Free Response to Motion - District Court of Delaware - Delaware

I I Case 1:07—cr—00024-SLR Document 24 Filed 11/05/2007 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE Z
I I UNITED STATES OF AMERICA, :
. Plaintiff] i
: Criminal Action No. 07— 24 SLR
` CHRISTOPHER M. KRAUSS, :
Defendant. A
I UNITED STATES’ RESPONSE TO DEFENDANT’S MOTION
TO STAY SENTENCE OF INCARCERATION PENDING I
DETERMINATION OF APPEAL OF SENTENCE OR UNTIL MAY 1, 2008
I COMES NOW, the United States, by and through its attomeys, Colm F. Connolly, United
_- States Attorney for the District of Delaware, and Douglas E. McCann, Assistant United States
ll Attorney for the District of Delaware and hereby opposes the Defendant’s Motion to Stay I
Sentence of Incarceration Pending Detemiination of Appeal of Sentence or Until May l, 2008
I . (DI. 23) for the reasons set forth below: .
Background
` l. On October 23, 2007, defendant Christopher Krauss was sentenced to, among i
l other things, a term of incarceration of tive months.
I 2. At sentencing, the Court indicated it would give the defendant a "self—report" date.
3. On October 29, 2007, the Court entered the Judgment, indicating a "self-report"
‘ . date of November 26, 2007. D.I. 22.
` I - 4. On November 1, 2007, the defendant filed the instant motion.
5. In his motion, defendant asks that the Court permit him to remain on bail pending
_ appeal; or in the altemative, to extend the "self-report" date until May l, 2008. ‘ I

Case 1 :07—cr—00024-SLR Document 24 Filed 1 1/05/2007 Page 2 of 3
8tay of Execution of Sentence L
- 6. The defendant bring his motion under Rule 38(b) of the Federal Rules of Criminal
I Procedure. Rule 38(b) provides "[i]f the defendant is released pending appeal, the court must
stay a sentence of imprisonment? Fed. R. Crim. Pro. 38(b). The release of a defendantpending
. appeal is governed by 18 U.S.C. § 3143(b). In order to release a defendant pending
1 determination of an appeal, the Court must first find after a hearingl by clear and convincing
- ` evidence that the person is not likely to flee or pose a danger to the community. See 18 U.S.C. § =
3 143(b)(1)(A). The Cotnt must also find that the appeal is not for the purpose of delay and raises _
_ a substantial question of law or fact likely to result in a reversal, a sentence that does not include
imprisonment, or a reduced sentence to a term of imprisonment less than the total time already _
‘ served plus the expected duration ofthe appeal process. See 18 U.S.C. § 3143(b)(l)(B).
7. At sentencing, the defendant asked the Court for a sentence that did not include
- incarceration. The government does not have a transcript of the sentencing; however, it believes
that the pnincipal basis for the request was th hardship to the defendant’s mother if her caretaker l
. (the defendant) was incarcerated. At sentencing, the Court stated, in essence, while it was aware
U l that family circumstance might be a basis for a variance, it was reluctant to do so in this case.
8. In his submission, the defendant argues that cases pending before appellate cotuts
I might further alter the sentencing landscape and therefore affect the appeal of this case.
` - However, as the defendant notes, the central issue in Gall v. United States, 127 S.Ct. 2933 (cert
granted June 11, 2007), is the extent to which district courts are required to explain decisions to 7
U 1See United States v. Davis, 828 F.2d 968, 969 & n.l (3d Cir. 1987) (noting that the Court U
_, of Appeals had reversed the District Court because it denied a motion for bail pending appeal _
without a hearing). T _ E

Case 1 :07—cr—00024-SLR Document 24 Filed 1 1/05/2007 Page 3 of 3
I vary outside of a prescribed guideline sentence. This case, of course, involved a within-guideline
_ sentence, and so the question presented in Gal! is inapposite here. Moreover, as the Court
indicated that it understood that a variance was possible, but that it chose to exercise its ‘
discretion not to vary, the government respectfully submits that there is not a substantial question
p of law or fact at issue on appeal, and that the motion should therefore be denied.
9. In sum, the government does not believe that the defendant can satisfy his burden
I in seeking bail pending appeal. However, the government believes that the Court must hold a
_ hearing on the motion before it makes its determination.
- Adjustment of the Self-Report Date
I I 10. The defendant asks in the alternative to have his self—report date changed to May
1, 2008. The government has not found (thus far) any authority setting parameters for self-report
` dates. However, the govemment respectfully submits that a self-report date six months after
‘ sentencing is, in essence, bail pending appeal, and that section 3143 govems such a request.
A WHEREFORE, the government respectfully requests that the Court deny the requested
U relief U
Respectfully submitted; `
I COLM F. CONNOLLY q
United States Attorney
l By: 0 /(1/;.·~
. Douglas£. McCann ;
` _ _ Assistant United States Attorney I
l DATED: November 5, 2007