United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr. United States District Judge
MATTER is before the Court on a letter (#57) in
which defendant asks that the Court reconsider the sentence
it imposed and to determine whether a proposed amendment to
the United States Sentencing Guidelines would be applicable
to his sentence. Review of the docket reveals that defendant
has filed a Motion to Vacate under 28 U.S.C. § 2255
(#56), which is proceeding as Estrich v. United
States, 3:16cv646 (W.D. N.C. 2016) and has been fully
conclusion of trial, a jury found defendant guilty on all
counts. Essentially, defendant and a co-defendant defrauded
the North Carolina Division of Medical Assistance, which
administers Medicaid, of hundreds of thousands of dollars.
The Indictment charged defendant with 19 counts related to
his health-care-fraud scheme, including conspiracy to commit
healthcare fraud, 18 U.S.C. §§ 1347, 1349;
health-care fraud, 18 U.S.C. §§ 2, 1347; making
false statements related to health care matters, 18 U.S.C.
§§ 2, 1035; aggravated identity theft, 18 U.S.C.
§§ 2, 1028A(a)(1); money laundering, 18 U.S.C.
§ 1957; and making a false statement related to a
health-care-fraud investigation, 18 U.S.C. § 1001(a)(2).
Indictment (#1) at 1-25.
Court sentenced defendant to a total term of imprisonment of
63 months and entered Judgment on December 22, 2014. Judgment
(#36). The Court of Appeals for the Fourth Circuit affirmed
defendant's conviction and sentence on December 9, 2015.
United States v. Estrich, 624 Fed.Appx. 99 (4th Cir.
2015). Defendant did not seek certiorari, making
such Judgment final. According to the Bureau of Prisons,
defendant has a projected release date of September 5, 2019.
defendant asks this Court to reconsider the sentence it
imposed in 2014, based on his progress and rehabilitation
while incarcerated. While the Court may correct clerical
error in a Judgment at any time. Rule 36, Fed.R.Crim. P.,
there is no provision in the Federal Rules of Criminal
Procedure which provides for reconsideration of a final
judgment. Reading the letter as broadly as possible,
defendant may be asking for reconsideration under Rule 60(b)
of the Federal Rules of Civil Procedure. A defendant may not,
however, challenge his criminal judgment using the Federal
Rules of Civil Procedure. United States v. Grapes,
2011 WL 195672, at *1 (4th Cir. Jan.21, 2011) (unpublished)
(“The Federal Rules of Civil Procedure do not provide a
vehicle by which [Defendant] may challenge his criminal
judgment.”) (citing United States v.
O'Keefe, 169 F.3d 281, 289 (5th Cir.1999));
United States v. Leake, 96 Fed.Appx. 873, 873 (4th
Cir.2004) (“[Defendant] cannot challenge an order in
his criminal case using the Federal Rules of Civil
Procedure....”). Even if the court were to consider the
request under Rule 60(b) Motion, it would be untimely as
defendant filed the motion more than two years after the
expiration of the time for filing a notice of direct appeal.
United States v. McKelver, 225 Fed.Appx. 185, 186
(4th Cir.2007) (affirming the dismissal of a Rule 60(b)
motion as untimely because the defendant had “submitted
his Rule 60(b) motion well beyond the applicable period of
time provided to notice an appeal of the judgment he sought
the district court reconsider”); Willis v. United
States, No. 3:08cv517, 2009 WL 3150304, at *1 (W.D. N.C.
Sept.30, 2009) (dismissing a Rule 60(b) motion as untimely
because it “was filed more than ten days after entry of
the judgment”). To the extent defendant seeks
reconsideration of the Judgment and the sentence of
imprisonment contained therein, such request is denied as a
matter of well settled law.
next asks this Court to consider the impact that a proposed
amendment to the United States Sentencing Guidelines
regarding “Acceptance of Responsibility” could
have on his sentence. The United States Sentencing Commission
has proposed an amendment to §3E1.1, Application Note 1
of the advisory United States Sentencing Guidelines regarding
a defendant's ability to challenge relevant conduct at
sentencing without losing the downward adjustment for
acceptance of responsibility. The Commission has submitted to
Congress the following proposal:
A defendant who falsely denies, or frivolously contests,
relevant conduct that the court determines to be true has
acted in a manner inconsistent with acceptance of
responsibility, but the fact that a defendant's challenge
is unsuccessful does not necessarily establish that it was
either a false denial or frivolous.
to the Sentencing Guidelines (April 30, 2018) at p. 70
(effective Nov. 1, 2018). The Court has considered this to be a
motion for relief under 18 U.S.C. § 3582(c)(2). This
motion is, however, premature as such amendment, while
adopted by the United States Commission, is presently before
Congress and will not become effective until November 1,
2018. Thus, such request will be denied without prejudice.
IS, THEREFORE, ORDERED that to the extent defendant
seeks reconsideration of the Judgment in this matter under
Rule 60(b), that request is DENIED with
prejudice as untimely. To the extent defendant seeks relief
under Section 3582 based on an Amendment to the United States
Sentencing Guidelines that will not be effective until
November 1, 2018, such request is DENIED