Opinion
CRIM. CASE NO. 88-50066
December 9, 2003
ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTION "TO CORRECT ILLEGAL SENTENCES"
I. INTRODUCTION
Defendants filed a motion "to correct illegal sentences" on August 2, 2002 based on Rule 35 of the Federal Rules of Criminal Procedure and on the Court's inherent authority to correct an illegal sentence. Before the Court is the Report and Recommendation of the Honorable Wallace Capel, Jr., United States Magistrate Judge, on this motion. The Magistrate Judge recommends that this Court deny Defendants' motion on procedural and substantive grounds. Defendants objected to the Report and Recommendation through their counsel and through their own filings. Respondent did not file a response to these objections. Upon review under the standard below, this Court will overrule the objections and will accept the Report and Recommendation.
II. STANDARD OF REVIEW
The Court's standard of review for a Magistrate Judge's Report and Recommendation depends upon whether a party files objections. If a party does not object to the Report and Recommendation, the Court does not need to conduct a review by any standard. See Lardie v. Birkett, 221 F. Supp.2d 806, 807 (E.D. Mich. 2002) (Gadola, J.). The Supreme Court observed that "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150 (1985).
If a party does object to portions of the Report and Recommendation, the Court reviews those portions de novo. Lardie, 221 F. Supp.2d at 807. The Federal Rules of Civil Procedure dictate this standard of review in Rule 72(b), which states, in relevant part, that
[t]he district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.
Fed.R.Civ.P. 72(b). Here, because Defendants filed objections, this Court reviews de novo those portions to which an objection has been made.See Lardie, 221 F. Supp.2d at 807.
De novo review in these circumstances requires at least a review of the evidence before the Magistrate Judge; the Court may not act solely on the basis of a Magistrate Judge's Report and Recommendation. See 12 Wright, Miller Marcus, Federal Practice and Procedure: Civil 2d § 3070.2 (1997); see also Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). The Court may supplement the record by entertaining additional evidence, but is not required to do so. 12 Wright, Federal Practice § 3070.2. After reviewing the evidence, the Court is free to accept, reject, or modify the findings or recommendations of the Magistrate Judge. See Lardie, 221 F. Supp.2d at 807. If the Court accepts a Report and Recommendation, the Court is not required to state with specificity what it reviewed; it is sufficient for the Court to state that it engaged in a de novo review of the record and adopts the Report and Recommendation. See id.; 12 Wright, Federal Practice § 3070.2.
III. ANALYSIS
In this case, the Magistrate Judge recommends that the motion be denied on both procedural and substantive grounds. Specifically, the Magistrate Judge recommends that the motion be denied because "the district court has no authority to correct or reduce the Defendants' sentences." Rep. Rec. at 13. The Magistrate Judge further recommends that even if the Court did have authority, the law of this case indicates that the Court did not commit error and that there is no violation of the ex post facto clause.Id. The Court notes at the outset that Federal Rule of Criminal Procedure 35 has been amended since the filing of the Report and Recommendation and the objections. This amendment, however, does not affect the reasoning or substance of the Report and Recommendation or the objections.
Defendants, through their counsel, raise three objections to the Report and Recommendation. In the first objection, Defendants argue that this Court does have jurisdiction to correct an illegal sentence under Federal Rule of Criminal Procedure 35. Defendants argue, through their attorney, that three cases cited in the Report and Recommendation to show that the Court does not have jurisdiction are each distinguishable from the present case. The Court has reviewed each of these three cases and the plain language of Rule 35. The Court is convinced that it does not have authority under Rule 35 or under its inherent power to correct the sentences of Defendants White and Mitchell, for the reasons stated in the Report and Recommendation. See Rep. Rec. at 10-13.
Defendant's second objection raised through counsel is that the Report and Recommendation improperly relies on 18 U.S.C. § 3583 as authority for imposing supervised release. Defendants rely primarily on Bifulco v. United States, 447 U.S. 381 (1980), for this objection. Other courts addressing this issue have held that the holding in Bifulco has been superceded by the statutory amendments in 18 U.S.C. § 3583. See e.g., United States v. Van Nymegen, 910 F.2d 164, 166 (5th Cir. 1990). Furthermore, the Bifulco case addresses special parole, which is distinct from the supervised release that was imposed in this case. Id.
Defendants' third objection raised through counsel is that the Report and Recommendation improperly relies on cases from other circuits. Defendants argue that law of the Sixth Circuit does not support the proposition that drugs from an earlier part of the conspiracy can be aggregated with drugs from a later part of the conspiracy to qualify for a harsher penalty under laws that became effective during the later part of the conspiracy. The Sixth Circuit, however, has stated in a published opinion that "a person convicted of conspiracy may be sentenced under an amended statute that increases the sentence if the conspiracy continues after the effective date" without violating the ex post facto clause.United States v. Frazier, 936 F.2d 262, 267 (6th Cir. 1991) (citingUnited States v. Hudson, 848 F.2d 1374, 1385 (6th Cir. 1988)). Defendants argue that the Frazier case should be distinguished because the reasoning is dicta: the sentence imposed was the same whether or not the drug amounts were aggregated. The Court, however, considers the reasoning of the Frazier court to be persuasive guidance from the Sixth Circuit on this issue.
Furthermore, the Sixth Circuit addressed the issue of the appropriate sentencing guidelines in the direct appeal of this case: "a defendant who commits a continuing offense beginning before the effective date of the guideline and ending after the effective date of the guidelines can be sentenced under the guidelines without violating the ex post facto clause of the Constitution." United States v. Walton, et al., 908 F.2d 1289, 1299 (6th Cir. 1990). The Sixth Circuit also noted that "the conspiracy at issue in this case continued long after the November 1, 1987 effective date for the guidelines." Id. This reasoning is analogous to the reasoning regarding the amendments to statutes. The Court is persuaded that the aggregation of drug quantities before and after the statutory amendment was not improper.
Defendants also submitted objections pro se. The Court has reviewed these objections as well as the attached exhibits which include charts, transcripts, excerpts from the congressional record, case law, and other materials. Having conducted a de novo review in accordance with the standard articulated above, the Court concludes that the Magistrate Judge's reasoning and conclusions are sound. The Court agrees with the Magistrate Judge that the district court does not have the authority under Rule 35 to correct the Defendants' sentences. Even if the Court did have such authority, Defendants have not persuaded this Court that a correction is warranted. The Court, therefore, shall overrule Defendants' objections and shall accept the report and recommendation as the opinion of the Court.
IV. OTHER MOTIONS
Also before the Court are several other motions for bond, bail, and the withdrawal of counsel for Defendants. The Court has considered these motions and will dispose of them as follows. The Court will permit counsel to withdraw from further representation of the Defendants. Counsel states that Defendants, "through a family representative, ask counsel to withdraw as their attorney." Defendants were served with a copy of this motion and have not objected to it. Additionally, Defendants have pursued their own representation by filing their own pleadings. The Court will therefore grant this motion.
Defendants also filed a motion for release on bail, which they then requested to withdraw. The Court will deem the motion withdrawn in accordance with Defendant's request. Defendants subsequently filed a motion for bond pending the outcome of Defendants' motion to correct illegal sentence. As this Court will deny the motion to correct illegal sentence, the Court will also deny the motion for bond as moot.
V. CONCLUSION
The Court agrees with the Magistrate Judge that the motion to correct the sentence should be denied.
ACCORDINGLY, IT IS HEREBY ORDERED that Defendants' objections [docket entries 811, 812, and 816] are OVERRULED.
IT IS FURTHER ORDERED that the report and recommendation [docket entry 810] is ACCEPTED and ADOPTED as the opinion of this Court.
IT IS FURTHER ORDERED that Defendants' motion to correct illegal sentences [docket entry 797] is DENIED.
IT IS FURTHER ORDERED that attorney Charles Grossman's motion to withdraw as counsel for Defendants [docket entry 813] is GRANTED.
IT IS FURTHER ORDERED that Defendants' motion to withdraw their motion for bail pending outcome of the motion to correct illegal sentences [docket entry 819] is GRANTED, and accordingly the motion for bail [docket entry 817] shall be considered withdrawn.
IT IS FURTHER ORDERED that Defendants' motion for bond pending outcome of motion to correct illegal sentencing [docket entry 815] is DENIED. correct the sentence should be denied.
ACCORDINGLY, IT IS HEREBY ORDERED that Defendants' objections [docket entries 811, 812, and 816] are OVERRULED.
IT IS FURTHER ORDERED that the report and recommendation [docket entry 810] is ACCEPTED and ADOPTED as the opinion of this Court.
IT IS FURTHER ORDERED that Defendants' motion to correct illegal sentences [docket entry 797] is DENIED.
IT IS FURTHER ORDERED that attorney Charles Grossman's motion to withdraw as counsel for Defendants [docket entry 813] is GRANTED.
IT IS FURTHER ORDERED that Defendants' motion to withdraw their motion for bail pending outcome of the motion to correct illegal sentences [docket entry 819] is GRANTED, and accordingly the motion for bail [docket entry 817] shall be considered withdrawn.
IT IS FURTHER ORDERED that Defendants' motion for bond pending outcome of motion to correct illegal sentencing [docket entry 815] is DENIED.