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United States v. Kevin Small ( 2023 )


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  • CLD-029                                           NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-2314
___________
UNITED STATES OF AMERICA
v.
KEVIN WILLIAM SMALL,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. Action No. 1-06-cr-00139-001)
District Judge: Honorable Mitchell S. Goldberg
____________________________________
Submitted on Appellee’s Motion for Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 10, 2022
Before: GREENAWAY, JR., MATEY, and MCKEE, Circuit Judges
(Opinion filed: January 6, 2023)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Kevin William Small appeals pro se from an order of the United States District
Court for the Middle District of Pennsylvania denying his motion for relief from
judgment. The Government has filed a motion for summary affirmance. For the
following reasons, we grant the Government’s motion and will summarily affirm the
District Court’s judgment.
In April 2021, Small, who is serving a sentence in federal prison for filing false
tax returns, filed a motion for compassionate release pursuant to
    18 U.S.C. § 3582
    (c)(1)(A)(i), based on his fear of exposure to COVID-19. (ECF 193.) The District
Court denied the motion. (ECF 196.) Small did not appeal. Instead, he filed a motion
for relief from judgment, citing “fraud on the court.” (ECF 197.) The District Court
denied that motion, noting that it attacked Small’s underlying conviction, not the denial
of his compassionate release motion.1 (ECF 204.) Small timely appealed.2 (ECF 205.)
Small’s motion for relief from judgment sought to challenge his underlying federal
conviction. In particular, he alleged that the search warrants for his bank accounts were
illegal because they authorized searches in counties that were outside the issuing judge’s
1
The District Court also denied Small’s motion for appointment of counsel (ECF 199), a
motion to amend the caption of the motion for relief from judgment (ECF 200), a
renewed motion for relief from judgment (ECF 201), a motion for summary judgment
(ECF 202), and another motion for compassionate release (ECF 203).
2
We have jurisdiction pursuant to
    28 U.S.C. § 1291
    . The District Court appeared to treat
Small’s motion as independent action alleging fraud upon the court. We exercise de
novo review over the denial of such a motion. See Herring v. United States,
    424 F.3d 384
    , 389-90 (3d Cir. 2005).
2
jurisdiction.3 The District Court previously rejected that argument in its order denying
Small’s motion for a new trial. (ECF 166.) We likewise have held that Small’s argument
about the search warrants did not permit the filing of second or successive § 2255
motions. See, e.g., C.A. No. 20-2775. Small’s attempt to resurrect the argument was an
unauthorized second or successive § 2255 motion that the District Court lacked
jurisdiction to consider. See Robinson v. Johnson,
    313 F.3d 128
    , 139-40 (3d Cir. 2002).
Accordingly, the District Court properly rejected Small’s motion for relief from
judgment.
In addition, the District Court did not err in denying Small’s other motions.
Because Small did not have authorization to bring the claims in the motion for relief from
judgment, the District Court did not err in denying his counsel motion. See Tabron v.
Grace,
    6 F.3d 147
    , 155 (3d Cir. 1993). There was no merit to Small’s summary judgment
motion and renewed motion for relief from judgment, which simply repeated his
unauthorized challenge to his conviction. And there was no error in the District Court’s
refusal to permit Small to change the caption of the motion for relief from judgment.
Finally, the District Court correctly concluded that the use of allegedly illegal search
3
In support of this argument, Small cited Hazel-Atlas Glass Co. v. Hartford-Empire Co.,
    322 U.S. 238
     (1944). That case recognized “[t]he theory that a federal court has the
inherent power to vacate its own judgments when they have been procured by fraud.”
United States v. Washington,
    549 F.3d 905
    , 912 (3d Cir. 2008). We have stated,
however, that “there is no long unquestioned power of federal district courts to vacate a
judgment procured by fraud in the criminal context.”
    Id. at 914
     (cleaned up).
3
warrants did not constitute an “extraordinary and compelling” basis for a sentence
reduction, as Small alleged in his new motion for compassionate release. See U.S.S.G.
§ 1B1.13, Application Notes 1(A)-(D) (listing four circumstances that may qualify as
extraordinary and compelling reasons for sentence reduction: an inmate’s medical
condition, the age of the defendant, family circumstances, and “other reasons”).
For the foregoing reasons, we grant the Government’s motion for summary
affirmance and will summarily affirm the District Court’s judgment.
4