United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
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).
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
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).
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
• The defendant did not enlist in 1999 but in 2002;
• The defendant did not leave the service in 2010 but in
• The defendant was not honorably discharged but was
discharged under other than honorable conditions based on
• The defendant was not discharged as an E-7 but as an
• 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
• The defendant was not shot down over Iraq or anywhere
• 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