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United States v. Patel

United States District Court, D. Nevada

August 29, 2019

UNITED STATES OF AMERICA, Plaintiff
v.
DEVENDRA I. PATEL M.D., a.k.a., DEVENDRAKUMAR I. PATEL M.D., Defendant.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         Before the court is defendant Devandra I. Patel's motion to stay his 37-month prison sentence pending appeal. ECF No. 48. The government opposed the motion (ECF No. 55) and Patel timely replied (ECF No. 56). Upon review, the court finds a stay is not warranted and denies Patel's motion.

         I. BACKGROUND

         A grand jury indicted Patel on thirty-six counts of distributing a controlled substance and on three counts of health care fraud. ECF No. 2. After he made his initial appearance before the court on December 13, 2017, he was released on a personal recognizance bond with conditions and has remained so throughout the pendency of this action. ECF Nos. 8; 16. On November 26, 2018, defendant pled guilty to Count 1 of the indictment, distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), pursuant to a plea agreement. ECF Nos. 27; 28. The plea agreement provided that the government would recommend a sentence within the agreed upon guideline range, 30 -37 months (Offense level 19, Criminal History Category 1), and would dismiss the remaining counts. ECF No. 28. The agreement further provided that “[t]he Defendant knowingly and expressly waives: (a) the right to appeal any sentence imposed within or below the applicable Sentencing Guideline range as determined by the Court; (b) the right to appeal the manner in which the Court determined that sentence on the grounds set forth in 18 U.S.C. § 3742; and (c) the right to appeal any other aspect of the conviction or sentence and any order of restitution or forfeiture.” Id. at 12.

         Prior to sentencing, Patel objected to the Presentence Report, which determined that his total Offense Level was a 21, not a 19 as agreed upon in the plea agreement. ECF No. 31. This increase in Offense Level led to a change in the guideline range from 30 to 37 months to a guideline range of 37 to 46 months. Consistent with the plea agreement, the government requested a 37-month sentence, (ECF No. 32), while Patel requested a sentence of 5-years' probation, (ECF No. 33). After two hearings on the issue, the court sentenced Patel to 37 months, to be followed by 3 years of supervised release, and a $500, 000 fine. ECF Nos. 37; 38; 40. Patel was further ordered to self-surrender to the U.S. Bureau of Prisons on Tuesday, August 6, 2019. ECF No. 40.

         On May 16, 2019, Patel filed a notice of appeal. ECF No. 41. On August 2, 2019, he filed a motion for a 30-day extension of the surrender date, and a motion to stay his prison sentence pending appeal. ECF Nos. 48; 49. The court granted defendant's unopposed motion for an extension and continued his reporting date to September 5, 2019. ECF No. 50. The court now rules on defendant's pending motion to stay.

         II. DISCUSSION

         18 U.S.C. § 3143(b)(1) provides that:

the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds-
(A) 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) of this title; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in -
(i) reversal
(ii) an order for a new trial,
(iii) a sentence that does not include a term of ...

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