United States v. Gerardo Enrique Marquina

89 F.3d 836, 1996 U.S. App. LEXIS 42559, 1996 WL 316528

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 11, 1996
• Docket: 96-5633
• Status: Unpublished

Opinion

89 F.3d 836

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellant,
v.
Gerardo Enrique MARQUINA, Defendant-Appellee.

No. 96-5633.

United States Court of Appeals, Sixth Circuit.

June 11, 1996.

Before: KENNEDY, BOGGS, and COLE, Circuit Judges.

ORDER

The government appeals the district court's refusal to detain defendant pending sentencing, which is scheduled for June 17, 1996. Defendant entered a plea of guilty to conspiracy to distribute and possess with intent to distribute cocaine. He is, therefore, subject to the mandatory detention provision contained in 18 U.S.C. § 3143(a)(2). Section 3143(a)(2) provides that a defendant shall be detained pending sentence unless

(A)(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or

(ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and

(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.

In denying the government's motion for detention pending sentence, the district court failed to make any findings with respect to the two conditions set forth in § 3143(a)(2). Absent such findings, defendant's release on bond is inappropriate. See United States v. Irvin, 2 F.3d 72, 73 n. 1 (4th Cir.1993), cert. denied, 114 S.Ct. 1086 (1994) ("As the use of the word 'and' in § 3143(a)(2) indicates, both subsections (A) and (B) must be satisfied in order to grant release pending sentencing"); United States v. Bloomer, 967 F.2d 761, 762 (2d Cir.1992) (a defendant "shall be detained unless two conditions are met"); United States v. McAllister, 974 F.2d 291, 292 (2d Cir.1992). Moreover, defendant has not demonstrated any exceptional reasons warranting release under 18 U.S.C. § 3145(c).

It therefore is ORDERED that the district court's order is reversed, and the case is remanded with instructions to grant the government's motion for detention.