Petition for Writ of Certiorari — David Z. Simpson, Petitioner v. United States

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APPENDIX A

Case 1:08-cr-00030-SJ Document 251 Filed 03/11/16 Page 1 of 3 PagelD #: 1832

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

1 ,2ui:

BROOKLYN

UNITED STATES OF AMERICA,

08 CR 30 (Si)

V.

MEMORANDUM

AND ORDER

DAVID Z. SIMPSON,

Defendant.

APPEARANCES

ROBERT L. CAPERS

United States Attorney

Eastern District of New York

271 Cadman Plaza East

Brooklyn, NY 11201

By: Sheve Mail

Stephen James Meyer

Attorneys for the government

NORMAN TRABULUS

Law Offices of Norman Trabulus

345 Seventh Avenue

21" Floor

New York, NY 1001

Attorneyfor Defendant

JOHNSON, Senior District Judge:

Presently before the Court is David Simpson's ("Defendant" or "Simpson")

motion seeking re-sentence pursuant to Amendment 782 of the United States

1

Case 1:08-cr-00030--SJ Document 251 Filed 03/11/16 Page 2 of 3 PagelD #: 1833

Sentencing Guidelines and 18 U.S.C. § 3582(c). For the reasons stated below, the

motion is denied.

On February 12, 2009, Simpson was convicted at trial of all four count in a

superseding indictment charging him with (I) conspiracy to import cocaine; (2)

conspiracy to possess with intent to distribute heroin and cocaine; (3) importation

of cocaine; and (4) attempted possession with intent to distribute cocaine. At

sentencing, the Court applied a total offense level of 32, reducing by five levels the

total offense level calculk.edi by the United States Probation Department. The

resulting guideline range was 121 to 151 months incarceration. Simpson was

II sentenced to 135 months.

On December 16, 2014, Simpson moved to be re-sentenced pursuant to

Amendment 782 of the United States Sentencing, Guidelines.. The government

responded on June 17, 2015, consenting to the resentence.

However, a motion to resentence pursuant to Section 3582(c) is

discretionary, and this Court declines to impose a reduced sentence, as Simpson has

not submitted sufficient justification for upsetting the Court's previous balancing of

the factors outlined in 1•8 U.S.C. § 3553(a). See Dillon v. United States. 130 S.Ct.

2683, 2692(2010); ("At step two of the inquiry, § 3582(c)(2) instructs a court to

consider any applicable § 3553(a) factors and determine whether, in its discretion,

the reduction authorized by reference to the policies relevant at step one is

warranted in whole or in part under the particular circumstances of the case.");

P040

Case 1:08-cr-00030-SJ Document 251 Filed 03/11/16 Page 3 of 3 PageD #: 1834

United States v. White. 429 F. App'x. 423, 47 (2d Cir. 201 1) (finding the decision

of whether to re-sentence an eligible defendant to be "confided to the sound

discretion of the district court."). Specifically, Simpson's institutional adjustment

has been poor, to say the least. He has received 12 disciplinary infractions for,

inter ali removing food items from the mess hail, failing to follow orders, and

failing to appear for work assignments. He has lost 54 days of his good conduct

time credit, 510 days of phone privileges and been subject to repeated commissary

suspensions. Considering the reductions already granted, this Court finds that no

further alterations in sentence are warranted at this stage. Defendant's motion is

denied.

SO ORDERED.

Dated: March 11, 2016

Brooklyn, New York

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APPENDIX B

Case 16-849, Document 59, 03/01/2017, 1979129, Page? of 5

16-849-cr

United States v. David Z Simpson

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated tenn of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

1St

day of March, two thousand seventeen.

Present:

JOHN M. WALKER, JR.,

DEBRA ANN LIVINGSTON,

Circuit Judges,

VINCENT L. BRICCETTI,

District Judge.*

UNITED STATES OF AMERICA,

Appellee,

V.

16-849

DAVID Z. SIMPSON,

Defendant-Appellant,

LINETTE SANTANA, SHELDON HOLDER, AKA Duane,

TROY CULBERTSON, PATRICIA LANCASTER,

Defendants.

