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United States v. Caswell

United States District Court, M.D. Florida, Fort Myers Division

April 24, 2018

UNITED STATES OF AMERICA
v.
DAVID CASWELL

          OPINION AND ORDER

          JOHH E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on defendant's Motion For Release Pending Appeal (Doc. #83) filed on March 23, 2018. The United States' Response (Doc. #93) was filed on April 5, 2018, and, with the permission of the Court, Defendant's Reply (Doc. #95) was filed on April 20, 2018. For the reasons set forth below, the motion is denied.

         On December 16, 2016, defendant was released on an unsecured $25, 000 bond. (Doc. #7.) After a bench trial on stipulated facts, defendant was convicted of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). On March 26, 2018, defendant was sentenced to thirty-six months imprisonment, followed by a term of supervised release. (Doc. #88.) Defendant was continued on release, but ordered to self-surrender to the designated facility on or before May 18, 2018, at noon. (Doc. #86.) Defendant seeks to remain on release while he takes a direct appeal of his conviction and sentence.

         The statute governing release or detention pending an appeal by a defendant provides as follows:

(b)(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 ...

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