946 F. 2d 621 - United States v. Fuentes

On August 16, 1991, we issued an unpublished order granting appellant's motion to stay his surrender pending a decision on his motion for bail pending appeal. We now issue this published order to explain the court's decision of August 16, 1991.

On July 29, 1991, the district court sentenced appellant Gilbert Fuentes to imprisonment for a term of five years. The district court ordered that Fuentes would be confined in a jail-type institution for the first 30 days, to be served on consecutive weekends commencing on August 17, 1991. The district court suspended the balance of the sentence. On August 2, 1991, Fuentes filed a timely notice of appeal from the district court's judgment and commitment order. On August 15, 1991, Fuentes filed in this court an emergency motion for bail pending appeal and a request for a stay of his surrender pending a decision on his motion for bail pending appeal.

Ninth Circuit Rule 9-1.2(d) provides, "[i]f the appellant is on bail at the time the motion is filed in this court, that bail will remain in effect until the court rules on the motion." The intent of this rule is to provide for an automatic stay of an appellant's surrender date if he or she is on bail at the time the motion for bail pending appeal is filed in this court. The appellant in this case filed a motion for a stay pursuant to Ninth Cir. R. 9-1.2(d). The operation of the rule, however, is automatic and provides an appellant, who is still released, whether on bond or on his or her own recognizance, with an automatic stay of surrender upon the filing in this court of a motion for bail pending appeal.

Accordingly, appellant's motion to stay his surrender pending a decision on his motion for bail pending appeal is granted. Appellant's surrender scheduled for August 17, 1991, is stayed pending final decision on appellant's motion for bail pending appeal.