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United States v. Filice

United States District Court, E.D. Kentucky, Northern Division, Covington

May 22, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
ANTHONY FILICE DEFENDANT

          MEMORANDUM OPINION AND ORDER

          DAVID L. BUNNING UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Anthony Filice's Motion to Clarify the Court's sentencing order and absolve Defendant of his joint and several liability for a money judgment in the amount of $1, 825, 510. (Doc. # 1549). For the reasons below, Defendant's Motion will be denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On April 11, 2013, a grand jury returned a superseding indictment against Defendant and thirty-eight others for conspiracy to distribute oxycodone. (Doc. # 364). The indictment included a forfeiture allegation of real property, currency, and a money judgment of $1, 825, 510, which represented the “gross proceeds in aggregate obtained by the defendants” from their alleged criminal violations, for which “the Defendants are jointly and severally liable.” Id. On July 18, 2013, pursuant to a written plea agreement, Defendant pled guilty to the criminal charge against him. (Docs. # 794 and 795). The plea agreement specified that Defendant conspired to knowingly and intentionally distribute oxycodone, and that he knowingly and voluntarily joined in the conspiracy. (Doc. # 795). Defendant also agreed that he would “forfeit to the United States all interest in the property listed in the forfeiture allegation of the Indictment and [would] execute any documents necessary for this forfeiture.” Id. at 4.

         Following the United States' notice of filing, the Court entered a preliminary judgment of forfeiture against the majority of defendants, including Defendant. (Doc. # 855). At sentencing, the Court adopted and accepted the findings contained in the Pre-sentences Investigation Report, including the guideline calculations that had been prepared by the United States Probation Office. (Doc. # 1072). The Judgment reflects Defendant's sentence of imprisonment for 115 months, followed by 10 years of supervised release, imposed on December 19, 2013. (Doc. # 1073). Defendant was assessed $100, with fines and community restitution waived. Id. at 5. In addition, Defendant was ordered to forfeit his interest in “[a]ll items listed in the forfeiture allegation of the superseding indictment.” Id. at 6. Defendant did not file a direct appeal.

         Almost three-and-one-half years later, Defendant filed the instant Motion, asking the Court to clarify that that he is not jointly and severally liable for the forfeiture money judgment amount of $1, 825, 510, and to absolve Defendant of any responsibility for the money judgment. (Doc. # 1549). Following a response by the United States (Doc. # 1553), Defendant replied. (Doc. # 1554). In his reply, Defendant referred to the recent United States Supreme Court opinion in Honeycutt v. United States, 137 S.Ct. 1626 (2017). The Court ordered both the United States and Defendant to each file a supplemental memorandum specifically addressing Honeycutt. (Doc. # 1557 and 1570). The United States and Defendant having responded (Docs. # 1569 and 1573), the matter is ripe for the Court's review.

         II. ANALYSIS

         A. Defendant's Motion is waived, untimely, and without merit.

         Defendant's Motion is not the first of its kind to be raised in this criminal case. In August and September of 2015, three of Defendant's co-conspirators filed similar motions seeking relief from the joint and several forfeiture judgment. (Docs. # 1398, 1399, and 1419). Arguing that the Court had not complied with the Federal Rules of Criminal Procedure by failing to advise them of the forfeiture at sentencing, and that the money judgment was not included in their judgment entries, the co-conspirators sought an end to the paycheck deductions imposed by the Bureau of Prisons for payment of the money judgment. Id. The arguments were identical to Defendant's; for these same reasons, Defendant's Motion necessarily fails.

         This Court denied the co-conspirators' motions on three grounds. (Doc. # 1443). First, each of the co-conspirators had waived the right to appeal “any determination made by the Court at sentencing.” Id. at 2. Defendant's plea contains the same waiver language. (Doc. # 795 at 4). Second, the co-conspirators could only challenge the forfeiture on direct appeal, the time for which had long-since passed. (Doc. # 1443 at 2 (citing Winkelman v. United States, 494 Fed.Appx. 217, 220 (3rd Cir. 2012)). Here too, the time for Defendant to file a direct appeal ran more than three years ago. Finally, the Court found that the co-conspirators' motions were without merit, as each of the co-conspirators had entered pleas specifically agreeing to forfeiture. (Doc. # 1443 at 3). Thus, the Court found that there wasno question that they knew of the forfeiture at sentencing. Id. (citing Fed. R. Crim. P. 32.2(b)(4)(B)). Here, Defendant's plea is nearly identical, leading to the same conclusion.

         The Court's determination on one of the co-conspirators' motions was upheld by the Sixth Circuit. See United States v. Yancey, 707 Fed.Appx. 342 (6th Cir. 2017). In its opinion, the Sixth Circuit found that co-conspirator Yancey had “waived any challenge to any determination by the court at sentencing, ” that the “plea agreement included an express provision” of forfeiture that included the money judgment, and that Yancey “never once questioned or challenged the money judgment or the forfeiture” or argued that the plea agreement was involuntary, unknowing, or ambiguous. Id. at 345. The facts giving rise to Defendant's motion, and Defendant's plea agreement, waiver, and arguments are no different than Yancey's, and for this reason Defendant's motion is denied.

         B. Honeycutt does not require a different result.

         In June 2017, the United States Supreme Court issued an opinion holding that the language in 21 U.S.C. § 853(a) “foreclose[s] joint and several liability for co-conspirators.” Honeycutt, 137 S.Ct. at 1633. The record and this Court's previous findings show that a sentence of joint and several liability for $1, 825, 510 was imposed on Defendant as a co-conspirator. (Doc. # 1073). If imposed today, such a sentence would run afoul of Honeycutt. However, this sentence was imposed several years before Honeycutt was decided. The question posed in Defendant's reply (Doc. # 1554 at 2) is thus whether Honeycutt should be applied retroactively to Defendant's case.

         Honeycutt announced a new rule. See Teague v. Lane, 489 U.S. 288, 301 (1989) (“[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.”). Whether Honeycutt applies retroactively depends ...


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