United States District Court, W.D. North Carolina, Asheville Division
DENNIS L. HOWELL, Magistrate Judge.
THIS CAUSE came on to be heard before the undersigned at the close of a Rule 11 proceeding that was held before this court on February 9, 2015. At that time, the Court presented the issue of whether or not Defendant should be detained pursuant to 18 U.S.C. § 3143(a)(2). This matter further came before the Court pursuant to an oral motion made by Fredilyn Sison, counsel for Defendant, requesting that Defendant continue to be released on terms and conditions of pretrial release pursuant to 18 U.S.C. § 3145(c). Defendant was present with his attorney, Ms. Sison and the government was present and represented through Assistant United States Attorney Thomas Kent. From the arguments of counsel for Defendant and the arguments of the Assistant United States Attorney and the records in this cause, the Court makes the following findings:
Findings. On December 2, 2014 a bill of indictment was issued charging the Defendant with the offense of being within the special maritime and territorial jurisdiction of the United States did knowingly engage in sexual contact with another person without that other person's permission, in violation of 18 U.S.C. § 2244(b). On February 9, 2015, the undersigned held an inquiry, pursuant to Rule 11 of the Federal Rules of Criminal Procedure and accepted a plea of guilty of the Defendant to that offense. At the end of the Rule 11 proceeding, the Court presented the issue of whether or not the Defendant should now be detained, pursuant to 18 U.S.C. § 3143(a)(2).
Discussion. 18 U.S.C. § 3143(a)(2) provides as follows:
(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 is awaiting imposition or execution of sentence be detained unless -
(A)(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or
(ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; or
(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.
From an examination of the records in this cause, it appears Defendant has now entered a plea of guilty to the offense of knowingly engaging in sexual contact with another person without that person's permission in violation of fined in 18 U.S.C. § 2244(b). That crime is one of the crimes that is referenced under 18 U.S.C. § 3142(f)(1)(A) in that it is considered to be a crime of violence as defined in 18 U.S.C. § 3156(a)(4)(C). The term "crime of violence" according to that statute means any felony under Chapter 109A which is the chapter which contains 18 U.S.C. § 2244(b). The undersigned notes it would appear that the maximum possible penalty for the Defendant is a term of imprisonment of not more than two years, a fine in an amount not to exceed $250, 000, or both.
The undersigned made an inquiry of Assistant United States Attorney Thomas Kent as to whether or not there was going to be a recommendation that no sentence of imprisonment be imposed upon Defendant. Mr. Kent advised the undersigned that from his examination of the United States Sentencing Guidelines and the Defendant's criminal record, it was questionable whether or not the guidelines would provide for a sentence of confinement in prison for Defendant. However, Mr. Kent further stated he was not in a position to state there was going to be a recommendation that no sentence of imprisonment be imposed upon Defendant.
As a result of the plea of guilty of Defendant, the undersigned cannot find there is a substantial likelihood that a motion for acquittal or new trial will be granted. It would thus appear that the undersigned is required to apply the factors as set forth under 18 U.S.C. § 3143(a)(2) which require the detention of Defendant.
Defendant's counsel made an oral motion contending that exceptional circumstances exist which would merit the continued release of Defendant, pursuant to 18 U.S.C. § 3145(c). That statute provides as follows:
(c) Appeal from a release or detention order. -
An appeal from a release or detention order, or from a decision denying revocation or amendment of such an order, is governed by the provisions of section 1291 of title 28 and section 3731 of this title. The appeal shall be determined promptly. A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial ...