After five on “Super Friday” and what do I see but a copy of what the Government did file in opposition to the Motion for Release Pending Resentencing of former judge Wes Teel, a defendant in USA v Minor.
Unlike Opposition to the Minor defendants’ past requests for release during their Appeal, this opposition was filed by the formerly recused office of the Southern District Mississippi USA – and that Dunn surprised me as there has been no appointment of a new USA to fill the position.
In addition to that big surprise, there are more to come as the risen-from-recusal USA details the argument in opposition to Teel’s release. The first argument is this eyebrow raising claim, Since defendant has no pending appeal, most of the §3143(b) factors governing release pending appeal do not apply to him”:
In United States v. Olis, 450 F.3d 583, 587 (5th Cir. 2006), the Fifth Circuit held that “§3143(b)’s “pending appeal” language envisions a defendant . . .who has a pending appeal on a matter…” The Fifth Circuit in Olis did find that the reduced-sentence provision of §3143(b)(1)(B) would apply to a defendant like Teel who is awaiting sentencing but whose convictions have been affirmed; but that it would not overcome the presumption against release pending resentencing if the defendant had not served all of his possible sentence. Id. at 586-87.
The government apparently misplaced more than just a modifier or two in the rush to oppose Teel’s release. Consequently, the sentence that follows – “Defendant Teel has not served all of his possible sentence, in fact, he has not served even half of his possible sentence” – presumes the presumption but doesn’t overcome the need for clarification or prepare a reader for the convoluted calculation that follows:
Defendant Teel was sentenced to 70 months on Count 13, and to 60 months on Counts 2, 9, and 10, all to run concurrently. The convictions on Counts 2 and 13 were reversed by the Fifth Circuit, but the convictions on Counts 9 and 10 were affirmed. The statutory maximum penalty for the affirmed convictions in Counts 9 and 10 is a total of ten (10) years, meaning this Court could sentence defendant to 120 months on those two affirmed convictions. Therefore, defendant cannot show that his resentencing will result in a sentence with reduced imprisonment. Even assuming the sentence were to be lowered to 60 months, defendant has not yet served even one-half of that length of time, and release on bail would be inappropriate. Krilich, 178 F.3d at 861-62.
Here’s the math:
↓
↓
Do, Did, Dunn – and I’m too done in by the Government’s “new math” to do anything but wonder what purpose it serves when a reversal of two convictions does not reduce a sentence. Justice is does not!
Link to the Government’s Response in Opposition has been repaired.