United States v. Cropper

361 F.Supp.3d 1236

UNITED STATES of America,

v.Vaughn Alexander CROPPER, Defendant.

Case No.: 2:17-CR-0030-VEH-TMP-1

United States District Court, N.D. Alabama, Southern Division.

Signed February 21, 2019

Acting US Attorney Robert Posey, Gregory R. Dimler, US Attorney's Office, US Probation, United States Probation Office, USM, United States Marshal, Birmingham, AL, for United States of America.

Kevin L. Butler, Federal Public Defender Northern District of Alabama, Birmingham, AL, for Defendant.

MEMORANDUM OPINION AND ORDER DENYING RELEASE PENDING APPEAL

VIRGINIA EMERSON HOPKINS, Senior United States District Judge

Before the Court is Defendant Vaughn Alexander Cropper's Motion To Review and Revoke Magistrate's Detention Order (doc. 110) (the "Motion") filed on December 17, 2018. The Government did not file any opposition to the Motion. Accordingly, the Motion is ripe for review.

The Motion is GRANTED to the extent that the Court will review the magistrate judge's detention order. However, for the reasons set out below, the Motion is otherwise DENIED . Defendant will not be released pending appeal.

I. PROCEDURAL HISTORY

On April 11, 2017, Defendant was convicted by a jury of being a felon knowingly in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), with penalties as set out at 18 U.S.C. § 924. At sentencing, the Court found that Defendant had three prior drug felony convictions, and therefore sentenced him under the mandatory minimum sentencing provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e). Judgment of Conviction (doc. 79) was entered on August 10, 2017. Defendant was sentenced to a custodial term of 188 months. (See id. at 2).

On August 11, 2017, Defendant filed a Notice of Appeal (doc. 81) and appealed his conviction and sentence.

On August 14, 2017, Defendant filed a Motion To Proceed Pro Se on Appeal and Waive Appointment of Counsel. (Doc. 84). In the Motion To Proceed Pro Se on Appeal and Waive Appointment of Counsel, Defendant also requested that he be given a "hearing ... to determine if [he] [could] be released pending appeal." (See id. at 1 n.1).

Magistrate Judge T. Michael Putnam held a hearing on August 23, 2017. (See Docket Sheet). On August 25, 2017, Judge Putnam issued an Order Denying Release Pending Appeal (doc. 88).

On November 17, 2017, Defendant filed a Motion To Revoke Magistrate's Detention Order (doc. 102). On November 20, 2017, the district court transmitted Defendant's Motion To Revoke Magistrate's Detention Order to the United States Court of Appeals for the Eleventh Circuit. (See Docket Sheet).

On March 15, 2018, the Eleventh Circuit dismissed Defendant's Motion To Revoke Magistrate's Detention Order without prejudice. (See doc. 110-1 at 1). The Eleventh Circuit did not have jurisdiction to rule on the motion because "the district court never reviewed [the detention order] and therefore never rendered a final ruling ... that [the Eleventh Circuit] [could] review." (See id. ) The Eleventh Circuit stated that Defendant could "re-file a motion for release pending appeal in the district court." (See id. at 2).

On December 17, 2018, Defendant filed the Motion pursuant to 18 U.S.C. § 3145(b).

II. STANDARD

Section 3145(b) provides in relevant part as follows: "If a person is ordered detained by a magistrate judge, ... the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order." 18 U.S.C. § 3145(b).

"District courts are required to review magistrate judges' detention orders de novo ." United States v. Lozano , No. 09-158, 2009 WL 3834081, at *1 (M.D. Ala. Nov. 16, 2009) (citing United States v. Hurtado , 779 F.2d 1467, 1481 (11th Cir. 1985) ). "Thus, in this case, the Magistrate Judge's findings cannot be afforded any deference." Id.

