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United States v. Kennedy

February 27, 2008

UNITED STATES OF AMERICA
v.
DIANNE KENNEDY



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM ORDER

Pending before the Court is the MOTION TO REMAIN ON BOND PENDING APPEAL (Document No. 54) filed by Defendant, Dianne L. Kennedy, along with a supporting brief. The government has filed a response (Document No. 58), Kennedy has filed a reply (Document No. 59) and the motion is ripe for disposition.

On July 27, 2007, Kennedy pled guilty to all counts of a ten-count indictment at Criminal No. 06-30, which charged her at counts 1-4 with the crime of mail fraud in violation of 18 U.S.C. § 1341, and at counts 5-10 with making a false writing to the government in violation of 18 U.S.C. § 1001(a)(3). A Presentence Investigation Report ("PSI") was prepared by the Probation Office on September 11, 2007. After several extensions of time, Defendant filed objections on November 28, 2007, which objected to the PSI in the following regards: (1) the enhancement for "10 or more victims" pursuant to U.S.S.G. § 2B1.1(b)(2)(A); (2) the enhancement for "vulnerable victims" pursuant to U.S.S.G. § 3A1.1; and (3) the enhancement for "abuse of a position of trust" pursuant to U.S.S.G. § 3B1.3. Defendant also requested that the Court consider that her Criminal History Category classification of II was the result of an offense committed after the date of the instant offense. Finally, Defendant sought a downward departure or downward variance because she allegedly is the caregiver for her elderly mother, daughter and grandchildren. The Court issued Tentative Findings and Rulings on December 12, 2007 (Document No. 48), which denied Defendant's objections for the reasons set forth therein. The Court reiterated that the guidelines calculation was a precursor to its consideration of the § 3553(a) factors, stating: "It remains appropriate, therefore, in this case to consider and resolve any Sentencing Guidelines disputes in order to determine a sentencing range for Defendant, which will then be one of the § 3553(a) factors to be considered in imposing an appropriate sentence." The Court also declined to exercise its discretion to downwardly depart or vary from the advisory guidelines range due to Kennedy's family circumstances. The Tentative Findings and Rulings recognized that Defendant's contentions that her three grandchildren are dependent upon her, that her daughter has seemingly never been capable of being their primary caregiver, the mental health issues being faced by members of the family, and the impact Defendant's sentence will have on her and potentially on her grandchildren. Nevertheless, the Court did not accede to Defendant's request for a prison term of one year and one day. On January 4, 2008, Kennedy was sentenced to a term of imprisonment of eighteen months. At sentencing, Kennedy's bond was continued to enable her to surrender voluntarily to the designated federal correctional institution to serve her sentence. On January 16, 2008, Kennedy filed a Notice of Appeal to the United States Court of Appeals for the Third Circuit. Subsequently, at Kennedy's request, the date on which she must report to prison was postponed until March 7, 2008.

Kennedy requests that the Court continue her bond until her appeal is resolved. The relevant statutory authority is 18 U.S.C. § 3143(b) (emphasis added):

(b) Release or detention pending appeal by the defendant.--

(1) Except as provided in paragraph (2), 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 or a petition for a writ of certiorari, be detained, unless the judicial officer finds--

(A) 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 under section 3142(b) or (c) of this title; and

(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in--

(i) reversal,

(ii) an order for a new trial,

(iii) a sentence that does not include a term of imprisonment, 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.

Thus, the Court must find that Kennedy does not present a danger to the community, that the motion is not made for the purpose of delay, that she has raised a "substantial question," and that one of the four outcomes set forth in subsection (b)(2)((B) is "likely" to result. United States v. Miller, 753 F.2d 19, 24 ...


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