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United States v. Slack

United States District Court, W.D. Kentucky, Louisville Division

March 18, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID L. SLACK, Defendant.

MEMORANDUM OPINION AND ORDER

COLIN H. LINDSAY, Magistrate Judge.

Defendant David L. Slack ("Slack") was indicted on charges of knowingly attempting to transport child pornography and possessing child pornography. This case is before the Court on DN 22, Slack's motion for release from detention pending sentencing, and DN 31, in which Slack both moves the Court to allow him to supplement DN 22 and provides a supplement thereto. On March 2, 2015, the United States filed a response (DN 33) (the "Response") to both motions. Slack has not filed a reply. DN 22 and DN 31 (collectively the "Motion for Pre-Sentencing Release") are now ripe for review.[1] For the following reasons, Slack's original motion for pre-sentencing release, DN 22, is DENIED. Slack's subsequent motion, DN 31, is GRANTED IN PART and DENIED IN PART.[2]

Background

On or about June 19, 2014, Slack executed a waiver of detention hearing and reserved the right to move for a detention hearing at a later date. (DN 10.) The Court remanded Slack to the custody of the United States Marshal. (DN 6.) Slack remains in custody today. On December 30, 2014, Slack filed his original motion for release from detention prior to sentencing. (DN 22.)

On or about January 6, 2015, Slack entered into a plea agreement ("Plea Agreement") (DN 23) with the United States pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, changing his plea from Not Guilty to Guilty as to Count 1, attempted transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(1), and Count 2, possession of child pornography in violation of 18 U.S.C. § 2252A(b)(2). ( See DN 23, 25.) Slack agreed to a sentence of 189 months' imprisonment, a life term of supervised release, and forfeiture of any property used or intended to be used to commit or promote commission of the offenses for which he pleaded guilty, among other terms. (DN 23.)

The Court set a date of March 31, 2015 for sentencing. (DN 25.) The Court further ordered the original motion for release pending sentencing (DN 22) held in abeyance. (DN 25.) The Court noted that Slack's counsel indicated that Slack may supplement DN 22 or refile it with additional information, and ordered that if Slack had not supplemented or refiled the motion by the date of sentencing, the motion would be considered withdrawn and moot. (DN 25.) On February 11, 2015, Slack filed a motion seeking permission to supplement, and supplementing, DN 22. (DN 31.) On March 2, 2015, the United States filed the Response. (DN 33.)

DISCUSSION

A. Legal Standard

Pursuant to the Bail Reform Act, when a person has been found guilty of an offense and is awaiting imposition or execution of a sentence, the Court[3] orders detainment of such person unless the Court "finds 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...." 18 U.S.C. § 3143(a)(1). Pursuant to 18 U.S.C. § 3143(a)(2), a more stringent standard applies when a person has been found guilty of an offense described in 18 U.S.C. § 3142(f)(1)(A), (B), or (C) and is awaiting imposition or execution of a sentence therefor. See 18 U.S.C. § 3143(a)(2). Under such circumstances, detention pending sentencing is mandated unless:

(A) (i) the [Court] finds that 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 [Court] 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) (emphasis added).

The standard set forth in Section 3143(a)(2) applies here if the charges to which Slack pleaded guilty are "offense[s]... described in" Section 3142(f)(1)(A), (B), or (C). Slack pleaded guilty to violating 18 U.S.C. § 2252A(a)(1), attempted transportation of child pornography, and 18 U.S.C. § 2252A(b)(2), possession of child pornography. ( See Plea Agreement, DN 23.) The charges to which Slack pleaded guilty are "crimes of violence" for purposes of Section 3142(f)(1)(A). See 18 U.S.C. § ...


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