*

Judge Vincent L. Briccetti, of the United States District Court for the Southern District of New York,

sitting by designation.

1

Case 16-849, Document 59, 03/01/2017, 1979129, Page2 of 5

For Defendant-Appellant:

NORMAN TRABULUS, New York, NY

For Plaintiff-Appellee:

KAITLIN FARRELL, (J.E. Shreve Ariail, Jo Ann M.

Navickas, on the brief), for Robert L. Capers, United

States Attorney for the Eastern District of New York,

Brooklyn, NY

Appeal from a judgment of the United States District Court for the Eastern District of

New York (Johnson, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the matter is REMANDED for further proceedings consistent with this order.

David Z. Simpson appeals from an order of the United States District Court for the

Eastern District of New York (Johnson, J) denying Simpson's motion for a Sentence reduction

under 18 U.S.C. § 3582(c)(2) and Amendments 782 and 788 to the United States Sentencing

Guidelines, which retroactively lowered the base offense levels applicable to many drug crimes.

We assume the parties' familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal.

In considering a sentence reduction motion under § 3582(c)(2), district courts conduct a

multi-step analysis. The district court must first determine whether the defendant is eligible for

a sentence reduction under § 1 B 1.10 of the Sentencing Guidelines.

United States v. Christie,

736 F.3d 191, 194 (2d Cir. 2013). If the defendant is eligible, then the district court may, after

considering the applicable § 3553(a) factors "and any public safety concerns a reduction in

sentence would raise," United States v. Rivera, 662 F.3d 166, 170 (2d Cir. 2011), exercise its

discretion to reduce the defendant's sentence to within the amended guideline range, consistent

with § 1131.10 of the Sentencing Guidelines, United States v. Wilson, 716 F.3d 50, 52 (2d Cir.

2013) (per curiam). In conducting this analysis, the district court may also "consider

post-sentencing conduct of the defendant that occurred" after the defendant's original sentence

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Case 16-849, Document 59, 0310112017, 1979129, Page3 of 5

was imposed. U.S. Sentencing Guidelines § 1B1.10, app. n.l(B)(iii); see also Wilson, 716 F.3d

at 52. We review the decision the district court reaches with respect to this second component

of the § 3582(c)(2) determination for abuse of discretion. Rivera, 662 F.3d at 170; United

States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009).

Though the procedural protections we require in sentencing proceedings are not fully

applicable in the context of a proceeding under § 3582(c)(2), "the need for at least some

statement of reasons is fully applicable In the context of a motion for a sentence redUction" to

preserve our ability to provide meaningful appellate review.

Christie, 736 F.3d at 195-96. We

deem a district court to have abused its discretion in ruling on this element of a § 3582(c)(2)

motion only "if it based its ruling on an erroneous view of the law or on a clearly erroneous

assessment of the evidence, or rendered a decision that cannot be located within the range of

permissible decisions." Borden, 564 F.3d at 104 (quoting Sims v. Blot, 534 F.3d 117, 132 (2d

Cir. 2008)).

Here, in its order denying Simpson's motion, the district court concluded that its previous

analysis of the § 3553(a) factors continued to justify the sentence originally imposed and that

Simpson's post-sentencing conduct counseled against the grant of a sentencing reduction. But

the district court's order also included a clause suggesting that "reductions" previously received

by the defendant informed the decision not to grant Simpson a sentence reduction under §

3582(c)(2). App'x 86. Language in the district court's order indicates that the district court

was referring to the fact that, largely to adjust for an unproven drug quantity referenced in

Simpson's PSR, the guidelines range the district court determined to be applicable at Simpson's

original sentencing proceeding was below

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or "reduc[ed]" from

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the guidelines range

calculated by the Probation Department. However, this fact would not, as a general rule, be a

Case 16-849, Document 59, 03/01/2017, 1979129, Page4 of 5

proper component of the § 3582(c)(2) analysis, which incorporates only the § 3553(a) factors,

public safety concerns, and the defendant's post-sentencing conduct. 18 U.S.C. § 3582(c)(2);

U.S. Sentencing Guidelines § 1BI.10, app. n.1(B)(iii).

