United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION FOR BOND PENDING APPEAL [DKT. NO. 410]
M. KEELEY, UNITED STATES DISTRICT JUDGE
October 28, 2019, the defendant, Felix A. Brizuela, Jr.
(“Brizuela”), moved for release on bond pending
appeal of his conviction and sentence (Dkt. No. 410). Because
he is currently scheduled to report to the Bureau of Prisons
to begin serving his sentence on November 2, 2019 (Dkt. No.
384), the Court directed the Government to respond to the
motion by October 30, 2019 (Dkt. No. 413). Brizuela filed his
reply the next day (Dkt. No. 425). After careful review of
the parties' arguments, the Court finds that Brizuela has
failed to satisfy the requirements of 18 U.S.C. §
3145(c) and DENIES his motion (Dkt. No.
January 14, 2017, a jury convicted Brizuela of 15 counts of
distribution of controlled substances outside the bounds of
professional medical practice in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C) (Dkt. Nos. 161,
163). On September 3, 2019, the Court sentenced
him to 48 months of imprisonment followed by 3 years of
supervised release as to all 15 counts, those sentences to be
served concurrently (Dkt. Nos. 380, 384). Brizuela timely
filed his notice of appeal later that same day (Dkt. No.
18 U.S.C. § 3145(c), a defendant subject to detention
under § 3143(b)(2) may be released during the pendency
of his appeal if (1) he satisfies the conditions of §
3143(b)(1) and (2) “it is clearly shown that
there are exceptional reasons why such person's detention
would not be appropriate.” Under 18 U.S.C. §
3143(b)(1), a defendant “who has been found guilty of
an offense and sentenced to a term of imprisonment, and who
has filed an appeal . . ., ” shall be detained, unless
the court finds (A) by clear and convincing evidence that the
defendant does not pose a flight risk or a danger to 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
(ii) an order for a new trial,
(iii) a sentence that does not include a term of
(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.
Fourth Circuit, a “substantial question of law or
fact” is one that presents a “‘close
question or one that very well could be decided the other
way.'” United States v. Steinhorn, 927
F.2d 195, 196 (4th Cir. 1991) (quoting United States v.
Giancola, 754 F.2d 898, 901 (11th Cir. 1985) (internal
quotation marks omitted)).
contends that (1) there are exceptional reasons that warrant
his release, (2) he is not a flight risk or danger to the
community, and (3) his appeal raises substantial questions of
law and fact that likely will require a new trial (Dkt. No.
411 at 3-13). Because exceptional reasons do not warrant his
continued release, and because his appeal does not raise a
substantial question of law or fact, the Court concludes that
Brizuela has failed to satisfy the requirements of §
There are no “exceptional reasons” warranting
Brizuela's release pending the outcome of his
3145(c) provides, in relevant part, as follows:
A person subject to detention pursuant to section 3143(a)(2)
or (b)(2), and who meets the conditions of release set
forth in section 3143(a)(1) or (b)(1), may be ordered
released, under appropriate conditions, by the judicial
officer, if it is clearly shown that there are
exceptional reasons why such person's detention would not
18 U.S.C. § 3145(c) (emphasis added) (footnote added).
Thus, Congress has limited relief under § 3145(c) to
defendants who (1) are subject to detention under
§§ 3143(a)(2) or (b)(2); (2) meet the conditions of
§§ 3143(a)(1) or (b)(1); and (3) clearly
show that exceptional reasons exist warranting their release
on appeal. Id.
Brizuela is subject to mandatory detention under §
3143(b)(2) because he has been found guilty of a controlled
substances offense described in subparagraph 18 U.S.C. §
3142(f)(1)(C) (Dkt. No. 163), has been sentenced to a term of
imprisonment (Dkt. No. 384), and has filed an appeal (Dkt.
No. 386). 18 U.S.C. § 3143(b)(2). Therefore, he may only
be released under § 3145(c) if he satisfies the
conditions of § 3143(b)(1) and “it is
clearly shown that there are exceptional reasons why [his]
detention would not be ...