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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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(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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