Case 6:11-cr-00007-CCL Document 229 Filed 08/07/12 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION UNITED STATES OF AMERICA, Plaintiff, vs. RICHARD GILES FLOR, Defendant. ORDER CR 11-07-H-CCL

Before the Court is Defendant Richard Flors Motion for Release Pending Appeal. The government has responded and states that it is obligated not to request detention under the Plea Agreement, but it is permitted to state the applicable facts and law relevant to the question of detention. To that end, the government points out that 18 U.S.C. 3143 governs the motion and requires this Court to find that the appeal raises a substantial question of law or fact likely to result in
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(I) (ii) (iii) (iv)

reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or 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(b)(1)(B). Defendant carries the burden of proof on the motion. Although the government notes that during the pretrial phase of Defendants case a firearm and marijuana was found in Defendant Richard Flors home1, the government states that it appears that co-defendant Justin Flor was responsible for the firearm and marijuana. Instead, the government points to the substantial question inquiry, and whether there is a fairly debatable question on appeal that, if resolved in Defendants favor, is likely to result in a reversal or a new trial. United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985).

This circumstance may have some bearing on one of the fundamental release questions posed by section 3143(a), whether Defendant is a flight risk or danger to the community.
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The government asserts that on appeal Defendant is claiming that he should be permitted to withdraw his guilty plea because the United States breached the plea agreement by making a specific sentencing recommendation in its memorandum. In the Courts view, this is not a substantial question or a fairly debatable one, because the government retracted its recommendation prior to sentencing and the Defendant himself agreed prior to sentencing that he should be sentenced under the Plea Agreement despite this minor breach. Defendant therefore waived the error. As a practical matter, the breach lost any significance when this Court allowed the government to withdraw its sentencing recommendation prior to the sentencing hearing and agreed not to consider that recommendation. The governments recommendation (subsequently withdrawn) was for a sentence within the guideline range of 108-135 months, but the Court ignored that recommendation and actually sentenced the Defendant to a term of 60 months. With respect to the defense motion for release pending appeal, the government now argues that there is not any likelihood that Defendants sentence
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will be reversed or that Defendant would receive a new trial, and its breach of the plea agreement, if any, would be reviewed for plain error. The Court is in agreement with that assessment. Neither is it likely that Defendant Flor would receive a sentence that does not include a term of imprisonment or a reduced sentence less than the total of time served, which is currently less than six months, plus the appeal process duration. It therefore appears to the Court that the law does not support Defendant Flors motion for release pending appeal. Out of concern for the Defendants welfare, the Court has inquired into Defendants claim that, while incarcerated at the regional prison in Shelby, Montana, he has broken bones while awaiting designation for a custody setting by the Bureau of Prisons (BOP). Through inquiries with the BOP and the U.S. Marshals Service, the Court has been informed that the Defendant is believed to have rolled out of bed and fractured his scapula (shoulder blade). There is no extraordinary treatment available or needed for such an injury, other than rest and Naproxen, an anti-inflammatory medication. The Court has been informed that Defendant wore a sling for two weeks after being injured, and he is now
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considered to be recovered. The Court notes defense counsels update that Defendant Flors transportation to a BOP facility has been delayed. While that may be unfortunate, it is not factually or legally significant. Defendants medical requirements have been reviewed by the Bureau of Prisons, which is able to provide any medical care needed by Defendant. While perhaps a year ago a VA health care provider discussed with the Defendant the possibility that he might need dialysis in the future, Defendant has no such present need. Under all these factual and legal circumstances, the Court finds that Defendants Motion for Release Pending Appeal is not supported by the facts of this case and the law applying thereto. Accordingly, IT IS HEREBY ORDERED that Defendant Flors Motion for Release Pending Appeal is DENIED. Done and Dated this 6th day of August, 2012.