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United States Court of Appeals
Fifth Circuit
F I L E D
May 22, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 06-20103
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMIE OLIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Jamie Olis appeals from the denial, under 18 U.S.C. § 3143, of
his motion for bail pending resentencing. AFFIRMED.
I.
In his corporate-management positions, Olis was involved in a
complex transaction, enabling Olis and two coworkers to borrow $300
million but make it appear to their corporate auditor, among
others, that these funds were generated from operations. United
States v. Olis, 429 F.3d 540, 541 (5th Cir. 2005) (direct appeal).
To ensure their scheme would not cause the banks involved to lose
money, Olis and his coworkers secretly took other actions; they
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intentionally concealed them from the auditor responsible for
determining the transaction’s accounting treatment. Id. at 542.
At his jury trial, Olis was found guilty on six counts of
securities fraud, mail and wire fraud, and conspiracy. Sentenced
to 292 months imprisonment, Olis appealed his conviction and
sentence.
The former was affirmed, the “wealth” of evidence
against Olis being noted.
Id. at 543.
The latter was vacated,
however, because: he had been sentenced prior to United States v.
Booker, 543 U.S. 220 (2005), and its Sixth Amendment holding was
implicated, Olis’ sentence having been enhanced under the pre-
Booker mandatory Guidelines regime by facts not proved to the jury
beyond a reasonable doubt, Olis, 429 F.3d at 543; and the district
court’s loss-calculation “overstated the loss caused by Olis’s
crimes”, id. at 541 (emphasis in original).
Accordingly, this matter was remanded for resentencing. On
remand, it was determined sentencing probably would not take place
for several months (summer of 2006), due, in part, to the amount of
loss being in dispute; Olis and the Government opted to have
experts address loss calculation and an evidentiary hearing is to
be held. Concomitantly, the district court denied Olis’ motion for
bail pending resentencing, as well as his motion to reconsider.
II.
Solely at issue is the bail-denial, which is reviewed de novo.
Generally, such denial is reviewed for an abuse of discretion,
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United States v. Milhim, 702 F.2d 522, 526 (5th Cir. 1983); but,
when, as here, it involves an error of law that entails statutory
interpretation, review is de novo. See United States v. Orellana,
405 F.3d 360, 365 (5th Cir. 2005).
A convicted defendant has no constitutional right to bail.
See United States v. Williams, 822 F.2d 512, 517 (5th Cir. 1987).
Thus, as the parties acknowledge, any putative right to bail
derives from 18 U.S.C. § 3143, which “establishes a presumption
against” its being granted. Id. The parties disagree, however,
about which subsection of § 3143 applies to Olis’ procedural
posture: he has been convicted and sentenced; his conviction has
been affirmed but his sentence has been vacated; and he awaits
resentencing.
Section 3143 provides, in part:
(a) Release or detention pending sentence. —
(1) ... [T]he judicial officer shall order
that a person who has been found guilty of an
offense and who is awaiting imposition or
execution of sentence ... be detained, unless
the judicial officer finds by clear and
convincing evidence that the person is not
likely to flee or pose a danger to the safety
of any other person or the community if
released ....
(b)
Release or detention pending appeal by
the defendant. — (1) ... [T]he judicial
officer shall order that a person who has been
found guilty of an offense and sentenced to a
term of imprisonment, and who has filed an
appeal or a petition for a writ of certiorari,
be detained, unless the judicial officer finds
—
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(A) by clear and convincing evidence
that the person is not likely to
flee or pose a danger to the safety
of any other person or the community
if released ... and
(B) that the appeal is not for the
purpose of delay and raises a
substantial question of law or fact
likely to result in —
(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 (emphasis added).
Accordingly, pursuant to
subsection (a), a convicted defendant may be released pending
sentencing if “the judicial officer finds by clear and convincing
evidence that the person is not likely to flee or pose a danger to
the safety of any other person or the community”.
Id. §
3143(a)(1).
The only circuit court to address subsection (a) in relation
to a pending resentencing has explained it applies only “where a
defendant is awaiting sentencing the first time”. United States v.
Holzer, 848 F.2d 822, 824 (7th Cir. 1988) (emphasis added). The
reasons for releasing a convicted defendant prior to sentencing —
such as his getting his affairs in order — do not apply to an
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incarcerated defendant whose conviction has been affirmed. Id.;
see S. R
EP
. N
O
. 98-225, at 26 (1983), as reprinted in 1984
U.S.C.C.A.N. 3182, 3209 (explaining a short release may be
appropriate “for such matters as getting [the defendant’s] affairs
in order prior to surrendering for service of sentence”).
