UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Crim. Action No. 13-231-01 (EGS) HERMAN CURTIS MALONE,
Defendant.
MEMORANDUM OPINION AND ORDER
I. Introduction
In 2014, Herman Curtis Malone (“Mr. Malone” or “Defendant”)
was sentenced to serve 100 months in prison, followed by 60
months of supervised release. See Judgment, ECF No. 154 at 2-3. 1
He now proceeds pro se and seeks early termination of his term
of supervised release. See Def.’s Mot., ECF No. 235.
Pending before the Court is Mr. Malone’s Motion for
Reconsideration of its Decision Denying His Motion for Early
Termination of Supervised Release, ECF No. 235. Upon careful
consideration of the motion, opposition, and reply thereto; the
applicable law; and the entire record herein, the Court DENIES
Mr. Malone’s motion.
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. II. Background
A. Factual
On March 12, 2014, Mr. Malone pleaded guilty to one count
of Conspiracy to Distribute and Possess with Intent to
Distribute 500 grams or more of Cocaine and 100 grams or more of
Heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(B). See Plea Agreement, ECF No. 97 at 1. Thereafter,
on May 28, 2014, Judge Ellen Segal Huvelle sentenced Mr. Malone
to 100 months in prison and 60 months of supervision. See
Judgment, ECF No. 154 at 2-3. Mr. Malone completed his term of
imprisonment in December 2020, and his term of supervised
release is projected to conclude in December 2025. See Gov’t’s
Resp. Opp’n Def.’s Mot. Early Termination Supervised Release
(“Gov’t’s Opp’n”), ECF No. 237 at 2.
B. Procedural
On December 21, 2022, Mr. Malone filed this Motion for
Termination of Supervised Release. See Def.’s Mot., ECF No. 235.
The Government filed its brief in opposition on March 10, 2023,
see Gov’t’s Opp’n, ECF No. 237; and Mr. Malone submitted his
reply brief on April 5, 2023, see Def.’s Reply, ECF No. 238. The
motion is ripe and ready for the Court’s adjudication.
2 III. Legal Standard
“Unlike the Federal Rules of Civil Procedure, neither the
Federal Rules of Criminal Procedure nor the Local Criminal Rules
for this district provide for motions for reconsideration.”
United States v. Bagcho, 227 F. Supp. 3d 28, 31 (D.D.C. 2017)
(citing United States v. Hong Vo, 978 F. Supp. 2d 41, 47 (D.D.C.
2013); United States v. Cabrera, 699 F. Supp. 2d 35, 40 (D.D.C.
2010)). Nevertheless, “the Supreme Court has recognized, in
dicta, the utility of such motions.” United States v. Ferguson,
574 F. Supp. 2d 111, 113 (D.D.C. 2008) (citing United States v.
Dieter, 429 U.S. 6 (1976); United States v. Healy, 376 U.S. 75,
80 (1964)). Accordingly, “judges in this district have assumed,
without deciding, that they may consider motions for
reconsideration in criminal cases.” Bagcho, 227 F. Supp. 3d 28,
31 (citing United States v. Hong Vo, 978 F. Supp. 2d 41, 47
(D.D.C. 2013); United States v. Cabrera, 699 F. Supp. 2d 35, 40
(D.D.C. 2010); United States v. Cooper, 947 F. Supp. 2d 108, 109
(D.D.C. 2013)).
“Judges in this district have applied the standard
contained in Rule 59(e) of the Federal Rules of Civil Procedure
to motions for reconsideration of final orders in criminal
cases.” Hong Vo, 978 F. Supp. 2d at 47 (citing Cabrera, 699 F.
Supp. 2d at 40; United States v. Libby, 429 F. Supp. 2d 46, 47
(D.D.C. 2006)). Nevertheless, motions for reconsideration “are
3 disfavored” and “granted only when the moving party establishes
extraordinary circumstances.” Niedermeier v. Off. of Baucus, 153
F. Supp. 2d 23, 28 (D.D.C. 2001) (citing Anyanwutaku v. Moore,
151 F.3d 1053, 1057 (D.C. Cir. 1998)). To prevail, the movant
“must demonstrate that (1) there has been an intervening change
in controlling law; (2) there is new evidence; or (3) there is a
need to correct clear error or prevent manifest injustice.”
United States v. Ferguson, 574 F. Supp. 2d 111, 113 (citing
Libby, 429 F. Supp. 2d at 47); see also Firestone v. Firestone,
76 F.3d 1205, 1208 (D.C. Cir. 1996). The movant “may not use
Rule 59(e) either to repeat unsuccessful arguments or to assert
new but previously available arguments.” Smith v. Lynch, 115 F.
Supp. 3d 5, 11 (D.D.C. 2015) (citing Exxon Shipping Co. v.
Baker, 554 U.S. 471, 485 n.5 (2008)).
IV. Analysis
Mr. Malone moves the Court to reconsider its denial of his
Motion for Early Termination of Supervised Release. See Def.’s
Mot., ECF No. 235 at 1-2. For the reasons that follow, the Court
DENIES this motion.
Pursuant to 21 U.S.C. § 841(b)(1)(B), a court must impose a
minimum of four years of supervised release for a conviction
involving 100 grams or more of heroin and 500 grams or more of
cocaine. See 21 U.S.C. § 841(b)(1)(B). A defendant may seek
relief under 18 U.S.C. § 3583(e)(1), which authorizes a court to
4 terminate a mandatory term of supervised release “at any time
after the expiration of one year of supervised release” after
considering: whether the factors set forth in 18 U.S.C. §
3553(a) are met and whether release “is warranted by the conduct
of the defendant released and the interest of justice.” United
States v. Harris, 258 F. Supp. 3d 137, 142 (D.D.C. 2017)
(internal quotation marks omitted) (quoting 18 U.S.C. §
3583(e)(1)). Those 18 U.S.C.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Crim. Action No. 13-231-01 (EGS) HERMAN CURTIS MALONE,
Defendant.
MEMORANDUM OPINION AND ORDER
I. Introduction
In 2014, Herman Curtis Malone (“Mr. Malone” or “Defendant”)
was sentenced to serve 100 months in prison, followed by 60
months of supervised release. See Judgment, ECF No. 154 at 2-3. 1
He now proceeds pro se and seeks early termination of his term
of supervised release. See Def.’s Mot., ECF No. 235.
Pending before the Court is Mr. Malone’s Motion for
Reconsideration of its Decision Denying His Motion for Early
Termination of Supervised Release, ECF No. 235. Upon careful
consideration of the motion, opposition, and reply thereto; the
applicable law; and the entire record herein, the Court DENIES
Mr. Malone’s motion.
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. II. Background
A. Factual
On March 12, 2014, Mr. Malone pleaded guilty to one count
of Conspiracy to Distribute and Possess with Intent to
Distribute 500 grams or more of Cocaine and 100 grams or more of
Heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(B). See Plea Agreement, ECF No. 97 at 1. Thereafter,
on May 28, 2014, Judge Ellen Segal Huvelle sentenced Mr. Malone
to 100 months in prison and 60 months of supervision. See
Judgment, ECF No. 154 at 2-3. Mr. Malone completed his term of
imprisonment in December 2020, and his term of supervised
release is projected to conclude in December 2025. See Gov’t’s
Resp. Opp’n Def.’s Mot. Early Termination Supervised Release
(“Gov’t’s Opp’n”), ECF No. 237 at 2.
B. Procedural
On December 21, 2022, Mr. Malone filed this Motion for
Termination of Supervised Release. See Def.’s Mot., ECF No. 235.
The Government filed its brief in opposition on March 10, 2023,
see Gov’t’s Opp’n, ECF No. 237; and Mr. Malone submitted his
reply brief on April 5, 2023, see Def.’s Reply, ECF No. 238. The
motion is ripe and ready for the Court’s adjudication.
2 III. Legal Standard
“Unlike the Federal Rules of Civil Procedure, neither the
Federal Rules of Criminal Procedure nor the Local Criminal Rules
for this district provide for motions for reconsideration.”
United States v. Bagcho, 227 F. Supp. 3d 28, 31 (D.D.C. 2017)
(citing United States v. Hong Vo, 978 F. Supp. 2d 41, 47 (D.D.C.
2013); United States v. Cabrera, 699 F. Supp. 2d 35, 40 (D.D.C.
2010)). Nevertheless, “the Supreme Court has recognized, in
dicta, the utility of such motions.” United States v. Ferguson,
574 F. Supp. 2d 111, 113 (D.D.C. 2008) (citing United States v.
Dieter, 429 U.S. 6 (1976); United States v. Healy, 376 U.S. 75,
80 (1964)). Accordingly, “judges in this district have assumed,
without deciding, that they may consider motions for
reconsideration in criminal cases.” Bagcho, 227 F. Supp. 3d 28,
31 (citing United States v. Hong Vo, 978 F. Supp. 2d 41, 47
(D.D.C. 2013); United States v. Cabrera, 699 F. Supp. 2d 35, 40
(D.D.C. 2010); United States v. Cooper, 947 F. Supp. 2d 108, 109
(D.D.C. 2013)).
“Judges in this district have applied the standard
contained in Rule 59(e) of the Federal Rules of Civil Procedure
to motions for reconsideration of final orders in criminal
cases.” Hong Vo, 978 F. Supp. 2d at 47 (citing Cabrera, 699 F.
Supp. 2d at 40; United States v. Libby, 429 F. Supp. 2d 46, 47
(D.D.C. 2006)). Nevertheless, motions for reconsideration “are
3 disfavored” and “granted only when the moving party establishes
extraordinary circumstances.” Niedermeier v. Off. of Baucus, 153
F. Supp. 2d 23, 28 (D.D.C. 2001) (citing Anyanwutaku v. Moore,
151 F.3d 1053, 1057 (D.C. Cir. 1998)). To prevail, the movant
“must demonstrate that (1) there has been an intervening change
in controlling law; (2) there is new evidence; or (3) there is a
need to correct clear error or prevent manifest injustice.”
United States v. Ferguson, 574 F. Supp. 2d 111, 113 (citing
Libby, 429 F. Supp. 2d at 47); see also Firestone v. Firestone,
76 F.3d 1205, 1208 (D.C. Cir. 1996). The movant “may not use
Rule 59(e) either to repeat unsuccessful arguments or to assert
new but previously available arguments.” Smith v. Lynch, 115 F.
Supp. 3d 5, 11 (D.D.C. 2015) (citing Exxon Shipping Co. v.
Baker, 554 U.S. 471, 485 n.5 (2008)).
IV. Analysis
Mr. Malone moves the Court to reconsider its denial of his
Motion for Early Termination of Supervised Release. See Def.’s
Mot., ECF No. 235 at 1-2. For the reasons that follow, the Court
DENIES this motion.
Pursuant to 21 U.S.C. § 841(b)(1)(B), a court must impose a
minimum of four years of supervised release for a conviction
involving 100 grams or more of heroin and 500 grams or more of
cocaine. See 21 U.S.C. § 841(b)(1)(B). A defendant may seek
relief under 18 U.S.C. § 3583(e)(1), which authorizes a court to
4 terminate a mandatory term of supervised release “at any time
after the expiration of one year of supervised release” after
considering: whether the factors set forth in 18 U.S.C. §
3553(a) are met and whether release “is warranted by the conduct
of the defendant released and the interest of justice.” United
States v. Harris, 258 F. Supp. 3d 137, 142 (D.D.C. 2017)
(internal quotation marks omitted) (quoting 18 U.S.C. §
3583(e)(1)). Those 18 U.S.C. § 3553(a) factors include: “(1) the
nature and circumstances of the offense and defendant’s history
and characteristics; (2) deterrence of criminal conduct; (3)
protection of the public from further crimes of the defendant;
(4) the need to provide the defendant with educational or
vocational training, medical care, or other correctional
treatment; (5) the applicable sentencing guideline range for the
offense and pertinent policy statements issued by the U.S.
Sentencing Commission; (6) the need to avoid unwarranted
sentencing disparities; and (7) the need to provide restitution
to any victims of the offense.” United States v. Kaplan, No. CR
14-226 (BAH), 2021 WL 4521041, at *2 (D.D.C. Oct. 4, 2021)
(citing 18 U.S.C. § 3583(e)).
Mr. Malone asserts that the Court “reach[ed] an incorrect
conclusion as a matter of law” regarding his eligibility for
early termination of supervised release. Def.’s Mot., ECF No.
235 at 1. He argues that recent caselaw confirms that the Court
5 has discretion to modify a statutorily mandated term of
supervised release. Id. (citing Harris, 258 F. Supp. 3d at 142-
43; United States v. King, No. 03-cr-249, 2019 WL 415818, at *4
(D.D.C. Feb. 1, 2019); United States v. Wesley, 311 F. Supp. 3d
77, 79 n.1 (D.D.C. 2018)). He further argues that he did not
need to show any “extraordinary or unusual conduct” during
supervised release and that he satisfies all the criteria for
early termination. Id. at 2 (citing Harris, 258 F. Supp. 3d at
148-50).
The Government opposes Mr. Malone’s motion. See Gov’t’s
Opp’n, No. 237. Citing Harris, the Government contends that Mr.
Malone’s “burden in moving for early termination of supervised
release is high” to avoid the filing of repeated motions asking
the Court to reassess the Section 3553(a) factors. Id. at 2
(citing Harris, 258 F. Supp. 3d at 149). The Government argues
that Mr. Malone has not met his burden because “the only 3553(a)
factor presented is an assertion, absent any documentation or
supporting explanation, that supervision unduly delays his
requests for ‘approved domestic travel’ in connection with his
profession.” Id. at 3.
In his reply briefing, Mr. Malone asserts that he “has far
exceeded simply meeting” the Section 3553(a) factors. Def.’s
Reply, ECF No. 238 at 3. Without citing any of those factors, he
states that: his community welcomed him back during supervised
6 release; he has performed a substantial portion of his required
community service hours; he has mentored youth in the
Washington, D.C. area; he has spoken to basketball teams at
various colleges about his experience; and he co-founded a
company, CampusVR. See id. He emphasizes that he seeks early
termination “main[ly]” to travel to make presentations to
prospective clients for CampusVR. Id.
The Court first clarifies for Mr. Malone its earlier order
denying his motion for early termination of supervised release.
There, the Court held that Mr. Malone “is ineligible for a . . .
reduction of his term of supervised release” because “he ha[d]
not begun his term of supervised release.” Minute Order (Nov.
13, 2020) (citing Probation Mem., ECF No. 232 at 2); see also 18
U.S.C. § 3583(e)(1). Because Mr. Malone did not meet the
necessary condition for early termination pursuant to 18 U.S.C.
§ 3583(e)(1), the Court concludes that it correctly denied Mr.
Malone’s motion.
The Court further concludes that Mr. Malone is still
ineligible for early termination of supervised release. Contrary
to the Government’s assertion, see Gov’t’s Opp’n, ECF No. 237 at
2; Section 3583(e)(1) does not present an insurmountable burden
to early termination. See Harris, 258 F. Supp. 3d at 150
(“Indeed, § 3583(e)(1) invites flexible reexamination of the
continued need for supervised release ‘at any time’ after one
7 year of supervision has lapsed.”). However, Section 3583(e)(1)
still requires consideration of the Section 3553(a) factors. See
18 U.S.C. § 3583(e)(1). Mr. Malone does not explain how he
satisfies any of those factors in his briefing. See generally
Def.’s Mot., ECF No. 235; Def.’s Reply, ECF No. 238.
Accordingly, the Court concludes that early termination of
supervised release is not warranted and DENIES Mr. Malone’s
motion. To the extent Mr. Malone seeks to travel, he can file an
appropriate motion with the Court.
V. Conclusion and Order
For the reasons set forth above, it is hereby
ORDERED that Mr. Malone’s Motion for Reconsideration of its
Decision Denying His Motion for Early Termination of Supervised
Release, ECF No. 235, is DENIED.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge September 8, 2023