United States v. Shirley Schmitt

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Pasco M. Bowman and Bobby E. Shepherd The judgment of the originating court is REVERSED and REMANDED in accordance with the opinion. [4059030] [13-2329]

United States Court of Appeals
For the Eighth Circuit
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No. 13-2329
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United States of America
lllllllllllllllllllll Plaintiff - Appellant
v.
Shirley Eileen Schmitt
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Northern District of Iowa - Sioux City
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Submitted: July 18, 2013
Filed: July 29, 2013
[Unpublished]
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Before WOLLMAN, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
In this expedited appeal, the government contends that the district court erred
in permitting Shirley Schmitt to remain free pending sentencing following her
conviction of conspiracy to manufacture and distribute 50 grams or more of actual
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846,
and possession of pseudoephedrine with the intent to manufacture methamphetamine

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in violation of 21 U.S.C. § 841(c)(1) and 841(c)(2). Schmitt faces a mandatory
minimum sentence of ten years imprisonment and a maximum sentence of life
imprisonment.
Under 18 U.S.C. § 3145(c), in the absence of “exceptional reasons,” a district
court is required by 18 U.S.C. § 3143(a)(2) to order the detention of a defendant
convicted of an offense in violation of the Controlled Substances Act “for which a
maximum term of imprisonment of ten years or more is prescribed,” 18 U.S.C.
§ 3142(f)(1)(C), and who is awaiting sentencing unless the court finds “there is a
substantial likelihood that a motion for acquittal or new trial will be granted,” or “the
Government has recommended that no sentence of imprisonment be imposed,”
§ 3143(a)(2). Neither exception applies in this case. Accordingly, the only issue
presented is whether the circumstances cited by the district court in support of its
order declining to detain Schmitt constitute “exceptional reasons” as the term is used
in § 3143(a).
The district court relied upon the following reasons in declining to detain
Schmitt:
(a) as the primary reasons for its decision, the court found that trial
evidence did not show that Schmitt was actually selling
methamphetamine, the drug conspiracy was not profitable, and Schmitt
and others participated only in order satisfy their own addiction;
(b) Schmitt “cooperated with the [c]ourt,” “conducted herself properly”
during the trial, and did not “cause a mistrial”;
(c) Schmitt is “helping her elderly parents”; and
(d) Schmitt’s release posed no risk to the community because Schmitt
would have no contact with individuals who testified at trial.

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We conclude that none of the reasons relied upon by the district court in
determining that Schmitt should not be detained, either individually or in combination,
are “exceptional” within the meaning of 18 U.S.C. § 3145(c), because they are not
“clearly out of the ordinary, uncommon or rare,” the standard which we have
consistently applied. See United States v. Nickell, No. 13-1474, 2013 WL 1787972,
at *1 (8th Cir. Apr. 26, 2013) (unpublished per curiam); United States v. Brown, 368
F.3d 992, 933 (8th Cir. 2004) (per curiam).
Accordingly, we reverse the judgment of the district court and we remand this
case with instructions that the district court order Schmitt be taken into custody
immediately. Mandate to issue forthwith.
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Date Filed: 07/29/2013 Entry ID: 4059030