United States of America, Plaintiff-appellee, v. Ronald W. Morgan, Defendant-appellant, 977 F.2d 583 (6th Cir. 1992)

ORDER

The defendant appeals the judgment of conviction and sentence imposed on his guilty plea to conspiracy to possess with intent to distribute cocaine. That appeal is pending as Case No. 92-1456. Following his sentencing, the defendant moved the district court for release pending appeal. The district court denied that motion, and the defendant filed a notice of appeal resulting in the instant case. The defendant has filed a brief to which the government responds. Defendant has replied to the government's response.

Fed. R. App. P. 9(b) provides that upon the district court's denial of bail, the defendant may make a motion for release to the court of appeals if an appeal is pending. This rule suggests that release pending appeal is more properly resolved via a motion in the pending appeal rather than as the subject of a separate appeal. We therefore construe this appeal as a motion for release pending resolution of the direct appeal in 92-1456, but conclude that the defendant is not entitled to bail.

The Mandatory Detention Act of 1990 provides in 18 U.S.C. § 3143(b) (2) that a person found guilty of an offense described in 18 U.S.C. § 3142(f) (1) (A), (B), or (C) shall be detained. Section 3142(f) (1) (C) includes offenses for which a maximum term of ten years imprisonment or more is prescribed by the Controlled Substances Act, 21 U.S.C. § 801, et seq. The defendant's offense falls within that category. The mandatory detention provision applies even though the defendant's ultimate sentence is less than ten years. See United States v. Carr, 947 F.2d 1239 (5th Cir. 1991). Therefore, the defendant is not entitled to bail.

It is ORDERED that the district court's order denying bail pending appeal is affirmed, and the defendant's request for release is denied. This appeal is dismissed.