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United States v. Perrin

United States District Court, W.D. Pennsylvania

August 23, 2019

UNITED STATES OF AMERICA,
v.
JAMES PERRIN, Defendant.

          MEMORANDUM OPINION

          Mark R. Hornak, Chief United States District Judge

         I. BACKGROUND

          On April 14, 2015, a federal grand jury returned a Second Superseding Indictment with charges against Defendant James Perrin and his co-defendant, Price Montgomery. (ECF No. 153.) Among other things, the Second Superseding Indictment charged a Conspiracy to Distribute and Possess with Intent to Distribute One Kilogram or More of a Mixture Containing a Detectible Amount of Heroin from April 2013 to June 2014 in violation of 21 U.S.C. § 846 at Count One, and Possession with Intent to Distribute One Kilogram or More of a Mixture Containing a Detectible Amount of Heroin, in violation of 21 U.S.C. § 841, on or about June 8, 2014, at Count Two. (ECF No. 153.)

         On October 30, 2018, the case went to a jury trial. When the Government's case-in-chief concluded, Defendant Perrin's counsel made a timely oral Rule 29(a) motion for a judgment of acquittal as to all counts pending against him. The Court denied the motion. On November 13, 2018, the jury returned a verdict of guilty as to all Counts. The Court discharged the jury shortly thereafter on the same day.

         On February 19, 2019, the United States Probation Office filed the Presentence Investigation Report ("PSR") in this matter. (ECF No. 636.)

         On April 18, 2019, Defendant filed a Motion for a New Trial Based on the Rowe Opinion ("Motion") (ECF No. 658.) On the same day, Defendant filed an objection to the PSR (ECF No. 659 (objecting to mandatory penalties and the guideline calculation for the drug-related counts).) Defendant filed an accompanying brief on May 2, 2019. (ECF No. 675.)

         In his Motion and objection to the PSR, Defendant reasons that the Third Circuit's recent opinion in United States v. Rowe, 919 F.3d 752 (3d Cir. 2019) established new precedent regarding his convictions at Counts 1 and 2, eliminated the substantial mandatory minimum sentence applicable in his case, and required that his Guidelines calculation be reduced. Based on Rowe, he requests a new trial.

         The United States filed a response to the Motion. (ECF No. 718.) This matter is ripe for disposition.

         II. DISCUSSION

         Defendant argues that he is entitled to a new trial on the grounds that the Third Circuit's recent opinion in Rowe clarified that the Government is not permitted to aggregate weights to prove a defendant guilty of possession with intent to distribute. Because Defendant's Motion for a New Trial is untimely, and because Rowe does not call into question any aspect of his conviction at Counts 1 and 2, his Motion will be denied.

         A. Timeliness

         Federal Rule of Criminal Procedure 33 governs the time period for filing a request for a new trial. Fed. R. Crim. P. 33. Under Rule 33(b), a defendant must file a motion for a new trial on any grounds other than newly discovered evidence within fourteen (14) days of a guilty verdict. See Id. 33(b). If the defendant fails to file a motion within that timeframe, a district court may only consider the motion if the untimeliness was due to "excusable neglect." Id. 45(b)(1)(B); see United States v. Campa, 459 F.3d 1121, 1154 (11th Cir. 2006) (en banc) ("A court may not consider motions for a new trial based on any other argument than newly discovered evidence outside the [fourteen-day] period.").

         The Government argues that Defendant's Motion, which was filed over five months after the guilty verdict in his case, is untimely and therefore cannot be considered by this Court. Defendant does not address the timeliness issue in his briefing.

         To begin, Defendant's Motion does not rely on newly discovered evidence. And "a change in the law does not constitute newly discovered evidence for purposes of Rule 33." United States v. King,735 F.3d 1098, 1008 (9th Cir. 2013). The ...


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