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United States v. Herold

United States District Court, E.D. Michigan, Southern Division

September 27, 2017

United States of America, Plaintiff / Respondent,
v.
Arthur Herold, Defendant/Petitioner.

          R. Steven Whalen Mag. Judge

          OPINION AND ORDER DENYING MOTION TO STRIKE RESPONDENT'S REPLY BRIEF [30] AND DENYING MOTION TO VACATE SENTENCE UNDER 28 USC § 2255 [24]

          JUDITH E. LEVY, UNITED STATES DISTRICT JUDGE.

         Petitioner Arthur Herold has filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (Dkt. 24.) He has also filed a motion requesting that the Court strike Respondent's reply brief on the grounds that it was untimely filed. (Dkt. 30.)

         For the reasons set forth below, these motions are denied.

         I. Background

         On July 11, 2016, Petitioner pleaded guilty to one count of unlawful distribution of controlled substances in violation of 21 U.S.C. § 841. (Dkt. 8 at 1.) While Petitioner was charged with only one count of unlawful distribution, the charge to which he pleaded guilty was contained within an information that described an estimate of the extent of his participation in an unlawful prescription distribution scheme: “at least 107, 000 Schedule II hydrocodone pills, 240, 000 Schedule III hydrocodone pills, and 500, 000 Schedule IV alprazolam pills.” (Dkt 1 at 1-2.) The Rule 11 plea agreement stated that “[t]here are no sentencing guideline disputes, ” and “defendant's guideline range is 46-57 months.” (Id. at 4.)

         Prior to the sentencing hearing, the Court reviewed the probation department's pre-sentence investigation report and the sentencing memoranda filed by Petitioner (Dkt. 10) and Respondent. (Dkt. 12.) Petitioner's sentencing memorandum included, among other information, an enumerated list of his medical conditions and an assessment of his psychological health.[1] Respondent's sentencing memorandum described the context in which Petitioner was illegally prescribing controlled substances and included a motion for a downward departure from Petitioner's sentencing guideline range to a sentence of twenty-four months of imprisonment.

         On November 17, 2016, the Court held Petitioner's sentencing hearing. The Court considered the factors required under 18 U.S.C. § 3553(a) and sentenced Petitioner to one year and one day of imprisonment and three years of supervised release. (Dkt. 14.) The sentence imposed was thirty-four months shorter than the forty-six months at the low end of Petitioner's guideline range. Petitioner surrendered to the Bureau of Prisons as directed. (Dkt. 15 at 2.)

         On February 28, 2017, Petitioner submitted to the Federal Bureau of Prisons a Request for Consideration for Compassionate Release / Reduction in Sentence pursuant to 18 U.S.C. §§ 3582(c)(1)(A) and 4205(g). Included in the request for consideration were pre-confinement medical records from the Michigan Institute for Neurological Disorders (Dkt. 15-2 at 2-4) and Health Rehab Plus (Dkt. 15-2 at 5-22), as well as emails Petitioner sent from Butner Federal Correctional Facility describing his current medical conditions (Dkt. 15-2 at 23-27). No medical records from the Butner Federal Correctional Facility were included with the motion. (Id.)

         On March 22, 2017, Petitioner filed a motion to resentence to home confinement based on medical condition. (Dkt. 15.) In this motion, Petitioner asserted that “[s]ince his surrender to the federal institution his medical condition has become significantly worsen [sic].” (Dkt. 15 at 4.) Petitioner's motion describes myriad medical complications stemming from (1) the fact that many of Petitioner's pain management and physical therapy regimens were eliminated upon his entry into custody, and (2) a fall Petitioner took three days after he entered custody. (Id. at 2-4.) Petitioner also included a copy of his Request for Consideration for Compassionate Release / Reduction in Sentence as an appendix to his motion to resentence to home confinement.[2] (Dkt. 15-2.)

         According to the medical documentation provided, Petitioner had an initial neurological consultation on November 28, 2016. (Dkt. 15-2 at 2.) The consulting neurologist recommended “a third round of epidural steroid injection, ” “a course of physical therapy with gait and balance training, ” and a “sleep study.” (Id.) Medical records indicate that Petitioner took part in five physical therapy treatment sessions between December 14, 2016 and January 5, 2017. (Dkt 15-2 at 5-22.)

         On May 31, 2017, the Court denied Petitioner's motion for resentencing to home confinement on the basis that the Court lacked jurisdiction to grant such relief. (Dkt. 21.) Petitioner filed the present motion to vacate under 28 U.S.C. § 2255 on June 8, 2017. (Dkt. 24.) On June 16, 2016, the Court ordered the Government to file a response on or before July 26, 2017. Petitioner moved for an expedited briefing schedule on June 22, 2017 (Dkt. 26), which the Court granted on June 26, 2017. (Dkt 28.) The expedited briefing schedule required a response brief from Respondent by July 17, 2017. (Id.) On July 19, after the expedited response deadline passed, Petitioner filed a motion to strike Respondent's late response “should one be filed.” (Dkt. 30.) Respondent filed its response on July 19, 2017. (Dkt. 31.)

         In his motion to strike, Petitioner acknowledges that “it is entirely possible that the Respondent is waiting on medical records from Butner Federal Medical Center.” (Dkt. 30 at 5.) In its response, Respondent states that “the undersigned clearly communicated to the current attorney for the petitioner that he would respond to the petitioner's motion within a few days of receiving a complete medical report from the BOP.” (Dkt. 31 at 3.) The Bureau of Prisons drafted a “Medical Summary” for Petitioner on July 20, 2017. It was entered on the docket on July 28, 2017. (Dkt. 32-1.)

         II. ...


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