Opinion
CRIMINAL ACTION NO. 15-124 SECTION "E"(5)
09-25-2019
UNITED STATES OF AMERICA v. STEPHEN ELLIS
ORDER AND REASONS
Before the Court is a Motion for Reduction of Sentence and Appointment of Counsel filed by Stephen Ellis. Baptiste asks the Court "Since United States vs. Davis is retroactive will that help me with my case? (924C). [I]f so appoint me with a federal lawyer and resentce [sic] me or release me because I've already completed 50% of the 117 months." For the reasons set forth below, the motion is DENIED.
R. Doc. 61.
Id. at 1.
BACKGROUND
Ellis is currently serving a 117 month prison sentence for convictions of (1) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2); (2) possessing firearms in furtherance of and during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and (3) knowingly and intentionally possessing with the intent to distribute a Schedule I Drug Controlled Substance, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). On August 9, 2019, Ellis filed the instant motion for appointment of counsel to assist him in seeking a reduction of his prison sentence.
R. Doc. 55.
LEGAL STANDARD
The Court construes Ellis's motion for reduction of sentence as a motion for modification of his term of imprisonment pursuant to 18 U.S.C. § 3582(c). There is "no constitutional rights to appointed counsel" in a § 3582(c) proceeding. Instead, the Court has discretion to appoint counsel to financially eligible individuals seeking relief under 18 U.S.C. § 3582(c) in exceptional cases where the "interest of justice warrant(s) such appointment."
United States v. Diaz, 729 F. App'x. 343, 343-44 (5th Cir. 2018) (citing Coleman v. Thompson, 501 U.S. 722, 752 (1991); United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995)). See also United States v. Short, Criminal Action No. 96-0232, 2016 WL 1161307, at *3 (E.D. La. Mar. 23, 2016) (The pertinent statutory provision states in relevant part: 'A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance . . . through appeal, including ancillary matters appropriate to the proceedings.' 18 U.S.C. § 3006A(c). The Fifth Circuit has found that a § 3582 proceeding is not an 'ancillary matter' as set forth in § 3006A, and have likewise held that a defendant does not have a statutory right to counsel in relation to a § 3582(c) motion. See Whitebird, 55 F.3d at 1010.").
United States v. Perez, 623 F. App'x. 282, 283 (5th Cir. 2015) (Mem) (citing Whitebird, 55 F.3d at 1010-11 & n. 3; United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir.2008)).
LAW AND ANALYSIS
On June 24, 2019, in United States v. Davis, the United States Supreme Court held 18 U.S.C. § 924(c)(3)(B) to be unconstitutionally vague. Ellis argues this ruling may affect his sentence because he was convicted in part under 18 U.S.C. § 924. Ellis, however, was not convicted under the subsection of § 924 the Supreme Court held unconstitutional. Ellis was convicted under 18 U.S.C. § 924(a)(2) and (c)(1)(A), and the Supreme Court held only 18 U.S.C. § 924(c)(3)(B) to be unconstitutional. It did not pass on 18 U.S.C. § 924(a)(2) or (c)(1)(A). As a result, Davis has no bearing on Ellis's conviction or sentence. Accordingly, the interests of justice do not require Ellis to receive court appointed counsel for seeking relief under 18 U.S.C. § 3582(c).
United States v. Davis, 139 S. Ct. 2319 (2019).
R. Doc. 61.
CONCLUSION
IT IS ORDERED that Ellis's motion is DENIED.
R. Doc. 61. --------
New Orleans, Louisiana, this 25th day of September, 2019.
/s/ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE