United States District Court, W.D. North Carolina, Bryson City Division
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on the Government's Motion to Lift Stay of Sentence [Doc. 10], the Defendant's Motion to Stay Sentence pending appeal to the Fourth Circuit [Doc. 15], and the Defendant's motions to file out of time both his Stay Motion and Memorandum in support thereof. [Docs. 14; 16].
The United States Attorney named the Defendant in an eighteen-count Amended Bill of Information charging him with various wildlife-related petty offenses. [Doc. 1]. Pursuant to a written Plea Agreement that contained post-conviction waivers, the Defendant entered pleas of guilty before the Magistrate Judge to the following six Counts of the Amended Information: Count 1(operating a boat at night without lights), Count 4 (hunting bear at night and during closed season), Count 5 (hunting deer at night), Count 6 (spotlighting deer), Count 8 (hunting without a license), and Count 9 (hunting deer during closed season). [2:13-cr-16, Doc. 150]. As a part of his plea agreement with the Government, the Defendant also agreed to plead guilty to a separate misdemeanor offense filed in case number 2:13cr16 which was set for sentencing before the Court on June 4, 2015. [Id.].
Following the Defendant's guilty pleas, Magistrate Judge Howell then sentenced the Defendant on the six petty offenses, imposing on: Count 1, a $100 penalty; Count 4, five months' imprisonment and an $800 fine; Count 5, five months' imprisonment and a $500 fine; Count 6, five months' imprisonment and an $800 fine; Count 8, five months' imprisonment and a $300 fine; Count 9, one year of probation to begin at the expiration of all terms of imprisonment and a $500 fine, with all of the terms of imprisonment to run consecutively (for a total term of imprisonment of 20 months). [Doc. 1-1]. The Magistrate Judge entered his Judgment on October 28, 2014. [Id.]. The Defendant timely filed his Notice of Appeal that same day. [Doc. 2]. On October 31, 2014, the Court entered an Order establishing a briefing schedule for the parties and staying the execution of the Defendant's sentence of imprisonment pending the appeal. [Doc. 4].
On appeal to this Court, the Defendant claimed various errors infected the convictions and sentences for only three of the six counts to which he entered guilty pleas, those being Counts 4, 5, and 6 of the Amended Information. [Doc. 7]. After reviewing the briefs of the parties and the record below, the Court issued its Memorandum of Decision and Order dismissing the Defendant's appeal based upon the waivers contained in the Defendant's written Plea Agreement. [Doc. 9]. The Court dismissed the Defendant's appeal, however, only after it thoroughly analyzed the two issues the Defendant claimed fell outside the Plea Agreement's waiver provisions. [Id. at 7-14]. The Court ultimately concluded "that the issues raised by the Defendant in this appeal [fell] squarely within the scope of his appeal waiver." [Id. at 15]. The Court dismissed Defendant's appeal on May 7, 2015.
Following the Court's dismissal of the Defendant's appeal, the Government filed a motion seeking to lift the Order staying the execution of the Defendant's sentence of imprisonment. [Doc. 10]. The Court took no action on the Government's motion due to the Defendant's impending June 4, 2015, sentencing hearing on the separate misdemeanor offense filed in case number 2:13cr16. At the conclusion of that hearing, the Court directed the parties to brief the issue regarding the Defendant's release pending appeal. The parties having briefed the issue [Docs. 17; 18], this matter is ripe for the Court's determination.
The release or detention of a defendant pending appeal is governed by 18 U.S.C. § 3143(b)(1). That subsection requires a defendant 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 person or the community if released pursuant to section 3142(b) or (c) of this title; and
(B) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in -
(ii) an order for a new trial,
(iii) a sentence that does not include a term of ...