United States v. Dustin Nickell , 512 F. App'x 660 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-1474
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United States of America
lllllllllllllllllllll Plaintiff - Appellant
v.
Dustin E. Nickell
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 15, 2013
Filed: April 26, 2013
[Unpublished]
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Before WOLLMAN, BOWMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
This is an expedited appeal by the government from the district court’s order
permitting Dustin E. Nickell to remain free on bond following his plea of guilty to
possession of pseudoephedrine with the knowledge that it would be used in the
manufacture of methamphetamine, in violation of 21 U.S.C. § 841(c)(2), an offense
punishable by a maximum term of 20 years’ imprisonment.
Absent “exceptional reasons,” 18 U.S.C. § 3145(c), a district court is required
by 18 U.S.C. § 3143(a)(2) to order the presentence detention of a defendant convicted
of an offense in violation of the Controlled Substances Act “for which a maximum
term of imprisonment of ten years or more is prescribed,” 18 U.S.C. § 3142(f)(1)(C),
and who “is awaiting imposition . . . of a sentence” unless the court “finds there is a
substantial likelihood that a motion for acquittal or new trial will be granted,” or “the
government has recommended that no sentence of imprisonment be imposed.” §
3143(a)(2).
In this case, because neither exception applies, the question before us is
whether the circumstances relied upon by the district court in refusing to detain
Nickell in fact constitute “exceptional reasons.” We conclude that they do not.
In support of Nickell’s request that he be permitted to remain free on bond
pending sentencing, his counsel pointed to Nickell’s success in having remained free
of methamphetamine use during the preceding two years, his full disclosure to and
cooperation with law enforcement officers regarding his involvement in the crime
charged, his regular attendance at drug treatment meetings, his success in passing
every drug test, his full-time employment, and his care of his three young children.
In response to the government’s renewal of its motion that Nickell be detained
pending sentencing, the district court ruled as follows: “[The government] isn’t
challenging the fact that you are taking care of your children and you’re gainfully
employed. Two things we don’t see very often around here. I’m going to consider
those extraordinary circumstances and let you remain on bond until we set a
sentencing date.”
We conclude that however laudable and commendable Nickell’s conduct has
been since his initial contact with law enforcement officials, the circumstances noted
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by the district court, whether considered singly or in combination or as amplified to
include the full range of Nickell’s counsel’s response, are not “exceptional,” as
defined by our cases as “clearly out of the ordinary, uncommon or rare.” See United
States v. Brown, 368 F.3d 992, 933 (8th Cir. 2004) (per curiam), quoting United
States v. Koon, 6 F.3d 561, 563 (9th Cir. 1993). See also United States v. Mahoney,
627 F.3d 705 (8th Cir. 2010) (per curiam); United States v. Little, 485 F.3d 1210 (8th
Cir. 2007) (per curiam); United States v. Larue, 478 F.3d 924 (8th Cir. 2007) (per
curiam).
Accordingly, the order permitting Nickell to remain free on bond pending
sentencing is reversed, and the case is remanded to the district court with directions
that Nickell be taken into custody immediately. Mandate to issue forthwith.
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