United States v. Peterson ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 21 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-2080
(D.C. No. CR-98-228-LH)
ALVIN PETERSON, SR., (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, BALDOCK, and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Alvin Peterson, Sr. appeals the district court’s denial of his
motion for release pending appeal under 18 U.S.C. § 3145(c). We affirm.
Pursuant to § 3143(b)(1), a defendant requesting release pending appeal
must be detained unless the court finds that (1) the defendant has established by
clear and convincing evidence that he is not likely to flee or pose a danger to the
safety of any other person or to the community, and (2) the defendant has
established by a preponderance of the evidence that the appeal is not for purpose
of delay, the appeal raises a substantial question of law or fact, and if that
substantial question is determined favorably to defendant on appeal, the decision
is likely to result in reversal, an order for a new trial, a sentence with no term of
imprisonment, or a reduced sentence. See United States v. Affleck, 765 F.2d 944,
952-53 (10th Cir. 1985). A defendant’s detention is not mandatory if he both
meets the conditions of § 3143(b)(1) and clearly shows exceptional reasons why
detention is inappropriate. See 18 U.S.C. § 3145(c).
Upon consideration, we determine that defendant has failed to show that
he is entitled to the relief sought. Therefore, the judgment of the United States
District Court for the District of New Mexico denying release pending appeal
is AFFIRMED.
Judge Porfilio would grant release pending appeal.
ENTERED FOR THE COURT
PER CURIAM
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