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United States v. Lawless

United States District Court, D. Colorado

January 14, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
1. DAVID LAWLESS, Defendant.

          ORDER DENYING MOTION FOR RELEASE PENDING RESENTENCING

          WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE.

         In this prosecution, the Government charged Defendant David Lawless (“Lawless”) with three counts of arson committed on property used in interstate commerce, in violation of 18 U.S.C. § 844(i); and four counts of using a destructive device in the commission of a crime of violence (i.e., using homemade bombs to effectuate the various arson offenses), in violation of 18 U.S.C. § 924(c). (ECF No. 30.) Lawless pleaded guilty in October 2012 to a single § 924(c) count in exchange for dismissal of the remaining counts. (ECF No. 78.) In December 2012, the Honorable Wiley Y. Daniel, then Chief Judge of this District, sentenced Lawless to 240 months' imprisonment. (ECF Nos. 103, 106.)

         Years of appeals and 28 U.S.C. § 2255 proceedings followed. In June 2019, while a § 2255 petition was still pending before the Tenth Circuit, the U.S. Supreme Court held in United States v. Davis, 139 S.Ct. 2319 (2019), that the § 924(c) prong underlying Lawless's conviction was unconstitutionally vague and therefore invalid.

         After negotiation, Lawless and the Government jointly moved the Tenth Circuit to dismiss Lawless's appeal with instructions to the district court to vacate his § 924(c) conviction, enter judgment of conviction instead for a single § 844(i) (arson) violation, and resentence him accordingly. The Tenth Circuit granted that motion and remanded. (ECF No. 144.) Judge Daniel having passed away while the appeal was pending, the case was drawn to the undersigned. (ECF No. 143.)

         Currently before the Court is Defendant's Motion for Release Pending Resentencing. (ECF No. 147.) The major premise of the motion is Lawless's assertion that he is not likely to be resentenced to anything more than the mandatory minimum for § 844(i) offenses, namely, 60 months, which is less than the amount of time he has already served. (Id. ¶ 3.) The Government opposes. (ECF No. 149.)

         The parties agree that Lawless's continuing detention should be evaluated under the statutory framework for defendants who have been convicted of a crime and who are awaiting sentencing. Although this does not perfectly describe Lawless's situation (the Court has not yet vacated the § 924(c) conviction, so Lawless remains both convicted and sentenced, strictly speaking), the Court is unaware of any framework that more closely approaches Lawless's current circumstances. Accordingly, the Court will treat him as one convicted of a crime-specifically, arson under § 844(i)-and awaiting sentencing.

         The statute governing the district court's deliberations is 18 U.S.C. § 3143, which reads in relevant part as follows:

The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless-
(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; and
(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.

Id. § 3143(a)(2). The cross-reference to “a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142” (i.e., 18 U.S.C. § 3142(f)(1)(A)-(C)) is all-important here. Subparagraph (A) covers, among other things, “an offense listed in [18 U.S.C. §] 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed.” Id. § 3142(f)(1)(A). In turn, the offenses listed in § 2332b(g)(5)(B) include § 844(i). See id. § 2332b(g)(5)(B)(i). And § 844(i) prescribes a maximum term of imprisonment of 20 years. Thus, the Court normally must order Lawless to remain detained unless

(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 th Government has recommended that no sentence of imprisonment be imposed on the person; and
(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to ...

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