United States v. Parks

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, CHIEF JUDGE

         On July 18, 2019, Defendant Ryan Russell Parks was convicted following a jury trial on two counts of sex trafficking of a minor in violation of 18 U.S.C. § 1591(a) and one count of use of interstate facilities to promote an enterprise involving a prostitution offense in violation of 18 U.S.C. § 1952(a)(3). (See ECF No. 136.) Defendant now moves for a detention hearing and release from custody pending sentencing. (ECF No. 137.)

         The Court first notes that Defendant brings his motion pursuant to 18 U.S.C. § 3142. (See ECF No. 137.) However, that section only applies to pretrial detention. See 18 U.S.C. § 3142(a) (“Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be . . .”); see also United States v. Solerno, 481 U.S. 739, 746–47 (1987). As Defendant has already been convicted and is awaiting sentencing, that statute cannot serve a basis for Defendant’s motion for release pending sentencing.^[1]

         18 U.S.C. § 3143 governs pre-sentence detention and provides the following:

Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence, other than a person for whom the applicable guideline promulgated pursuant to 28 U.S.C. 994 does not recommend a term of imprisonment, be detained, unless the judicial officer 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 if released under section 3142(b) or (c). . . .

§ 3143(a)(1). The statute further provides that a judicial officer must order a defendant who has been found guilty of, among other offenses, a violation of 18 U.S.C. § 1591, detained pending sentencing unless the following conditions are present:

(A)

(i) the judicial officer finds 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;

§ 3143(a)(2)(A). If a judicial officer finds the above conditions exist, the judicial officer must further find by clear and convincing evidence that the defendant is “not likely to flee or pose a danger to any other person or the community” before ordering the defendant’s release. § 3143(a)(2)(B); United States v. Taliaferro, 779 F.Supp. 836, 838 (E.D. Va. 1992).

         Here, as stated above, Defendant was convicted of two violations of 18 U.S.C. § 1591. As such, § 3143(a)(2)(A) prohibits the Court from releasing him pending sentencing unless a “substantial likelihood” exists that a motion for a new trial or acquittal will be granted or the Government recommends no sentence of imprisonment. 18 U.S.C. § 3143(a)(2)(A)(i)–(ii). Defendant has not moved for a new trial or acquittal, nor is the Court aware of any reason that such a motion would be substantially likely to be granted. Further, the Government has not recommended a sentence of no imprisonment in this case. See § 3143(a)(2)(A)(ii). As neither of these conditions are met, the Court need not consider whether Defendant is likely to flee or poses a danger to the community under § 3143(a)(2)(B). See Taliaferro, 779 F.Supp. at 839; see also United States v. Lambert, No. 2:09-cr-15, 2008 WL 2550601, at *2 (W.D. N.C. June 20, 2008) (“As Defendant meets neither of the two alternate conditions for release under § 3143(a)(2)(A), the Court need not address Defendant’s argument that he meets the second mandatory condition under subsection (B).”). As such, Defendant must remain detained pending sentencing.

         Accordingly, Defendant’s motion for a detention hearing and request for release pending sentencing is DENIED, (ECF No. 137.) See United States v. Irvin, 2 F.3d 72, 73 n.1 (4th Cir. 1993) (“[B]oth subsections (A) and (B) must be satisfied in order to grant release pending sentencing.”); see also Lambert, 2008 WL 2550601, at *2 (“[B]ecause Defendant cannot meet both requirements listed in § 3143(a)(2), the Court holds that the instant motion has no merit. It follows that the Government’s request for a hearing on this matter is unnecessary.”).

         IT IS SO ORDERED

         The Court DIRECTS the Clerk to send a copy of this Order to the Defendant and counsel, the United States Attorney, the United States ...