United States v. Frederick T. Fernandez

923 F.2d 855 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Frederick T. FERNANDEZ, Defendant-Appellant. No. 90-3970. United States Court of Appeals, Sixth Circuit. Dec. 13, 1990. Before BOYCE F. MARTIN, Jr. and DAVID A. NELSON, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge. ORDER [1] Defendant, Frederick T. Fernandez, appeals the order revoking his probation and imposing a one year sentence of incarceration for failure to file his 1979 federal tax return in violation of 26 U.S.C. Sec. 7203. On November 1, 1990 the defendant filed a motion in the district court to stay execution of his sentence and for release on bond. The district court denied the motion by marginal entry and indicated that the motion must first be raised with the magistrate who had tried the case. The magistrate denied the motion by written order on November 9, 1990. The defendant did not appeal the magistrate's denial of his motion for release to the district court. He now moves this court for release. The government responds in opposition. [2] Under Rule 9(b), Fed.R.App.P., application for release after a judgment of conviction shall be made in the first instance in the district court. Until the district court has made a final determination as to bail it would be premature for this court to rule on the matter. See United States v. Price, 773 F.2d 1526 (11th Cir.1985). [3] Therefore, it is ORDERED that this matter is remanded to the district court for consideration of the defendant's motion for release in accordance with the provisions of Rule 9(b). The district court is requested to make its determination forthwith.