The Government suggests an alternate approach to the district court's order. it argues

that when a district court makes a discretionary determination to adjust a defendant's guidelines

calculation, or the defendant's final sentence, to account for the particular circumstances of the

case at the original sentencing proceeding, that earlier decision can then be taken into account as

part of the defendant's "history and characteristics" under 18 U.S.C. § 3553(a)(1) in resolving a

subsequent motion under § 3582(c)(2). However, we need not resolve this contention here

because the specific language used in the order suggests that the district court was not referring

to such a case-specific determination, but rather to the earlier adjustments it had made to

Simpson's guidelines calculation to reflect the provable facts underlying Simpson's conviction.

On this record, therefore, we cannot be confident that the district court's decision was not

improperly informed by a factor lying outside the framework set forth in § 3582(c)(2) and the

relevant section of the Sentencing Guidelines.

Accordingly, we remand this case in accordance with the procedures set forth in United

States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), directing the district court to clarify by order

whether, without considering the effect of the adjustments it made in determining Simpson's

guidelines range at his original sentencing, it would have reached the same decision with respect

to Simpson's § 3582(c)(2) motion. If the district court determines that further proceedings on

Simpson's § 3582(c)(2) motion are appropriate, it may conduct such proceedings pursuant to this

remand. Within fourteen days of the entry of the district court's final order, either party may

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Case 16-849, Document 59, 03/01/2017, 1979129, Page5 of 5

restore the matter to this panel's jurisdiction by giving notice of a renewed appeal to the Clerk of

Court.

For the foregoing reasons, the judgment of the district court is REMANDED for further

proceedings consistent with this order. '

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FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

5

m

Case 1:08-cr-00030-SJ Document 267 Filed 06115/17 Page 1 of 4 PageD #: 1889

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

08 CR 30 (SJ)

V.

MEMORANDUM

AND ORDER

DAVID Z. SIMPSON,

Defendant

--------

APPEARANCES

BRIDGET RHODE

United States Attorney

Eastern District of New York

271 Cadman Plaza East

Brooklyn, NY 11201

By: Sheve Anal!

Lindsay Gerdes

Attorneys for the government

NORMAN TRABULUS

Law Offices of Norman Trabulus

345 Seventh Avenue

2l Floor

New York, NY 1001

Attorney for Defendant

JOHNSON, Senior District Judge:

On March 11, 2016, this Court denied defendant David Simpson's

("Simpson" or "Defendant") motion to re-sentence pursuant to Amendment 782 of

1

P.04a

Case 1:08-cr-00030-SJ, Document 267'Filed 06/15/17 Page 2 of 4 Page ID #: 1890

the United States Sentencing Guidelines and 18 U.S.C. § 3582(c). Simpson

appealed the decision and the Second Circuit remanded the action, directing this

Court to clarify whether Simpson's motion would have been denied even in the

absence of the Courts 5 level reduction of the total offense level that was

calculated by the Probation Department.

The answer is yes. At the April 25, .2016- hearing, Simpson's disciplinary

record was discussed at considerable length:

P.O4

The Court:

We are here for your application for a reduction of sentence,

and I have before me your disciplinary record at the

institution. And part of your defense, I understand it, is that

it is your religion, is that correct?

Simpson:

Part of my defense is my religion.

The Court:

For the disciplinary infraction.

Simpson:

Sie of my discipliny infractions that I suffered were

because of my particular religion.

The Court:

•That is what I asked you.

Simpson:

Yes, sir. Yes, Your Honor.

The Court

What is your rligiôn?

Simpson:

My religious practices are similar to those of Messianics or

Jews, Your Honor. I f1low most of the same teachings,

most of the same practices of holy days and so on.

The Court:

What is the naijie?

Simpson:

Most of the religious holy days and feasts and the observing.

of the Sabbath is the same, but there is a slight difference in

determining when. You see, I revert back to the scriptures

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Case 1:08-cr-00030-Si Document 267 Filed 06/15/17 Page 3 of 4 Pagel #: 1891

and use the original way to determine when. to observe the

days.

The Court: You did not answer my question. I said. what is the name of

your religion..

The Defendant: [do not have a name to give; you.

