Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.united States of America, Plaintiff-appellee, v. Tommy Brown, Defendant-appellant, 930 F.2d 35 (10th Cir. 1991)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

This is an appeal from an order of the district court denying defendant-appellant's motion for release pending appeal. Previously, in case No. 90-1256, the court partially remanded the underlying direct criminal appeal to the district court for the limited purpose of allowing defendant to lodge a proper motion for release pending appeal that conformed with 18 U.S.C. § 3143(b), Fed. R. App. P. 9(b) and 10th Cir.R. 9.5.6.

On remand, defendant asserted six issues which he claimed were substantial issues of law or fact within the meaning of 18 U.S.C. § 3143(b) (2). The issues were extensively briefed. The district court carefully reviewed each issue and again denied release pending appeal.

Under section 3143(b) (2), a judicial officer must order a convicted defendant detained unless the judicial officer finds, by a preponderance of the evidence, that the appeal is not for purposes of delay and raises a substantial question of law or fact likely to result in reversal, an order for new trial, a sentence that does not include a term of imprisonment, or a reduced sentence to a term of imprisonment less than the total of time already served plus the expected duration of the appeal process. United States v. Affleck, 765 F.2d 944, 953, n. 15 (10th Cir. 1985). The burden is on the defendant to show that all criteria are met.

We have carefully reviewed the briefs of the parties and conclude that defendant failed to show that he has satisfied the criteria required for release stated in section 3143(b) (2). Accordingly, the order of the United States District Court for the District of Colorado is AFFIRMED.

The mandate shall issue forthwith.