United States District Court, D. New Jersey
D. Wigenton, U.S.D.J.
Vicendese moves the Court to terminate his supervised
release. ECF No. 14 ("Mot. Br."). For the following
reasons, the motion is DENIED.
AND PROCEDURAL BACKGROUND
Vicendese pled guilty to a single count violation of mail
fraud pursuant to 18 U.S.C. § 1341 for criminal
activities he committed from January 2006 to September 2010.
ECF No. 5. Specifically, the Defendant was involved in a
scheme whereby he generated fictitious invoices for hardware
items supplied by his company and sent to Union County. Resp.
Br. at 1-2. Mr. Vicendese's company received over $120,
000 in fraudulent proceeds from the County. Id. He
was sentenced on November 17, 2015 to imprisonment for a term
of 18 months, followed by a supervised release term of three
years. ECF No. 10. Mr. Vicendese's conditions of
supervised release are standard, requiring him to refrain
from crime and controlled substances, cooperate with
probation services, and request judicial permission for
travel outside the district. See generally Id.
However, the Court also imposed restrictions on new debt and
required Mr. Vicendese to notify and seek approval from
Probation for any self-employment. He has served over 24
months of his supervised release and has complied with all
the terms and conditions thereof. Id. On November
21, 2018, Mr. Vicendese moved to terminate his supervised
release, ECF No. 11, a motion the Government opposed, ECF No.
12. On January 8, 2019, the late Senior Judge Walls denied
the motion, reasoning that Mr. Vicendese had waived his right
to petition for an early termination under the terms of his
plea agreement. ECF No. 13 at 3. Mr. Vicendese filed a
renewed motion for early termination of supervised release on
July 10, 2019. ECF No. 14. The case was then transferred to
this Court upon the passing of Senior Judge Walls. ECF No.
stylized as a motion to terminate supervised release, this is
more properly a motion for reconsideration of the Court's
original decision. Mr. Vicendese's latest motion is at
its core an attack on the legal reasoning of the Court's
January 8, 2019 Opinion & Order, wherein the Court found
that Petitioner's plea agreement barred his motion. This
argument was first raised by the Government in its opposition
papers to Mr. Vicendese's motion, but Petitioner failed
to respond to the argument whatsoever, as noted by the Court
in its Opinion. See ECF No. 13 at 3. Unhappy with
the Court's reasoning, Mr. Vicendese has filed a second
and successive motion. But "[a] party is not entitled to
a second bite at the apple." Gutierrez v. Johnson
& Johnson, No. 01 5302 WHW, 2007 WL 1101437, at *4
(D.N.J. Apr. 10, 2007). Mr. Vicendese is asking the Court to
reconsider its legal reasoning from the Opinion & Order.
The Court will therefore treat this as a motion for
reconsideration of that decision. See Brintley v.
Aeroquip Credit Union, No. 17-13912, 2018 WL 4178338, at
* 1 (E.D. Mich. Aug. 30, 2018) (treating a successive
identical motion as a motion for reconsideration when the
second motion simply disagrees with the court's original
ruling on the first).
Civil Rule 7.1(i) allows a party to seek a motion for
reconsideration within 14 days after entry of the judgment,
and directs the party seeking reconsideration to submit
"a brief setting forth the matter or controlling
decisions which the party believes the Judge. . . has
overlooked." The Third Circuit has held that the
"purpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered
evidence." Max's Seafood Cafe ex rel. Lou-Ann v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citation
motions, however, may not be used to relitigate old matters,
nor to raise arguments or present evidence that could have
been raised before the entry of judgment. Charles A. Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure § 2810.1. "A party seeking
reconsideration must show more than a disagreement with the
Court's decision, and recapitulation of the cases and
arguments considered by the court before rendering its
original decision fails to carry the moving party's
burden." Gutierrez v. Ashcroft, 289 F.Supp.2d
555, 561 (D.N.J. 2003). Such motions will only be granted
where (1) an intervening change in the law has occurred, (2)
new evidence not previously available has emerged, or (3) the
need to correct a clear error of law or prevent a manifest
injustice arises. North River Ins. Co. v. CIGNA Reins.
Co., 52 F.3d 1194, 1218 (3d Cir. 1995). Because
reconsideration of a judgment after its entry is an
extraordinary remedy, requests pursuant to these rules are to
be granted "sparingly," and only when
"dispositive factual matters or controlling decisions of
law" were brought to the court's attention but not
considered. Yurecko v. Port Auth. Trans-Hudson
Corp., 279 F.Supp.2d 606, 608-09 (D.N.J. 2003).
Government opposed Mr. Vicendese's first motion for early
termination of supervised release by arguing he is estopped
from petitioning the Court for said release because he waived
his right to bring such a challenge in his plea agreement.
Resp. Br. at 3. Specifically, the plea agreement stated:
Mr. Vicendes [sic] 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
ECF No. 5 at 7, ¶ 10.
Court then analyzed the clause's language, finding that
"[c]riminal defendants may waive both constitutional and
statutory rights, provided they do so voluntarily and with
knowledge of the nature and consequences of the waiver. The
right to appeal in a criminal case is among those rights that
may be waived. The Court will not review the merits if: (1)
the issues raised fall within the scope of the  waiver; and
(2) [Petitioner] knowingly and voluntarily agreed to the 
waiver; unless (3) enforcing the waiver would work a
miscarriage of justice." ECF No. 13 (internal citations
and quotations omitted). The Court found that "because
Mr. Vicendese waived any motion challenging his
'sentence,' he is forbidden from challenging the
terms of his supervised release, which are incorporated in
and a part of his sentence." Id. It therefore
denied the motion.
Vicendese implores the Court that this analysis cannot be
correct, stating that "counsel is unaware of any prior
case in this District in which the Government raised such an
argument," and attaching to his motion a Certification
from his counsel, which notes that counsel, as a former AUSA
in the District of New Jersey, "never once asserted that
a defendant had waived his or her right to bring" such a
motion "under the language of an appellate waiver
provision." ECF No. 14-2 at 2. But Counsel did not
search hard enough. On February 2, 2018, Petitioner Ronald
Damon brought a motion for early termination of supervised
release in front of Chief Judge Wolfson, which was denied by
the Court. See USA v. Damon, 06-CR-00471-FLW-1
(D.N.J. June 22, 2018) (ECF No. 26) ("Damon
Letter Order"). The Government opposed the motion in
part because Mr. Damon had signed a plea agreement with the
exact language included in Mr. Vicendese's plea,
arguing that "[b]y waiving his right to file
any motion challenging any component of his
sentence, then, Damon waived his right to file a motion under
§ 3583(e)(1) to shorten his term of supervised
release." ECF No. 23 (06-CR-00471-FLW-1) at 2 (emphasis
in original). The Court agreed. Chief Judge Wolfson relied on
U.S. v. Laine,404 Fed.Appx. 571, 573 (3d Cir.
2010), in which the Third Circuit found that a similar
"waiver in the plea agreement precluded [Petitioner]
from seeking early termination of his supervised
release." Damon Letter Order at 4. Chief Judge
Wolfson noted that Laine was a non-precedential
opinion, but found the fact that "it is a Third Circuit
decision on an identical legal issue with nearly identical
facts" to be "highly persuasive." Id.
at 5. On August 6, 2019, the Third Circuit affirmed Chief
Judge Wolfson's Order in Damon, holding that the
Defendant "cannot now challenge the term ...