Summary
invoking Rule 37 to deny a motion seeking a sentence reduction under 18 U.S.C. § 3582(c) while a direct appeal was pending
Summary of this case from United States v. NovisOpinion
6:06-CR-06105 EAW
2020-04-21
UNITED STATES of America, v. Calvin CAMPBELL, Defendant.
Douglas E. Gregory, U.S. Attorney's Office, Rochester, NY, for Plaintiff.
Douglas E. Gregory, U.S. Attorney's Office, Rochester, NY, for Plaintiff.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
BACKGROUND
Defendant Calvin Campbell ("Defendant") was convicted by guilty plea in 2007 for distributing five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 851, and was sentenced by United States District Judge David G. Larimer on February 13, 2008, to 90 months in the Bureau of Prisons ("BOP") to be followed by eight years of supervised release. (Dkt. 40; Dkt. 45). After Defendant served his prison sentence, on March 27, 2015, a petition was filed alleging that Defendant violated certain terms and conditions of supervised release. (Dkt. 65). Judge Larimer transferred the case to the undersigned. (Dkt. 66).
On December 1, 2015, Defendant pleaded guilty to violating Condition 1 of the Third Amended Petition, and the Court revoked Defendant's supervised release and sentenced him to 12 months in the custody of the BOP to be followed by 51 months of supervised release. (Dkt. 90).
Defendant commenced his 51-month supervised release term on November 4, 2016. (See Dkt. 91 at 1). Less than two years into that term, on August 3, 2018, a Petition was filed alleging that Defendant violated the terms and conditions of supervised release. (Dkt. 91). A revocation hearing was held before the undersigned on October 31, 2018 (Dkt. 98), and by Decision and Order entered November 30, 2018, this Court found that the Government established by a preponderance of the evidence that Defendant violated the terms and conditions of his supervised release, and accordingly found Defendant guilty of each of the charged violations as set forth in the Petition. (Dkt. 101). The Court sentenced Defendant on December 27, 2018, to 54 months incarceration followed by five years supervised release. (Dkt. 106). Defendant filed a Notice of Appeal (Dkt. 107), and that appeal remains pending before the Second Circuit Court of Appeals. (See United States v. Campbell , No. 19-120, Dkt. 58 (2d Cir. Apr. 15, 2020) (extending time for Defendant to file his appellate brief to June 19, 2020)).
Notwithstanding the pending appeal, Defendant has filed several pro se motions before the undersigned. On July 29, 2019, Defendant filed a motion to reduce his sentence pursuant to the First Step Act of 2018 (hereinafter "First Step Act"), Pub. L. No. 115-391, 132 Stat. 5194 (2018). (Dkt. 118). Then, on March 13, 2020, Defendant filed a motion asking that the undersigned render a decision with respect to his previously-filed motion under the First Step Act. (Dkt. 122). The Court has not issued a briefing schedule with respect to those pending motions.
On April 6, 2020, Defendant filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), asking to be released from custody because of the COVID-19 pandemic (Dkt. 123), and he filed a similar motion a few days later, on April 9, 2020 (Dkt. 125). According to the Second Circuit docket, Defendant has filed a similar request before that court. (See Mot. for Bail, United States v. Campbell , No. 19-120, Dkt. 49 (2d Cir. Apr. 8, 2020)). After the filing of the first motion for release, the Court directed the Government to respond (Dkt. 124), which it did on April 20, 2020. (Dkt. 126). COMPASSIONATE RELEASE MOTIONS
In its response to Defendant's motions for compassionate release, the Government cites to Defendant's criminal history and his repeated noncompliance with supervised release conditions, as well as his lack of any identified health issue. (Dkt. 126). The Court agrees with the Government that for all of the reasons set forth in the Government's opposition papers (id. ), Defendant has wholly failed to establish that the factors set forth at 18 U.S.C. § 3553(a) support modification of Defendant's prison term, that extraordinary and compelling reasons warrant a reduction of the prison sentence, and that any reduction in Defendant's prison sentence would be consistent with the Sentencing Commission's policy statements—all necessary prerequisites to granting relief pursuant to 18 U.S.C. § 3582(c)(1)(A).
