United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 16, 2006
Charles R. Fulbruge III
Clerk
No. 05-30610
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MARVIN K. SULLIVAN,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:04-CV-1087
USDC NO. 6:01-CR-60049-1
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
The Government appeals the district court’s order granting
release pending the appeal of the denial of Marvin K. Sullivan’s
28 U.S.C. § 2255 motion challenging his 2001 conviction for
making and subscribing a false return. On appeal, Sullivan
contends that the decision in United States v. Booker, 543 U.S.
220 (2005), should be applied to his case, that he was denied the
opportunity to call an Assistant United States Attorney as a
witness in connection with his argument that the Government
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-30610
-2-
breached the plea agreement, and that the Bureau of Prisons (BOP)
changes regarding placement of prisoners in community confinement
centers violates due process and the prohibition against ex post
facto laws.
Sullivan does not raise substantial constitutional claims
upon which he has the high probability of success. In light of
Sullivan’s failure to establish a high probability of success on
a constitutional claim and the lack of an extraordinary
circumstance, the district court erred in granting Sullivan’s
motion for release pending appeal. See Calley v. Callaway, 496
F.2d 701, 702 (5th Cir. 1974).
Accordingly, the judgment of the district court is REVERSED,
and the case is REMANDED for the district court to set a
reporting date for Sullivan of not more than 90 days from the
date of this opinion.