United States v. Douglas Alan Mostrom , 11 F.3d 93 ( 1993 )

PER CURIAM.

The Government has appealed a direction of the district court that the defendant who has been convicted of drug offenses and sentenced to sixty-three months of incarceration continue on pre-trial release until noon, November 29, 1993. At that time, the defendant must surrender himself at the place designated for his incarceration.

The trial court’s order, included in the sentencing transcript, stated:

The defendant and his attorney will work closely with Mr. Reinert and the probation officers, and we’ll — as soon as there’s been a place designated for him to go, we’ll alert him to that. And he will show up there on November 29, 1993, at high noon or before.

Tr. at 21.

The Government has requested an expedited appeal and we grant that request. The Government has filed a brief supporting the appeal, the defendant has filed a short response and the trial court has filed an order supplementing the record.

The trial court’s order as pertinent gives the following reasons for the action taken:

In United States v. Carr, 947 F.2d 1239, 1240 (5th Cir.1991), the Fifth Circuit held that § 3145(c) relief is not limited to reviewing courts; district courts may release a defendant who has been convicted.

This court has consistently been persuaded that it has the authority to order release under § 3145(c) and agrees with the reasoning of the Fifth Circuit Court of Appeals. In the instant case the court ruled at sentencing that the defendant was not likely to flee and was not a danger to any person or the community if allowed to self surrender. Therefore, this defendant meets the conditions of release set forth in 18 U.S.C. § 3143(a)(1). Furthermore, the court is persuaded, and was persuaded at the time of sentencing, that “exceptional reasons” existed under 18 U.S.C. § 3145(c) which rendered defendant’s immediate incarceration inappropriate. The presen-tence report on this defendant indicated that since October 3, 1991, the defendant had been released on a $5,000 unsecured bond and was complying with pretrial supervision for over 24 months with no problems. In addition, the defendant was gainfully employed up until the date of sentencing. As mentioned at the sentencing hearing, the court also finds “exceptional” the length of time it takes an individual to be transported to the facility where they are to serve their time. The court in the past received a letter from a defendant who had been ordered to surrender immediately. When he wrote the letter it was 39 days after I had sentenced him. He was designated to serve his time in a federal facility in Texas. He had been in 15 different jails for two or three days at a time, he had been on buses, airplanes and automobiles at great expense to the U.S. Marshall Service and he was then in Tu-cumcari, New Mexico, a few hundred miles from his final destination. He had no idea when he would eventually get there. Bureau of Prisons officials, at a large meeting of Judges in Kentucky, asked the Judges to please not clog up their transportation system with individuals who can self-surrender to their appointed facility at no cost to the government. These are “exceptional circumstances.”

Order dated November 18, 1993.

We agree with the Government’s position. The “exceptional reasons” language in section 3145 does not relate to inadequacies in the general means of transportation of prisoners from places of holding court to places of detention. In addition, compliance with pretrial supervision and gainful employment up until the date of sentencing are not, in and of themselves, “exceptional reasons why such person’s detention would not be appropriate.” 18 U.S.C. § 3145(c).

While we may be sympathetic with the trial court’s ruling in this case as a practical one for all parties and economical to the Government, we find no statutory authority for the trial court’s action in the particular circumstances here.

We reverse the order of the district court and remand for further proceedings consistent with this opinion.

Our mandate shall issue forthwith.

Members of this panel or any of them reserve the right to file a further opinion in this case.