However, while not raised by the Government in its response, the Court concludes that it lacks jurisdiction over Defendant's pending motions for compassionate release. Defendant is seeking a substantive modification to his sentence, and this Court lacks the jurisdiction to grant this relief because of Defendant's pending appeal. Accordingly, the motions are denied pursuant to Fed. R. Crim. P. 37(a) ("If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue."); see, e.g., United States v. Moseley , No. 16 CRIM. 79 (ER), 2020 WL 1911217, at *1 (S.D.N.Y. Apr. 20, 2020) (finding no jurisdiction over compassionate release motion based on COVID-19 pandemic because of pending appeal, and stating that "[a]bsent further factual development, the Court cannot say whether it would ultimately grant the motion if the case were remanded for such purposes, but neither is it willing to deny the motion outright. These are complex and time-sensitive issues, but they are ones that the Court can only take up if the Second Circuit agrees it would be useful to decide the instant motion before it decides the appeal."); United States v. Vigna , No. S1 16-CR-786-3 (NSR), 2020 WL 1900495, at *3 (S.D.N.Y. Apr. 17, 2020) (finding same regarding jurisdiction, and declining to issue indicative ruling because defendant had not exhausted administrative remedies); United States v. Martin , No. 18-CR-834-7 (PAE), 2020 WL 1819961, at *1-2 (S.D.N.Y. Apr. 10, 2020) (finding same regarding jurisdiction but denying motion on merits under Rule 37 ).
FIRST STEP ACT MOTIONS
The Court similarly does not have jurisdiction over the First Step Act motions because of the pending appeal. See, e.g., United States v. Chan , No. 96-CR-00094-JSW-13, 2020 WL 1527895, at *3 (N.D. Cal. Mar. 31, 2020) (finding no jurisdiction to grant First Step Act motion because the defendant filed it after filing notice of appeal); United States v. Ward , No. 01-40050-01-DDC, 2019 WL 1620439, at *3 (D. Kan. Apr. 16, 2019) (finding no jurisdiction over motion for sentence reduction under the First Step Act because "[t]he court... cannot enter an order reducing [the defendant's] sentence while his appeal—collaterally challenging the basis for his sentence—is pending."); United States v. Edwards , No. 3:14-CR-30173-NJR-3, 2019 WL 5555559, at *2 (S.D. Ill. Oct. 28, 2019) ("The Court denied [the defendant's] initial First Step Act motion for lack of jurisdiction on May 1, 2019, while his appeal was still pending. Therefore, the Court rightly dismissed the motion for lack of jurisdiction."); cf. United States v. Cardoza , 790 F.3d 247, 248 (1st Cir. 2015) ("As we just recently made clear, a district court does not have jurisdiction to enter a sentence modification order ... while an appeal of that sentence is pending."); United States v. Ransom , 866 F.2d 574, 575-76 (2d Cir. 1989) ("A notice of appeal confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal. That rule applies in criminal cases. Though we have recognized that the rule does not preclude a district court, after notice of appeal has been filed, from correcting clerical errors under Fed. R. Crim. P. 36 or from acting to aid the appeal, we have not relaxed the rule to the point of permitting substantive modifications of judgments." (quotations and citations omitted)). However, instead of denying the First Step Act motions, pursuant to Fed. R. Crim. P. 37(a)(1), the Court will defer consideration of Defendant's motions to reduce his sentence and will set a briefing schedule thereon if and when the Second Circuit remands the case.
DEFENDANT'S LETTER DATED JANUARY 28, 2020
Finally, the Court notes that by letter dated January 28, 2020, Defendant has raised an issue concerning the BOP's calculation of his sentence. (Dkt. 121). The undersigned has requested that this District's Federal Public Defender's Office investigate that issue further, and it is anticipated that that office will be in contact with Defendant regarding that issue.
CONCLUSION
For the foregoing reasons, and pursuant to Fed. R. Crim. P. 37(a), the Court denies Defendant's motions for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 123; Dkt. 125), and defers consideration of Defendant's motions under the First Step Act (Dkt. 118; Dkt. 122).
SO ORDERED.