In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1980

United States of America,

Plaintiff-Appellant,

v.

Robert R. Krilich,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94 CR 419--John F. Grady, Judge.


Submitted April 29, 1999--Decided May 11, 1999



  Before Easterbrook, Ripple, and Evans, Circuit Judges.

  Per Curiam. Robert Krilich is serving a term of
64 months’ imprisonment. He entered prison on
October 31, 1997, and with good behavior will be
released in spring 2002. 18 U.S.C.
sec.3624(b)(1). We affirmed his conviction, see
United States v. Krilich, 159 F.3d 1020 (7th Cir.
1998), but remanded for resentencing after
concluding that the district court’s application
of the Sentencing Guidelines was unduly favorable
to Krilich. Id. at 1029-31. Krilich plans to file
a petition for certiorari, and because there is
a conflict among the circuits about the
convictions for fraud under 18 U.S.C. sec.1014
(see 159 F.3d at 1027-29, 1031-32), the Supreme
Court may be willing to hear the case. But
Krilich has been convicted on other counts too,
and because all of his convictions have been
affirmed, he cannot satisfy the requirements of
18 U.S.C. sec.3143(b) for release while seeking
certiorari: that the case present "a substantial
question of law or fact likely to result" in
outright reversal 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."

  When issuing the opinion resolving Krilich’s
appeal, we also denied his motion for release on
bail. Notwithstanding our decision, the district
judge issued an order admitting Krilich to bail
until his resentencing--and the judge deferred
resentencing until the conclusion of proceedings
in the Supreme Court. Applying 18 U.S.C.
sec.3143(a), under which clear and convincing
evidence that the person is unlikely to flee (or
pose a danger to the community) requires release
until sentence has been pronounced, the judge
found Krilich entitled to freedom in the interim.
United States v. Holzer, 848 F.2d 822 (7th Cir.
1988), holds that sec.3143(b) supplies the
standards for release after the court of appeals
has affirmed the conviction, and Krilich cannot
satisfy the criteria of that subsection.
Nonetheless, relying on United States v.
Pfeiffer, 886 F. Supp. 303 (E.D.N.Y. 1992), a
decision that criticized Holzer as unfaithful to
the statutory text, see 886 F. Supp. at 304, the
district judge wrote: "We agree with Judge
Weinstein’s reasoning [in Pfeiffer] that a person
in Krilich’s position is a person who has not
been sentenced. We conclude, therefore, that
sec.3143(a) applies." A single judge of this
court issued a stay of the release order pending
resolution of the prosecutor’s appeal.

  In Holzer, as here, convictions sufficient to
support continued incarceration were affirmed but
the case was remanded for adjustment of the time
yet to be served. Holzer prevailed on one issue,
and this court ordered resentencing with the
expectation that Holzer would receive a modest
reduction in the total sentence. But we held that
he was not to be released under sec.3143(a) in
the interim. Section 3143(a) applies to a person
"who is awaiting imposition or execution of
sentence". Section 3143(b) governs "a person who
has been found guilty of an offense and sentenced
to a term of imprisonment, and who has filed an
appeal or a petition for a writ of certiorari".
Holzer dealt with the proper classification of a
person who meets both of these descriptions: he
has been sentenced, has filed an appeal (and
perhaps a petition for certiorari), and is
awaiting imposition of a new sentence. We
concluded that sec.3143(a) "has reference to the
situation where a defendant is awaiting
sentencing the first time". 848 F.2d at 824. That
is the law of this circuit, and the district
judge was obliged to follow Holzer rather than a
contrary decision of a district judge elsewhere.
The facts of Holzer and this case differ, but
this difference does not call our legal
conclusion into question. Quite the contrary, the
remand in Holzer was likely to lead to a
reduction in the sentence, and the remand here to
an increase. If sec.3143(a) did not apply to
Holzer, it certainly does not apply to Krilich.

  Pfeiffer does not persuade us to abandon
Holzer. The district judge in Pfeiffer stressed
that sec.3143(a) deals with "a person who has
been found guilty of an offense and who is
awaiting imposition or execution of sentence",
which includes persons awaiting sentencing on
remand. True enough. It is equally accurate to
say that a person in Holzer’s or Krilich’s
position comes within subsection (b). Krilich
wants review by writ of certiorari, and
sec.3143(b) speaks directly to his situation.
Morison v. United States, 486 U.S. 1306 (1988)
(Rehnquist, C.J., in chambers). Most if not all
of the time Krilich spends on release (if the
district judge’s order is affirmed) will pass
while the case is before the Supreme Court,
rather than while Krilich is "awaiting imposition
. . . of sentence" in the district court.

  Section 3143 does not specify what happens when
both subsections read on the situation.
Application of both at once is impossible; they
prescribe different standards. How is the tie to
be broken? The different functions of the
different rules enable a court to choose. "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 . . . . The
reason has no application to a case where the
defendant’s conviction . . . has been upheld and
a sentence . . . 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."
Holzer, 848 F.2d at 824. Likewise when the remand
comes with instructions that are apt to augment
the punishment.

  We cannot imagine any reason why a person whose
convictions have been affirmed, and who faces at
least another three years in prison, should be
released while the district judge decides whether
(and, if so, by how much) to increase the time
remaining to be served. Breaking 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. The district court’s assertion that
"[t]here has been no material change since" the
time Krilich was released on bail before his
original sentencing disregards the fact that the
convictions have been affirmed, and Krilich not
only faces a greater probability of continued
confinement but also should anticipate a longer
term. Both of these changes make absconding more
attractive, especially for someone of substantial
wealth who has stashed assets in foreign nations,
as Krilich has done. When releasing Krilich, the
district judge did not mention the prosecutor’s
contention that Krilich has violated orders
regulating the disposition of his assets and thus
displayed what could be understood as financial
preparations for flight.

  Holzer had a second holding. We stated that
even if sec.3143(a) does apply following a remand
for resentencing, a district court may not
release the defendant for an indefinite period.
Release under sec.3143(a) is supposed to be
brief. Just as in Holzer, the district judge has
announced that he will not resentence the
defendant until the Supreme Court has acted.
Because Krilich has not yet filed a petition for
certiorari, the Court’s decision to grant or deny
review probably will not come until next fall. If
the Court elects to address the conflict among
the circuits concerning the bank fraud statute,
then resolution may be postponed until spring
2000, more than a year in the future (and 1
years from our decision). The district court’s
order may enable Krilich to remain at liberty a
long time, although convictions other than bank
fraud suffice to detain him. We said in Holzer
that in such a case, even if sec.3143(a) supplies
the rule of decision, a judge would abuse his
discretion by waiting more than 60 days to carry
out the resentencing and return the defendant to
prison. 848 F.2d at 824-25. By ignoring the
alternative holding of Holzer, the district court
committed a further error.

  Krilich must remain in prison while awaiting
decision by the Supreme Court and the imposition
of a new sentence on remand. The order of the
district court admitting Krilich to bail is
reversed. Circuit Rule 36 will govern further
proceedings in the district court.
