USA v. Kendricks

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
DONALD RAY KENDRICKS, JR.,
Defendant.
Case No. 3:19-cr-00029-SLG-DMS
ORDER REGARDING PRESENTENCE RELEASE
Before the Court at Docket 63 is the government’s Motion for Revocation of
Magistrate Judge’s Release Order. Defendant Donald Ray Kendricks, Jr.,
responded in opposition at Docket 69.
On or around April 1, 2019, Mr. Kendricks was arrested on two drug charges:
Drug Conspiracy (methamphetamine) and Distribution of Controlled Substances
(methamphetamine).1 It appears he has remained in custody since his arrest. On
August 15, 2019, Mr. Kendricks pleaded guilty to both charges.2 In June 2020, Mr.
Kendricks was in custody at Goose Creek Correctional Facility3 but had not yet
1 Docket 4 at 1 (under seal); Docket 2.
2 Docket 27.
3 Based on an agreement with the government, Mr. Kendricks is in the primary custody of the
State of Alaska serving an approximate two-year state sentence for a parole violation. Docket
34; Docket 39 at 2–3. When his state sentence is completed, Mr. Kendricks will revert to
primary federal custody. Accordingly, Mr. Kendricks will not be actually released from Goose
Creek unless he is released from both his federal detainer and the State of Alaska Department
of Corrections (Alaska DOC) elects to release him onto electronic monitoring. Mr. Kendricks’
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been sentenced in the instant case, and he moved for a detention review hearing.4
The government opposed Mr. Kendricks’ motion.5 The motion was referred to the
Honorable Magistrate Judge Deborah M. Smith, who held hearings on the motion
on June 10 and 19, 2020.6 The parties submitted supplemental briefing to the
magistrate judge after the second hearing.7 The U.S. Probation Office filed a
sealed memorandum regarding Mr. Kendricks’ proposed release plan in which it
recommended that Mr. Kendricks remain in custody pending sentencing.8 On July
16, 2020, Judge Smith issued an order granting Mr. Kendricks’ release “with
conditions to be established.”9
The matter is now before this Court pursuant to 18 U.S.C. § 3145. That
statute provides that if “a person is ordered released by a magistrate judge . . . the
Government may file, with the court having original jurisdiction over the offense, a
status as an inmate of separate sovereigns has no bearing on this Court’s decision.
4 Docket 39.
5 Docket 46.
6 Dockets 50, 52.
7 Dockets 54, 56 (defense supplements); Docket 55 (government supplement).
8 Docket 44 at 2.
9 Docket 61 at 19.
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motion for revocation of the order[.]”10 This Court’s review of the release order is
de novo.11
I. Applicable law
The instant motion is governed by two interrelated provisions of the Bail
Reform Act: 18 U.S.C. § 3143 and 18 U.S.C. § 3145.
As relevant here, § 3143(a)(2) requires a court to detain a defendant who
been found guilty of a drug offense with a maximum sentence of at least ten years
and who is awaiting imposition of a sentence, unless the court finds either (1) the
defendant is likely to prevail on a motion for acquittal or new trial, or (2) the
government does not seek a custodial sentence, and (3) also finds, by clear and
convincing evidence, that the defendant is not likely to flee or pose a danger to
others.12 The parties appear to agree that Mr. Kendricks is subject to detention
pursuant to § 3143(a)(2) based on the drug crimes to which he has pleaded
guilty.13
However, § 3145 offers defendants an alternate route to release. Section
3145(c) provides that, as relevant here, a “person subject to detention pursuant to
section 3143(a)(2) . . . and who meets the conditions of release set forth in section
10 18 U.S.C. § 3145(a)(1).
11 United States v. Koenig, 912 F.2d 1190, 1991–92 (9th Cir. 1990).
12 18 U.S.C. § 3143(a)(2) (referencing offenses listed in § 3142(f)(1)).
