United States District Court, D. Nevada
ORDER DENYING DEFENDANT'S MOTION FOR RELEASE PENDING EXECUTION OF SENTENCE PURSUANT TO 18 U.S.C. §3145(C) [DOC. 220]
JENNIFER A. DORSEY, District Judge.
Vinay Bararia has been detained since November 7, 2012, after he violated the conditions of his pretrial release. During the protracted period of his pretrial detention, Bararia has made numerous requests for his release pending trial, all of which have denied. See, e.g., Docs. 55, 82, 95, 140. On September 17, 2014, one day after I sentenced him for distribution of a controlled substance, Bararia moved once more for release from detention until commencement of his sentence. Docs. 220; 221 at 1. Finding that Bararia has not provided me with an exceptional reason for his release, I deny his motion.
This is not Bararia's first attempt to obtain his release from detention. After his original arrest,  Bararia surrendered his DEA certificate of registration and acknowledged that he was "prohibited from ordering, possessing, dispensing or prescribing any controlled substances." Doc. 5 at 3. However, on May 2, 2012, Bararia violated that condition "by writing prescriptions for a variety of controlled substances on behalf of several patients, " and was arrested again. Doc. 54 at 2. Magistrate Judge Hoffman gave Bararia a second chance to comply with his release conditions. Docs. 13; 24; Doc. 37 at 161. But Bararia recommended prescribing controlled substances the very next day - this time using other doctors' names and DEA numbers. Doc. 54. On November 7, 2012, Magistrate Judge Hoffman found Bararia was a danger to the community and revoked his pretrial release. Id. at 9-11. Bararia's subsequent challenges to his continued detention proved unsuccessful. See, e.g., Docs. 55; 72; 82; 95; 101; 133; 177. He has been continuously detained now since October 18, 2012. Doc. 46.
On December 18, 2013, I accepted Bararia's guilty plea. Docs. 182 (minutes); 186. On September 16, 2014, following several continuances and an evidentiary hearing, I sentenced Bararia to 44 months of incarceration for distributing a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C). Doc. 221. He filed this motion the next day. Doc. 220.
Bararia asks that he be released from pretrial custody and be permitted to self-surrender at the federal penitentiary at which he will serve the remainder of his sentence. Doc. 220. He notes that "technically" 18 U.S.C. § 3143 "appears to require" his continued detention because the crime he was convicted of qualifies as a "crime of violence, " id. at 4, but suggests that 18 U.S.C. § 3145(c) permits the court to release him because extraordinary circumstances exist: his "mental health issues, his relationship with his loving and supportive family, the poor health of his elderly parents, and his absolute lack of any criminal history cry out for him to have the opportunity to spend time with his young children and his mother, " and he "has never been found to be a flight risk." Id. at 5. The government argues that release under these provisions is only available to appellants who can satisfy a narrow set of conditions, and Bararia has waived virtually all of his appellate rights and has not demonstrated his ability to satisfy those conditions. Doc. 222. In reply, Bararia offers an affidavit from his wife who explains why she "desperately needs Defendant home, even for just a few weeks...." Doc. 223.
A. Bararia May Access the Statutory Scheme.
I first consider whether any statutory provision would permit Bararia's release if he can satisfy its conditions. 18 U.S.C. § 3145(c) provides, "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)..., 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. § 3143(a) provides:
[T]he judicial officer shall order that a person who has been found guilty of an offense and who is awaiting... execution of sentence..., be detained, unless the judicial officer finds 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 if released under section 3142(b) or (c). If the judicial officer makes such a finding, such judicial officer shall order the release of the person in accordance with section 3142(b) or (c).
18 U.S.C. § 3143(a)(2) requires:
The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless -
(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any ...