United States v. Greene

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 21, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 05-5183
v. (D.C. No. 04-CR-209-HDC)
(N.D. Okla.)
MICHAEL D. GREENE,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MURPHY, HARTZ, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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This order and judgment is not binding precedent, except under the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. 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.
Michael D. Greene appeals the district court's ruling denying his request for
release pending sentencing. Mr. Greene was convicted by a jury of violating 26
U.S.C. § 7201 (evasion of taxes) and 26 U.S.C. § 7206(1) (willfully subscribing a
false tax declaration). After judgment was entered, Mr. Greene was ordered
detained pending sentencing. He then filed a motion for release, which the
district court denied. He now appeals from that order. We have jurisdiction over
this appeal pursuant to 28 U.S.C. § 1291. “Appellate review of detention or
release orders is plenary as to mixed questions of law and fact and independent,
with due deference to the district court’s purely factual findings.” United States v.
Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991).
Because Mr. Greene has been convicted, 18 U.S.C. § 3143(a) requires that
he “be detained” pending sentencing “unless the judicial officer finds by clear and
convincing evidence that [he] is not likely to flee or pose a danger to the safety of
any other person or the community if released under section 3142(b) or (c).”
Mr. Greene argues that the district court erred by not holding a hearing on his
request for release pending sentencing. There is nothing in § 3143(a) that
requires that the district court hold such a hearing. Further, Mr. Greene did not
indicate what evidence he would produce at an evidentiary hearing. Although he
stated in his reply brief, “[i]f granted a hearing, Defendant can make a proffer
concerning the other points raised by the Government,” Aplt. App. at 27, he in no
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way indicated what the proffer would contain. Indeed, he went on to assert that
“[he] had provided clear and convincing evidence which demonstrate[d] that he
[was] neither a flight risk nor danger to the community . . . . .” Id. That evidence
was already of record, and was noted in his motion for release pending
sentencing. Accordingly, there is no basis to remand to the district court to
conduct a hearing on Mr. Greene’s request for release.
The district court’s order denying Mr. Greene’s motion for release pending
sentencing is AFFIRMED.
Entered for the Court
Per Curiam
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