United States v. Green

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 17, 1998
• Docket: 98-3242
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 17 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-3242 (D.C. No. 97-CR-10164-MLB) GLENN L. GREEN, (D. Kan.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before ANDERSON, KELLY, and HENRY, 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument. We grant defendant’s motion to file a

reply brief and have considered the arguments made in that brief.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Glenn Green appeals from a district court order denying his

release pending appeal of his convictions for possession with the intent to

distribute methamphetamine and for possession with the intent to distribute

cocaine. He contends on appeal that he is eligible for bail pursuant to 18 U.S.C.

§ 3145(c) (West 1994 & Cum. Supp. 1998). We review the district court’s ruling

de novo, deciding whether petitioner met the applicable standards set out in

18 U.S.C. § 3143(b)(1)(B) (West Cum. Supp. 1998), and whether he has also

demonstrated exceptional circumstances warranting his release. See § 3145(c);

United States v. Kinslow, 105 F.3d 555, 557 (10th Cir. 1997).

Mr. Green has failed to show that resolution in his favor of the “substantial

questions” raised in his motion would result either in a reversal of all of his

convictions or in 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. See

§ 3143(b)(1)(B)(i) & (iv); Morison v. United States, 486 U.S. 1306, 1306 (1988)

(stating that if release is to be based on reversal, defendant must show that all

counts for which imprisonment was imposed will be affected); United States v.

Rutter, 897 F.2d 1558, 1562 (10th Cir. 1990) (allowing court to consider relevant

conduct in determining the applicable guideline range, including additional

amounts of drugs for which defendant was not convicted).

-2- 2 Mr. Green also failed to allege any exceptional circumstances at the hearing

on the matter, thus the district court’s finding that no exceptional circumstances

exist to warrant release under § 3145(c) is fully supported in the record. We

decline defendant’s invitation to make a finding of exceptional circumstances

based upon evidence and arguments he presented on appeal; however, if we were

to do so, we would also conclude that he has not raised sufficient exceptional

circumstances to warrant his release.

The judgment of the United States District Court for the District of Kansas

is AFFIRMED.

ENTERED FOR THE COURT PER CURIAM

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