Opinion
Criminal No. 90-201-26.
October 12, 1999
MEMORANDUM ORDER
Defendant pled guilty in 1990 to participating in a conspiracy during which it was reasonably foreseeable to him that 798 kilograms of cocaine would be distributed. The crime was and is a class A felony. See 18 U.S.C. § 3559; 21 U.S.C. §§ 841(b)(1)(A) 846. Absent a government motion for departure pursuant to 18 U.S.C. § 3553(e), defendant would have faced a maximum statutory sentence of life imprisonment with a mandatory ten year minimum and a lifetime of supervised release with a five year minimum. Absent a government motion for departure pursuant to U.S.S.G. § 5K1.1, defendant would have faced a maximum guidelines sentence of 293 months of imprisonment and a minimum sentence of 235 months. The government filed and the court granted motions under §§ 3553(e) and 5K1.1. On July 17, 1991, the court sentenced defendant to 100 months of incarceration, to be followed by five years of supervised release.
Defendant was originally released from prison on October 25, 1996. During the first year of his supervised release, he committed another drug offense and absconded from supervision. He was ultimately apprehended. On January 5, 1998 the court revoked defendant's supervised release and sentenced him to two years of imprisonment, to be followed by three years of supervised release.
Defendant now contends that the imposition of this supervised release term violated the constitutional prohibition on ex post facto laws. Defendant did not pursue the usual avenues of relief from a sentence allegedly inconsistent with the ex post facto clause. He did not timely appeal following the revocation and sentencing or timely challenge the sentence under 28 U.S.C. § 2255.
Defendant recognizes that the court could have reincarcerated him for five years and has been careful not to ask for resentencing, the typical relief for a sentence truly imposed in violation of the ex post facto clause. See U.S. v. Comstock, 154 F.3d 845, 850 (8th Cir. 1998) (remanding for resentencing under law in effect when defendant committed his offense when sentence imposed constituted ex post facto violation); U.S. v. Dozier, 119 F.3d 239, 245 (3d Cir. 1997) (same). See also State v. Miller, 512 So.2d 198 (Fla. 1987) (upon finding by U.S. Supreme Court of ex post facto violation remanding for resentencing pursuant to law in effect when defendant's offense was committed); State v. Lindsey, 77 P.2d 596, 597 (Wash. 1938) (holding on remand from U.S. Supreme Court that proper remedy when sentence violates ex post facto clause is remand for resentencing pursuant to law as it existed when crime was committed), cert. denied, 305 U.S. 637 (1938). Rather, defendant filed a motion at the above criminal action number asking that the term of supervised release simply be terminated.
By memorandum order of August 16, 1999, the court denied defendant's motion. The court concluded, inter alia, that defendant was not subject to any greater deprivation of liberty under the law when his supervised release was revoked than when he committed the crime of conviction.
Defendant had been represented by assistant federal defender Ross Thompson. The motion to terminate supervised release was filed on defendant's behalf by assistant federal defender David McColgin. By correspondence of September 29, 1999, Mr. McColgin asked the court to vacate and then reissue its order of August 16, 1999 so as to reinstate the time for filing a notice of appeal which had expired. Mr. McColgin stated that he did not receive a copy of that order until September 27, 1999.
The court has attempted, through the Clerk's Office, to ascertain what happened. The Clerk's records show that copies of the memorandum order were sent by mail to counsel of record for the parties. Mr. McColgin had not substituted his appearance and thus it appears the copy was sent to Mr. Thompson. The Clerk also advises it is his understanding that any orders or notices sent to the Federal Defender are distributed to the attorney then assigned to the particular matter. The assistant U.S. attorney assigned to this case has verified that he timely received a copy of the August 16th order from the Clerk's office.
Even treating defendant's letter as a form of motion, he submits no supporting affidavits or supporting authority for the extraordinary relief he requests. By the time the letter was sent, the court had no authority to extend the time to file an appeal for good cause or excusable neglect. See Fed.R.App.P. 4(b)(4) 26(a)(2); U.S. v. Green, 89 F.3d 657, 660 (9th Cir. 1996) (failure of clerk to mail copy of order to counsel does not toll defendant's appeal period under rule 4(b)), cert. denied, 117 S. Ct. 408 (199); U.S. v. Awalt, 728 F.2d 704, 705 (5th Cir. 1984) (court cannot extend appeal period beyond forty days prescribed in Rule 4(b) for lack of notice to defendant of entry of order); U.S. v. Schuchardt, 685 F.2d 901, 902 (4th Cir. 1982) (time to file notice of appeal cannot be extended beyond period provided in Rule 4(b) for failure of defendant or counsel to receive copy of court's order). See also Hensley v. Chesapeake O. Ry. Co., 651 F.2d 226, 231 (4th Cir. 1981) (failure to receive notice of court's order within appeal period does not warrant extraordinary relief of vacating and reentering order to contrive new appeal period and reversing district court's grant of such relief).
ACCORDINGLY, this day of October, 1999, IT IS HEREBY ORDERED that defendant's letter request of September 29, 1999 to vacate and reenter the court's order of August 16, 1999 herein is denied, without prejudice to defendant to file any appropriate motion with supporting authority and any pertinent affidavits.