Texas Cases May 25, 2021: United States v. Magee

Case Description

MEMORANDUM OPINION AND ORDER

In an Order Accepting Report and Recommendation of the United States Magistrate Judge Concerning Plea of Guilty, dated April 13, 2021, United States District Judge Ada Brown has referred this matter to the undersigned United States magistrate judge for a hearing to determine whether it has been clearly shown that there are exceptional circumstances under 18 U.S.C. § 3145(c) why Defendant Kristopher Johnny Magee should not be detained under 18 U.S.C. § 3143(a)(2) and whether it has been shown by clear and convincing evidence that Defendant Kristopher Johnny Magee is not likely to flee or pose a danger to any other person or the community if released under 18 U.S.C. § 3142(b) or (c). See Dkt. No. 97 at 1.

Defendant is set for sentencing before Judge Brown on August 13, 2021. See Dkt. No. 98. "[W]hether a defendant should be released pending trial and whether a defendant should be released pending sentencing or appeal are distinct inquiries

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governed by different provisions of the Bail Reform Act." United States v . Lee , 31 F. App'x 151, No. 01-30876, 2001 WL 1747632, at *1 (5th Cir. Dec. 4, 2001).

"The provisions of 18 U.S.C. § 3143 govern release pending sentencing or appeal." FED. R. CRIM. P. 46(c). 18 U.S.C. § 3143(a)(2) dictates that the Court "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; and (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." 18 U.S.C. § 3143(a)(2).

On July 22, 2020, the undersigned United States magistrate judge released Defendant subject to an Order Setting Conditions of Release. See Dkt. No. 22.

"The provisions of 18 U.S.C. § 3143 govern release pending sentencing or appeal." FED. R. CRIM. P. 46(c). 18 U.S.C. § 3143(a)(2) dictates that the Court "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;

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or (ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and (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." 18 U.S.C. § 3143(a)(2).

Defendant, as ordered, filed a motion for continued pretrial release in which he identifies the exceptional circumstances under 18 U.S.C. § 3145(c) that he contends justify his continued release post-conviction and in which he addresses whether he is likely to flee or pose a danger to any other person or the community if released under 18 U.S.C. § 3142(b) or (c) pending sentencing. See Dkt. No. 105.

The Court held a hearing on May 25, 2021 on the matters referred by Judge Brown, at which Defendant appeared in person and through counsel and the government's counsel appeared. See Dkt. No. 107.

As a preliminary matter, Defendant is subject to mandatory detention under Section 3143(a)(2) because he has, on a guilty plea, now been adjudged guilty of a violation of 21 U.S.C. § 846. See Dkt. Nos. 90, 93, & 97. That is "an offense in a case described in subparagraph (A) ... of subsection (f)(1) of section 3142," specifically, "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.)."

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Defendant therefore must be detained pursuant to 18 U.S.C. § 3143(a)(2) unless he meets the conditions of release set forth in Section 3143(a)(2) or 18 U.S.C. § 3145(c). Release of "a person who has been found guilty of an offense in a case described in [18 U.S.C. § 3142(f)(1)(A)] and is awaiting imposition or execution of sentence" requires that "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." 18 U.S.C. § 3143(a)(2)(B); see also United States v . Morrison , 833 F.3d 491, 506 (5th Cir. 2016) ("The decision to detain Jacqueline after conviction is a common one because of the presumption in favor of detention that attaches to a convicted defendant. See 18 U.S.C. § 3143."); United States v . Lopez , 504 F. App'x 297, 298 (5th Cir. 2012) ("A defendant who has been convicted 'shall ... be detained' pending sentencing 'unless the judicial officer finds 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.' Thus, there is a presumption against release pending sentencing." (footnotes omitted)). As the United States Court of Appeals for the Fifth Circuit has repeatedly recognized, Federal Rule of Criminal Procedure 46(c) and Section 3143(a)(1) impose a burden on a convicted defendant seeking release pending sentencing to show by clear and convincing evidence that she or he is not a flight risk or a danger to the community. See 18 U.S.C. § 3143(a)(1); FED. R. CRIM. P. 46(c) ("The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the

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defendant."); United States v . Lockett , 549 F. App'x 269 (mem.), No. 13-11097, 2013 WL 6623771, at *1 (5th Cir. Dec. 17, 2013).

Further, Defendant must meet the conditions of release set forth in Section 3143(a)(2)(A) or 3145(c). Defendant cannot, and does not claim that he can, satisfy the Section 3143(a)(2)(A) showing that there is a substantial likelihood that a motion for acquittal or new trial will be granted or that an attorney for the government has recommended that no sentence of imprisonment be imposed on Defendant.

18 U.S.C. § 3145(c) provides that "[a] person subject to detention pursuant to [18 U.S.C. §] 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in [18 U.S.C. §] 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate." As reflected in the Report and Recommendation Concerning Plea of Guilty [Dkt. No. 93], Section 3145(c) provides an alternative basis for pre-sentencing release under "exceptional circumstances," so long as Defendant also makes the required showing under Section 3143(a)(1) and 3143(a)(2)(B) - that is, by clear and convincing evidence that Defendant is not likely to flee or pose a danger to the safety of any other person or the community if released under 18 U.S.C. § 3142(b) or 3142(c) pending sentencing. See United States v . Carr , 947 F.2d 1239, 1240 (5th Cir. 1991).

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The Court finds that Defendant has made the required showing that he is not likely to flee or pose a danger to the safety of any other person or the community if continued on release. As Defendant explains in his Motion for Continued Pretrial Release, he "meets the conditions of 18 U.S.C. § 3143(a)(1) - he is not likely to flee or pose a danger to the community -" where,[s]ince the pendency of this case, Mr. Magee has been on pretrial release and has met all the terms of that release in exemplary fashion, including a GPS monitor he has worn the whole time. He has made every court appearance and has never appeared before this Court on an allegation of a pretrial release violation.

Mr. Magee has no criminal history to speak of, no prior criminal convictions, nor any prior arrests. Mr. Magee also runs his own small business and has five young children he provides for.

....

In the roughly ten (10) months this case has been pending, Mr. Magee has demonstrated by clear and convincing evidence that he is unlikely to flee and that he poses no danger to any other person or to the community. He is a hard-working family-oriented man with significant ties to the community. He is a small business owner and the vast majority of his family and friends reside in the community here. Mr. Magee has never missed - or been late for - a court appearance before this Court or a federal magistrate. He has been fully compliant with the instructions and conditions placed upon him, including a GPS monitor, while on pretrial release and has given no reason to any agent or officer of the court to believe he intends on fleeing this jurisdiction.

He also poses no danger to any person or to the community. Mr. Magee has no prior convictions, and no prior arrests. His conduct while on pretrial release has been exemplary, and the government can identify no potential dangers should he be released. Over ten (10) months of his proven compliance with the conditions of pretrial release as well as his

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willingness to accept responsibility for his actions demonstrate by clear and convincing evidence that he is neither a flight risk nor danger to the community.

Dkt. No. 105 at 1, 3-4.

The issue of Defendant's presentencing release therefore turns on whether "it is clearly shown that there are exceptional reasons why [Defendant's] detention [pending sentencing] would not be appropriate." 18 U.S.C. § 3145(c). In support of that showing, Defendant explains:

A number of exceptional reasons make Mr. Magee's detention pending sentencing inappropriate.

Mr. Magee's complete lack of any criminal history, his extensive family obligations, his operating a business in which his livelihood is derived by it, and his outstanding performance while on pretrial release are each unique aspects of this case.

Based on the unique circumstances of his life and family obligations, and with no prior convictions, Mr. Magee is an excellent candidate for a minimum-security facility. Successful self-surrender after sentencing would lower his security designation and help to ensure his placement in such a facility. In sum, Mr. Magee has much to lose and little to gain by failing to maintain his exemplary performance on pretrial - or presentence - release. These considerable disincentives for flight are additional exceptional reasons that make Mr. Magee's detention pending sentencing unnecessary and inappropriate.

....

[] Defendant respectfully requests this Honorable Court to grant this Motion and to permit Mr. Magee his continued release pending sentencing or for at least 90 days in order to get his children provided for and sell his business.

Dkt. No. 105 at 3-5.

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The government did not take a position and deferred to the Court.

