United States District Court, D. Columbia
December 2, 2005.
UNITED STATES OF AMERICA, Plaintiff,
ANTONIO C. BRAS, Defendant.
The opinion of the court was delivered by: COLLEEN KOLLAR-KOTELLY, District Judge
Defendant Antonio C. Bras pleaded guilty to Count 1 of a
multi-count indictment, Conspiracy to Commit Crimes Against the
United States and Aiding and Abetting and Act to be Done in
violation of 18 U.S.C. § 371 and 18 U.S.C. § 372, on December 8,
2003, for his role in a scheme via which the District of Columbia
Department of Public Works was charged for labor and materials
never provided to it by Fort Myer Construction Corporation
through a network of bribes and false documentation. After two
days of evidentiary hearings, the Court sentenced Defendant Bras
on October 20, 2005, to 37 months incarceration and a $7,500 fine
followed by three years of supervised release. He subsequently
filed the instant motion,  Defendant Antonio C. Bras' Motion
for Release Pending Appeal on November 10, 2005. The Government
filed  Government's Opposition to Defendant's Motion for
Release Pending Appeal on November 21, 2005. Defendant Bras filed
 Defendant's Reply to Government's Opposition to Defendant's
Motion for Release Pending Appeal on November 30, 2005. After
considering the aforementioned pleadings, the Court shall DENY
Defendant Bras's Motion for Release Pending Appeal.
In his Motion for Release Pending Appeal, Defendant Bras asks
that the Court release Defendant pursuant to 18 U.S.C. § 3143(b)(1).
18 U.S.C. § 3143(b)(1) provides that:
[a] 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
(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.
In this case, since the Government has not alleged that Defendant
Bras is a flight risk or poses a danger to the community if
released, the Court's decision to release Defendant Bras pending
the outcome of his appeal rests on 18 U.S.C. § 3143(b)(1)(B),
which pertains to the merits of his appeal. Since Defendant Bras
pleaded guilty and therefore would not be in a position to be the
subject of a reversal or an order for a new trial as a result of
his appeal, the Court must assess whether "the appeal . . .
raises a substantial question of law or fact likely to result in"
either the elimination of Defendant Bras's term of imprisonment
or some reduction thereof that would result in a period of
imprisonment less than the expected duration of his appeal
process, as posited by 18 U.S.C. § 3143(b)(1)(B)(iii) & (iv).
Defendant's appellate arguments are similar to those that he
made during the two days of evidentiary hearings held prior to
sentencing and at the sentencing. In determining Defendant's
sentence, the Court's calculation of the advisory sentencing
guidelines centered specifically around three factors that were
contested by the Parties calculation of loss, role in the
conspiracy, and acceptance of responsibility. These factors
considered by the Court under the advisory sentencing guidelines,
in addition to other pertinent information, are the same factors
that the Court would consider in applying the considerations set out in
18 U.S.C. § 3553(a).
It was and is the Court's view that in this case, a reasonable
and appropriate sentence for Defendant Bras with or without
regard to the advisory sentencing guidelines involved a period of
incarceration, and that a 37-month sentence was the reasonable
and appropriate sentence in this case. As such, Defendant Bras's
appeal is not "likely" to raise a substantial question of law or
fact sufficient either to eliminate his term of incarceration or
significantly decrease his period of incarceration such that an
adjusted period of incarceration would possibly be shorter that
the length of time that Defendant will actually be incarcerated
prior to the disposition of his appeal. Therefore, since the
threshold for release established by 18 U.S.C. § 3143(b)(1)(B)
has not been met, the Court shall DENY  Defendant Antonio C.
Bras' Motion for Release Pending Appeal.
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