United States v. Joshua Boyer ( 2014 )


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  •              Case: 13-11600    Date Filed: 03/31/2014   Page: 1 of 6
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 13-11600
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 8:01-cr-00056-JSM-TBM-3
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JOSHUA BOYER,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (March 31, 2014)
    Before CARNES, Chief Judge, HULL and MARCUS, Circuit Judges.
    PER CURIAM:
    Joshua Boyer, proceeding pro se, appeals the district court’s denial in part of
    his “Motion to Re-Open [his] Request to Expunge Criminal Records or for a Writ
    of Mandamus.” The district court directed that a copy of its order be added to
    Case: 13-11600      Date Filed: 03/31/2014   Page: 2 of 6
    Boyer’s Bureau of Prison records, but the court did not order the BOP, which was
    not a party to the proceedings, to redact or expunge “certain government records.”
    In 2001 Boyer was convicted of drug distribution and firearm offenses and
    was sentenced to 288 months imprisonment. This Court affirmed his convictions
    and sentence in 2003. Nine years later, Boyer filed a pro se “Petition to Expunge
    Criminal Records or a Writ of Mandamus,” alleging that, while he and his five
    codefendants were awaiting trial at the county jail in 2001, jail officials and the
    United States Marshals Service (USMS) received reports of an escape attempt by
    two of the codefendants. Boyer contended that he was not linked in any way to the
    escape attempt except as a codefendant of the two would-be escapees.
    Boyer stated that during its investigation of the incident, the USMS made
    notations in his Individual Custody and Detention Report indicating that he was a
    participant in the escape attempt. The notations included the following: “violent
    escape plan involving Deputy United States Marshal as Hostage,” “cuff key found
    in codefendant’s cell,” “let DUSM know when moved, black box,” and “co-consp.
    claims to have outside help in escape.”
    Boyer argued that, even though the investigation had not linked him to any
    escape attempt, the USMS refused to update his records, and the notations included
    in his record adversely affected him. The government argued that Boyer’s motion
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    did not present a case or controversy. It attached a declaration by BOP case
    manager James Ebey, who admitted that the information at issue was in Boyer’s
    BOP record but that it had “not been utilized to determine his custody
    classification level, nor ha[d] it been used to reflect a history and/or score of escape
    points.” Ebey stated that Boyer initially had been classified as a low security
    offender but that his disciplinary record had affected his custody classification
    score. The district court denied as premature Boyer’s petition to expunge, noting
    that he could “refile” if the contested information were used against him.
    In February 2013 Boyer filed a “Motion to Re-Open [his] Request to
    Expunge Criminal Records or for a Writ of Mandamus,” contending that the
    district court’s earlier denial of relief was based on the government’s submission of
    false and misleading information. He asserted that his disciplinary history was not
    the primary factor affecting his custody classification score. He stated that in
    November 2012 he turned 36, and his classification score was reduced by 2 points,
    qualifying him for transfer to a minimum security institution. He claimed that the
    contested information in his record would adversely affect his eligibility for that
    transfer. Boyer renewed his request for the information to be expunged from his
    record. Along with his motion, Boyer filed a personal declaration about a meeting
    that he had with Ebey. He declared that Ebey had admitted that his earlier
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    declaration was inaccurate and that the contested information had been used
    against Boyer and would be used against him again when he was considered for
    minimum security placement.
    The district court appointed counsel for Boyer and held a hearing on his
    motion to re-open. Boyer was present at the hearing and Ebey testified. The
    district court’s minutes state that the court decided to grant the motion “as
    discussed in open court,” and the court directed Boyer’s counsel to consult with the
    government and draft a proposed order.
    The district court later entered an order denying Boyer’s motion to the extent
    that it sought “redaction of certain government records” and granting it in part by
    directing the inclusion of a copy of the court’s order in Boyer’s BOP record. The
    court found:
    that there is contained in Boyer’s prison records/file information
    regarding a handcuff key found in a co-defendant’s cell; a violent
    escape plan involving a deputy United States Marshal as hostage; and
    that a co-conspirator claims to have outside help in escape. The Court
    having re-reviewed all of the information surrounding this matter
    finds that Boyer had nothing to do with any escape attempts of the co-
    defendants and neither did Boyer attempt to escape.
    In this appeal of that order Boyer contends that the district court erred by
    directing the BOP to add clarifying information to his record instead of expunging
    the incorrect information. He also contends that the court should have granted the
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    oral motion he made during the evidentiary hearing requesting resentencing. The
    government responded with a motion for dismissal or for summary affirmance and
    for a stay of the briefing schedule.
    Summary disposition is appropriate where “the position of one of the parties
    is clearly right as a matter of law so that there can be no substantial question as to
    the outcome of the case, or where, as is more frequently the case, the appeal is
    frivolous.” Groendyke Transp., Inc. v. Davis, 
    406 F.2d 1158
    , 1162 (5th Cir.
    1969); 1 see also 11th Cir. R. 42-4. In this case, Boyer has not pointed to any error
    in the district court’s order. Instead, he alleges that the BOP has not complied with
    the order and that it continues to rely on facts that the district court concluded were
    false. If the BOP is not complying with the order, that is a matter to be addressed
    directly with the BOP in either an administrative proceeding or an action against
    the BOP, but it is not a proper basis for challenging the district court’s order.
    As for Boyer’s resentencing request, the district court had no authority to
    resentence him nearly a decade after his sentence became final. A district court
    may modify a sentence in three limited circumstances: (1) where the BOP has
    1
    In Bonner v. City of Pritchard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), we
    adopted as binding precedent all decisions of the former Firth Circuit handed down before
    October 1, 1981.
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    filed a motion, and either extraordinary and compelling reasons warrant a
    reduction or the defendant is at least 70 years old and meets certain other
    requirements, see 18 U.S.C. § 3582(c)(1)(A); (2) where another statute or Federal
    Rule of Criminal Procedure 35 expressly permits a sentence modification, see 
    id. § 3582(c)(1)(B);
    or (3) where a defendant has been sentenced to a term of
    imprisonment based on a sentencing range that was later lowered by the United
    States Sentencing Commission and certain other requirements are met, see 
    id. § 3582(c)(2).
    None of those circumstances were present here.
    For these reasons, the government’s motion for summary affirmance is
    GRANTED and the judgment of the district court is AFFIRMED. The
    government’s motion to stay the briefing schedule is DENIED as moot.
    6
    

Document Info

Docket Number: 13-11600

Judges: Carnes, Hull, Marcus, Per Curiam

Filed Date: 3/31/2014

Precedential Status: Non-Precedential

Modified Date: 11/6/2024