13 Docket 63 at 6, 10; Docket 69 at 3–4.
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3143(a)(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.”14
In United States v. Garcia, the Ninth Circuit addressed the meaning of
“exceptional reasons” for two defendants seeking release on bail pending
appeal.15 In Garcia, two former prison officers were convicted of a conspiracy that
qualified as a violent offense, and they then moved the district court to release
14 Although § 3145(c) at first glance appears to apply only to defendants who are appealing a
detention order, the Ninth Circuit has determined that “Section 3145(c) . . . applies to defendants
seeking release pending sentencing as well as to those seeking release pending appeal. The
legal principles [discussed in the opinion] are equally applicable in both circumstances.” United
States v. Garcia, 340 F.3d 1013, 1015 n.2 (9th Cir. 2003). The Ninth Circuit has also determined
that “[a]lthough the ‘exceptional reasons’ provision appears in a subsection that otherwise
concerns actions taken by appellate courts . . . the district court has authority to determine
whether there are exceptional reasons.” Id. at 1014 n.1.
Courts are in disagreement as to whether magistrate judges have the authority to issue an order
for detention or release when the defendant is awaiting sentencing or whether magistrate
judges are limited to issuing a recommendation to a district judge. Compare United States v.
Blechman, Case No. 10-40095-01/02-SAC, 2011 WL 2473735, at *12 (D. Kan. June 22, 2011)
(concluding that a magistrate judge is not a “judicial officer” under § 3141(b) and had no
authority to issue an order of release or detention) with Gov’t of Virgin Islands v. Clark, 763 F.
Supp. 1321, 1322 (D. V.I. 1991) (“Under 18 U.S.C. § 3141(b), a judicial officer of a court of
original jurisdiction over an offense, e.g., a United States magistrate judge, has the power to
‘order that, pending imposition or execution of a sentence a person be released or detained
under this chapter.’”) (ellipsis omitted), aff’d, 989 F.2d 487 (3d. Cir. 1993) and United States v.
Lira, Case No. DR-04-CR-722, 2006 WL 8453016, at *1 (W.D. Tex. Feb. 10, 2006) (finding that
the magistrate judge was a judicial officer of the court and thus authorized to order release or
detention pending sentencing); see also United States v. Loaiza, Case No. 18-cr-134-01-PB,
2018 WL 6421657, at *1, n.1 (D. N.H. Nov. 20, 2018) (discussing conflict and concluding that
“[i]n an abundance of caution, the [magistrate] court will issue a Report and Recommendation in
this matter”). This Court assumes without deciding that the magistrate judge had the authority
to issue a release order in this case.
15 340 F.3d 1013 (9th Cir. 2003).
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them on bail pending their Ninth Circuit appeal.16 One of the defendants, Garcia,
had been diagnosed with lymphoma and was undergoing chemotherapy while his
bail motion was before the district court.17 The district court had denied Garcia’s
request for release, reasoning that the record was “inconclusive as to Garcia’s
prognosis and as to the likelihood of his incapacity due to his illness or the
treatment, and also noted that he could receive appropriate medical care in
prison.”18 The Ninth Circuit remanded to the district court to allow Garcia to present
additional evidence with regard to his illness.19 The Circuit explained:
The district court might also consider circumstances that would render
the hardships of prison unusually harsh for a particular defendant.
Chief among such circumstances is a sufficiently serious illness or
injury. A severely ill or injured defendant might have exceptional
reasons even if the requisite medical treatment is available in prison.
District judges may consider such factors as the desirability of
maintaining an uninterrupted course of treatment while a defendant
remains in the care of a particular physician who is providing individual
medical supervision to the patient. Although a defendant may
ultimately be forced to serve a prison sentence regardless of his
health, it may be unreasonable to force him to begin his sentence prior
to the resolution of his appeal. Nor do we foreclose the possibility of
finding exceptional circumstances in a case in which incarceration
would impose exceptional risks on a defendant involving his physical
or mental well-being—risks that might arise as a result of the nature
of his crime or even as a result of his possessing certain physical,
psychological, or other characteristics.20
16 Id. at 1014.
17 Id. at 1016.
18 Id.
19 Id. at 1022.
20 Id. at 1019–20.
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Despite its remand, the Ninth Circuit emphasized that “[h]ardships that commonly
result from imprisonment do not meet the [exceptional circumstances] standard.
