United States v. Peterson

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 21 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-2080 (D.C. No. CR-98-228-LH) ALVIN PETERSON, SR., (D. N.M.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before PORFILIO, BALDOCK, and KELLY, 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)(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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. 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 Alvin Peterson, Sr. appeals the district court’s denial of his

motion for release pending appeal under 18 U.S.C. § 3145(c). We affirm.

Pursuant to § 3143(b)(1), a defendant requesting release pending appeal

must be detained unless the court finds that (1) the defendant has established by

clear and convincing evidence that he is not likely to flee or pose a danger to the

safety of any other person or to the community, and (2) the defendant has

established by a preponderance of the evidence that the appeal is not for purpose

of delay, the appeal raises a substantial question of law or fact, and if that

substantial question is determined favorably to defendant on appeal, the decision

is likely to result in reversal, an order for a new trial, a sentence with no term of

imprisonment, or a reduced sentence. See United States v. Affleck, 765 F.2d 944,

952-53 (10th Cir. 1985). A defendant’s detention is not mandatory if he both

meets the conditions of § 3143(b)(1) and clearly shows exceptional reasons why

detention is inappropriate. See 18 U.S.C. § 3145(c).

Upon consideration, we determine that defendant has failed to show that

he is entitled to the relief sought. Therefore, the judgment of the United States

District Court for the District of New Mexico denying release pending appeal

is AFFIRMED.

Judge Porfilio would grant release pending appeal.

ENTERED FOR THE COURT PER CURIAM

-2-