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United States v. Alkhawam

November 5, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MOHAMED AMAR ALKHAWAM, DEFENDANT.



The opinion of the court was delivered by: Chesler, District Judge

OPINION & ORDER

This matter comes before the Court on two motions filed by Defendant Mohamed Alkhawam ("Defendant" or "Alkhawam"). Defendant primarily moves for the Court to grant bail pending appeal of his sentence [docket item # 14]. In the event this request is granted, Defendant moves that the Court stay his sentence under Federal Rule of Criminal Procedure 38(b)(1). Alkhawam also moves for correction of his sentence, pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure [docket item # 14]. Plaintiff United States of America (the "Government") opposes the portion of the motion requesting bail pending appeal. The Government has not taken a position on the request that the sentence be corrected. The Court has considered the papers submitted by the parties, and for the reasons set forth below, denies Alkhawam's motion for bail pending appeal and denied his motion to correct the sentence imposed.

A. Bail Pending Appeal

A person found guilty of a federal offense and sentenced to a term of imprisonment "shall" be detained pending appeal absent specified exceptional circumstances. 18 U.S.C. § 3143(b)(1). To be eligible for bail pending appeal, a convicted and sentenced defendant must establish:

(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) reversal,

(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.

Id.

Defendant has not met his burden of proving these factors. Miller, 753 F.2d 19, 24 (3d Cir. 1985); United States v. Messerlian, 793 F2d 94, 95-96 (3d Cir. 1986). In particular, he has not demonstrated that the appeal of his conviction would raise a substantial question of law or fact likely to result in reversal, a new trial or a reduced term of imprisonment, as set forth in 18 U.S.C. § 3143(b)(1)(B). A substantial question is not simply an issue that is not frivolous. Miller, 753 F.2d at 23. Rather, the issue must be debatable among jurists of reason or "fairly doubtful." United States v. Smith, 793 F.2d 85, 88-89, 92 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987). This may be shown if the issue is novel, or not governed by controlling precedent. Miller, 753 F.2d at 23. The defendant must also demonstrate that the issue is so integral to the merits "that a contrary appellate ruling is likely to require reversal or a new trial" on all counts.

Id.

Alkhawam argues that his appeal raises a substantial question of law or fact likely to result in a reduced term of imprisonment. He claims that the Government's motion for a downward departure of Alkhawam's sentence based on U.S.S.G. ยง 5K1.1 was untimely. He argues that the Government's submission of the motion only two days before his sentencing date precluded him from providing an in-depth response and from being heard in a meaningful way regarding the downward departure motion. Alkhawam also argues that the motion failed to state that he was prepared to testify in the matter of United States v. Mohamed Hussein, even though the Government had previously served Alkhawam with a subpoena for his trial ...


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