The opinion of the court was delivered by: John D. Bates United States District Judge
On April 13, 2006, defendant moved to stay execution of sentence pending resolution of her appeal of the Court's May 15, 2003 denial of her motion requesting modification and stay of sentence pursuant to 28 U.S.C. § 2255. The Court entered a limited stay on April 17, 2006 to preserve the status quo pending the government's response and the Court's resolution of the issue, but noted reservations as to the appropriateness of a stay under the circumstances presented. Now that the matter has been fully briefed, the Court concludes that defendant has failed to meet the criteria set forth in 18 U.S.C. § 3143(b)(1), and thus denies defendant's motion to stay execution of sentence.
The Court briefly recounts the facts giving rise to this motion. On February 20, 2002, defendant pled guilty to conspiracy to defraud a federal agency of the United States and receipt of stolen property. On March 6, 2003, defendant was sentenced to a split sentence of 12 months, the first six months to be served by a term of imprisonment followed by six months of home detention and then three years of supervised release.*fn1 Three weeks later, on April 1, 2003, defendant filed an emergency motion pursuant to 28 U.S.C. § 2255 seeking a modification and stay of sentence based on a then-recent diagnosis of multiple sclerosis, which was unknown to the Court at the time of sentencing. The Court temporarily stayed the execution of sentence to allow for full briefing, but later denied defendant's § 2255 motion, explaining that there was no basis in the record to conclude that defendant's medical condition required that she not be imprisoned and further finding that the record indicated that FPC Alderson (the facility designated for defendant's term of imprisonment) would meet her medical needs. Mem. Op. and Order at 5 (May 15, 2003).
Subsequently, due to inadvertence on the part of the U.S. Probation Office and the Bureau of Prisons, defendant was not designated or ordered to surrender for nearly three years. In the interim, defendant had appealed her sentence (D.C. Cir. No. 03-3031), but shortly thereafter moved to dismiss that direct appeal, which the Court of Appeals granted on July 3, 2003. However, defendant filed and pursued an appeal of the denial of her § 2255 motion (D.C. Cir. No. 03-3064), which is nearly fully briefed but remains unresolved to date.
On April 11, 2006, apparently realizing that it had neglected to implement the sentence, the U.S. Probation Office requested that the Court approve a proposed order directing defendant to surrender to FPC Alderson on April 19, 2006, and the Court did so. Defendant then filed another emergency motion seeking a stay of execution of her sentence, this time based on her pending appeal. The Court once again temporarily stayed the execution of sentence to allow for full briefing. See Order at 3 (Apr. 17, 2006). The Court directed the parties to address the requirements for release pending appeal set forth at 18 U.S.C. § 3143(b)(1).
Whenever a person is found guilty of a federal offense and sentenced to a term of imprisonment, there is a presumption that the person shall begin serving that sentence, notwithstanding the filing of an appeal of the conviction or the sentence. See 18 U.S.C. § 3143(b)(1). If, however, the defendant can establish by clear and convincing evidence that she is not likely to flee or pose a danger to the community, 18 U.S.C. § 3143(b)(1)(A), and also can show that (1) she is appealing for purposes other than delay, (2) the appeal "raises a substantial question of law or fact," and (3) a favorable appellate ruling on that substantial question would likely result in a reversal, an order for a new trial, a sentence that does not include incarceration, or a reduced sentence to a term of imprisonment less than the total of any time already served plus the expected duration of the appeal process, then the sentencing court "shall order the release of the person" pending resolution of the appeal, 18 U.S.C. § 3143(b)(1)(B).*fn2
The parties do not dispute that defendant is not likely to flee or pose a danger to the community, or that the defendant has taken the appeal in good faith for a purpose other than delay. Rather, they focus on defendant's contention that the appeal "raises a substantial question of law or fact" and that a favorable appellate ruling would likely result in a sentence that does not include incarceration (or presumably, one that would result in a term of incarceration less than the expected length of the appeal). Defendant contends that it is likely that the Court of Appeals will remand this case for resentencing pursuant to United States v. Booker, 543 U.S. 220 (2005), to determine whether the Court would have imposed a different sentence, materially more favorable to defendant, if it had known of the post-Booker sentencing regime, and further contends that the Court is likely to consider her multiple sclerosis condition, supplemented by more recent record evidence, as a factor in reducing her sentence. As suggested in the Court's previous decisions on this matter, neither of these arguments presents a "substantial question of law or fact." Even if the Court were yet again to consider the circumstances of defendant's multiple sclerosis under an advisory guidelines regime, the Court would impose the same sentence in the exercise of its discretion under 18 U.S.C. § 3553(a).
