United States v. James Biear ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-2722
__________
UNITED STATES OF AMERICA
v.
JAMES S. BIEAR,
Appellant
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 2:20-cr-00246-001)
District Judge: Honorable Susan D. Wigenton
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 16, 2021
Before: AMBRO, PORTER and SCIRICA, Circuit Judges
(Opinion filed: June 16, 2021)
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OPINION *
___________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
When presented with a timely motion to terminate a term of supervised release
before that term has expired, a district court must assess the motion using the set of
sentencing factors under 18 U.S.C. § 3553(a) that are identified in § 3583(e)(1). The
primary question presented by appellant James Biear is whether the record in this case
reflects that the District Court conducted the required assessment. Answering in the
negative, we will vacate the judgment below and remand for further proceedings.
I.
Biear worked as a driver and personal assistant to Kenward Elmslie—a poet and
heir to the Joseph Pulitzer fortune. Over the course of two years, Biear swindled Elmslie
out of money, artwork, and other valuables. He then used the ill-gotten items to commit a
series of duplicitous transactions.
A jury in the United States District Court for the Southern District of New York
found Biear guilty of money laundering, wire fraud, bank fraud, and related offenses. He
was sentenced to ten years of incarceration, to be followed by four years of supervised
release. Biear also was ordered to pay over three million dollars in restitution. See United
States v. Biear, 558 F. App’x 61, 62 (2d Cir. 2014) (summary order).
When Biear was released from prison, he took up residence in Lyndhurst, New
Jersey. Jurisdiction over Biear’s supervised release thus transferred to the United States
District Court for the District of New Jersey (i.e., the District Court).
2
In August 2020, Biear filed a pro se motion under § 3583(e)(1) to terminate his
term of supervised release. The Government opposed, arguing that termination was
inappropriate in light of, inter alia, the seriousness of Biear’s offenses, the percentage of
the term of supervised release yet to be served, and the minimal burden of Biear’s low-
intensity supervision. Biear responded by listing his accomplishments while incarcerated.
The Probation Office weighed in as well. In a generally favorable August 14, 2020
letter to the District Court, the Probation Office noted that Biear “has complied with all
the conditions of supervision,” that he “is compliant with his financial obligation,” and
that he “was transferred to the District[’s] Low Intensity Caseload.” The Probation Office
referenced several criteria for evaluating Biear’s motion and stated in conclusory fashion
that Biear “does meet the minimal criteria for early termination.”
The end of the August 14, 2020 letter contained space for the District Court to put
a mark next to one of two dispositions proposed by the Probation Office. The District
Court’s expression of its adjudication of Biear’s motion is comprised of the following
mark, signature, and date:
3
Biear promptly moved for reconsideration of the District Court’s adverse ruling,
taking issue with statements that had been made by the opposing parties, detailing his
fruitless job search, and arguing that he “satisfies all the factors set forth for early
termination.” The District Court entered an order denying the motion, reasoning that
Biear had merely “reiterate[d] his prior arguments . . . and to the extent he argues this
Court failed to consider facts he now introduces for the first time in the Motion, such
facts are not ‘new’ for the purposes of reconsideration.” This appeal followed.
II.
Biear’s notice of appeal is timely. Fed. R. App. P. 4(a)(1)(B). We have jurisdiction
under 28 U.S.C. § 1291 to review both orders of the District Court that Biear challenges
on appeal, and both orders are reviewed for abuse of discretion. See Gibson v. State Farm
Mut. Auto. Ins. Co., 994 F.3d 182, 186 (3d Cir. 2021) (discussing review of orders
denying motions for reconsideration); United States v. Melvin, 978 F.3d 49, 52 (3d Cir.
2020) (discussing review of orders denying motions under § 3583(e)(1)). “An abuse of
discretion occurs when a lower court’s decision ‘rests upon a clearly erroneous finding of
fact, an errant conclusion of law or an improper application of law to fact.’” Robinson v.
First State Cmty. Action Agency, 920 F.3d 182, 191 (3d Cir. 2019) (citation omitted).
III.
Section 3583(e) provides a statutory mechanism for a defendant serving a term of
supervised release to request that the term end early. In determining whether to grant
4
such relief to an eligible defendant, 1 district courts are to consider several of the
sentencing factors set forth in § 3553(a). See Melvin, 978 F.3d at 52 (listing the factors
identified in § 3583(e)(1)). “After considering these factors, the court may provide relief
only if it is satisfied that early termination is warranted by the defendant’s conduct and is
in the interest of justice.” Id.
Biear argues on appeal that the District Court did not explicitly consider the
pertinent § 3553(a) factors and thus did not adequately explain its decision denying relief
under § 3583(e)(1). See Br. 2. We agree.
