UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Case No. 08-20585

v. Hon. Gerald E. Rosen

PETER HENDRICKSON,

Defendant.

______________________________/

OPINION AND ORDER DENYING DEFENDANT’S

MOTION FOR RELEASE PENDING RESENTENCING

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on March 22, 2012 

PRESENT: Honorable Gerald E. Rosen

Chief Judge, United States District Court

In an opinion issued on February 8, 2012, the Sixth Circuit Court of Appeals

affirmed the conviction of Defendant Peter Hendrickson on ten counts of filing a false

document in violation of 26 U.S.C. § 7206(1), but vacated his 33-month sentence and

remanded the case to this Court for resentencing. By motion filed on February 13, 2012,

Defendant requests that he be released from custody pending the resentencing hearing

ordered by the Sixth Circuit. For the reasons stated below, the Court finds that this relief

is unwarranted.

In Defendant’s view, his present request for release pending resentencing is

governed by a statutory provision, 18 U.S.C. § 3143(a)(1), that specifies the conditions

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under which a court may release a defendant who has been convicted but is awaiting

sentencing. This provision states in pertinent part:

. . . [T]he judicial officer shall order that a person who has been

found guilty of an offense and who is awaiting imposition or 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 . . . .

18 U.S.C. § 3143(a)(1). Defendant contends that he satisfies the prerequisites for release

under this provision, where he never violated any condition of his release prior to his

conviction and initial sentence, and where there otherwise is no indication in the record

that he is a flight risk or poses a danger to the community.

Under analogous circumstances, however, the courts have been reluctant to invoke

§ 3143(a)(1) to order the release of a defendant who, like Defendant here, is currently

serving a sentence pursuant to a conviction that has been affirmed, but who is awaiting

resentencing. In United States v. Holzer, 848 F.2d 822, 824 (7th Cir. 1988), for example,

the Seventh Circuit held that § 3143(a)(1) “has reference to the situation where a

defendant is awaiting sentencing the first time, and does not apply where the defendant is

awaiting resentencing.” Under the particular facts of that case, the court reasoned that the

release of the defendant pending his resentencing would not advance the objectives of the

statute:

The reason for not imprisoning a convicted defendant (unless he is

likely to flee or is a public menace) before he is sentenced is that the

sentence may not be a sentence of imprisonment, or may be a sentence for a

shorter period of imprisonment than the interval between conviction and

sentencing; or that the defendant needs some time to get his affairs in order. 

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The reason has no application to a case where the defendant’s conviction

for extortion has been upheld and a sentence of eighteen years remanded

solely to give the judge a chance to consider a possible, though doubtless

modest, reduction because the court of appeals has vacated a concurrent

sentence. It is not within the realm of realistically foreseeable

circumstances that [the district judge] on remand will reduce [the

defendant’s] sentence from eighteen years to eighteen months (the time he

has served already); but only if he would, would bail pending resentencing

serve the purposes of the statute.

Holzer, 848 F.2d at 824 (citation omitted).

To be sure, the facts here are not as stark as in Holzer, where the defendant had

served only a small fraction of the prison term that was likely to be imposed at

resentencing. Here, in contrast, Defendant’s sentencing range under the U.S. Sentencing

Guidelines was originally calculated as 27 to 33 months for each of the ten counts of

conviction, and he was sentenced to 33-month concurrent terms of imprisonment for each

of these counts. Under the remand ordered by the Sixth Circuit, Defendant states that he

will face a revised Guidelines sentencing range of 21 to 27 months, so that resentencing at

the upper end of this range would result in a 27-month term of imprisonment. According

to Defendant, a 27-month sentence would leave him “with only approximately three

months left of his sentence.” (Defendant’s Motion at 4.) The circumstances presented in

Holzer were far different, with the defendant in that case facing a likelihood of several

additional years of incarceration despite his resentencing.

Nonetheless, while Defendant here does not face additional years of incarceration,

neither can it be said that he has already served the entirety of the term of imprisonment

that is likely to be imposed at his forthcoming resentencing. Under these circumstances,

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where a defendant has begun serving his term of imprisonment but at least some portion

of this sentence remains to be served, the courts have elected to follow the ruling in

Holzer and deny release pending resentencing. In United States v. Krilich, 178 F.3d 859,

861-62 (7th Cir. 1999), for instance, the court elected to follow its prior ruling in Holzer

and deny the defendant’s request for release on bond pending his resentencing, explaining

that in that case, as in Holzer, the defendant was almost certain to face continued

confinement upon imposition of a new sentence. In support of this decision, the court

reasoned that “[b]reaking a sentence in the middle does not promote any end other than

reducing the effective penalty by allowing a holiday or, worse, providing an opportunity

to escape.” Krilich, 178 F.3d at 862.

