Before the Court imposed sentence, Ms. Klinefelter objected to the Probation Officer's recommendation as to the application of Section 3B1.2 of the sentencing guidelines. Specifically, she averred that she was a minimal, rather than a minor, participant in the crime. After a review of the trial evidence, the Court concluded that defendant was a minimal participant. Accordingly, we reduced the offense level from 20 to 18, to reflect the reduction already made for minor participation and the added reduction for minimal participation. This reduction resulted in a lesser sentence.
On February 24, 1989 the Court sentenced Ms. Klinefelter to imprisonment for a term of twenty-seven months. At the time of sentencing, counsel for Ms. Klinefelter submitted that her case was an appropriate one for departing from the guidelines. He offered as a mitigating circumstance that she was not a willing participant in the crime, was not present when her co-defendants planned the robbery and was not in the bank during the robbery. He argued that rather than informing her co-defendants that the bank had been robbed previously with success (as had been alleged by Cheape), Ms. Klinefelter merely assented to such a statement. Counsel asserted that departure from the guidelines is justified in cases of coercion and duress and submitted that the guidelines have not properly addressed aiding and abetting as it occurred in this case.
At the sentencing hearing, the Court stated that Ms. Klinefelter was "properly convicted, . .; there is no question about that." For example, the jury could have found from the evidence at trial that Ms. Klinefelter told her co-defendants that she knew of people who had robbed the bank before and gotten away with it, and that she accepted proceeds from the robbery and spent them shortly afterwards. The evidence also supported a jury finding that although Ms. Klinefelter did not enter the bank during the robbery, she acquiesced to her co-defendant's instruction that she await them in her automobile even though it was parked out of sight of the bank and in close proximity to possible assistance.
Although the Court does not disagree with the jury's verdict, we stated at the time of sentencing that, were it in the Court's power to place the defendant on probation, we would have done so. The Court believes that Ms. Klinefelter had led an exemplary life as far as anyone could tell until she was adversely influenced by her co-defendants. We also opined that Congress or the Sentencing Commission should permit judges discretion to place a defendant on probation in cases such as this when the Court is of the opinion that a particular defendant will be so painfully impressed by trial and conviction that she will most likely be deterred from committing criminal acts in the future. Although the Court is sympathetic to attempts by Congress and the Sentencing Commission to introduce uniformity in sentencing, we expressed our belief that in some cases judges should be given more leeway to depart from the guidelines. To that effect, we invited counsel for defendant to submit a brief in support of departure below the minimum term of imprisonment under the guidelines.
Reconsideration of Sentence
We note that defendant has filed a timely appeal to the United States Court of Appeals for the Third Circuit, requesting review of the question of whether departure from the sentencing guidelines is precluded as a matter of fact or law. The first issue we must address regarding the Motion for Reconsideration is whether this Court retains jurisdiction to modify Ms. Klinefelter's sentence. It appears that we do not.
Rule 35 of the Federal Rules of Criminal Procedure governs motions for correction of sentences. Rule 35(a) permits the court to correct a sentence that is determined under 18 U.S.C. § 3742 to have been imposed in violation of law or to have been imposed as an incorrect application of the sentencing guidelines or to be unreasonable.
Under 18 U.S.C. § 3742 a defendant may appeal to the district court for a review of a final sentence if: 1) the sentence was imposed in violation of law; 2) it was imposed as an incorrect application of the guidelines; 3) it was imposed for an offense for which a sentencing guideline has been issued and the sentence is greater than the sentence specified in the applicable guideline; or 4) it was imposed for an offense for which no guideline has been issued and is greater than the sentence specified in the plea agreement, if any.
The Comprehensive Crime Control Act of 1984 drastically revised the procedures for sentencing federal criminal defendants. Under Chapter II of the Act, the Sentencing Reform Act of 1984, the district court must impose sentences under the guidelines established by the United States Sentencing Commission. The Act confers on the courts of appeals jurisdiction to review, on several specific grounds, sentences imposed by the district court. See 18 U.S.C. § 3742. The Act also amended Fed. R. Crim. P. 35 to eliminate the district courts' discretion to reduce a defendant's sentence. Under the new Rule 35, the district court may correct illegal sentences only on remand from the courts of appeals or on motion of the government. United States v. Dean, 752 F.2d 535, 537 n.*(11th Cir. 1985).
The Act took effect on November 1, 1987 and applies to all crimes, such as those at issue here, that were committed on or after that date. Since the government opposes any reduction of sentence in this case, Ms. Klinefelter must await a decision by the United States Court of Appeals for the Third Circuit on her appeal of the sentence.
Release Pending Appeal
Ms. Klinefelter has also filed a Motion for Release Pending Appeal. Federal Rule of Appellate Procedure 9(b) states that "application for release after a judgment of conviction shall be made in the first instance in the district court." Thus, we have jurisdiction to decide this particular motion.
Release pending appeal is governed by 18 U.S.C. § 3143(b). The statute reads in part:
(b) Release or detention pending appeal by the defendant. -- 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, unless the judicial officer finds --
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released