The Court:

Now, one of the infractions, .1 understand it, is that you were

charged with purloining food, is that correct?

.j

[j..

Simpson

Yes, yes, I was charged, Your Honor, with stealing food

This is a common practice by most inmates at the institution.

The Court:

So everybody steals food' there?

Simpson:

I would not I would not disagree with the stealing of the

food, I would say that what we do is we remove the food

from the chow hail without permission.

Ii

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The Court: Okay. Now, is this whileyou were on a hunger strike?

e Dkt. No. 256 at 4-6 (emphasis added); seealso Dkt. No. 247 (Simpson's

institutional record), Dkt. No. 13 in case styled $imDson v. United States (SJ) 12

CV 1271 (letters, by.. Simpson to then-Attorney General Holder requesting that

Holder instruct this Court to "address all my issues on the merits or allow me to

die!" and declaring his intent to go on a hunger strike).)

At the conclusion of the April 25 2014.oceedings, the Court reiterated the

relevance of Simson's disciplinary record, a record directly related to the vagaries

3

Case 1:08-cr-00030-SJ Document 267 Filed 06/15/17 Page 4 of 4 Page ID #: 1892

IM

of his religious Observances in that he frequently failed to follow orders to report to

duty stations or 'Wètk because the days of his: Sabbath remain in flux and

indeterminate to the Bureau of Prisons, the Court, and Simpson himself. :(Tr. at 1314.)

For the foregoing reasons, and keing in mind that the decision to

resentence is "confided to the sound discetion :f the district court," United States

v, White, 429 F App'x, 423., 47 .(2d Cit. 2011), this Court denies Simpson's

motion.

SO ORDERED.

...

Dated: June 15, 2017

Brooklyn, New York

4

P-049

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n.

APPENDIX D

Case 16-849, Document 109-1, 08/14/2017, 2099310, Pagel of 3

16-849-cr

United States v. David Z. Simpson

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

14' day of August, two thousand seventeen.

Present:

JOHN M. WALKER, JR.,

DEBRA Ai* LWINGSTON,

Circuit Judges,

VINCENT L. BRICCETTI,

District Judge!'

UNITED STATES OF AMERICA,

Appellee,

V.

16-849-cr

DAVID Z. SIMESON,

Defendant-Appellant,

LiwErru SANTANA, SHELDON HOLDER, AKA Duane,

TROY CULBERTSON, PATRICIA LANCASTER,

Defendants.

*

Judge Vincent L. Briccetti, of the United States District Court for the Southern District of New York,

sitting by designation.

1

Case 16-849, Document 109-1, 0811412017, 2099310, Page2 of 3

For Defendant-Appellant:

Norman Trabulus, Esq., New York, NY

For Appellee:

JoAnn M. Navickas, Kaitlin T. Farrell, for Bridget M.

Rohde, Acting United States Attorney for the Eastern

District of New York, Brooklyn, NY

Appeal from a judgment of the United States District Cçurt for the Eastern District of

New York (Johnson, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

David Z. Simpson appeals from an order of the United States District Court for the

Eastern District of New York (Johnson, J.) denying Simpson's motion for a sentence reduction

under 18 U.S.C. § 3582(c)(2) and Amendments 782 and 788 to the United States Sentencing

Guidelines, which retroactively lowered the base offense levels applicable to many drug crimes.

This case now returns to us from our prior remand, pursuant to the procedures laid out in United

States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), to the district court. We assume the parties'

familiarity with the underlying facts,the procedural history of the case, and the issues on appeal.

As explained in our prior order, United States v. Simpson, 678 F. App'x 53 (2d Cir.

2017), in adjudicating the merits of a § 3582(c)(2) motion a district court may consider the

sentencing factors set forth in 18 U.S.C. § 3553(a), public safety concerns, and the defendant's

post-sentencing conduct. See 18 U.S.C. § 3582(c)(2); U.S. Sentencing Guidelines § 1BI.10,

app. n. 1(B)(iii). We review the district court's weighing of these factors for abuse of discretion.

United States v. Rivera, 662 F.3d 166, 170 (2d Cir. 2011).