Similarly, in United States v. Olis, 450 F.3d 583, 586-87 (5th Cir. 2006), the Fifth

Circuit affirmed a district court decision to deny the defendant’s motion for bail pending

his resentencing, where the defendant had served less than the shortest term of

imprisonment he likely faced at resentencing. In denying the defendant’s request for bail,

the district court had elected to follow the Seventh Circuit’s decision in Holzer, and the

Fifth Circuit found that this “result comports with the goals of the statute and with

common sense.” Olis, 450 F.3d at 586. The court explained that to apply § 3143(a)(1)

and order the defendant’s release pending his resentencing “would lead to an absurd

result: [the defendant] would be temporarily released, only to return to prison for the

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In both Krilich and Olis, the courts considered the possibility that the defendant’s

request for release pending resentencing should be governed by § 3143(b)(1), rather than §

3143(a)(1). See Olis, 450 F.3d at 586-87; Krilich, 178 F.3d at 861. Subsection (b)(1) of the

statute applies to defendants who have been convicted and sentenced but have filed either an

appeal or a petition for a writ of certiorari. This provision sets a more stringent standard for

release than § 3143(a)(1), as it establishes a presumption against release unless the court finds

both that the defendant is neither a flight risk nor a danger to the community, and that his appeal

“raises a substantial question of law or fact likely to result in” reversal, a new trial, or a sentence

less than the time already served or to be served during the appeal. 18 U.S.C. § 3143(b)(1). The

court in Krilich observed that the defendant in that case fit the circumstances described in both

subsections of § 3143, since his case had been remanded for resentencing but he also planned to

file a petition for certiorari. Krilich, 178 F.3d at 861. This posed a dilemma, where “[s]ection

3143 does not specify what happens when both subsections read on the situation,” and where

“[a]pplication of both at once is impossible” because “they prescribe different standards.” 178

F.3d at 861.

This case potentially poses the same dilemma. Shortly after he brought the present

motion, Defendant filed a petition with the Sixth Circuit requesting en banc rehearing, and

thereby extended the life of his pending appeal. Although this request has since been denied as

untimely, the deadline has not yet passed for Defendant to file a petition for a writ of certiorari,

and the record does not disclose whether he plans to do so. Notably, to the extent that

Defendant’s request for release might be governed by subsection (b)(1) rather than (a)(1) of the

statute, both this Court and the Sixth Circuit have denied Defendant’s prior requests for release

under § 3143(b)(1).

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remainder of his sentence.” 450 F.3d at 586.1

Precisely the same can be said here. While Defendant has served most of his nowvacated 33-month sentence, and while the Court cannot predict the term of imprisonment

it will see fit to impose at Defendant’s forthcoming resentencing, Defendant recognizes in

his present motion that he likely has not yet served the entirety of the prison term that he

faces at resentencing. Under these circumstances, this Court concurs in the reasoning of

the above-cited rulings — namely, that it makes no sense to temporarily release

Defendant from confinement, only to order him returned to custody to serve the

remainder of the prison term imposed by the Court at resentencing. Rather, the Court

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The Court plans to schedule this hearing soon after the Sixth Circuit issues its mandate.

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finds that both the terms of § 3143 and the purposes behind this statute are best served by

continuing Defendant’s term of incarceration without interruption, so that he may

expeditiously serve the remainder of his sentence as determined by the Court at his

forthcoming resentencing hearing.2

For these reasons,

NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s February 13,

2012 motion for release pending resentencing (docket #121) is DENIED. In light of this

ruling, IT IS FURTHER ORDERED that Defendant’s March 12, 2012 motion for an

expedited ruling on his motion for release (docket #122) is DENIED AS MOOT.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: March 22, 2012

I hereby certify that a copy of the foregoing document was served upon counsel of record

on March 22, 2012, by electronic and/or ordinary mail.

s/Ruth A. Gunther 

Case Manager

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