Free Motion for Release from Custody - District Court of Arizona - Arizona

1 Kent & Ryan, P.L.C. 3 (602) 253-3105 (Fax) 5 6 7 8 9 10 11 12 13 14 15 16 vs. Shayne Kedekein, Defendant.

2 Phoenix, Arizona 85003
(602) 277-8888 (Office)

45 West Jefferson, Suite 206

4 Candace Hewitt Kent, #013285
Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff, Case No: CR-03-00421-004-PHX-SMM MOTION FOR RELEASE PENDING APPEAL AND IN THE ALTERNATIVE MOTION TO CONTINUE SURRENDER DATE (Oral Argument Requested)
Shayne Kedekein moves pursuant to 18 U.S.C. § 3143 for an order releasing Mr.

17 Kedekein pending appeal. Mr. Kedekein has been ordered to self-surrender on Friday 18 September 2, 2005. Mr. Kedekein, however, has been informed by the United States 19 20
Marshal's office that no decision on facility placement has been made as of the date of this

21 Motion. Defendant's Motion is supported by the attached Memorandum of Points and 22 Authorities. 23 24 26 27 28
Undersigned counsel has conferred with Assistant United States Attorney Keith

25 Vercauteren regarding this Motion. The government objects and asks that it be denied.

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RESPECTFULLY SUBMITTED this 23rd day of August, 2005 Kent & Ryan, P.L.C.
By:

S/ Candace H. Kent Candace Hewitt Kent 45 West Jefferson, Suite 206 Phoenix, Arizona 85003 Attorney for Defendant Kedekein

MEMORANDUM OF POINTS AND AUTHORITIES FACTS On April 29, 2003 a 16 count indictment was filed in the United States District

12 Court, District of Arizona against defendant Shayne Kedekein and various co-defendants. 13 In that indictment Mr. Kedekein was charged with Count 1 conspiracy to possess with 14 15
intent to distribute cocaine and Count 4 possession with intent to distribute cocaine. (CR

16 1).1 Kedekein was arrested on warrant on May 8, 2003 and was released to third party 17 custody that same date. (CR 12). 18 19 21 22 23 25 26 27 Abbreviation CR refers to Clerk of Records and will be followed by the item 28 number assigned in the Clerk's file. 2
1

On April 1, 2004 a 19 count superseding indictment was filed which served to add

20 an additional charge: Count 2 conspiracy to possess with intent to distribute cocaine base.
(CR156). Following an arraignment on April 14, 2004 Mr. Kedekein's release conditions remained the same. (CR180). Mr. Kedekein has remained out of custody since May 8,

24 2003 and has been compliant with all terms of his release.
On December 7, 2004 a second superceding indictment was filed containing the

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1 same charges against Mr. Kedekein. (CR 270). On December 29, 2004 Mr. Kedekein 2 3
pleaded guilty to Count 1: of the superseding indictment, Conspiracy to possess with

4 Intent to Distribute 500 Grams or More of Cocaine, in violation of 21 U.S.C. section 846 5 and 841(a)(1) and (b)(1)(B)(ii), a lesser included offense of Count 1 of the superseding 6 7
indictment. (CR 330). The plea agreement included a recommendation by the

8 government for a two level decrease if the defendant was found eligible for safety valve 9 designation. On July 11, 2005 the district court sentenced Mr. Kedekein to sixty months 10 11
imprisonment, followed by three years of supervised release. (CR 467). The Court also

12 allowed Mr. Kedekein to self-surrender to serve his sentence. The Bureau of Prisons has 13 not yet designated the defendant to any particular facility. 14 15 16
II. DISCUSSION Title 18 of the United States Code Section 3143(b) provides that a

17 defendant may be released pending appeal if (1) there is clear and convincing evidence 18 19
that the person is not likely to flee or pose a danger and (2) the appeal is not for the

20 purpose of delay and raises a substantial question of law or fact likely to result in reversal. 21 In other words, release pending appeal is proper if: 22 23 24 25 26 27 28 3
(3) the appeal raises a substantial question of law or fact; and (2) (1) the defendant is not likely to flee or pose a danger to the safety of any other person in the community if released; the appeal is not for the purpose of delay;

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1 2

(4)

a favorable ruling on the substantial question is likely to result in reversal.

