United States v. Monus

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 26, 2004
• Docket: 02-4102
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Monus No. 02-4102 ELECTRONIC CITATION: 2004 FED App. 0031P (6th Cir.) File Name: 04a0031p.06 ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: David L. Engler, Boardman, Ohio, Martin E. Yavorcik, Poland, Ohio, for Appellant. John D. Sammon, ASSISTANT UNITED STATES COURT OF APPEALS UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________

UNITED STATES OF AMERICA , X OPINION Plaintiff-Appellee, - _________________ - - No. 02-4102 SILER, Circuit Judge. After Michael I. Monus was v. - convicted of various financial crimes, this court upheld his > conviction but remanded for resentencing. Subsequently, , Monus moved for: (1) a new trial on the basis of newly- MICHAEL I. MONUS, - Defendant-Appellant. - discovered evidence, (2) a sentence reduction pursuant to 18 U.S.C. § 3582(c), and (3) a writ of coram nobis. The district N court determined that the motion for a new trial was untimely, Appeal from the United States District Court that the motion for sentence reduction was without merit for the Northern District of Ohio at Youngstown. because the new sentencing guideline at issue was substantive No. 93-00034—Peter C. Economus, District Judge. and not clarifying (and thus not retroactive), and that the coram nobis motion was inappropriate because Monus is still Argued: December 4, 2003 is federal custody. He appeals from the district court’s rulings on these three motions. We affirm. Decided and Filed: January 26, 2004 BACKGROUND Before: SILER and GILMAN, Circuit Judges; BUNNING, District Judge.* In 1995 Monus was convicted on all counts of a 109-count indictment that charged him with an assortment of financial _________________ crimes, including bank, wire, and mail fraud. On appeal, this court affirmed his conviction but vacated his sentence and COUNSEL remanded for resentencing for the district court to explain how it calculated the amount of loss and to respond to ARGUED: David L. Engler, Boardman, Ohio, for Appellant. Monus’s objections to the Presentence Report. United States John D. Sammon, ASSISTANT UNITED STATES v. Monus, 128 F.3d 376 (6th Cir. 1997). This court rendered its decision on October 21,1997, and the mandate affirming Monus’s conviction issued on October 24, 1997. * The Honorable David L. Bunning, United States District Judge for the Eastern District of Kentucky, sitting by designation.

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On remand, the parties struck a deal. In consideration for guideline revision was substantive and not clarifying is also stipulating to a lower loss figure ($5-10 million, as opposed reviewed de novo. United States v. Hicks, 4 F.3d 1358, 1360 to the $80 million figure on which the previous sentence was (6th Cir. 1993). Likewise, “[a] district court’s determination based) that had the effect of reducing Monus’s net “loss” of legal issues in coram nobis proceedings is reviewed de enhancement four levels (from 18 to 14), Monus agreed to novo.” United States v. Johnson, 237 F.3d 751, 754 (6th Cir. waive all rights to appeal, including all rights under 28 U.S.C. 2001). § 2255. The order resentencing Monus in accordance with these terms was entered on March 1, 1999. DISCUSSION

On March 3, 2000, Monus filed two motions: a motion to Motion for a New Trial correct a clerical error and a motion for a reduction of sentence under Rule 35(b). The district court granted the In considering the timeliness of Monus’s motion for a new motion to correct the clerical error but denied the Rule 35(b) trial, the following dates are relevant: (1) May 25, 1995, the motion. Monus again appealed. While the case was before date on which the jury rendered its guilty verdict; this court on Monus’s appeal of the district court’s denial of (2) October 24, 1997, the date on which the mandate issued his Rule 35(b) motion, however, on March 12, 2001, Monus from this court affirming Monus’s conviction; (3) March 1, filed a motion for a new trial based on newly-discovered 1999, the date on which the amended judgment was entered evidence. The district court stayed consideration of the following Monus’s resentencing; and (4) March 12, 2001, the motion pending a ruling by this court on Monus’s appeal of date on which Monus filed his motion for a new trial. his Rule 35(b) motion. As to this issue, a preliminary question arises: which This court affirmed the district court’s denial of Monus’s version of Rule 33 should apply, the pre-1998 version, which Rule 35(b) motion on April 12, 2002. Monus then filed the requires a motion for a new trial based on newly discovered other two motions that are the subject of this appeal: the evidence to be made “within two years after final judgment,” motion for a sentence reduction pursuant to 18 U.S.C. or the post-1998 version, which requires that the motion be § 3582(c) and the motion for a writ of coram nobis. The made “within 3 years after the verdict or finding of guilty”?1 district court considered the three pending motions together (Emphasis added). If the post-1998 version applies, even and denied them all. Monus appealed. Monus concedes that his motion was untimely.