The general rule must remain that conviction for a covered offense entails
immediate incarceration. Only in truly unusual circumstances will a defendant
whose offense is subject to the statutory provision be allowed to remain on bail
[.]”21
In summary, to release Mr. Kendricks pursuant to § 3145(c), the Court must
(1) find that exceptional reasons for release have been clearly shown, and (2) find
by clear and convincing evidence that Mr. Kendricks is not likely to flee or pose a
danger to the safety of any other person or the community.22
21 Garcia, 340 F.3d at 1022. The Garcia Court also noted that “the absence of any possible
future dangerousness or flight is most likely to be present in cases in which other mitigating
factors, such as a sufficiently serious illness or injury, also exist.” 340 F.3d at 1021.
22 The Court rejects the government’s position that § 3145(c) also requires courts to find that
“there is a substantial likelihood that a motion for acquittal or new trial will be granted, or an
attorney for the United States has recommended that no sentence of imprisonment be imposed
on the person.” Docket 63 at 10–11. That standard is contained in § 3143(a)(2), which is not
the applicable statutory provision referenced in § 3145(c). The conditions of release set forth in
§ 3143(a)(1) only require a finding by the judicial officer “by clear and convincing evidence that
the person is not likely to flee or pose a danger to the safety of any other person or the
community.”
The Court acknowledges that Circuit Judge Rymer has stated, in a concurring opinion in a case
involving a request for bail pending appeal, that a defendant must show “that he is not likely to
flee or pose a danger to the safely of anyone else or the community, and the appeal raises a
substantial question . . . and if it is clearly shown there are exceptional reasons why detention
would not be appropriate.” United States v. Koon, 6 F.3d 561, 562–63 (Rymer, J., concurring)
(citing 18 U.S.C. §§ 3143(b)(1), 3143(b)(2), 3145(c)). However, the Court does not interpret §
3145(c) to require Mr. Kendricks to make any showing related to the merits of an appeal.
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II. Mr. Kendricks has not clearly shown exceptional reasons for release.
Mr. Kendricks maintains that his chronic health conditions during the
COVID-19 pandemic constitute exceptional reasons for his release from
incarceration pending sentencing.
A. The medical evidence supports a finding that Mr. Kendricks is at
increased risk for COVID-19 and risks more severe symptomology
if he contracts it.
Mr. Kendricks is 54 years old. He identifies his primary health condition as
rheumatoid arthritis (RA), for which he takes Humira, an immunosuppressant/TNF-
inhibitor medication.23 Mr. Kendricks also has hypertension, for which he is to take
daily medication; a history of hepatitis C, although recent liver tests were normal;
and he may be pre-diabetic, with recent lab working showing an elevated glucose
level.24
Mr. Kendricks relies on three letters from his rheumatologist, Dr. Ryan
Ragle, who has treated Mr. Kendricks for RA since 2016. In a letter dated May 28,
