United States v. Mobley

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 4, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-3212 (D.C. No. 6:17-CR-10142-EFM-1) BOGDANA ALEXANDROVNA (D. Kan.) MOBLEY,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, SEYMOUR, and PHILLIPS, Circuit Judges. _________________________________

Bogdana Alexandrovna Mobley appeals from the district court’s denial of her

Emergency Motion for Immediate Release Pending Resentencing. Exercising

jurisdiction under 28 U.S.C § 1291 and 18 U.S.C. § 3145(c), we vacate the district

court’s order and remand with instructions.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. BACKGROUND

Ms. Mobley was indicted on one count of international parental kidnapping, in

violation of 18 U.S.C. § 1204, and four counts of extortion, in violation of 18 U.S.C.

§ 875(b), stemming from her taking her children to Russia in the midst of divorce and

custody proceedings in a Kansas state court. In 2019, a jury convicted Ms. Mobley

of the kidnapping count and two of the four extortion counts. The district court

sentenced her to concurrent sentences of 84 months’ imprisonment for extortion and

the maximum of 36 months’ imprisonment for kidnapping. On appeal, this court

vacated the extortion convictions, affirmed the kidnapping conviction, and remanded

for resentencing. United States v. Mobley, 971 F.3d 1187, 1208 (10th Cir. 2020).

After this court’s mandate issued, Ms. Mobley filed in district court an

Emergency Motion for Immediate Release Pending Resentencing, contending she

should be released because: (1) she had served the maximum 36-month sentence on

the kidnapping conviction; and (2) she has medical issues that make her particularly

vulnerable to COVID-19. In response, the government stated: (1) further review was

not authorized by the Solicitor General’s Office; (2) the motion should be granted

because Ms. Mobley had served all or more than the maximum sentence for the

kidnapping conviction; and (3) she should be released from custody and ordered to

appear for resentencing. On October 14, one day after the government filed its

response, the district court entered an order directing the United States Marshals

Service to take Ms. Mobley into custody and transfer her from the correctional

facility in Connecticut where she was being housed to the district court in Kansas for

2 resentencing. Ms. Mobley filed a notice of appeal, arguing that the transfer order

amounted to a constructive denial of her Emergency Motion for Immediate Release

Pending Resentencing.

While her appeal was pending in this court, Ms. Mobley filed an emergency

motion to stay the district court’s transfer order. This court granted a stay and

remanded to the district court for the limited purpose of entering a written order on

her Emergency Motion for Immediate Release Pending Resentencing, which she had

filed over one month prior. On October 21, the district court entered a written order

denying the Emergency Motion for Immediate Release Pending Resentencing.

Thereafter, we ordered expedited briefing by the parties.

ORDER

Having reviewed the district court’s order denying the Emergency Motion for

Immediate Release Pending Resentencing,1 the parties’ filings before this court, and

the record from the district court proceedings, we hereby vacate the district court’s

order denying release pending resentencing, and we remand to the district court with

instructions to: (1) order the Federal Bureau of Prisons to release Ms. Mobley

forthwith pending resentencing; (2) schedule a date certain for resentencing via

videoconferencing; and (3) impose standard conditions of release pending

resentencing, consistent with and allowing for Ms. Mobley’s residence outside of

Kansas. As to the latter instruction, we strongly encourage the district court to

1 See United States v. Cisneros, 328 F.3d 610, 613 (10th Cir. 2003) (providing the standard of review for detention orders). 3 consider releasing Ms. Mobley to the supervision and custody of her mother and

stepfather in Queens, New York pending resentencing.

Entered for the Court Per Curiam