United States v. Walter Brown, Jr., 4 and I.O.P. 10.6 June 22

to pursue the issue despite his requests. In support of his argument, Banks noted that he was recently declared incompetent to stand trial in a separate criminal case. By order entered March 1, 2017, the District Court denied relief. Banks timely appealed.¹

We will summarily affirm the District Court‘s order because this appeal fails to present a substantial question. See 3d Cir. I.O.P. 10.6. First, the District Court did not err in denying the petition for a writ of error coram nobis. A writ of error coram nobis is available to challenge an invalid conviction that has continuing consequences, when the petitioner has served his sentence and is no longer “in custody” for purposes of a motion to vacate under 28 U.S.C. § 2255. United States v. Stoneman, 870 F.2d 102, 105-06 (3d Cir. 1989). Use of the writ is appropriate to correct errors for which there was no remedy available at the time of trial, and where sound reasons exist for failing to seek relief earlier. Id. In this case, Banks has failed to meet this requirement; although Banks asserted that he “only just learned that he has delusional disorder,” he contradictorily states that he was concerned enough about his competency at the time of his trial to raise the issue with his attorney. As the District Court explained, the fact that Banks was declared incompetent to stand trial in 2016 has no bearing on whether he was incompetent in 2004. Consequently, he has not demonstrated that he had “‘sound reasons’ ... for failing to seek relief earlier.” Mendoza v. United States, 690 F.3d 157, 159 (3d Cir. 2012) (quoting Stoneman, 870 F.2d at 106).

The District Court also correctly concluded that there was no basis for a writ of audita querela to issue. Like coram nobis, a common law writ like audita querela can be used to the extent that it “fill[s] in the gaps” in post-conviction remedies. United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001). Banks‘s present claims can be raised via 28 U.S.C. § 2255; his lack of success in a previous § 2255 motion does not allow him to use the writ of audita querela to circumvent AEDPA‘s gatekeeping requirements. See Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009); United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005).

Finally, under these circumstances, we see no abuse of discretion in the District Court‘s decision to deny Banks‘s request for an evidentiary hearing. Accordingly, because this appeal does not present a substantial question, we will summarily affirm the District Court‘s order. See LAR 27.4; I.O.P. 10.6.

Michael S. Lowe, Esq., Office of United States Attorney, Philadelphia, PA, for Plaintiff-Appellee

Walter Alston Brown, Jr., Pro Se

Before: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges

OPINION *

PER CURIAM

Walter Alston Brown, Jr., a federal prisoner proceeding pro se, appeals from the District Court‘s denial of his motion for a sentence reduction filed under 18 U.S.C. § 3582(c)(2). We will summarily affirm the District Court‘s judgment.

Brown was convicted by a jury of one count of conspiracy to commit loan fraud and wire fraud, in violation of 18 U.S.C. § 371, one count of making a false statement in connection with an FHA loan, in violation of 18 U.S.C. §§ 1010 and 2; five counts of loan fraud, in violation of 18 U.S.C. § 1014; and two counts of tax evasion, in violation of 26 U.S.C. § 7201. He was sentenced to 180 months of imprisonment and ordered to pay $7,213,123 in restitution and an additional $31,903 to the IRS. We affirmed Brown‘s conviction. United States v. Brown, 661 Fed.Appx. 190 (3d Cir. 2016).

On December 27, 2016, Brown filed a motion pursuant to 18 U.S.C. § 3582(c)(2) for a reduction of sentence. Brown relied on Sentencing Guideline Amendment 791, which amended several monetary tables in Chapter Two of the guidelines to account for inflation, Amendment 792, which, inter alia, amended the “sophisticated means” offense characteristic of Section 2B1.1(b)(10)(c), and Amendment 794, which amended the “mitigating role” reduction in Section 3B1.2. U.S.S.G. app. C. supp., amends. 791, 792, 794. The District Court denied the motion. Brown appealed. Before us now is the appellee‘s motion for summary affirmance.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We generally review a district court‘s denial of a motion for reduction of sentence under § 3582(c)(2) for abuse of discretion. United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). When a district court concludes that a defendant is not eligible for relief under § 3582(c)(2), however, our review is plenary. United States v. Weatherspoon, 696 F.3d 416, 421 (3d Cir. 2012).

A district court generally cannot modify a term of imprisonment once it has been imposed, but a defendant may be eligible for a reduction of sentence pursuant to § 3582(c) if: (1) the sentence was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” and (2) “a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2); United States v. Flemming, 723 F.3d 407, 410 (3d Cir. 2013). The relevant policy statement permits a reduction of sentence under § 3582(c)(2) only when the amendment that reduces the applicable guidelines range is among those listed in U.S.S.G. § 1B1.10(d) (formerly § 1B1.10(c)). See United States v. Wise, 515 F.3d 207, 221 & n.11 (3d Cir. 2008).

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

Brown is not eligible for a sentence reduction, as the Sentencing Commission has not listed Amendments 791, 792, or 794 in U.S.S.G. § 1B1.10(d) as amendments that apply retroactively.¹ See U.S.S.G. § 1B1.10(d). Accordingly, the District Court did not err in denying Brown‘s motion.

Brown‘s arguments on appeal do not alter this result. Brown argues that he should have been given the benefit of the amendments, as they went into effect while his direct appeal was pending, but he did not request a remand during his direct appeal, and he cannot now obtain a reduction of sentence under § 3582(c), as we have explained above. To the extent Brown attempts to raise an ex post facto claim or to assert that counsel was ineffective for failing to seek a remand, he has not provided a basis for a sentence reduction; such claims would instead be properly brought in a 28 U.S.C. § 2255 motion.

For the foregoing reasons, we will grant the motion for summary affirmance and affirm the District Court‘s order denying Brown‘s motion for a reduction of sentence.

Notes

1

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. In his brief, Brown also cites Amendment 790, but he did not present this basis for reduction to the District Court. Even if this argument were not waived, Amendment 790 also has not been made retroactive.

Case Details

Case Name: United States v. Walter Brown, Jr.

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 8, 2017

Citations: 4 and I.O.P. 10.6 June 22; 694 F. App'x 62; 17-1295

Docket Number: 17-1295

Court Abbreviation: 3d Cir.