STANDARD OF REVIEW “At the time the amendments to Rule 33 were promulgated, the Supreme Court specified that the amendments would “Ordinarily, [an appellate court] reviews the denial of a apply to all pending criminal cases ‘insofar as just and motion for new trial on the basis of newly discovered practicable.’” United States v. Ristovski, 312 F.3d 206, 212 evidence for abuse of discretion. [This case,] however, presents [a] question[] of law . . . . Accordingly, [the court] conducts a de novo review of the district court’s conclusion[] 1 The Rule was further amended effective December 1, 2002. The of law” that the motion was not timely filed. United States v. Rule did not change in substance, however, and the same “3 years after Pelullo, 14 F.3d 881, 886 (3d Cir. 1999) (citation omitted). the verdict or finding of guilty” time-limitation still applies. The relevant The district court’s determination that the relevant sentencing language in the post-2002 Rule 3 3 appears in subsection (b)(1 ). (The pre- 200 2 rule w as not divided into su bsections.). No. 02-4102 United States v. Monus 5 6 United States v. Monus No. 02-4102

(6th Cir. 2002) (citing Supreme Court Order 98-17, April 24, Motion for Sentence Reduction Under 18 U.S.C. § 3582(c) 1998). Though we have never addressed this question directly, this court has strongly suggested that a case such as Monus’s motion for sentence reduction under 18 U.S.C. Monus’s - a situation where “if amended Rule 33 were § 3582(c)2 relies on the November 2001 amendments to the applied . . . , [the defendant’s] three-year period for filing a guidelines, which included an overhaul of the financial crimes motion for new trial . . . would have expired before the guidelines. In 1995, when Monus was sentenced, he received amendments to Rule 33 even went into effect” - would be one a four-level enhancement because his offense “affected a where applying the amended rule would be unjust and financial institution and [he] derived more than $1,000,000 in impracticable. Id. We therefore decline to apply the amended gross receipts from the offense.” USSG § 2B1.1(b)(6)(B) rule. (1995). This language was altered as part of the November 2001 amendments, however. The post-2001 language, found Even under the old Rule 33, however, the overwhelming in § 2B1.1(b)(12)(A), provides that, “[i]f the defendant weight of authority suggests that Monus’s motion was derived more than $1,000,000 in gross receipts from one or untimely still. This is because those circuits that have more financial institutions as a result of the offense, increase construed “final judgment” in this context - the Sixth not yet by 2 levels.” USSG § 2B1.1(b)(12)(A) (2002).3 among them - have held that when a defendant’s conviction is affirmed but sentence vacated, the two-year time limit runs While Monus concedes that the 2001 amendments “as a from the date of the affirmance of the conviction rather than whole” are substantive in nature, he advances what he calls a from the date of resentencing. See, e.g., United States v. “specific argument” that the 2001 amendment clarified what White, 557 F.2d 1249 (8th Cir. 1977); Howell v. United it means to “affect” a financial institution such that the district States, 172 F.2d 213, 215-16 (4th Cir. 1949); see also United court erred in denying retroactive application. Of course, States v. Erwin, 277 F.3d 727, 733 (5th Cir. 2001) (dating clarifications of the guidelines have retroactive application “final judgment” from time of void judgment); United States while substantive changes do not. United States v. Williams, v. Lussier, 219 F.3d 217, 219-20 (2d Cir. 2000) (same). Thus, 940 F.2d 176 (6th Cir. 1991). He places particular reliance on construing “final judgment” this way, the two-year time period for Monus would have begun to run on October 24, 1997, the date on which this court issued its mandate 2 [I]n the case of a defendant who has been sentenc ed to affirming his conviction, and far more than two years prior to a term of imprisonment based on a sentencing range Monus’s March 12, 2001 motion for new trial. that has subsequently been lowered by the Sentencing Comm ission . . . , upon motion of the defendant or the Finally, Monus argues that because the new evidence at Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of issue here is alleged to be Brady evidence, the time-limitation imprisonm ent, after considering the factors set forth in for filing his motion should be relaxed. See generally Brady section 3553(a). v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the 18 U .S.C. § 358 2(c)(2). suppression by the prosecution of evidence favorable to an 3 accused upon request violates due process”). This line of After the 1995 sentencing of Monus but before the 2001 argument was not advanced below, however, and thus this amend ments, the “affect[ing] a financial institution” section was moved court need not consider it now. See Saylor v. United States, to § 2F1.1(b)(8)(B). (The language stayed the same.). The 2001 amendm ents eliminated § 2F1.1(b)(8)(B) and moved the revised section 315 F.3d 664, 669 (6th Cir. 2003). to its present location, § 2B 1.1(b)(1 2)(A ). No. 02-4102 United States v. Monus 7 8 United States v. Monus No. 02-4102