3 United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985). 4 5

A "substantial question" is one that is "fairly debatable." United States v.

6 Montoya, 908 F.2d 450 (9th Cir. 1990. This provision does not require the defendant to 7 show that the ruling of the district court will be reversed on appeal. Handy, 761 F.2d at 8 9
1283. Rather, the defendant must only show that he has raised a substantial question,

10 which, if successful, would likely result in a reversal. The court further explained that a 11 "substantial question" is one that is "fairly debatable," or, "fairly doubtful," a question that 12 13
is of more substance than would be necessary to a finding that it was not frivolous on

14 appeal. Id. at 1283. The word "substantial" defines the level of merit required in the 15 question raised on appeal, while the phrase "likely to result in reversal" defines the type 16 17 18 19 20 21 23 24 25 26 27 28 4
release pending appeal. B. The appeal is not for the purpose of delay and the appeal raises a substantial question of law which would result in reversal if Mr. Kedekein's appeal is granted. His minor children along with his other immediate family members reside in the Phoenix of question that must be presented. Id. at 1281. A. Shayne Kedekein is not a danger or a flight risk. Mr. Kedekein is not a flight risk. He has significant ties to the community.

22 area. He also poses no danger to the community. He has been compliant with all terms
of his release since May 8, 2003. Therefore, Mr. Kedekein is an excellent candidate for

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1 2 3

Mr. Kedekein has filed a Notice of Appeal from his sentence. (CR 476). Undersigned counsel also filed a Motion to Withdraw. Undersigned counsel has been

4 informed that Mr. Donald W. MacPherson has accepted an appointment to pursue Mr. 5 Kedekein's appeal. 6 7
The focus of Mr. Kedekein's appeal is the district court's finding that Mr.

8 Kedekein was not eligible for "safety valve" consideration due to court's acceptance of 9 the Presentence Report's calculations of defendant's criminal history. Mr. Kedekein filed 10 11
two separate Objections to the Presentence Report asking the court to find that Mr.

12 Kedekein was eligible for safety valve. (CR 392 and CR 465). In the first filing Mr. 13 Kedekein argued that the records of his alleged prior misdemeanor convictions should be 14 15
deemed insufficient to be awarded any "presumption of regularity" and as such should be

16 disregarded. Mr. Kedekein submitted that the only area of dispute regarding his 17 eligibility for safety valve consideration is his number of criminal history points as 18 19
referenced in 18 U.S.C.A. section 3553(f) (1) which indicates that the defendant must not

20 have "more than 1 criminal history point, as determined by the sentencing guidelines." 21 (Emphasis added). The Sentencing Guidelines are now only advisory to this court in the 22 23 25 26 27
Apprendi v. New Jersey, 530 U.S. 466 (2000). Yet, the very recent decision in Shepard aftermath of the United States recent decision in United States v. Booker, 125 S. Ct. 738

24 (2005). Booker, however, appeared to allow an exception for prior criminal convictions
on the authority of Almendarez-Torrez v. United States, 523 U.S. 224 (1998) and

28 v. United States, 2005 WL 51694 (March 7, 2005) creates a real question of constitutional 5

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1 doubt as to whether the Almendarez-Torrez exception to Apprendi for prior convictions 2 3
remains good law, or for how long. Certainly Justice Thomas' concurring opinion

4 intimates that there will be a time in the future where the Court will rule it 5 unconstitutional to increase a defendant's sentence based on judge-made findings about 6 7
prior convictions and declare Almendarez-Torrez wrongfully decided. Defendant