The United States Court of Appeals for the Fifth Circuit has explained that the "exceptional reasons" provision "was added to § 3145(c) with the mandatory detention provisions of § 3143(a)(2) and (b)(2) and was apparently designed to provide an avenue for exceptional discretionary relief from those provisions." Carr , 947 F.2d at 1240. The United States Court of Appeals for the Second Circuit offers a working definition of "exceptional reasons": "a unique combination of circumstances giving rise to situations that are out of the ordinary." United States v . DiSomma , 951 F.2d 494, 497 (2d Cir. 1991). That court also explained that, in assessing reasons proffered as the basis for release under Section 3145(c), "a case by case evaluation is essential." Id . The United States Court of Appeals for the Eighth Circuit has similarly explained that "'exceptional' means 'clearly out of the ordinary, uncommon, or rare.'" United States v . Little , 485 F.3d 1210, 1211 (8th Cir. 2007) (citation omitted). One court has explained that, "to avoid emasculating the mandatory detention statute[,] 'exceptional reasons review is limited to determining whether remanding the defendant to custody until sentencing would be tantamount to subjecting individuals to unjust detention.'" United States v . Thomas , No. 10-cr-229, 2010 WL 3323805, at *2 (D.N.J. Aug. 20, 2010) (quoting United States v . Christman , 712 F. Supp. 2d 651, 655 (E.D. Ky. 2010)).

District courts in this circuit have noted a variety of circumstances that do not rise to the level of exceptional. See United States v . Cyrus , No. 10-0228-04, 2010 WL

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5437247, at *1-*2 (W.D. La. Dec. 27, 2010) (need to "secure his home and attend to other personal matters" were not exceptional reasons justifying release pending sentencing); United States v . Douglas , 824 F. Supp. 98, 99-100 (N.D. Tex. 1993) (defendant's cooperation with the government that subjected him to potential retaliation by co-defendants and his attempts at rehabilitation did not constitute exceptional reasons); United States v . Dempsey , No. 91-098, 1991 WL 255382, at *1-*2 (E.D. La. Nov. 19, 1991) (poor health, emotional and mental problems, and need to properly prepare his business and his family for his long absence were not exceptional circumstances); United States v . Scott , No. 1:95-CR-80-1, 1995 WL 723752, at *1-*2 (E.D. Tex. Nov. 22, 1995) (need to assist parent was a purely personal reason that was no more exceptional than those routinely rejected by courts); see also United States v . Landry , No. CR 15-32-JWD-SCR, 2015 WL 5202458, at *2-*4 (M.D. La. Sept. 4, 2015); United States v . Posada , 109 F. Supp. 3d 911, 912-16 (W.D. Tex. 2015).

The facts that Defendant urges as exceptional circumstances, including his compliance with his conditions of pretrial release, are certainly commendable. But the Court determines - as have many other courts when presented with similar arguments for presentencing release - that Defendant's proffered reasons for continuing his release do not individually give rise to a situation that is out of the ordinary. But the Court determines that all of the circumstances that Defendant asserts are, taken together at this point in time, a unique combination of circumstances giving rise to a situation that is out of the ordinary. Among other circumstances, Defendant presents

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what the Court believes to be valid family- related concerns that, combined with this compliance to date, including his steady employment and need to sell his business before his incarceration, amount to a situation in which Defendant's detention pending his sentencing hearing in 3 months in August 2021 would not be appropriate.

The Court finds that Defendant Kristopher Johnny Magee has presented so unique a combination of circumstances that is so clearly out of the ordinary, uncommon, or rare as to justify ordering release pending sentencing under 18 U.S.C. § 3145(c) and that Mr. Magee met his burden to clearly show exceptional circumstances why he should not be detained pending sentencing - that is, exceptional reasons why his detention would not be appropriate - and to show by clear and convincing evidence that he is not likely to flee or pose a danger to any other person or the community if she remains on release under 18 U.S.C. § 3142(c). Defendant Kristopher Johnny Magee is ORDERED to remain on release, subject to the Court's Order Setting Conditions of Release [Dkt. No. 22], pending his sentencing before Judge Brown.

SO ORDERED.

DATED: May 25, 2021

/s/
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE