United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on Defendant's Motion to
Reconsider Sentence (Doc. No. 43). The United States filed a
response, (Doc. No. 44), to Defendant's motion, and this
matter is now ripe for review. For the reasons that follow,
the Court DENIES Defendant's Motion to Reconsider
Sentence (Doc. No. 43).
February 3, 2015, Defendant was sentenced to forty-seven
months of imprisonment followed by a three-year term of
supervised release for violating 18 U.S.C. § 922(g)(1).
(Doc. No. 44, p. 1). Defendant's supervision commenced on
March 27, 2017, and on April 28, 2017, Defendant committed a
new law violation. (Doc. No. 44, p. 1). Defendant pled guilty
to the state felony of Flee/Elude Arrest with Moving Vehicle
and was sentenced to fifty-eight to eighty-two months of
imprisonment followed by a term of supervision. (Doc. No. 44,
p. 1). This Court revoked Defendant's supervised release
because he admitted to committing a state felony and
subsequently sentenced Defendant to the statutory maximum of
twenty-four months of incarceration as agreed to by the
parties. (Doc. No. 43, p. 2). Because of Defendant's
criminal history category of VI and the circumstances of the
offense, the Court imposed a term of twelve months Supervised
Release following Defendant's incarceration. (Doc. No.
44, p. 2).
Motion to Reconsider Sentence is based solely on the
assertion that the “imposition of an additional term of
supervised release, after the imposition of the 24 month
maximum sentence, violates Section 650.50 of the
Administrative Office's Guide to Judiciary Policy.”
(Doc. No. 43, p. 2). Defendant claims the imposition of an
additional term of supervised release is only permitted
“when the prison time imposed for the current violation
. . . is less than the maximum prison term set forth at 18
U.S.C. 3583(e)(3)” according to Volume 8E, § 650.5
of the Guide to Judiciary Policy, and therefore,
because Defendant received the statutory maximum prison term,
any additional sentence was inappropriate. (Doc. No. 43, pp.
2 - 3).
argument fails for two reasons. First, the stated purpose of
the Guide to Judiciary Policy
(“Guide”) Volume 8E found in § 110
is to “provide guidance to U.S. probation
offices on the supervision of persons who are
conditionally released to the community by the U.S. district
courts . . . .” (emphasis added). Section 120 of Volume
8E further delineates the scope of the Guide by
stating “[t]he guidance in this part applies to
employees of the U.S. probation and pretrial services system
in U.S. district courts in performance of their
duties.” This Court is neither a “probation
office” nor a “pretrial services system” as
outlined in Volume 8E, Section 120 of the Guide.
Furthermore, the Guide has been characterized as
“non-binding guidance” on federal district court
judges. Leong v. Goldman Sachs Group Inc., 2016 WL
1736164, at *5 (S.D.N.Y. May 2, 2016). Therefore, this Court
finds that the guidance in Volume 8E of the Guide is
not binding on this Court's decisions.
Defendant mischaracterizes Volume 8E, Subsection (d) of
§ 650.50 of the Guide by stating in his motion
that this section mandates that “Judges
‘should not recommend a new term of supervised release
. . .'” (Doc. No. 43, p. 2) (quoting Guide to
Judiciary Policy, § 650.50, Subsection (d))
(emphasis added). Defendant conveniently omits the fact that
Volume 8E, Subsection (d) of § 650.50 of the
Guide clearly states that “officers
should not generally recommend a new term of supervised
release . . .” so as to imply that judges are
bound by the Guide. (Doc. No. 43-1, p. 1) (emphasis
added). Because the introductory portion of Volume 8E,
Section 110 of the Guide states the section applies
to probation officers, this Court is unpersuaded
that “officer” as used in the subsequent
§ 650.50, Subsection (d) refers to judges, as
Defendant implies. However, assuming arguendo that
§ 650.50 Subsection (d) does apply to judges, this
subsection does not mandate an absolute proscription on the
imposition of additional supervised release but rather
advises that “officers should generally not
recommend” an additional term of supervised release.
This Court does not recommend sentences, it
imposes sentences. Therefore, Defendant's
argument is without merit.
THEREFORE ordered that Defendant's Motion to Reconsider