In determining the substantiality of a question of law for purposes of section 3143(b), courts in this jurisdiction ask whether the question is "a 'close' question or one that very well could be decided the other way." United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1988) (citing cases from the First, Second, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits). Here, defendant's direct appeal of her sentence was dismissed on July 3, 2003, long before Booker. She now seeks a modification of sentence under the post-Booker advisory guidelines regime, thus necessarily seeking retroactive application of Booker -- although not framing the issue as one of retroactivity. However, the broad consensus of authority is that Booker does not apply retroactively on collateral review to initial § 2255 motions. See United States v. Gentry, 432 F.3d 600, 602-05 & n.4 (5th Cir. 2005) ("we join the several courts of appeals that have held that Booker does not apply retroactively to initial § 2255 motions," citing cases from the Second, Third, Sixth, Seventh, Tenth, and Eleventh Circuits); United States v. Morris, 429 F.3d 65, 66-67 (4th Cir. 2005); United States v. Cruz, 423 F.3d 1119, 1120-21 (9th Cir. 2005); Never Misses A Shot v. United States, 413 F.3d 781, 783-84 (8th Cir. 2005). Although this Circuit has not decided whether Booker applies retroactively on collateral review to an initial § 2255 motion,*fn3 several judges in this district have addressed the issue and concluded that Booker does not have such retroactive effect. See United States v. Agramonte, 366 F. Supp. 2d 83, 89 (D.D.C. 2005); United States v. Hawkins, No. 03-390, 2005 WL 1660840, *2 & n.4 (D.D.C. 2005). As aptly explained in Morris:
Generally, a new procedural rule does not apply retroactively, and a federal habeas petitioner therefore ordinarily cannot rely on such a new rule on collateral review if it was handed down after the conviction and sentence became final on direct review. An exception to this general rule of non-retroactivity exists when a new procedural rule falls within the "small set of watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." 429 F.3d at 69 (quoting Schriro v. Summerlin, 542 U.S. 348, 352 (2004)). The Morris court then went on to explain that, although Booker established a new procedural rule, it was not a watershed rule:
"Booker does not in the end move any decision from judge to jury, or change the burden of persuasion. . . . As a practical matter, then, petitioners' sentences would be determined in the same way if they were sentenced today; the only change would be the degree of flexibility judges would enjoy in applying the guideline system. That is not a 'watershed' change that fundamentally improves the accuracy of the criminal process."
Id. at 72 (quoting United States v. McReynolds, 397 F.3d 479, 481 (7th Cir. 2005)). Because the retroactive application of Booker does not present a "close" question -- indeed, the weight of authority is uniformly against retroactivity -- the Court concludes that the appeal does not raise a "substantial question of law or fact."*fn4
Defendant's request for a stay of execution of sentence fails for another reason as well. She has failed to establish that, even if Booker is applied retroactively, the appeal would result in a sentence that does not include incarceration or even a reduced sentence. See 18 U.S.C. § 3431(b)(1)(B). Here, defendant hopes to obtain from the court of appeals a Booker remand and subsequently a modification of sentence through an advisory guidelines regime under which this Court, in its discretion, would consider her multiple sclerosis as a factor in sentencing. As a threshold matter, ...