FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 24, 2021
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Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-3081
(D.C. No. 2:04-CR-20089-KHV-1)
MONTGOMERY CARL AKERS, (D. Kan.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before MATHESON, PHILLIPS, and CARSON, Circuit Judges.
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Montgomery Carl Akers appeals from the district court’s order denying his
motion for release pending appeal of the denial of his motion for a reduction in
sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (“compassionate release”) and
sanctioning him in the amount of $40,000. Exercising jurisdiction pursuant to
28 U.S.C. § 1291, we affirm the portion of the district court’s order denying release
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
pending appeal, but we remand for the district court to revisit the $40,000 monetary
sanction.
In his motion for release pending appeal, Mr. Akers argued the district court
erred in determining he had not exhausted his administrative remedies and in
concluding that his health conditions did not rise to the level of extraordinary and
compelling reasons for early release. He also argued the district court did not discuss
the applicable sentencing factors under 18 U.S.C. § 3553(a).
The district court considered Mr. Akers’s motion for release pending appeal
under 18 U.S.C. § 3143(b) of the Bail Reform Act and concluded Mr. Akers had not
shown that any of his issues on appeal “raise a substantial question of law or fact
likely to result in reversal, a new trial, a sentence with no custody component or a
reduced sentence that is shorter than the anticipated life of the appeal.” R. at 94
(citing § 3143(b)(1)(B)). Because Mr. Akers was convicted of wire fraud in 2006
and has been serving a term of imprisonment since that time, we are not convinced
the Bail Reform Act applies to his request for release pending appeal from the denial
of his post-conviction motion for compassionate release. See United States v. Mett,
41 F.3d 1281, 1282 (9th Cir. 1994) (“The Bail Reform Act does not apply to federal
prisoners seeking postconviction relief.”). We need not resolve that question in this
case, however, because under either § 3143(b) of the Bail Reform Act or the
standards this and other courts have applied to similar requests for release involving
post-conviction motions, Mr. Akers has not shown he is entitled to release pending
appeal, see Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981) (holding state prisoners
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must show “exceptional circumstances” or “a demonstration of a clear case on the
merits of the habeas petition” to be entitled to release pending a district court’s
decision on a habeas petition); Mett, 41 F.3d at 1282 (holding federal prisoners
seeking release pending appeal of the denial of their 28 U.S.C. § 2255 motion must
demonstrate “their appeal is an extraordinary case involving special circumstances or
presents a high probability of success” (internal quotation marks omitted)).
As for the $40,000 sanction, we note that the district court identified certain
statements in one section of the motion as frivolous, but it did not address all of
Mr. Akers’s arguments or find that the motion as a whole was frivolous. Although
we agree with the district court that Mr. Akers has not shown he is entitled to release
pending appeal, we cannot say that the arguments in support of his motion are wholly
frivolous.
Accordingly, we affirm the district court’s decision denying Mr. Akers’s
motion for release pending appeal, but we remand for the district court to revisit the
$40,000 sanction. We grant Mr. Akers’s motion for leave to proceed on appeal
without prepayment of costs or fees.
Entered for the Court
Per Curiam
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