July 3, 2013
UNITED STATES OF AMERICA,
DARLENE M. ALTVATER.
MEMORANDUM OPINION AND ORDER
DEBORAH K. CHASANOW, District Judge.
Defendant Darlene Altvater has filed a motion for stay of judgment pursuant to Fed.R.Crim.P. 38 and Fed.R.App.P. 8. (ECF No. 89). Essentially, a stay of a sentence of imprisonment is granted when a defendant is released pending appeal. As noted by the government, the standard for release pending appeal is found in 18 U.S.C. § 3143. Section 3143(b) provides, in relevant part:
(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-
(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.
Ms. Altvater has not made the requisite showing. A "substantial question" is defined as a "close' question or one that very well could be decided the other way." United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991) (quoting United States v. Giancola, 754 F.2d 898 (11th Cir. 1985)). The proceedings to determine the loss calculation and amount of restitution were protracted. Given the length of time involved in the offense and the complexity of the formula used to calculate worker's compensation benefits, the court went to great lengths to determine the appropriate sentence. Defendant has not shown that there is a substantial question of fact or law likely to result in a reversal or reduced sentence. Rather, she merely asserts that she intends to challenge the loss calculation under the guidelines and the restitution award, failing altogether to provide the basis of her challenge. Such a bare, conclusory assertion is insufficient to meet her burden.
Accordingly, it is this 3rd day of July, 2013, by the United States District Court for the District of Maryland, ORDERED that:
1. Defendant's motion for stay of judgment (ECF No. 89) BE, and the same hereby IS, DENIED; and
2. The clerk is directed to transmit copies of this Memorandum Opinion and Order to counsel for the parties.