United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE
Matthew Kurtenbach entered a plea agreement and pled guilty
to distribution of a controlled substance in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(C). (Docket 79).
Magistrate Judge Daneta Wollmann conducted defendant's
change of plea hearing. (Docket 86). During the hearing, the
magistrate judge denied defendant's motion to quash the
writ of habeas corpus ad prosequendum in his case. (Docket
89). Defendant made the motion to quash the writ so he would
return to the custody of the State of South Dakota. (Docket
83). The court accepted defendant's guilty plea and
scheduled his sentencing for March 2, 2018. (Docket 90).
Defendant now moves for the court to release him from federal
custody pending sentencing pursuant to 18 U.S.C. §
3145(b). (Docket 93).
mandatory detention provisions of the Bail Reform Act require
detention of any defendant “found guilty of an offense
. . . described in subparagraph (A), (B), or (C) of
subsection (f)(1) of section 3142 and is awaiting imposition
. . . of sentence . . . .” 18 U.S.C. § 3143(a)(2).
Subparagraph (C) of 18 U.S.C. § 3142(f)(1) includes a
violation of 21 U.S.C. § 841(b)(1)(C) as it is an
offense for which the maximum term of imprisonment is ten
years or more as prescribed in the Controlled Substances
Act (21 U.S.C. § 801 et seq.).
defendant's motion cites 18 U.S.C. § 3145(b), the
applicable subsection of the statute is 18 U.S.C. §
3145(c) because defendant pled guilty to an offense that
requires detention pending sentencing. He is subject to
detention pursuant to 18 U.S.C. § 3143(a)(2). “A
person subject to detention pursuant to section 3143(a)(2) or
(b)(2), and who meets the conditions of release set forth in
section 3143(a)(1) or (b)(1), may be ordered released, under
appropriate conditions, by the judicial officer, if it is
clearly shown that there are exceptional reasons why such
person's detention would not be appropriate.” 18
U.S.C. § 3145(c); see United States v. High
Wolf, CR. 14-50093, 2015 WL 9255548, at *1 (D.S.D. Dec.
exceptions to mandatory detention are limited to two
situations. First, if the court “finds there is a
substantial likelihood that a motion for acquittal or new
trial will be granted . . . .” 18 U.S.C. §
3143(a)(2)(A)(i). The second exception contains two elements:
first, the government is recommending no sentence of
incarceration be imposed and second, the court finds by clear
and convincing evidence the defendant is not a flight risk
and does not pose a danger to the community. 18 U.S.C.
§§ 3143(a)(2)(A)(ii) and (B). Neither exception
under § 3143(a)(2) applies. Defendant entered a guilty
plea, so there will be no acquittal or new trial. The
government intends to seek imprisonment. (Docket 79 at p. 4)
(stating the government will recommend a guidelines
the mandatory detention provisions of § 3143, the court
may still release a defendant pending sentencing pursuant to
§ 3145(c). As stated above, “[a] person subject to
detention pursuant to section 3143(a)(2) . . . and who meets
the conditions of release set forth in section 3143(a)(1) or
(b)(1), may be ordered released, under appropriate
conditions, . . . if it is clearly shown that there are
exceptional reasons why such person's detention would not
be appropriate.” 18 U.S.C. § 3145(c).
in order for Defendant to be released pending sentencing, he
would have to establish: (1) by clear and convincing evidence
that he is not likely to flee; (2) by clear and convincing
evidence that he does not pose a danger to any other person
or the community; and (3) that exceptional reasons are
clearly shown warranting his release.” United
States v. Harris, 192 F.Supp.3d 337, 347 (W.D.N.Y.
2016). “ ‘Exceptional reasons' must include
something that is ‘clearly out of the ordinary,
uncommon, or rare.' ” United States v.
Helder, No. 05-00125, 2006 WL 4080952 (W.D. Mo. Sept.
21, 2006) (citing United States v. Brown, 368 F.3d
992, 993 (8th Cir. 2004)) (internal citation omitted).
fails to meet the applicable standard. Earlier in this case,
the magistrate judge determined the Bail Reform Act required
pretrial detention of defendant. (Docket 77). The magistrate
judge determined defendant's “extensive criminal
history, his history of violence, his substance abuse
history, and his repeated failures to appear” made him
“a flight risk and a danger to the community[.]”
Id. at p. 8. The magistrate judge set forth concrete
reasons for this finding: defendant has 84 criminal
convictions within approximately 20 years; some of his
criminal history relates to his violent conduct; he has a
history of possessing illicit substances and driving under
the influence of substances; and he has a long record of
failing to appear in court and avoiding court-resolution of
his criminal conduct. Id. at pp. 6-8.
Defendant's motion for release pending sentencing does
not overcome his conduct establishing him as a flight risk
and danger to the community.
claims he will be in custody of the State of South Dakota if
the court grants his motion. (Docket 94). This possibility
does not abate his risk of flight or danger to the community.
Even if defendant is released to state custody, the court
will not have control over the circumstances of
defendant's custody and whether he is paroled from state
custody. Defendant requests release in part so he can appear
before the South Dakota Board of Pardons and Paroles.
Id. at p. 2. Because the defendant may be released
from state custody and this court will not have a guaranteed
mechanism for returning him to federal custody, the court
finds this argument does not demonstrate by clear and
convincing evidence that defendant is not a flight risk or
danger to the community.
defendant fails to show by clear and convincing evidence he
is not likely to flee or pose a danger to the community, the
court must deny his motion for release pending sentencing.
court also finds defendant has not established exceptional
circumstances. The factors recognized as exceptional
circumstances are limited. See United States v.
Charger, 918 F.Supp. 301 (D.S.D. 1996) (reasons for a
downward departure exist); United States v. Banta,
165 F.R.D. 102, 104 (D. Utah 1996) (the possibility exists
the defendant may serve any imposed sentence before an appeal
is resolved); United States v. Carretero, No. CR.
98-CR-418, 1999 WL 1034508 at *8 (N.D.N.Y. Nov. 4, 1999)
(active cooperation with the government in order to receive a
sentence reduction under § 5K1.1 of the United States
Sentencing Guidelines or Rule 35 of the Federal Rules of
Criminal Procedure); United States v. Garcia, 340
F.3d 1013, 1022 (9th Cir. 2003) (detaining a seriously ill
defendant pending appeal may be unduly harsh, even where the
government may be able to provide adequate medical care);
United States v. Kaquatosh, 252 F.Supp.2d 775, 779
(E.D. Wis. 2003) (“[D]efendant's parent or spouse
was seriously ill and may die prior to sentencing; or a
defendant's child was scheduled for surgery during this
time; or where a defendant's family was facing a
particularly difficult financial situation that could be
ameliorated if the defendant remained free and employed; or
where a defendant's employer had a special need for his
services; or where the defendant was undergoing substance
abuse or psychiatric treatment that would be unavailable if
he were incarcerated.”); United States v.
Mitchell, 358 F.Supp.2d 707, 708 (E.D. Wis. 2005)
(“[D]efendant fully cooperated with the government and,
according to the prosecutor, will receive a U.S.S.G. §
5K1.1 motion at sentencing.”). Defendant's motion
and supporting memorandum fail to demonstrate exceptional
circumstances. This serves as an additional basis for denying
on the above analysis, it is ORDERED that defendant's
motion for release ...