The opinion of the court was delivered by: James M. Moody United States District Judge
On July 25, 2006, defendant was sentenced to 10 months in the custody of the Federal Bureau of Prison following the revocation of her term of supervised release. On August 3, 2006 defendant filed a Motion for New Trial*fn1 and on August 4, 2006 she filed a Notice of Appeal and a Motion for Release Pending Appeal. For the reasons stated below, the motions are denied.
Pursuant to 18 U.S.C. § 3143(b) a defendant may be released pending appeal if the Court finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the community, the appeal is not for the purpose of delay, and the appeal raises a substantial question of law or fact likely to result in reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or 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.
Federal Rule of Criminal Procedure 33 provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment."
Defendant contends that her revocation was based upon an independent psychological evaluation by Dr. Brad Diner which was hearsay evidence and that her 10 month sentence is unreasonable because the Court failed to give adequate weight to various factors in determining her sentence Defendant has failed to establish that (1) her appeal raises a substantial question of law or fact likely to result in reversal; (2) the Federal Rules of Evidence apply at revocation hearings, see Fed. R. Evid. 1101(d)(3); (3) the interest of justice requires a new trial; or (4) the prison term is outside authorized limits. Moreover, Dr. Diner's psychological report was authorized under 18 U.S.C. § 3552(c) (district court may order psychological examination if it "desires more information than is otherwise available").
The Court has considered the evidence and the factors set out in 18 U.S.C. § 3583(e) and based upon the evidence presented at three revocations hearings, can see no reason to change its decision regarding defendant's revocation and sentence.
Defendant's Motion for Release Pending Appeal and her Motion for a New Trial are denied (#38 and #39).
Because the Court has denied defendant's Motion for a New Trial and Motion for Release Pending Appeal, defendant's Motion for Extension of Report Date is denied as moot (#44).
Defendant is to report on Monday, August 28, 2006, by 2:00 p.m. to the facility designated by the Bureau of Prisons as directed by the United States Marshal Service or if she is unable to self-report to the designated facility, she is to report to the United States Marshal Service no later than 2:00 p.m. on that same date. The Court recommends that defendant be designated to Carswell Federal Medical Center in Fort Worth, Texas. The Clerk of the Court is directed to send a copy of this Order to the United States Marshal Service.
IT IS SO ORDERED THIS 24 day of ...