2020, Dr. Ragle identified Mr. Kendricks’ current medications as weekly Humira
injections and daily hydroxychloroquine.25 Dr. Ragle opined that “[d]ue to
immunosuppressive effects of Humira patient would be at increased risk for both
23 Docket 39 at 4.
24 Docket 39 at 5; Docket 45-6 at 1; Docket 53-1 at 2.
25 Docket 51-1 at 2 (under seal).
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contracting COVID-19 infection and potentially a more severe clinical course
should he become infected.”26
The government responded to this letter by filing a medical study focused
on the COVID-19 hospitalization rates of a registry of 600 patients from 40
countries with rheumatic diseases, including RA.27 The study noted that the “rate
of hospitalization was higher [for these patients] than in cohorts of general patients
with COVID-19,” but reasoned that “this likely reflects the mechanism by which we
collected the case information and should not be interpreted as the true rate of
hospitalization among patients with rheumatic disease infected with SARS-CoV-
2.”28 The study found that 46% of patients with RA that contracted COVID-19 were
hospitalized; the percentage increased to 62% if the patient also had hypertension,
but decreased to 29% if the patient was on a TNF-inhibitor such as Humira.29 The
study concluded that “the majority of patients with rheumatic diseases captured in
[the study’s] registry recover from COVID-19.”30
26 Docket 51-1 at 2 (under seal).
27 Docket 55-3. The study was published as Gianfrancesco, M., et al., Characteristics
associated with hospitalisation for COVID-19 in people with rheumatic disease: data from the
COVID-19 Global Rheumatology Alliance physician-reported registry, 79 Annals of the
Rheumatic Diseases 859 (July 2020).
28 Docket 55-3 at 5.
29 Docket 55-3 at 5 tbl. 3.
30 Docket 55-3 at 6.
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Dr. Ragle’s third letter, dated June 21, 2020, responded to the study. He
observed that the study “continues to support a higher risk of infection in patients
with rheumatoid arthritis and on immunosuppressive therapies and also suggests
the likelihood of a more severe clinical course.”31 Dr. Ragle acknowledged that
“[t]here is evidence to suggest that patients on TNF inhibitors for treatment of
rheumatic disease who become infected with COVID-19 may have less severe
complications and decreased need for hospitalization” when compared to RA
patients who are on different types of treatment.32 Dr. Ragle continued to opine
that “Mr. Kendricks has an increased risk of infection and an increased risk of
complications from COVID-19 based on both his diagnosis of rheumatoid arthritis
and his treatment regimen.”33
The Court has credited and accepted Dr. Ragle’s medical opinions and finds
that due to Mr. Kendricks’ RA and hypertension, as well as his treatment regimen,
he is at greater risk than the general population of contracting COVID-19 and
31 Docket 53-1 at 2 (under seal)
32 Docket 53-1 at 2 (under seal).
33 Docket 53-1 at 2.
A study cited by Mr. Kendricks states that “the growing knowledge about the pathogenesis of
SARS-CoV-2 infection is leading to the introduction of drugs commonly used for the treatment of
rheumatoid arthritis (RA) even for the management of more complex cases of COVID-19” and
specifically references both hydroxychloroquine and TNF-inhibitors. Favalli, E.G., et al., Covid-
19 Infection and Rheumatoid Arthritis: Faraway, So Close!, 19 Autoimmunity Reviews (2020)
(available at www.sciencedirect.com/science/article/pii/S1568997220300781) (last accessed
Aug. 5, 2020); see Docket 39 at 4 (citing article).
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having a more severe course of infection if he contracts COVID-19 than does the
general population.34 However, the extent to which he is at greater risk is unknown.
Mr. Kendricks has not demonstrated that he faces “exceptional risks” from COVID-
19 if he remains incarcerated.35
B. Mr. Kendricks is receiving appropriate medical care at Goose Creek
Correctional Facility.
In contending that there are exceptional reasons for his release, Mr.
Kendricks maintains that Goose Creek Correctional Facility “is unable to provide
Mr. Kendricks adequate medical care at this time,” particularly care for his RA.36
The record does not support Mr. Kendricks’ claims of inadequate medical
care at Goose Creek. Mr. Kendricks has not clearly shown that his RA and
hypertension are not being adequately controlled while he is in custody, or that his
condition is so severe that Goose Creek cannot provide appropriate medical care.
