United States v. Fisher

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 18, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3150
(D.C. No. 5:13-CR-40035-JAR-1)
JEROLD D. FISHER, (D. Kan.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
_________________________________
Before LUCERO, HOLMES, and MATHESON, Circuit Judges.
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We have for consideration defendant Jerold D. Fisher’s appeal from the district
court’s June 11, 2015, order denying his motion for an appeal bond under 18 U.S.C.
§ 3145(c). We affirm.
On February 14, 2014, Fisher pleaded guilty to one count of making false,
fictitious, and fraudulent claims in tax filings for tax year 2009, in violation of
18 U.S.C. §§ 287 and 2. After protracted proceedings that need not be discussed at
this juncture, the district court sentenced Fisher to 41 months in prison, a sentence
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
that was within the advisory guideline range, but higher than the 36-month sentence
that the government had agreed to recommend to the court and the sentence for time
served that Fisher had requested.
Despite the appeal waiver in his plea agreement, Fisher filed an appeal from
his sentence, which is designated No. 14-3257. The government filed a motion to
enforce the appeal waiver and dismiss the appeal under United States v. Hahn,
359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam), or, in the alternative, to
dismiss the appeal as moot. Fisher argued in his response that the government
breached the plea agreement and engaged in vindictive prosecution, and that the
appeal waiver is therefore unenforceable. No. 14-3257 is scheduled for oral
argument on October 2, 2015.
The general rule with regard to bail pending appeal is that “the judicial officer
shall order that a person who has been found guilty of an offense and sentenced to a
term of imprisonment, and who has filed an appeal . . . , be detained.” 18 U.S.C.
§ 3143(b)(1). Fisher argues, however, that he may be granted bail if “the appeal . . .
raises a substantial question of law or fact likely to result in—(i) reversal . . . or (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.” Id. § 3143(b)(1)(B).
Fisher argues that he is likely to obtain a reversal or a reduced sentence
because the government breached the plea agreement by filing a second indictment
against him, and because the district court violated Fed. R. Crim. P. 32(i)(3)(B) by
not deciding whether the government breached the plea agreement in this case. The
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government disputes that its filing of the second indictment violated the plea
agreement.
Assuming, without yet deciding, that the government breached Fisher’s plea
agreement and that the appeal waiver is unenforceable, we are unpersuaded by his
arguments in this appeal that he satisfies the statutory standard for bail pending
appeal.
Affirmed.
Entered for the Court
Per Curiam
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