United States v. Green ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 17 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-3242
(D.C. No. 97-CR-10164-MLB)
GLENN L. GREEN, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument. We grant defendant’s motion to file a
reply brief and have considered the arguments made in that brief.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Glenn Green appeals from a district court order denying his
release pending appeal of his convictions for possession with the intent to
distribute methamphetamine and for possession with the intent to distribute
cocaine. He contends on appeal that he is eligible for bail pursuant to 18 U.S.C.
§ 3145(c) (West 1994 & Cum. Supp. 1998). We review the district court’s ruling
de novo, deciding whether petitioner met the applicable standards set out in
18 U.S.C. § 3143(b)(1)(B) (West Cum. Supp. 1998), and whether he has also
demonstrated exceptional circumstances warranting his release. See § 3145(c);
United States v. Kinslow, 105 F.3d 555, 557 (10th Cir. 1997).
Mr. Green has failed to show that resolution in his favor of the “substantial
questions” raised in his motion would result either in a reversal of all of his
convictions or in 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. See
§ 3143(b)(1)(B)(i) & (iv); Morison v. United States, 486 U.S. 1306, 1306 (1988)
(stating that if release is to be based on reversal, defendant must show that all
counts for which imprisonment was imposed will be affected); United States v.
Rutter, 897 F.2d 1558, 1562 (10th Cir. 1990) (allowing court to consider relevant
conduct in determining the applicable guideline range, including additional
amounts of drugs for which defendant was not convicted).
-2-
2
Mr. Green also failed to allege any exceptional circumstances at the hearing
on the matter, thus the district court’s finding that no exceptional circumstances
exist to warrant release under § 3145(c) is fully supported in the record. We
decline defendant’s invitation to make a finding of exceptional circumstances
based upon evidence and arguments he presented on appeal; however, if we were
to do so, we would also conclude that he has not raised sufficient exceptional
circumstances to warrant his release.
The judgment of the United States District Court for the District of Kansas
is AFFIRMED.
ENTERED FOR THE COURT
PER CURIAM
-3-