United States District Court, W.D. Pennsylvania
MEMORANDUM ORDER OF COURT
J. SCHWAB, UNITED STATES DISTRICT JUDGE.
the Court are several Motions filed by Defendant on the
criminal and/or the civil docket. The Court has considered
each of these Motions, and will address each Motion herein.
was indicted on July 10, 2018 of one count of conspiracy to
commit bank fraud in violation of 18 U.S.C. § 1349. ECF
22. He eventually entered into a plea agreement with the
United States Government, and a per his plea agreement, he
pled guilty on March 12, 2019, to conspiracy to commit bank
fraud in violation of 18 U.S.C. § 1349, and agreed to
pay mandatory restitution in the amount of $12, 750.00. (ECF
46-1). The Court scheduled his sentencing hearing for
November 13, 2019.
the November 13, 2019 sentencing hearing, the Court sentenced
Defendant to a six-month term of imprisonment - which was a
downward departure from the 8-14-month imprisonment term
under the United States Sentencing Guidelines. ECF 67. Based
upon Defendant's ties to the community and his lack of
violent criminal history, the Court found that he was not a
danger to any other person or the community, and because
Defendant had been compliant with his pre-sentence bond
requirements, the Court allowed Defendant to self-report to
prison by no later than January 10, 2020. ECF 67, p. 2. As
the time to self-report to the prison neared, Defendant began
to file various documents on the dockets, to delay the
implementation of his below-guideline range sentence.
on November 26, 2019, Defendant filed a counseled Motion to
Clarify and/or Re-Classify Sentence/Judgment. ECF 68. This
Motion argued that because he spent over 30 days in a
Washington County jail,  those days should count against the
six-month federal prison sentence this Court imposed.
Id. This Motion further requested that, if Defendant
had to be incarcerated for six months, he be incarcerated in
either Greene County or Washington County Jail so that he
could participate in a work release program at one of those
locations. Id. This motion was filed on
Defendant's behalf by the attorney who was appointed
pursuant to the provisions of the Criminal Justice Act
(“CJA”), 18 U.S.C. § 3006A (ECF 9) and who
represented Defendant from the inception of this case through
the change of plea and sentencing hearings. Id.
Court denied this Motion noting that “the calculation
of the time any Defendant serves, lies exclusively within the
province of the Bureau of Prisons and the Attorney
General.” ECF 71, citing 18 U.S.C. § 3585 and
United States v. Wilson, 503 U.S. 329 (1992). The
Court also denied his request to be incarcerated in either
the Green or Washington County Jails, noting that such a
request was not made at the time sentencing, and more
importantly, that the Court could not “dictate to the
Bureau of Prisons where Defendant should be
incarcerated.” Id., citing Davage v.
United States, 1997 WL 180336, at *4 (E.D. Pa. Apr. 16,
1997) (“Section 3621(b) authorizes the Bureau ‘to
designate the place of confinement for purposes of serving
federal sentences of imprisonment.'”).
failing to prevail on the Motion to Clarify (ECF 68), on
December 16, 2019, Defendant, acting pro se, filed
another Motion. This pro se Motion sought the
appointment of new counsel, noting that “several
errors” had occurred “in [his] presentencing
report, the calculation of [his] sentencing scale, and all in
around ineffectiveness of representation.” ECF 72. The
Court denied that Motion on December 19, 2019, because
Defendant's case was closed, and no appeal was pending.
ECF 73. Thus, the Court found no basis upon which the Court
could appoint new counsel, but noted that the Order
would not preclude Defendant from raising an ineffective
assistance of counsel claim “at the appropriate time
should he choose to do so.” Id.
Defendant retained counsel (which the Court finds curious in
light of the fact that his prior counsel was appointed under
the CJA due to his alleged inability to pay an attorney), and
his newly retained counsel entered his appearance on December
31, 2019. ECF 74. On that same date, December 31,
2019, Defendant's new counsel filed a Motion to Vacate
Sentence under 28 U.S.C. § 2255. ECF 75. A civil docket
was opened at docket number 19-cv-01684 on December 31, 2019,
after this counseled Motion to Vacate was filed. On January
2, 2020, Defendant himself filed a pro se Motion to
Vacate Sentence under 28 U.S.C. § 2255. ECF 76.
filings prompted this Court to issue a Miller Notice
on January 3, 2020. ECF 77. On that same date,
Defendant's attorney filed an Emergency Motion to Stay
the Execution of Sentence on the civil docket (see doc. no.
at 19-cv-01684). Then, on January 6, 2020, Defendant's
new attorney filed a Motion for Extension of Time, seeking
additional time to file Defendant's Intent with respect
to the Miller Notice on the civil docket. Doc. no. 4
January 8, 2020 Defendant filed his Miller Notice Statement
of Intention noting that he: (1) was withdrawing the pro
se Motion to Vacate Sentence under 28 U.S.C. § 2255
(ECF 76), and (2) intended to proceed with the counseled
Motion to Vacate Sentence - subject to this Court's
ruling on the Motion for Extension of Time. See doc. no. 5,
the Government filed a Response to the Emergency Motion for
Stay of Execution of Sentence on January 8, 2020. Doc. no. 6
at 19-cv-01684. The Court will now address all of these
Defendant's Motion to Vacate Sentence under
28 U.S.C. § 2255 - ECF
Court will begin by dismissing Defendant's remaining
Motion to Vacate Sentence as ...