Opinion
6:06-CR-06105 EAW
01-05-2021
UNITED STATES of America, v. Calvin CAMPBELL, Defendant.
Douglas E. Gregory, U.S. Attorney's Office, Rochester, NY, for United States of America.
Douglas E. Gregory, U.S. Attorney's Office, Rochester, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
Pending before the Court is a pro se motion filed by defendant Calvin Campbell ("Campbell") to serve the remainder of his sentence on "house arrest" pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 146). In April 2020, Campbell filed two similar motions seeking a sentencing reduction based on the COVID-19 pandemic. (Dkt. 123; Dkt. 125). The Court denied those motions pursuant to Fed. R. Crim. P. 37(a). (Dkt. 127 at 3-4). With the pending motion, Campbell offers additional evidence that he has now tested positive for the virus causing COVID-19. (Dkt. 146).
In support of his motion, Campbell also cites to the Coronavirus Aid, Relief, and Economic Security Act (the "CARES Act"), Pub. L. 116-136, § 12003, 134 Stat. 281 (2020), but the Court does not have the authority to grant Campbell's requested relief under the CARES Act. See United States v. Green , 466 F. Supp. 3d 328, 328 n.1 (W.D.N.Y. 2020).
At the time of his prior motions, Campbell had an appeal pending before the Second Circuit Court of Appeals challenging his original sentence. (Dkt. 127 at 3-4). That appeal was subsequently withdrawn. (Dkt. 128).
There are several potential procedural problems with the pending motion. First, if Campbell is attempting to pursue the current motion as a motion for reconsideration—as opposed to a new motion for relief under § 3582(c)(1)(A) — the Court questions whether it is an attempt to circumvent the failure to timely appeal the Court's previous denial of the request for relief under § 3582(c)(1)(A). See United States v. Randall , 666 F.3d 1238, 1242-43 (10th Cir. 2011) (motion for reconsideration of denial of sentencing reduction motion pursuant to § 3582(c)(2) must be filed within time for filing an appeal; otherwise, the motion amounts to an effort to pursue a belated appeal of the original decision); United States v. Redd , 630 F.3d 649, 651 (7th Cir. 2011) (same).
The Court is not suggesting that it would necessarily be persuaded by this argument. The case law cited deals with motions under § 3582(c)(2) with no intervening change in circumstances between the filing of the initial motion and the motion for reconsideration. Moreover, the Court is not aware of the Second Circuit reaching this conclusion, and unlike the Southern and Eastern Districts of New York, this District's Local Rules of Criminal Procedure do not place a time limit on the filing of a motion for reconsideration. Furthermore, even in the Southern and Eastern Districts, the court has the discretion to excuse an untimely filing. See United States v. Ballance , 16-cr-617 (BMC), 2020 WL 5517299, at *1 n.1 (E.D.N.Y. Sept. 14, 2020) ; United States v. Daugerdas , 09cr581, 2020 WL 4931988, at *1 (S.D.N.Y. Aug. 18, 2020).
--------
Second, if the current motion is a new motion for relief under § 3582(c)(1)(A), then the Court questions whether Campbell was required to exhaust his administrative remedies anew, and he has presented no proof that he did so. See United States v. Nwankwo , 12 CR 31 (VM), 2020 WL 7335287, at *1 (S.D.N.Y. Dec. 14, 2020) (where defendant sought reconsideration of denial of motion for compassionate release based on outbreak of COVID-19 cases at FCI Fort Dix, court not persuaded that exhaustion requirements were satisfied because this was new argument not previously presented to Bureau of Prisons); but see United States v. Daugerdas , 09cr581, 2020 WL 4931988, at *1 n.1 (S.D.N.Y. Aug. 18, 2020) (rejecting government's argument that defendant's motion was a successive motion for compassionate release thus requiring exhaustion of administrative remedies, and instead finding that it was a motion for reconsideration).
Third, Campbell has an appeal pending from this Court's denial of his motion for sentencing relief pursuant to Section 404 of the First Step Act (Dkt. 144), and thus this Court may lack jurisdiction to substantively alter Campbell's sentence, even based on a different statutory provision than the one at issue on appeal. (See Dkt. 127 at 3-4). But see United States v. Gordon , No. 92-81127, 2020 WL 4788023, at *2-3 (E.D. Mich. Aug. 18, 2020) (concluding that defendant's pending appeal of the denial of his motion under the First Step Act did not deprive the court of jurisdiction to consider motion for compassionate release, reasoning that "Gordon's compassionate release motion based on the COVID-19 pandemic in no way relates to any aspect of his First Step Act motion appeal, which is based on a different sentencing issue."). As the Court previously found when dealing with Campbell's previous motions for compassionate release, this issue can be remedied by reliance on Federal Rule of Criminal Procedure 37. See United States v. Stasiv , 18-cr-259 (PKC), 2020 WL 7239613, at *1 (S.D.N.Y. Dec. 8, 2020) (The Advisory Committee Notes to Rule 37 " ‘anticipate[ ] that Criminal Rule 37 will be used primarily if not exclusively’ for three types of motions including those made under 18 U.S.C. § 3582(c).").
If the foregoing procedural hurdles are overcome, the Court finds that Campbell's new evidence—that he tested positive for the virus causing COVID-19 approximately one month ago—does not change the Court's prior calculus that Campbell has failed to establish extraordinary and compelling reasons for a sentence reduction and he has failed to meet his burden to show that a sentence reduction is warranted in view of the factors set forth at 18 U.S.C. § 3553(a). (Dkt. 127 at 3; see also Dkt. 141 at 8-15). The Court certainly hopes that Campbell recovers quickly, but he has not established his entitlement to relief under § 3582(c)(1)(A).
For the foregoing reasons, the Court denies Campbell's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), and to the extent it lacks the jurisdiction to do so, it denies the motion pursuant to Fed. R. Crim. P. 37(a).
SO ORDERED.