the explanatory note to the 2001 amendment, which in part Motion for Writ of Error Coram Nobis provides that “A prisoner in custody is barred from seeking a writ of [t]he enhancement also was modified to address issues error coram nobis.” United States v. Johnson, 237 F.3d 751, about what it means to “affect” a financial institution and 755 (6th Cir. 2001). This is the case even if, as here, § 2255 how to apply the enhancement to a case in which there relief is no longer available. Id. Because Monus remains in are more than one financial institution involved. custody, he is barred from seeking the writ.4 Accordingly, the revised provision focuses on whether the defendants derived more than $1,000,000 in gross AFFIRMED. receipts from one or more financial institutions as a result of the offense. USSG App. C, Amendment 617, at 179. Given the specificity of the question presented, it is no surprise that this court has not yet had occasion to pass on this issue. However, the Seventh Circuit did in United States v. Hartz, 296 F.3d 595 (7th Cir. 2002). It squarely rejected the very argument advanced by Monus in the instant appeal. It looked to three factors in determining if USSG § 2B1.1(b)(12)(A) is properly considered a clarification or a substantive change: “(1) how the Sentencing Commission characterized the amendment; (2) whether the amendment changes the language of the guideline itself or changes only the commentary for the guideline; and (3) whether the amendment resolves an ambiguity in the original wording of the guideline.” Id. at 599 (citations omitted). Noting the absence of any indication that the Commission intended the amendment to be clarifying, the fact that the amendment changed the plain language of the guideline itself, and the 4 Mo nus styled his mo tion as an “Application for Relief from unambiguity of the original version, it found the amendment Judgment or M otion for Sentence Reduction as if Under R ule 35 (b) or in substantive. Id. the Nature of a W rit of Coram Nob is.” The district court did not address the Rule 3 5(b) part o f this motio n, in all likelihoo d because it had already The opinion in Hartz is well-reasoned and persuasive. We ruled on the issue in an order dated March 30, 2000. In any event, such therefore adopt its reasoning. a motion is wholly without merit because, as the district court explained, the plain language of the rule makes clear that only the government can bring a Rule 35 (b) “substantial assistance” m otion. The government’s decision is not to be questioned unless the defendant can make a substantial threshold showing of an unconstitutional motive for refusing to make the mo tion, see United States v. Bagno li, 7 F.3d 90, 92 (6th Cir. 199 3), and no such showing was made here.