There is conflicting evidence as to whether Mr. Kendricks has missed his weekly
Humira injections due to his own inaction or whether Goose Creek has failed to
schedule him for his weekly injections.37 However, his medical records reflect that
34 The Court is not persuaded by Dr. Ragle’s comparison of the hospitalization rate for COVID-
19 patients in the worldwide study, which analyzed data collected over 30 days in March/April
2020, to the current hospitalization rate of patients in Alaska. See Docket 53-1 at 2. The study
itself cautions that its hospitalization rate is likely overstated due to its data collection method
and “should not be interpreted as the true rate of hospitalization among patients with rheumatic
diseases infected with SARS CoV-2.” Docket 55-3 at 5.
35 Garcia, 340 F. 3d at 1020.
36 Docket 54 at 7; Docket 39 at 4–5.
37 See Docket 45-2 at 2, 3, 4 (under seal) (January, February, and March 2020 notes from Mr.
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he does not consistently take his other medications, which supports a conclusion
that Mr. Kendricks is primarily responsible for any lapse in Humira injections.38
Mr. Kendricks also has not clearly shown that he “suffers from a disease that
the Alaska DOC does not have the ability to treat.”39 The medical records show
that Goose Creek receives and responds to prescriptions from Dr. Ragle.40 There
is some evidence that Mr. Kendricks could benefit from more frequent
appointments with his rheumatologist than he currently receives, but he has not
alleged that the time between appointments with Dr. Ragle has caused his RA to
worsen or decreased the effectiveness of his current course of treatment.41 Nor
has Mr. Kendricks shown that he has sought an appointment with Dr. Ragle at any
Kendricks to Goose Creek medical staff indicating that he needed to be scheduled for a Humira
injection); Docket 45-4 at 3 (under seal) (February 2020 medical record stating that Mr.
Kendricks “is not always coming to weekly appointment for Humira injection . . . noncompliance
may lead to discontinuation of medication.”); Docket 47-1 at 22, 23 (under seal) (February and
March 2020 medical record stating that Mr. Kendricks “understands to return in one week for
scheduled weekly injection”).
38 See Docket 47-1 at 23 (under seal) (February 2020 medical record indicating that Mr.
Kendricks told medical staff “he has not taken his daily meds” for hypertension); Docket 47-1 at
41 (under seal) (December 2019 medical record indicating that Mr. Kendricks on average “is
four to five days behind on his medications,” that Mr. Kendricks acknowledged he did not always
take his medications, and that medical staff explained he needed to improve his compliance).
39 Docket 39 at 6.
40 See, e.g., Docket 47-1 at 12 (under seal) (medical record showing change in RA medication
“per Dr Ragel” [sic]); Docket 471 at 47 (medical records showing medical staff contacted
“provider” when no medication was available).
41 It appears that Mr. Kendricks’ last appointment with Dr. Ragle was in November, 2019, eight
months ago. Docket 53- at 2 (under seal). Dr. Ragle believes Mr. Kendricks should be seen in
his clinic “every 3 to 6 months, depending on his disease activity.” Docket 51-1 at 1 (under
seal).
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time since his last visit in November 2019 and the Alaska DOC refused to permit
it. To the contrary, a deputy marshal told the magistrate judge that the U.S.
Marshals would facilitate an appointment at the request of either the Alaska DOC
or Mr. Kendricks, although Mr. Kendricks would likely be quarantined at Goose
Creek for a period of time following any such medical appointment.42 Mr.
Kendricks has not demonstrated that his RA is not being appropriately managed
by Goose Creek.
Although Mr. Kendricks notes that he has hypertension, a history of
hepatitis-C, and is pre-diabetic, he does not present any argument related to those
conditions other than to maintain that the “combination of underlying health
conditions makes him particularly susceptible to serious complications from
COVID-19.”43 Mr. Kendricks has only made conclusory assertions about his co-
occurring conditions. He has not clearly shown other exceptional health conditions
or risks that Goose Creek is unable or unwilling to appropriately address.
In sum, while Mr. Kendricks is at greater risk than average of contracting
COVID-19 and of having a more severe infection if he contracts COVID-19 than
does the general population, he has not clearly shown that his RA and other
medical conditions are “sufficiently serious illness[es]” or that his case presents
42 Docket 67 at 6; Docket 68 at 11–12. Another alternative could be a teleconference with the
doctor.
