United States v. Olis

                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                        May 22, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           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
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. REP. NO. 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.




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