairly debatable,' but less strict than one requiring the defendant to show that it 'is more likely than not' that the conviction would be reversed on appeal." Id.

Mr. Bowers frames the question presented by his appeal as being the same presented to, but not decided by, the First Circuit in Bender. Id. at 4. In contrast to Bender, Mr. Bowers asserts that he has "preserved his appeal rights on those grounds." Id. The crux of his argument is that Maine's burglary statute does not fit the definition of a generic burglary because Maine burglary extends to structures which, as defined by statute, "include[es] 'other place[s] designed to provide protection . . . for property.'" Id. (quoting 17-A M.R.S. § 2(24)).

To reach this conclusion, Mr. Bowers ties together several recent cases from the United States Supreme Court and First Circuit. He first notes that in United States v. Farrell, 672 F.3d 27, 30 (1st Cir. 2012), the First Circuit concluded that state burglary statutes which apply to places other than buildings, such as automobiles or vending machines, are not generic and therefore do not trigger the ACCA's enumerated offense enhancement. Id. at 4. Then, he observes that Maine's burglary statute extends to structures, which are "other place[s] designed to provide protection . . . for property." Id. (quoting 17-A M.R.S. § 2(24)). Mr. Bowers then contends that his own conviction shows Maine burglary is not generic because he wasconvicted for burglarizing "mobile storage trailers that were meant to protect property of a marina and cell phone business." Id.

Mr. Bowers acknowledges the 2018 Supreme Court case of United States v. Stitt, 139 S. Ct. 399 (2018) determined "the definition [of generic burglary] to include mobile conveyances adapted for overnight accommodations." Id. Even so, he claims Stitt does not foreclose his argument. Id. He maintains that "burglary in Maine is broader than structure under the generic definition" even after Stitt, and in spite of the First Circuit's decision that Maine burglary is generic in United States v. Duquette, 778 F.3d 314 (1st Cir. 2015). Id. In support, he argues the late-Judge Torruella's dissent in Dimott v. United States, 881 F.3d 232, 246 (1st Cir. 2018) makes it such that Duquette "is plainly open to reconsideration by the First Circuit . . .." Id. Thus, he concludes that the doctrinal tension presented by Farrell and Judge Torruella's dissent in Dimott "make[] it very well the case that application of ACCA could—[and] for that matter should—be decided differently than it was decided in this Court's opinion, which is bound by the precedent in Duquette." Id. at 5.

As a final argument for release pending appeal, Mr. Bowers pivots to 18 U.S.C. § 3145(c), which he contends "entitle[s] [him] to release . . . on a showing of exceptional circumstances." Id. He writes that he "is currently incarcerated at Cumberland County Jail . . . but will be transferred to a BOP facility," where he may contract COVID-19. Id. at 6. He then discusses his asthma diagnosis and cites CDC guidance for the proposition that it may increase his risk of severe complications from COVID-19. Id. He also cites his need to walk with a cane, "which limits his mobility andability to socially distance—to the extent that is even possible in a correctional setting." Id.

In addition, Mr. Bowers notes that the time he has served exceeds his non-ACCA Guideline range. Id. He submits that before the COVID-19 pandemic began, he continued his sentencing "for purposes of awaiting the outcome of appeals before the US Supreme Court and the First Circuit Court of Appeals." Id....