Flor Denial Bail Aug 7

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

HELENA DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

RICHARD GILES FLOR,

Defendant.

CR 11-07-H-CCL

ORDER

Before the Court is Defendant Richard Flors Motion for Release Pending

Appeal. The government has responded and states that it is obligated not to

request detention under the Plea Agreement, but it is permitted to state the

applicable facts and law relevant to the question of detention.

To that end, the government points out that 18 U.S.C. 3143 governs the

motion and requires this Court to find that the appeal raises a substantial question

of law or fact likely to result in

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Case 6:11-cr-00007-CCL Document 229 Filed 08/07/12 Page 1 of 5


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(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.

18 U.S.C. 3143(b)(1)(B). Defendant carries the burden of proof on the motion.

Although the government notes that during the pretrial phase of Defendants case

a firearm and marijuana was found in Defendant Richard Flors home , the 1

government states that it appears that co-defendant Justin Flor was responsible for

the firearm and marijuana. Instead, the government points to the substantial

question inquiry, and whether there is a fairly debatable question on appeal that,

if resolved in Defendants favor, is likely to result in a reversal or a new trial.

United States v. Handy , 761 F.2d 1279, 1283 (9 Cir. 1985).th

This circumstance may have some bearing on one of the fundamental1

release questions posed by section 3143(a), whether Defendant is a flight risk or danger to the community.

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The government asserts that on appeal Defendant is claiming that he should

be permitted to withdraw his guilty plea because the United States breached the

plea agreement by making a specific sentencing recommendation in its

memorandum. In the Courts view, this is not a substantial question or a fairly

debatable one, because the government retracted its recommendation prior to

sentencing and the Defendant himself agreed prior to sentencing that he should be

sentenced under the Plea Agreement despite this minor breach. Defendant

therefore waived the error. As a practical matter, the breach lost any significance

when this Court allowed the government to withdraw its sentencing

recommendation prior to the sentencing hearing and agreed not to consider that

recommendation. The governments recommendation (subsequently withdrawn)

was for a sentence within the guideline range of 108-135 months, but the Court

ignored that recommendation and actually sentenced the Defendant to a term of 60

months.

With respect to the defense motion for release pending appeal, the

government now argues that there is not any likelihood that Defendants sentence

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will be reversed or that Defendant would receive a new trial, and its breach of the

plea agreement, if any, would be reviewed for plain error. The Court is in

agreement with that assessment. Neither is it likely that Defendant Flor would

receive a sentence that does not include a term of imprisonment or a reduced

sentence less than the total of time served, which is currently less than six months,

plus the appeal process duration. It therefore appears to the Court that the law

does not support Defendant Flors motion for release pending appeal.

Out of concern for the Defendants welfare, the Court has inquired into

Defendants claim that, while incarcerated at the regional prison in Shelby,

Montana, he has broken bones while awaiting designation for a custody setting by

the Bureau of Prisons (BOP). Through inquiries with the BOP and the U.S.

Marshals Service, the Court has been informed that the Defendant is believed to

have rolled out of bed and fractured his scapula (shoulder blade). There is no

extraordinary treatment available or needed for such an injury, other than rest and

Naproxen, an anti-inflammatory medication. The Court has been informed that

Defendant wore a sling for two weeks after being injured, and he is now

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considered to be recovered. The Court notes defense counsels update that

Defendant Flors transportation to a BOP facility has been delayed. While that

may be unfortunate, it is not factually or legally significant. Defendants medical

requirements have been reviewed by the Bureau of Prisons, which is able to

provide any medical care needed by Defendant. While perhaps a year ago a VA

health care provider discussed with the Defendant the possibility that he might

need dialysis in the future, Defendant has no such present need.

Under all these factual and legal circumstances, the Court finds that

Defendants Motion for Release Pending Appeal is not supported by the facts of

this case and the law applying thereto. Accordingly,

IT IS HEREBY ORDERED that Defendant Flors Motion for Release

Pending Appeal is DENIED.

Done and Dated this 6th day of August, 2012.

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Flor Denial Bail Aug 7

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