UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JEROLD D. FISHER, 

 Defendant - Appellant. 

No. 15-3150 

(D.C. No. 5:13-CR-40035-JAR-1) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, HOLMES, and MATHESON, Circuit Judges. 

_________________________________ 

 We have for consideration defendant Jerold D. Fisher’s appeal from the district 

court’s June 11, 2015, order denying his motion for an appeal bond under 18 U.S.C. 

§ 3145(c). We affirm. 

 On February 14, 2014, Fisher pleaded guilty to one count of making false, 

fictitious, and fraudulent claims in tax filings for tax year 2009, in violation of 

18 U.S.C. §§ 287 and 2. After protracted proceedings that need not be discussed at 

this juncture, the district court sentenced Fisher to 41 months in prison, a sentence 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

August 18, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

that was within the advisory guideline range, but higher than the 36-month sentence 

that the government had agreed to recommend to the court and the sentence for time 

served that Fisher had requested. 

 Despite the appeal waiver in his plea agreement, Fisher filed an appeal from 

his sentence, which is designated No. 14-3257. The government filed a motion to 

enforce the appeal waiver and dismiss the appeal under United States v. Hahn, 

359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam), or, in the alternative, to 

dismiss the appeal as moot. Fisher argued in his response that the government 

breached the plea agreement and engaged in vindictive prosecution, and that the 

appeal waiver is therefore unenforceable. No. 14-3257 is scheduled for oral 

argument on October 2, 2015. 

 The general rule with regard to bail pending appeal is 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 . . . , be detained.” 18 U.S.C. 

§ 3143(b)(1). Fisher argues, however, that he may be granted bail if “the appeal . . . 

raises a substantial question of law or fact likely to result in—(i) reversal . . . or (iv) a 

reduced sentence to a term of imprisonment less than the total of the time already 

served plus the expected duration of the appeal process.” Id. § 3143(b)(1)(B). 

 Fisher argues that he is likely to obtain a reversal or a reduced sentence 

because the government breached the plea agreement by filing a second indictment 

against him, and because the district court violated Fed. R. Crim. P. 32(i)(3)(B) by 

not deciding whether the government breached the plea agreement in this case. The 
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government disputes that its filing of the second indictment violated the plea 

agreement. 

 Assuming, without yet deciding, that the government breached Fisher’s plea 

agreement and that the appeal waiver is unenforceable, we are unpersuaded by his 

arguments in this appeal that he satisfies the statutory standard for bail pending 

appeal. 

 Affirmed. 

Entered for the Court 

Per Curiam