FORT SMITH -- James Van Doren doesn't want to go to federal prison on Jan. 5.
The New York attorney and associate of former Northwest Arkansas developer Brandon Barber who tried to withdraw his guilty plea to a federal money-laundering charge earlier this year now is asking U.S. District Judge P.K. Holmes III to suspend his prison reporting date until the 8th Circuit Court of Appeals rules on the appeal of his sentence, according to a motion his attorney filed for him on Dec. 12.
Appeals to the 8th Circuit typically take months.
The government, in a response filed Tuesday by Assistant U.S. Attorney Benjamin Wulff, opposed the motion. It argued that Van Doren knowingly pleaded guilty to the charge for which he now says the government had insufficient evidence to prove his guilt.
Holmes sentenced Van Doren on Nov. 3 to 15 months in prison, ordered him to undergo two years of supervised release and fined him $10,000.
Van Doren argued through his Little Rock lawyer, Gary Corum, a delay in reporting to prison pending appeal could be granted when the issues on appeal present "close questions" that "could go either way," referring to the wording in a 1985 ruling by then-8th Circuit Judge Richard Arnold.
Van Doren says in his motion he plans to argue on appeal that there was insufficient factual and legal basis for his August 2013 guilty plea; that Holmes abused his discretion in denying his motion in March to withdraw his guilty plea; and that Holmes erred in calculating the amount of loss attributable to Van Doren's offense that formed the basis for his sentence calculation.
Van Doren requested to withdraw his guilty plea, saying he was untruthful when he pleaded guilty and that he pleaded guilty to try to cut his losses and reduce the risk of jail time.
Holmes rejected the request in June.
"The defendant need not show that it is more likely or probable that he will prevail on appeal," Corum wrote in the motion. "Instead, he need only show that the question is a close one."
Corum stated in the motion that Holmes said during the sentencing hearing it was a "close question" on whether to use a $150,000 transfer to Van Doren from Barber in calculating Van Doren's sentence level. If he did not use that amount, Corum argued, the starting point for calculating Van Doren's sentence would have started at 12-18 months instead of 30-37 months.
The court probation office's presentence report recommended Holmes use the $150,000 in his calculations of Van Doren's sentence because it was part of his unlawful activity.
Van Doren claimed that the $150,000 transfer was Barber's payment to Van Doren's Epsilon Investments for a debt Barber owed Van Doren from a real estate deal they worked on together.
Holmes ruled the $150,000 was attributable to Van Doren's offense in deciding on his sentence, as was $30,000 cash that Barber gave Van Doren to hold and a $64,000 check he endorsed to Van Doren on Sept. 29, 2008, and which Van Doren deposited in his bank account.
The $22,000 from the $64,000 check that Van Doren wired to Barber on Oct. 29, 2008, was the basis for the money-laundering charge to which he pleaded guilty.
Metro on 12/24/2014