One
district court applied subsection (a) to a defendant awaiting
resentencing, United States v. Pfeiffer, 886 F. Supp. 303 (E.D.N.Y.
1995), but that case was distinguishable because the defendant had
not yet been incarcerated.
See United States v. Ben-Ari, No.
03CR1471HB, 2005 WL 1949980, at *2 (S.D.N.Y. 15 Aug. 2005).
On the other hand, subsection (b) permits a defendant with a
“pending appeal” to be released only if, inter alia, his appeal is
likely to result, among other things, in a sentence reduced to less
imprisonment than he has already served or will serve during his
appeal (reduced-sentence provision).
18 U.S.C. § 3143(b)(1)(B).
This subsection applies, pursuant to its plain language, to
defendants who have been sentenced and have a pending appeal or
cert petition; in addition, it has been interpreted to apply to
defendants, such as Olis, who are awaiting resentencing but whose
convictions have been affirmed. United States v. Krilich, 178 F.3d
859, 860-61 (7th Cir. 1999). For such a procedural posture, the
Seventh Circuit explained:
We cannot imagine any reason why a person
whose convictions have been affirmed, and who
faces [several] years in prison, should be
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released while the district judge decides
whether (and if so, by how much) to increase
the time remaining to be served.
Breaking a
sentence in the middle does not promote any
end other than reducing the effective penalty
by allowing a holiday or, worse, providing an
opportunity to escape.
Id. at 861-62.
As is obvious from each subsection’s plain language, neither
is a perfect fit for a defendant in Olis’ procedural posture. The
district court found Olis, as neither a flight risk nor a danger,
met the requirements of subsection (a). Nevertheless, it followed
the Seventh Circuit’s view: subsection (a) applies to defendants
who have not been sentenced or incarcerated, while subsection (b)
arguably applies to a defendant, such as Olis, who has been
sentenced, incarcerated, had his conviction affirmed but his
sentence vacated on appeal, and awaits resentencing.
Such a result comports with the goals of the statute and with
common sense. Applying subsection (a) in this instance would lead
to an absurd result: Olis would be temporarily released, only to
return to prison for the remainder of his sentence. See United
States v. Izaguirre-Flores, 405 F.3d 270, 277 (5th Cir. 2005)
(“[W]e will not interpret a statute in a fashion that will produce
absurd results”.) As the district judge stated,
[Olis is] facing substantially more time than
he’s already served. It makes no sense to put
him out on bond, let him reintegrate with his
family, and then tell him, Now you’ve got to
go back to prison ....
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It cannot be disputed that subsection (b)’s “pending appeal”
language envisions a defendant, unlike Olis, who has a pending
appeal on a matter other than, as here, his release on bail pending
resentencing.
Restated, Olis’ instant appeal relates only to
obtaining bail; it does not parallel subsection (b)’s language
concerning a pending appeal or petition for a writ of certiorari.
In contrast, his procedural posture does fit the subsection’s
“found guilty of an offense” language, and he partly satisfies its
“sentenced to a term of imprisonment” requirement. For the latter,
his sentence’s being vacated does not alter the fact that he was
sentenced after his trial.
Now, he is simply awaiting
resentencing. As discussed, the delay in Olis’ being resentenced
is caused largely by his and the Government’s use of experts to
address the calculation of loss resulting from Olis’ scheme.
Olis could have moved for release under subsection (b) when
his direct appeal was pending; the motion probably would have been
denied.
Because Olis has already appealed his conviction and
sentence, subsection (b) remains a far better fit than (a).
Applying subsection (b), the district court concluded Olis
should not be released pending resentencing. As of January 2006,
when the district court intended to resentence him, Olis had served
only 20 of his vacated 292 months’ sentence. In imposing that
sentence, the district judge “overemphasized his discretion”, Olis,
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429 F.3d at 548, and held Olis responsible for over $100 million of
estimated loss. At resentencing, even were he held responsible for
only one percent of that amount ($1 million), Olis would still face
an imprisonment range of 97 to 121 months. Because he has served
far less than this lower, possible sentence, Olis cannot meet §
3143(b)(1)(B)(iv)’s reduced-sentence provision.
Further, he
neither contended in district court, nor here, that he meets the
requirements of subsection (b), instead relying solely on
subsection (a), which does not apply.
In sum, Olis fails to
overcome the presumption against release pending resentencing. See
Williams, 822 F.2d at 517.
III.
For the foregoing reasons, the bail-denial is
AFFIRMED.
Charles Handy