On Jacobson remand, the district court clarified that the decision it reached denying

Simpson's § 3582(c)(2) motion was based on its original analysis of the § 3553(a) factors at

sentencing, as well as Simpson's disciplinary record while incarcerated. Though the district

2

Case 16-849, Document 109-1, 08/14/2017, 2099310, Page3 of 3

court's clarification order on remand does include a discussion of that court's skepticism about

the credibility of elements of Simpson's testimony, the district court also made clear that the

relevance of this credibility judgment was that it undermined Simpson's efforts to explain away

the disciplinary infractions that were apparent from his record. Because the defendant's

post-sentencing conduct is a relevant consideration in evaluating a § 3582(c)(2) motion, we fmd

no error or abuse of discretion in the district court's ultimate decision to deny Simpson's motion

in part on that basis.

*

*

*

We have considered all of Simpson's remaining arguments and find them without merit.

Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

SMMO

Case 16-849, Document 109-2, 08/1412017, 2099310, Pagel of 1

United States Court of Appeals for the Second Circuit

Thurgood Marshall U.S. Courthouse

40 Foley Square

New York, NY 10007

ROBERT A. KATZMANN

CATHERINE O'HAGAN WOLFE

CHIEF JUDGE

CLERK OF COURT

Date: August 14, 2017

DC Docket #: 1:08-cr-30-2

Docket #: 16-849cr

DC Court: EDNY (BROOKLYN)

Short Title: United States of America v. Santana (Simpson) DC Judge: Johnson

BILL OF COSTS INSTRUCTIONS

The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of

costs is on the Court's website.

The bill of costs must:

* be filed within 14 days after the entry of judgment;

* be verified;

* be served on all adversaries;

*

not include charges for postage, delivery, service, overtime and the filers edits;

* identify the number of copies which comprise the printer's unit;

* include the printer's bills, which must state the minimum charge per printer's unit for a page, a

cover, foot lines by the line, and an index and table of cases by the page;

* state only the number of necessary copies inserted in enclosed form;

*

state actual costs at rates not higher than those generally charged for printing services in New

York, New York; excessive charges are subject to reduction;

*

be filed via CMIECF or if counsel is exempted with the original and two copies.

Case 16-849, Document 109-3, 08/14/2017, 2099310, Page? of?

United States Court of Appeals for the Second Circuit.

Thurgood Marshall U.S. Courthouse

40 Foley Square

New York, NY 10007

ROBERT A. KATZMANN

CATHERINE O'HACAN WOLFE

CHIEF JUDGE

CLERK OF COURT

Date: August 14, 2017

DC Docket #: 1:08-cr-30-2

Docket #: 16-849cr

DC Court: EDNY (BROOKLYN)

Short Title: United States of America v. Santana (Simpson) DC Judge: Johnson

VERIFIED ITEMIZED BILL OF COSTS

Counsel for

respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to

prepare an itemized statement of costs taxed against the

and in favor of

for insertion in the mandate.

Docketing Fee

Costs of printing appendix (necessary copies

Costs of printing brief (necessary copies

)

Costs of printing reply brief (necessary copies

(VERIFICATION HERE)

Signature

APPENDIX E

Case 16-849, Document 125, 10/16/2017, 2148339, Pagel of 1

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on

the 16th day of October, two thousand and seventeen,

Before:

JOHN M.WALKER, JR.,

DEBRA ANN LIVINGSTON,

Circuit Judges,

VINCENT L. BRICCErrI,

District Judge.*

United States of America,

ORDER

Docket No. 16-849

Appellee,

V.

Linette Santana, Sheldon Holder, AKA Duane, Troy

Culbertson, Patricia Lancaster,

Defendants,

David Z. Simpson,

Defendant Appellant.

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Appellant having filed a petition for panel rehearing and the panel that determined the

appeal having considered the request,

iT IS HEREBY ORDERED that the petition is DENTED.

For The Court:

Catherine O'Hagan Wolfe,

Clerk of Court

rECOM

'Judge Vincent L. Briccetti, of the United States District Court

for the Southern District of New York, sitting by designation.

APPENDIX F

United States Constitution

Amendment I

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition the government

for a redress of grievances.