III. ANALYSIS

In the Motion, Defendant seeks to be released from custody pending his appeal. Defendant is proceeding on appeal and in this Motion without counsel. Therefore the Court has broadly construed the Motion and the relief sought. See Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ("A document filed pro se is ‘to be liberally construed[ ]’ ...." (quoting Estelle v. Gamble , 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ) ).

Detention or release of a person who has been convicted and sentenced and has filed an appeal is governed by 18 U.S.C. § 3143(b), which provides as follows:

(b) Release or detention pending appeal by the defendant.—(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; 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, 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 and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained.

18 U.S.C. § 3143(b).

Thus, the statutory scheme requires detention post-sentencing of any person who falls within § 3143(b)(2). A person who has been convicted and sentenced, but who does not fall within § 3143(b)(2), must be detained pending appeal unless the person satisfies the requirements at § 3143(b)(1). Accordingly, this Court will first decide whether Defendant does or does not fall within § 3143(b)(2). If he does not, the Court will then decide whether or not Defendant satisfies the requirements of § 3143(b)(1).

As is clearly stated in § 3143(b)(2), any person "who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of [ 18 U.S.C.] section 3142 and [who has been] sentenced to a term of imprisonment" is to be detained while his appeal is pending. 18 U.S.C. § 3143(b)(2). Thus, the first legal issue for this Court to resolve is whether Defendant was found guilty in a case described in subparagraphs (A), (B), or (C) of 18 U.S.C. § 3142(f)(1).

The Court initially notes that § 3143(b)(2) is written in terms of "cases described." The Court further notes that those cases are described with reference to the penalties applicable upon conviction of an underlying offense. The cases described in 18 U.S.C. § 3142(f)(1) at subparagraphs (A), (B), and (C) are:

(A) a crime of violence, a violation of section 1591, or an offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed;

(B) an offense for which the maximum sentence is life imprisonment or death;

[and]

(C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act ( 21 U.S.C. 801 et seq. ), the Controlled Substances Import and Export Act ( 21 U.S.C. 951 et seq. ), or chapter 705 of title 46[.]

18 U.S.C. § 3142(f)(1).

The Court notes that Defendant was not convicted before this Court of a crime of violence, a violation of 18 U.S.C. § 1591, or an offense listed in 18 U.S.C. § 2332b(g)(5)(B). Thus, subparagraph (A) does not cabin this request. The Court also notes that Defendant was not convicted of an offense whose penalties are prescribed by the Controlled Substances Act ( 21 U.S.C. § 801 et seq. ), the Controlled Substances Import and Export Act ( 21 U.S.C. § 951 et seq. ), or chapter 705 of title 46. Thus, subparagraph (C) also fails to control. Accordingly, only subparagraph (B) may apply in this case.

Subparagraph (B) includes "offense[s] for which the maximum sentence is life imprisonment or death." 18 U.S.C. § 3142(f)(1)(B). Here, Defendant was convicted of the offense of being a felon knowingly in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Ordinarily, this offense has a maximum sentence of ten years imprisonment. See 18 U.S.C. § 924(a)(2) ("Whoever knowingly violates subsection ... (g)[ ] ... of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both."). However, because Defendant had three prior drug felony convictions, his sentence was enhanced pursuant to 18 U.S.C. § 924(e). See 18 U.S.C. § 924(e). As a result of this sentence enhancement, the statutory maximum penalty to which Defendant could have been sentenced was life imprisonment. See 18 U.S.C. § 924(e)(1) (stating that "such person shall be fined under this title and imprisoned not less than fifteen years").

Accordingly, whether subparagraph (B) applies in this case depends on whether subparagraph (B) directs the Court to consider only the ordinary maximum sentence of Defendant's offense of conviction of § 922(g), which is ten years imprisonment, or to consider the maximum sentence as enhanced by § 924(e), which is life imprisonment.

The Eleventh Circuit has not decided this issue. In fact, the only case that the Court could find that addresses this issue is United States v. Burnom , No. 89-1023, 1993 WL 291874, at *1-2 (N.D. Ill. July 30, 1993). The Burnom court...