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United States v. Telfair

United States District Court, D. New Jersey

September 4, 2019

UNITED STATES OF AMERICA
v.
THOMAS TELFAIR, Defendant.

          OPINION & ORDER

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE

         Before the Court are a number of motions by Thomas Telfair, which I interpret as motions under Fed. R. Crim. P. 35 and 18 U.S.C. § 3582, seeking to challenge or modify a twenty-year sentence that he is currently serving. For the reasons expressed herein, the motions are denied.

         I. BACKGROUND

         On February 19, 2010, defendant Telfair was convicted by a jury of conspiracy and substantive charges of possession with intent to distribute heroin. See 21 U.S.C. §§ 846, 84l(a). Based on an offense score of 37 and a criminal history category of VI, his sentencing guideline imprisonment range was 360 months to life.

         On November 23, 2011, Hon. Dennis M. Cavanaugh, U.S.D.J. (now retired), granted a downward departure and sentenced Telfair to 240 months (20 years) of imprisonment. Telfair is currently serving that sentence at FCI-Fort Dix. The U.S. Court of Appeals affirmed Telfair's conviction, 507 Fed.Appx. 164 (3d Cir. 2012), and the United States Supreme Court denied certioriari, 134 S.Ct. 167 (2013).

         On October 25, 2013, Telfair filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (D.N.J. Civ. No. 13-6585). In a 56-page opinion, the Hon. Susan D. Wigenton denied most of the claims. Following an evidentiary hearing, at which Telfair was represented by counsel, Judge Wigenton filed an additional opinion denying the remaining, Miranda-based claim. (D.N.J. Civ. No. 13-6585, DE 58, 59 (Nov. 8, 2018)). The U.S. Court of Appeals for the Third Circuit denied a certificate of appealability. (Id. DE 74)

         Telfair filed an untimely motion for reconsideration of the denial of his § 2255 motion, as well as a motion under Fed.R.Civ.P. 60(b). On October 23, 2018, Telfair filed a second motion under Fed.R.Civ.P. 60(b), which incorporated a request for leave to file a second § 2255 motion. These were denied. (DE 78, 79)

         A series of motions and letter applications, which are the subject of this Opinion, followed:

11/13/2018

- view 100

MOTION to Correct Sentence (Fed. R. Crim. P. 35(a) re 95 Judgment, by TOMMIE TELFAIR. (Attachments: # i Exhibits; A - E, # 2 Env.)(dc, ) (Entered: 11/14/2018)

01/03/2019

- view 102

MOTION for Reduction of Sentence under First Step Act Category 11 or Alternatively to Appoint Counsel if the Court is Prohibited from Adjudicating this Moving Matter Sua Sponte by TOMMIE TELFAIR. (Attachments: # i Appendix A - B, # 2 env)(dc, ) Modified on 2/15/2019 (th). (Entered: 01/08/2019)

01/07/2019

"view 103

SECOND MOTION for Reduction of Sentence Under First Step Act Category II, or Alternatively to Appoint Counsel if the Court is Prohibited from Adjudicating this Moving Matter Sua Sponte by TOMMIE TELFAIR. (Attachments: # i Appendix, #

2 Appendix, # 3 Env.)(dc, ) Modified on 2/15/2019 (tli). (Entered: 01/08/2019)

02/04/2019

-E view 104

MOTION for Reduction of Sentence Under First Step Act Category II by TOMMIE TELFAIR, (msd) Modified on 2/15/2019 (th). (Entered: 02/05/2019)

02/04/2019

view 105

SECOND MOTION For Reduction of Sentence Under the First Step Act Category II by TOMMIE TELFAIR, (dc, ) Modified on 2/15/2019 (th). (Entered: 02/13/2019)

02/13/2019

view 107

Letter/Motion from Tommie H. Telfair in support of requests for sentencing reconsiderations, etc. (dc, ) (Entered: 02/19/2019)

02/19/2019

-view 108

MOTION for Reduction of Sentence Under First Step Act Category II by TOMMIE TELFAIR. (Attachments: # i Appendix A, # 2 Appendix Al, # 3 Appendix B, # 4 Appendix C, # 5 Cover Letter, # 6 Env.)(dc, ) (Entered: 02/20/2019)

02/25/19

view 109

Objection to the Government's Motion To Correct Sentence by TOMMIE TELFAIR (msd) (Entered: 02/25/2019)

04/17/19

- view 111

Motion/Letter for Reduction of Sentence Under First Step Act 18 U.S.C. 3582 (c)(1)(A) by TOMMIE TELFAIR, (mrd, ) (Entered: 05/02/2019)

05/15/2019

view 112

Letter from TOMMIE H. TELFAIR (mrd, ) (Entered: 05/22/2019)

         In the midst of these filings, on February 13, 2019, the case was reassigned to me. (DE 106) On April 5, 2019, by text order, I required the government to file a consolidated response to Telfair's many motions. (DE 110) Because Telfair continued to file more motions, I granted the government an extension of its time to file a response. (DE 114) The government filed its consolidated response on August 5, 2019. (DE 115) On August 23, 2019, Telfair filed a further reply. (DE 116)[1] The Court declares that motion filings are now closed; the Court is now poised to rule, and no further submission will be accepted.

         II. DISCUSSION

         Docket no. 100 is explicitly filed as a motion under Fed.R.Civ.P. 35(a) to "correct" Telfair's sentence. Rule 35(a) is a narrow provision, providing that "within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." The 14-day deadline is jurisdictional. United States v. Higgs, 504 F.3d 456, 458 (3d Cir. 2007). Judge Cavanaugh imposed sentence on November 23, 2011, some seven years before this Rule 35 motion was filed. Because it was filed long after the expiration of the jurisdictional 14-day deadline, this Rule 35 motion cannot be considered.[2]

         At various points in the rest of his motions, Telfair seeks a reduction of sentence under 18 U.S.C. § 3582(c)(2) based on the recently-enacted First Step Act ("FSA"), Pub. L. 115-391, 132 Stat. 5194, 5222 (2018). He asks for a recalculation of his sentence to the extent it is reflects possession or distribution of cocaine base; requests compassionate release so he can care for family members; requests good time credits under 18 U.S.C. § 3624(b)(1); and seeks a 60-month reduction of an enhanced sentence. I consider the potentially applicable provisions of the FSA.

         FSA Section 404, 132 Stat, at 5222, grants retroactive effect to the 2010 amendments that raised the threshold quantities of crack cocaine that would trigger mandatory minimum sentences under 21 U.S.C § 841(b)(1). Telfair's offense of ...


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