FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                           June 24, 2021
                        _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 21-3081
                                                 (D.C. No. 2:04-CR-20089-KHV-1)
 MONTGOMERY CARL AKERS,                                      (D. Kan.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MATHESON, PHILLIPS, and CARSON, Circuit Judges.
                  _________________________________

      Montgomery Carl Akers appeals from the district court’s order denying his

motion for release pending appeal of the denial of his motion for a reduction in

sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (“compassionate release”) and

sanctioning him in the amount of $40,000. Exercising jurisdiction pursuant to

28 U.S.C. § 1291, we affirm the portion of the district court’s order denying release




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
pending appeal, but we remand for the district court to revisit the $40,000 monetary

sanction.

      In his motion for release pending appeal, Mr. Akers argued the district court

erred in determining he had not exhausted his administrative remedies and in

concluding that his health conditions did not rise to the level of extraordinary and

compelling reasons for early release. He also argued the district court did not discuss

the applicable sentencing factors under 18 U.S.C. § 3553(a).

      The district court considered Mr. Akers’s motion for release pending appeal

under 18 U.S.C. § 3143(b) of the Bail Reform Act and concluded Mr. Akers had not

shown that any of his issues on appeal “raise a substantial question of law or fact

likely to result in reversal, a new trial, a sentence with no custody component or a

reduced sentence that is shorter than the anticipated life of the appeal.” R. at 94

(citing § 3143(b)(1)(B)). Because Mr. Akers was convicted of wire fraud in 2006

and has been serving a term of imprisonment since that time, we are not convinced

the Bail Reform Act applies to his request for release pending appeal from the denial

of his post-conviction motion for compassionate release. See United States v. Mett,

, 1282 (9th Cir. 1994) (“The Bail Reform Act does not apply to federal

prisoners seeking postconviction relief.”). We need not resolve that question in this

case, however, because under either § 3143(b) of the Bail Reform Act or the

standards this and other courts have applied to similar requests for release involving

post-conviction motions, Mr. Akers has not shown he is entitled to release pending

appeal, see Pfaff v. Wells, 

, 693 (10th Cir. 1981) (holding state prisoners

                                           2
must show “exceptional circumstances” or “a demonstration of a clear case on the

merits of the habeas petition” to be entitled to release pending a district court’s

decision on a habeas petition); Mett, 41 F.3d at 1282 (holding federal prisoners

seeking release pending appeal of the denial of their 28 U.S.C. § 2255 motion must

demonstrate “their appeal is an extraordinary case involving special circumstances or

presents a high probability of success” (internal quotation marks omitted)).

      As for the $40,000 sanction, we note that the district court identified certain

statements in one section of the motion as frivolous, but it did not address all of

Mr. Akers’s arguments or find that the motion as a whole was frivolous. Although

we agree with the district court that Mr. Akers has not shown he is entitled to release

pending appeal, we cannot say that the arguments in support of his motion are wholly

frivolous.

      Accordingly, we affirm the district court’s decision denying Mr. Akers’s

motion for release pending appeal, but we remand for the district court to revisit the

$40,000 sanction. We grant Mr. Akers’s motion for leave to proceed on appeal

without prepayment of costs or fees.


                                             Entered for the Court
                                             Per Curiam




                                            3