United States v. Graham , 488 F. App'x 328 ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 26, 2012
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-8064
(D.C. No. 2:05-CR-00078-ABJ-2)
GREGORY E. GRAHAM, (D. Wyo.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, EBEL, and MURPHY, Circuit Judges.
Defendant Gregory E. Graham appeals from a district court order denying, for
lack of jurisdiction, his motion for release pending the disposition of a prior appeal
(Appeal No. 12-8031). As the government concedes, the district court erred in
concluding it lacked jurisdiction to consider the motion. See United States v. Meyers,
95 F.3d 1475, 1488-89 n.6 (10th Cir. 1996). The government asks us to decide the
*
This panel has determined that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and judgment
is not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
matter in the first instance, but that would entail a departure from the procedure
contemplated in Fed. R. App. P. 9(b) and 18 U.S.C. § 3145(c), and leave us to assess
the relevant factors without the aid of the statement of reasons from the district court
mandated by Rule 9. Our case law does not support this circumvention of the
procedures specified for the orderly resolution of bail matters. See, e.g., United
States v. Fisher, 55 F.3d 481, 487 (10th Cir. 1995); United States v. Hart, 779 F.2d
575, 576 (10th Cir. 1985); United States v. Affleck, 765 F.2d 944, 954 (10th Cir.
1985). Because of the district court’s jurisdictional misunderstanding, it did not even
consider the merits of Mr. Graham’s motion for release pending appeal, and a remand
of the matter is appropriate.
The order of the district court denying Mr. Graham’s motion for release
pending appeal for lack of jurisdiction is VACATED, and the case is REMANDED
for consideration of the motion on the merits. Mr. Graham’s motion for release
pending the disposition of the instant appeal is DENIED as moot.
Entered for the Court
Per Curiam
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