43 Docket 39 at 5, 7.
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such “truly unusual circumstances” that continued incarceration presents
“exceptional risks” to his health.44
C. Mr. Kendricks has not clearly demonstrated that he would be at
reduced risk from COVID-19 if released.
Implicit in Mr. Kendricks’ motion is the assertion that he will be safer from
COVID-19 if he is released from jail at this time. But the record is devoid of
evidence regarding the efforts Mr. Kendricks intends to take to protect his health if
44 Garcia, 340 F.3d at 1019, 1020, 1022. See United States v. Pereira, Case No. 19-10446-
RGS, 2020 WL 2324054, at *1 (D. Mass. May 10, 2020) (denying pretrial release to a defendant
with RA and ulcerative colitis, reasoning that although the defendant “is more vulnerable than
many others might be should he contract the COVID-19 virus [the court does] not, however,
believe that his medical condition is so acute as to render the risk unmanageable”); United
States v. Haywood, Case No. 2:16-cr-00269-JAD-PAL-2, 2020 WL 3621309, at *2 (D. Nev. July
2, 2020) (denying compassionate release for a defendant with RA, reasoning that “while the
immunosuppressant he takes may increase his risk, that risk is mitigated by the BOP’s active
management of his care and routine COVID-19 testing.”); United States v. Guzman, Case No.
3:16-CR-449-L-1, 2020 WL 3129692, at *2 (N.D. Tex. June 11, 2020) (“The court does not
downplay Defendant’s Rheumatoid arthritis or discount that being confined in a prison makes it
more difficult for him or any prisoner to follow official precautions for social distancing and
handwashing while in custody. Defendant has failed, however, to provide sufficient grounds for
compassionate release. First, he fails to establish that his condition is sufficiently severe and
that it diminishes his ability to provide self-care, especially considering his relatively young age
(37). Even considering the July 2019 Rheumatology Clinic report, Defendant does not present
any other evidence or medical records documenting his current symptoms and own unique
circumstances sufficient to establish exceptional and compelling circumstances. At best, he has
offered only conclusory assertions about his Rheumatoid arthritis and immunocompromised
condition.”).
United States v. McDuffie, Case No. 19-CR-212(VEC), 2020 WL 1659879 (S.D.N.Y. Apr. 3,
2020), cited by the magistrate judge, is only one of two cases this Court located in which a
defendant with RA was released from custody due to COVID-19 concerns. Notably, Duffie was
decided early in the pandemic, on April 2, 2020, in the New York City area, during the height of
the pandemic in that region. The other case, United States v. Hope, Case No. CR 213-016-1,
2020 WL 4207107 (S.D. Ga. July 22, 2020), involved a defendant with “advanced deforming”
RA, a secondary immune system disorder, and a range of other co-occurring conditions,
conditions which the government conceded and the Court found constituted extraordinary and
compelling reasons for compassionate release. Id. at *4.
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he were to be released.45 In many areas of the country, the rate of COVID-19
infection is considerably higher within jails and prisons than the rate amongst the
general public. However, and perhaps surprisingly, that is not presently the case
in Alaska. According to the Marshall Project, there have been 17 COVID-19 cases
reported among pretrial detainees and sentenced prisoners in Alaska, which is a
rate that is currently 12 percent lower than the per capita rate in Alaska overall.46
The Court has carefully considered Mr. Kendricks’ housing conditions, the
heightened risk of COVID-19 to many incarcerated individuals, and Mr. Kendricks’
health conditions. Mr. Kendricks has not demonstrated that there are “any truly
unusual factors or combination of factors” that are clearly present in this case that
would constitute exceptional reasons for release pending sentencing.
Because the Court has determined that no exceptional reasons exist to
release Mr. Kendricks, it need not determine whether clear and convincing
evidence shows that he is not a flight risk and does not pose a danger to the
community.
