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United States v. Schultz

United States District Court, D. New Jersey

June 1, 2017

UNITED STATES OF AMERICA,
v.
JOHN SCHULTZ

          ORDER

          JOSEPH H. RODRIGUEZ, United States District Judge

          This matter comes before the Court on motion of Defendant John Schultz seeking an extension of time to file an appeal, pursuant to Fed. R. App. P. 4(b)(4). The Court has considered the written submissions and, for the reasons that follow, denies the motion.

         BACKGROUND

         On September 22, 2016, Defendant Schultz entered a plea of guilty to a one count Information alleging conspiracy to defraud the United States, in violation of 18 U.S.C. §371. The plea agreement included a waiver stipulation which states:

John Schultz knows that he has and, except as noted below in this paragraph, voluntarily waives, the right to file any appeal, any collateral attack, or any other writ or motion, including but not limited to an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255, which challenges the sentence imposed by the sentencing court if that sentence falls within or below the Guidelines range that results from the agreed total Guidelines offense level of 13.

         Plea Agreement, Dkt. No. 8, Schedule A, Stipulation No.7.

         On April 17, 2017, Defendant Schultz was sentenced to a term of six months' imprisonment and a one-year term of supervised release. Defendant's sentence falls within the range that triggers application of the appellate waiver. Judgment was entered commensurate with sentencing on April 17, 2017. As a result, pursuant to Fed. R. App. P. 4(b)(1)(A), Schultz had 14 days, or until May 1, 2017, to file a notice of appeal from the judgment. Defendant Schultz did not file a notice of appeal within the timeframe contemplated by the Rule.

         According to the Government, the United States Probation Office mailed Schultz a letter dated May 2, 2017, directing Schultz to surrender to the Bureau of Prisons at F.C.I. Fort Dix on May 22, 2017. Then, on May 8, 2017, Defendant Schultz filed a Motion to Substitute Attorney [Dkt. No. 11] and a Notice of Motion for Reconsideration [Dkt. No. 12]. The Court granted the motion to substitute attorney and new counsel Michael Riley entered his appearance. The Notice of Motion for Reconsideration appends no briefing or other papers in connection with that filing. As a result, there is no Motion for Reconsideration pending before the Court.

         On May 12, 2017, Defendant filed a letter application seeking to extend the time for self-surrender to the Bureau of Prisons for a period of ninety days. Two exhibits accompanied the letter request; both exhibits are letters which relate to Mr. Schultz's health, one from Dr. Saia and one from Dr. Dunn. Neither letter states that Mr. Schultz has any recent acute medical problems. Instead, both letters restate his past medical history, with one doctor noting that Mr. Schultz looks "gaunt" and has lost weight.[1] The Government objected to Mr. Schultz's request for an extension of the self-surrender date and the Court held a hearing on May 16, 2017. During the hearing, Mr. Riley represented to the Court that Defendant Schultz informed him, that morning, that he was at the hospital and that Mr. Schultz sent Mr. Riley a photograph of himself in a hospital gown.

         Given the fact that Mr. Schultz's request summarily sought a ninety-day extension without offering any concrete basis for the duration of the extension, the Court denied the request without prejudice. The next day, despite the appellate waiver provision of the Plea Agreement, Mr. Schultz filed both a Notice of Appeal and the present Motion for Leave to File an Appeal Late. In addition, Mr. Schultz submitted a letter seeking an extension based upon the recommendation of Dr. Saia, whom Schultz consulted following his May 16, 2017 visit to the Atlantic City Regional Medical Center ("ARMC"). Dr. Saia's letter details the symptoms that caused Mr. Schultz to visit the emergency room at ARMC:

EKG apparently was unchanged from previous and no acute changes were noted and troponin evaluation was negative. The patient was advised admission but because of his impending legal situation he thought they could not be admitted at this time. He came directly to my office for evaluation.

         Mr. Schultz has not presented any documentation from ARMC related to his emergency room visit. The Government agreed to extend the report date to accommodate tests prescribed by Dr. Saia. Against this backdrop, the Court considers the motion to extend the time to appeal.

         STANDARD OF REVIEW

         Untimely appeals may be deemed timely upon satisfaction of the Fed. R. App. ...


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