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United States v. Collins

United States District Court, S.D. Alabama, Southern Division

January 16, 2018

UNITED STATES OF AMERICA
v.
KELLY GENE COLLINS, Defendant.

          ORDER

          WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE

         The defendant has filed a motion for release pending appeal. (Doc. 99). Such a motion may not be granted unless the Court finds, inter alia, “that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in” (as applicable to this case) reversal, a sentence that does not include a term of imprisonment, or a term of imprisonment less than the time already served plus the expected duration of the appeal process. 18 U.S.C. § 3143(b)(1)(B).

         The defendant pleaded guilty to possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(9). (Doc. 27). The presentence report calculated the guidelines range as 78 to 97 months. (Doc. 32 at 14). At sentencing in November 2013, the Court concluded the defendant should receive a three-level reduction for acceptance of responsibility, resulting in an amended guideline range of 57 to 71 months. (Doc. 56 at 1; Doc. 97 at 5). The Court imposed a below-guideline sentence of five years probation, (Doc. 55 at 2), based on its evaluation of the Section 3553(a)(1) factors. (Doc. 56 at 4). Based on the defendant's criminal history, history of violence and other factors, the Court would have imposed a custody sentence but, in light of his military history, the Court determined that a sentence of probation was appropriate. (Doc. 81 at 14-15; Doc. 97 at 12-14).

         The presentence report reflected the defendant's representation that he enlisted in the Marine Corps in 1999, participated in helicopter school, and was honorably discharged as an E-7 in 2010. (Doc. 32 at 13). At sentencing, it was clarified that E-7 corresponds with gunnery sergeant. (Doc. 97 at 5-6). The Court then invited the defendant to tell the Court about his military career. The defendant testified under oath that he served as a flight line technician with Marine One, that he then served in Iraq and Afghanistan as a CH-53 door gunner, that he received two Purple Hearts, a Bronze Star and a Silver Star, and that he was shot down over Iraq and was the sole survivor. (Id. at 2, 10-11).

         In August 2015, the probation office filed a petition recommending that the defendant's probation be revoked based on his violation of the standard condition that he not commit another federal, state or local crime, viz., battery (domestic violence). (Doc. 58). In connection with this proceeding, the Court was made aware of the defendant's actual military history. (Doc. 81 at 11-15; Doc. 101). That history reveals at least the following misrepresentations made by the defendant to the probation office and the Court at his original sentencing:

• The defendant did not serve in the Marines but in the Navy;
• The defendant did not enlist in 1999 but in 2002;
• The defendant did not leave the service in 2010 but in 2004;
• The defendant was not honorably discharged but was discharged under other than honorable conditions based on misconduct;
• The defendant was not discharged as an E-7 but as an E-1;
• The defendant did not attend helicopter school, did not serve with Marine One, and did not serve as a door gunner; • The defendant did not serve in Iraq or Afghanistan;
• The defendant was not shot down over Iraq or anywhere else;
• The defendant did not receive a Bronze Star, a Silver Star or a Purple Heart.

(Id. at 3, 22-25, 27). The defendant admits lying to the Court regarding his military service. (Doc. 70 at 1). Through counsel, the defendant makes no denial of the content ...


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