United States District Court, W.D. Pennsylvania
Flowers Conti Chief United States District Judge
before the court is a motion for reconsideration filed by
defendant Denise Bonfilio (“defendant” or
“Bonfilio”). (ECF No. 291.) On December 29, 2016,
the government filed a response to defendant's motion for
reconsideration. (ECF No. 293.) As set forth below, the court
finds that defendant did not meet the standards for granting
a motion for reconsideration and defendant's motion for
reconsideration is, therefore, denied.
December 5, 2016, defendant filed a motion for an order
directing preparation of a new pre-sentence investigation
report (hereinafter “sentencing motion”). (ECF
No. 286.) Defendant claimed that because the Third Circuit
Court of Appeals remanded her restitution order to clarify
that her restitution obligations are joint and several with
co-defendant Deborah Kitay (“Kitay”), she is
entitled to a new pretrial investigation report and a
resentencing on all elements of her sentence. (Id.)
Defendant further requested that during the course of this
re-sentencing the court apply the updated version of the
United States Sentencing Guidelines, rather than the version
of the guidelines utilized during her original sentencing.
December 9, 2016, this court issued a Memorandum Opinion and
Order denying defendant's sentencing motion. (ECF Nos.
288, 289.) The court denied defendant's motion on the
ground that the Third Circuit Court of Appeals issued a
specific mandate - namely, that the district court should
clarify that defendant's restitution order is
joint and several - and that to reopen defendant's
sentence, either by reexamining the amount of restitution
owed or the prison sentence imposed, would impermissibly
exceed the appellate court's mandate. While this court
noted that there is no reason to believe that changes to the
Sentencing Guidelines would affect defendant's sentence,
the court based its denial of defendant's sentencing
motion solely on the ground that granting defendant's
motion would require this court to deviate from the appellate
court's mandate, and that this court has no authority to
act beyond the scope of the appellate court's
December 22, 2016, defendant filed a motion pro se
for reconsideration of her sentencing motion. (ECF No. 291.)
On December 29, 2016, the government filed a response to
defendant's motion for reconsideration. (ECF No. 293.)
The motion is now fully briefed and ripe for disposition.
Legal Standards Applicable to Motions for
purpose of a motion to reconsider is “to correct
manifest errors of law or fact or to present newly discovered
evidence.” Bootay v. KBR, Inc., 437
F.App'x 140, 146-47 (3d Cir. 2011) (citing Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)).
Though not explicitly provided for in the Federal Rules of
Criminal Procedure, “motions for reconsideration may be
filed in criminal cases.” United States v.
Fiorelli, 337 F.3d 282, 286 (3d Cir. 2003). Courts apply
the same standards to motions for reconsideration filed in
the criminal cases as those used in the civil context.
United States v. Lawrence, Civ. Action No. 3:13-41,
2015 WL 9027037, at *8 (W.D. Pa. Dec. 15, 2015); United
States v. Torres-Moreno, 28 F.Supp.3d 136, 137 (D.P.R.
2014); United States v. Korbe, Crim. Action No.
2:09-05, 2010 WL 2891509, at *1 (W.D. Pa. July 21, 2010);
United States v. Croce, 355 F.Supp.2d 774, 775 n.1
(E.D. Pa. 2005).
order to be successful on a motion for reconsideration, the
movant must demonstrate a “definite and firm conviction
that a mistake has been committed, ” or that the court
overlooked arguments that were previously made. United
States v. Jasin, 292 F.Supp.2d 670, 676 (E.D. Pa. 2003).
There are three circumstances in which a court may grant a
motion for reconsideration: (1) there has been an intervening
change in the law; (2) new evidence is now available that was
not available when the court entered judgment; or (3) there
is a need to correct a clear error of law or fact, or to
prevent manifest injustice. Fed.R.Civ.P. 59(e); Allah v.
Ricci, 532 F.App'x 48, 51 (3d Cir. 2013) (citing
Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir.
2010)); Max's Seafood Café v. Quinteros,
176 F.3d 669, 677 (3d Cir. 1999) (citing N. River Ins.
Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d
Cir. 1995)). By reason of the interest in finality, at least
at the district court level, motions for reconsideration
should be sparingly granted. See Rottmund v. Cont'l
Assurance Co., 813 F.Supp. 1104, 1107 (E.D. Pa. 1992).
for reconsideration are not designed to provide litigants
with a “second bite at the apple.” Bhatnagar
v. Surrendra Overseas Ltd., 52 F.3d 1220, 1231 (3d Cir.
1995). A motion for reconsideration is not to be used to
relitigate, or “rehash, ” issues the court
already decided, or to ask a district court to rethink a
decision it, rightly or wrongly, already made. Williams
v. City of Pittsburgh, 32 F.Supp.2d 236, 238 (W.D. Pa.
1998); Reich v. Compton, 834 F.Supp. 753, 755 (E.D.
Pa. 1993), aff'd in part, rev'd in part, 57
F.3d 270 (3d Cir. 1995); Keyes v. Nat'l R.R.
Passenger Corp., 766 F.Supp. 277, 280 (E.D. Pa. 1991). A
motion for reconsideration is not to be used as a way to
advance additional arguments that the litigant could have
made, but chose not to make, sooner, or as an opportunity for
a litigant, having lost, to change theories of the case and
advance new, often contradictory, evidence in support.
Bell v. City of Phila., 275 F.App'x 157, 160 (3d
Cir. 2008); Spence v. City of Phila., 147
F.App'x 289, 291-92 (3d Cir. 2005); Bhatnagar, 52 F.3d at
1231; Trenton v. Scott Paper Co., 832 F.2d 806, 810
(3d Cir. 1987); Miller v. Court of Common Pleas of Erie
Cnty., No. 12-206, 2014 WL 108585, at *2 (W.D. Pa. Jan.
requests that this court reconsider the rulings it made in
the memorandum opinion and order it issued on December 9,
2016. (ECF Nos. 288, 289.) Defendant argues that she has a
right to be resentenced under the updated Sentencing
Guidelines and she takes issue with the court's
conclusion that it is unlikely that defendant's
restitution or prison sentence would be affected by the new
Bonfilio's motion for reconsideration consists
essentially of a contention that the court reached the wrong
decision when it determined that the changes made to the
Sentencing Guidelines would not affect her sentence. While
the court disagrees with defendant's contention and her
underlying arguments, the court need not reach the merits of
this claim. Defendant does not raise an appropriate ground
for reconsideration, because the court's decision did not
rest on the claim she raises in her motion for
reconsideration. As the court made clear in its opinion, the
court denied defendant's sentencing motion because the
court has no power to reopen defendant's case on remand
for a purpose beyond the limited mandate outlined by the
court of appeals. A district court “‘has no power
or authority to deviate from the mandate issued by an
appellate court, '” United States v.
Kennedy, 682 F.3d 244, 252 (3d Cir. 2012) (quoting
Briggs v. Pa. R. Co., 334 U.S. 304, 306 (1948)),
and, in this case, the Third Circuit Court of Appeals issued
a clear and limited instruction, “to clarify that
Bonfilio and Kitay's restitution obligations are joint
and several.” United States v. Bonfilio, 611
F.App'x 758 (3d Cir. 2015).
court denied defendant's request for a new presentence
investigation report and sentencing hearing because this
request exceeded the scope of the appellate court's
mandate. Nowhere in her motion for reconsideration does
defendant show or even contend that this determination was a
“manifest error of law or fact.” Because
defendant has not shown that the court's basis for
denying her motion constitutes a clear error of law or fact