45 See United States v. Pereira, Case No. 19-10446-RGS, 2020 WL 2324054, at *1 (D. Mass.
May 10, 2020) (expressing concern “that release would take Pereira out of a setting in which
medical services are available and place him in one in which they likely are not”).
46 The Marshall Project, A State-by-State Look at Coronavirus in Prisons (available at
www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons) (last
accessed August 5, 2020). Of concern, the Court notes that 14 of the 17 cases have been
reported in the past week.
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III. 18 U.S.C. § 3142 does not apply to Mr. Kendricks.
The magistrate judge determined that 18 U.S.C. § 3142(i) was also
applicable to Mr. Kendricks’ release motion.47 Section 3142(i) pertains to the
determination of release or detention of a defendant “pending trial” and permits the
temporary release of pretrial defendants if the court finds that release is “necessary
for the preparation of the person’s defense or for another compelling reason.”
Here, the magistrate judge found that “Section 3142(i) provides an alternative
statutory ground” and concluded that there were “compelling reasons to
temporarily release [Mr. Kendricks] pursuant to section 3142(i) pending his
sentencing.”48
Because Mr. Kendricks is not pending trial but is pending sentencing, the
Court finds that § 3142 is not a viable basis for granting his release.49 Even if
47 Docket 61 at 18.
48 Docket 61 at 18.
49 Several district courts in this Circuit have addressed § 3142(i)’s inapplicability to defendants
who have pleaded guilty and are awaiting sentencing. See United States v. Ruelas, Case No.
CR-14-00865-005-PHX-DJH, 2020 WL 2989019, at *1 (D. Ariz. June 3, 2020) (declining to
analyze case under § 3142(i) because defendant conceded it did not apply as he was awaiting
sentencing); United States v. Lee, Case No. 2:17-cr-0030-KJM, 2020 WL 2084812, at *3 (E.D.
Cal. Apr. 30, 2020) (noting, but not deciding, that “Defendant is not awaiting trial, so, on its face,
§ 3142 does not apply to defendant at this stage”); United States v. Milano, Case No. 1:19-CR-
00171-BLW, 2020 WL 1976640, at *2, n.3 (D. Id. Apr. 24, 2020 (“Section 3142(i) applies to
release or detention pending trial and, therefore, does not apply to Mr. Milano’s motion as he
has entered a guilty plea and is detained awaiting sentencing.”). But see United States v.
Kennedy, Case No. 18-20315, 2020 WL 1493481, at *3 (E.D. Mich. Mar. 27, 2020) (holding that
§ 3142(i) applies to defendants awaiting sentencing), reconsideration denied, No. 18-20315,
2020 WL 1547878 (E.D. Mich. Apr. 1, 2020).
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Case No. 3:19-cr-00029-SLG-DMS, United States v. Kendricks
Order Re Presentence Release
Page 16 of 16
§ 3142 were applicable to Mr. Kendricks, under its more generous standard the
Court would still find that his temporary release is not necessary for the preparation
of his defense and that his current medical condition and the COVID-19 pandemic
are not sufficiently “compelling reasons” to justify temporary release. It is irrelevant
that “[t]he government does not challenge the appropriateness of release under
this section,”50 because the Court’s de novo review requires it to independently
determine the applicable law.
CONCLUSION
Having reviewed the underlying motion for a detention review hearing de
novo, this Court disagrees with the magistrate judge’s analysis and concludes that
Mr. Kendricks has not clearly shown that there are exceptional reasons why his
continued detention is not appropriate and also concludes that 18 U.S.C. § 3142
does not apply to Mr. Kendricks. Accordingly, IT IS ORDERED that the motion at
Docket 63 is GRANTED, and the magistrate judge’s order at Docket 61 is
REVOKED.
DATED this 5th day of August, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
50 Docket 69 at 5.
Case 3:19-cr-00029-SLG-DMS Document 70 Filed 08/05/20 Page 16 of 16