A litigant should be told why an application for relief is being decided one way or
another. That said, “[t]he appropriateness of brevity or length, conciseness or detail, when
to write, what to say, depends upon circumstances.” Rita v. United States, 551 U.S. 338,
356 (2007). During an original sentencing proceeding, at least, a district court “should set
forth enough to satisfy the appellate court that [it] has considered the parties’ arguments
and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Id.The Supreme Court has not yet decided whether that requirement prevails in
sentence-modification proceedings, such as those under §§ 3582(c) and 3583(e).
Regardless, we explained in Melvin that a district court’s obligation to provide reasons
for its decision in proceedings under § 3583(e)(1), specifically, does not impel it to make
any findings of fact; instead, its obligation may be satisfied by a simple “statement that
1
A defendant must have served at least one year of the applicable term of supervised
release in order to be statutorily eligible for termination. See 18 U.S.C. § 3583(e)(1).
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the district court has considered the statutory factors.” 978 F.3d at 52-53 (cleaned up).
This is a low bar to scale.
Here, however, the Probation Office’s August 14, 2020 letter-cum-order of the
District Court lacked any expression by the District Court that the statutorily pertinent
factors had been considered. And the record on appeal does not sufficiently fill that
analytical gap with information extrinsic to the District Court’s decision. We thus cannot
tell whether the District Court did what § 3583(e)(1) requires.
Accordingly, the District Court abused its discretion in denying Biear’s motion for
termination of supervised release. The proper remedy under these circumstances is to
vacate the judgment and remand. See Chavez-Meza v. United States, 138 S. Ct. 1959,
1965 (2018); cf. United States v. Johnson, 877 F.3d 993, 996, 999-1000 (11th Cir. 2017)
(vacating and remanding where the district court denied a motion under § 3583(e)(1) in a
paperless entry on the docket without explaining its decision, and without any indication
from the record as to the basis for the denial); United States v. Lowe, 632 F.3d 996, 998
(7th Cir. 2011) (“Stating simply that the court has ‘reviewed the motion,’ as the district
court did in this case, is not equivalent to considering the statutory factors. Something
more is needed, and we find the district court abused its discretion in failing to consider
the statutory factors.”).
The Government’s arguments in resistance to the foregoing conclusion—which
posit in different ways that the District Court’s consideration of the § 3553(a) factors may
be inferred from various elements of the record—fail to persuade.
6
To begin with, it is true that the Government briefly analyzed the § 3553(a) factors
in its opposition to Biear’s motion. But in denying that motion the District Court did not
acknowledge, let alone incorporate by reference, the Government’s submission.
Separately, the lone reference to § 3553(a) in the letter submitted by the Probation Office
and signed by the District Court merely recognizes that there are statutory factors that
must be considered in adjudicating a timely motion under § 3583(e)(1); recognition that
such factors exist is distinct in a legally material way from actual consideration of the
factors. In sum, whether the District Court considered the pertinent § 3553(a) factors
cannot be discerned from the parties’ filings below.
The Government also finds no support in Chavez-Meza. There, the Supreme Court
held that a form order denying a motion for a sentence reduction under § 3852(c)(2)—a
form (AO 247 2) that contains preprinted statements conveying that the district court has
considered the motion, the § 3553(a) factors, and the relevant policy statement—was
capable of meaningful appellate review. See 138 S. Ct. at 1967. In reaching that
conclusion, the Supreme Court “relied on the fact that the same district court conducted
the petitioner’s initial sentencing hearing, and thus, the record itself made it clear why the
district court adopted its chosen sentence in the second instance.” United States v.
McDonald, 986 F.3d 402, 409 (4th Cir. 2021). Insofar as the District Court did not
sentence Biear or at any previous time pass on a modification motion filed by him, this is
2
See https://www.uscourts.gov/sites/default/files/ao 247 0.pdf (last visited May 28,
2021).
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not a case like Chavez-Meza, where some prior consideration of the § 3553(a) factors can
be interpolated into a new proceeding for which consideration of those factors is required.
Finally, the Government argues that the District Court’s consideration of the
pertinent § 3553(a) factors may be inferred from the combination of the result below and
the substantive weakness of Biear’s motion. While there may be a natural and legitimate
correlation between the length of a decision and the relative strength of a litigant’s case,
this appeal is not about proportionality but instead the bare minimum a district court must
convey in order to reveal that the § 3553(a) factors have been considered. And, to
summarize, there is nothing in the record on appeal that inspires sufficient confidence
that the factors were indeed considered.
IV.
For the reasons given above, the District Court’s judgment will be vacated and the
matter remanded for proceedings consistent with this opinion. 3
3
Our decision on appeal should not be read to suggest a particular result on remand. Nor
should it be read to suggest that a hearing on remand would be appropriate. Additionally,
in light of our disposition, we have not addressed Biear’s arguments as to why the
District Court allegedly abused its discretion in denying his motion for reconsideration.
8