United States v. Velarde , 555 F. App'x 840 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 21, 2014
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 14-8003
(D.C. No. 1:13-CR-00160-NDF-1)
EUGENE VELARDE, (D. Wyo.)
Defendant - Appellee.
ORDER AND JUDGMENT*
Before KELLY, LUCERO, and PHILLIPS, Circuit Judges.
The government appeals from an order, currently stayed, for the release of
Eugene Velarde pending sentencing for his conviction of conspiracy to possess with
intent to distribute, and to distribute, over 500 grams of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. Because Mr. Velarde has not
demonstrated exceptional circumstances warranting his release, we reverse.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Mr. Velarde’s drug offense, committed while he was on probation for prior
convictions, entails a mandatory sentence of ten years to life. Consequently, it
triggers operation of 18 U.S.C. § 3143(a)(2), see id. § 3142(f)(1)(C), requiring
detention pending imposition of sentence unless one of two exceptions is applicable.
Neither applies here. First, because there is no likelihood of an acquittal or new trial
being granted (indeed, there are no motions for such relief even pending1) nor is there
a government recommendation for a sentence short of imprisonment, the exception to
detention in § 3143(a)(2)(A) is inapplicable.
That leaves the provision in 18 U.S.C. § 3145(c) permitting release if (1) it is
shown by clear and convincing evidence that the defendant is neither a flight risk nor
a danger to the community and (2) “clearly shown that there are exceptional reasons
why such person’s detention would not be appropriate.” Id.; see United States v.
Kinslow, 105 F.3d 555, 557 (10th Cir. 1997) (discussing § 3145(c)). The statutory
reference to exceptional reasons has real substance; circumstances that do not extend
beyond the ordinary provide no basis for release under § 3145(c). See United States
v. Larue, 478 F.3d 924, 925 (8th Cir. 2007); United States v. Lea, 360 F.3d 401, 403
(2d Cir. 2004); United States v. Wages, 271 F. App’x 726, 727-28 (10th Cir. 2008).
1
We note that Mr. Velarde has recently sent a pro se letter to the district court
asking whether it is too late to file motions for post-judgment relief (absent discovery
of new evidence, it is, see Fed. R. Crim. P. 29(c), 33(b), and 34(b)). Even if this
letter were construed as a post-judgment motion itself, it would not demonstrate the
likelihood of an acquittal or new trial being granted as it asserts no grounds, let alone
persuasive grounds, to support the grant of such relief.
-2-
Whether such exceptional reasons have been shown is a matter we review de novo.
Kinslow, 105 F.3d at 557.
The only reason offered by Mr. Velarde for his release was that “[t]here’s just
a few matters I’ve got to take care of,” by which he was evidently referring to family
and business affairs.2 App. at 72. There is nothing exceptional in that; indeed, if
there were, virtually every defendant could invoke § 3145(c) simply by postponing
efforts to arrange personal affairs until sentencing was imminent. Mr. Velarde cites
no authority for this untenable proposition. Rather, “the cases establish that mere
personal reasons, including caring for a family or gainful employment, are not
‘exceptional.’” United States v. Miller, 568 F. Supp. 2d 764, 774 (E.D. Ky. 2008)
(collecting cases); see also Larue, 478 F.3d at 925 (holding defendant’s “payment of
child support, and his ongoing employment are commendable, but they are not
clearly out of the ordinary, uncommon, or rare” so as to qualify as exceptional under
§ 3145(c) (internal quotation marks omitted)). The reasoning of these cases is
straightforward: “[P]ersonal and familial hardship and disruption to an individual’s
educational or professional affairs are the natural, if unfortunate, consequences of
finding oneself at the mercy of the criminal justice system. It is therefore no surprise
2
Mr. Velarde has not elaborated on these affairs or detailed how they would be
affected if he is not released to “take care” of them. We also note that he was not
confined for nearly five months leading up to trial (when his pretrial release was
revoked for illegal substance abuse).
-3-
that most courts have rejected these hardships as providing an exceptional reason.”
United States v. Christman, 712 F. Supp. 2d 651, 656 (E.D. Ky. 2010).
The order for Mr. Velarde’s release is reversed.
Entered for the Court
Per Curiam
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