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United States v. Loaiza

United States District Court, D. New Hampshire

November 20, 2018

United States of America
v.
Tasha Loaiza

          REPORT AND RECOMMENDATION

          Daniel J. Lynch Daniel J. Lynch United States Magistrate Judge

         On November 5, 2018, the defendant entered a guilty plea to the charge of Aiding and Abetting Distribution of Fentanyl in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C), and 18 U.S.C. § 2. On November 6, 2018, the defendant, who is currently detained, filed a Motion for Bail Hearing and Conditional Release. (Doc. No. 17). Subsequently the matter was referred to the Magistrate Judge for resolution. (Endorsed Order Dated Nov. 8, 2018).[1] The undersigned heard argument on the motion for conditional release on November 16, 2018, at which the government objected to the defendant's release.

         I. Applicable Legal Standard

         The defendant agrees that 18 U.S.C. § 3143(a)(2) applies to the instant request for conditional release after the entry of a guilty plea. Section 3143(a)(2) provides as follows:

(2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless-
(A)
(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or
(ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and (B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.

18 U.S.C. § 3143(a)(2)(A)-(B).[2]

         Defense counsel agrees that neither subsection (a)(2)(A)(i) nor (a)(2)(A)(ii) applies in this case. Given that the statute provides that “[t]he judicial officer shall order that a person . . . be detained unless” one of those two subsections applies, it would appear the court lacks statutory authority to release the defendant pending sentencing. Nonetheless, the defendant advances two arguments as to why the court should release her.

         A. RELEASE IS AUTHORIZED UNDER 18 U.S.C. § 3145(c)

         Despite not satisfying the requirements of Section 3143(a)(2), the defendant maintains that the court has discretion to release her under 18 U.S.C. § 3145(c). Section 3145(c) provides as follows:

(c) Appeal From a Release or Detention Order.- An appeal from a release or detention order, or from a decision denying revocation or amendment of such an order, is governed by the provisions of section 1291 of title 28 and section 3731 of this title. The appeal shall be determined promptly. A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the ...

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