8 Kedekein submits that finding him ineligible for safety valve reduction due to his alleged 9 prior convictions is analogous to an increased sentence. 10 11
On March 30, 2005 Mr. Kedekein appeared for sentencing and arguments were

12 heard regarding the defendant's Objection to his criminal history category. At that time 13 all parties stipulated to a continuance of Mr. Kedekein's sentencing following a 14 15
discussion with the district court that perhaps the United States Supreme Court would be

16 soon issuing a ruling that would give the parties and the court further direction with 17 regards to the issue of the use of prior convictions in light of Booker. (CR 401).2 Indeed, 18 19 21 22 23 25 26 27 Transcripts have been ordered . A copy of the transcript will be provided to 28 the court and counsel for the government once defense counsel obtains a copy. 6
2

counsel for both the defendant and the government were encouraged to submit to the

20 court any new case law that would be helpful in analyzing this issue.
Following a second brief continuance due to the health of the defendant (CR 460) Mr. Kedekein's sentencing went forward on July 11, 2005. In preparation for that

24 hearing defense counsel filed a Supplemental Objection to the Presentence Report. (CR
465). Therein, Mr. Kedekein argued that his alleged prior conviction should not be used

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1 to remove him from safety valve eligibility due to the circumstance that these alleged 2 3

prior misdemeanor convictions do not fall within the exception created by Apprendi v.

th 4 New Jersey, 530 U.S. 466 and United States v. Tighe, 266 F.3d 1187 (9 Cir. 2001). The

5 Tighe Court held that the Apprendi "prior conviction" exception encompasses only those 6 7
proceedings that provide the defendant with the procedural safeguards of a jury trial and

8 of proof beyond a reasonable doubt. Tighe at 1194. The majority in Tighe reasoned that 9 the underlying rationale for the prior conviction exception is the following "fundamental 10 11
triumvirate of procedural protections:" "fair notice, reasonable doubt and the right to a

12 jury trial." Id. at 1193. While the Tighe Court was specifically dealing with the issue of 13 non-jury juvenile adjudications, the rationale utilized by the Court is directly analogous to 14 15 16
the use of any non-jury prior conviction in sentencing decisions. At sentencing this district court rejected this argument by Mr. Kedekein as well as

17 his other arguments made in his previous Sentencing Memorandum and during oral 18 19
argument. In doing so, however, this district court indicated that despite its strong desire

20 to do so the court did not believe it could find Mr. Kedekein safety valve eligible under 21 the current state of the law. Mr. Kedekein respectfully disagrees with this court's finding 22 23 25 26 27
field of case law that is the aftermath of Booker will afford this district court in the very that it could not determine the defendant to be safety valve eligible under the current

24 state of the law and thus believes that the sentence imposed was improper and illegal.
Having said that, Mr. Kedekein shares this district court's suspicion that the changing

28 near future the appropriate mechanism to place him in safety valve eligibility despite the 7

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1 alleged presence of three prior misdemeanor convictions. 2 3 4
III. CONCLUSION Mr. Kedekein has substantial legal issues which, if he prevails, would result in a

5 dramatically different sentence. As he is not a danger nor a flight risk, he should be 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
By:

released upon appeal while his appeal is pursued. In the alternative Mr. Kedekein asks

8 that his surrender date be continued.
RESPECTFULLY SUBMITTED this 23rd day of August, 2005

Kent & Ryan, P.L.C.

S/ Candace H. Kent
Candace Hewitt Kent 45 West Jefferson, Suite 206 Phoenix, Arizona 85003 Attorney for Defendant Kedekein

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1 COPY of the forgoing Delivered and rd 2 E-Mailed this 23 day of August, 2005 to: 3 Honorable Stephen M. McNamee 4 401 West Washington Street 5 [email protected] 6 7 Assistant United States Attorney 8 9 United States Probation Officer 10 11 By: S/ Candace H. Kent Candace H. Kent 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
Jeannie Moreno Keith Vercauteren Phoenix, Arizona 85003

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