United States District Court, D. Vermont
ENTRY ORDER DENYING DEFENDANT'S MOTIONS TO FILE LATE NOTICE OF APPEAL (DOCS. 7, 44)
Christina Reiss, Chief Judge United States District Court
Pending before the court are Defendant Joseph Lee Darling's motions to file a late notice of appeal. (Docs. 7, 44.) Defendant argues that good cause exists for his delay because he was "in transit" with the United States Marshals Service "for much of the time between his last communication with his counsel" and the date on which he filed the motions. Id. at 2. The government opposes the motions and challenges Defendant's claim that he was "in transit."
The government is represented by Assistant United States Attorney Wendy L. Fuller. Defendant is represented by Federal Public Defender Michael L. Desautels.
I. Factual and Procedural History.
On January 9, 2004, following his guilty plea to one count of distributing five grams or more of cocaine base, the United States District Court for the District of Maine sentenced Defendant to a term of 132 months, followed by a five year term of supervised release. On July 1, 2010, Defendant commenced his term of supervised release.
On January 20, 2015, while on supervised release, Defendant was charged by Complaint filed in the United States District Court for the District of Vermont with distribution of Oxycodone in case number 2:15-cr-l2, and on January 29, 2015, Defendant was indicted. On May 14, 2015, the Grand Jury returned a two-count Superseding Indictment charging Defendant with conspiracy to distribute Oxycodone and distribution of Oxycodone.
On June 9, 2015, Defendant and the government entered into a plea agreement whereby Defendant pled guilty to conspiracy to distribute Oxycodone. As part of that agreement, Defendant and the government stipulated that Defendant's "conduct underlying ... the Superseding Indictment involved at least 4, 000 grams of Oxycodone, for a marijuana equivalent under the Guidelines of between 10, 000 and 30, 000 kilograms of marijuana." (Doc. 34 at 1-2.) On September 25, 2015, based on his underlying conduct in case number 2:15-cr-12, a Petition on Probation and Supervised Release was filed in case number 2:15-cr-23. Defendant admitted to the supervised release violation.
On October 1, 2015, Defendant was sentenced based on his guilty plea to one count of conspiring to distribute Oxycodone and his admission to violating the conditions of his supervised release. The base offense level for Defendant's conspiracy to distribute charge was 34 pursuant to the USSG § 2D1.1(c)(3). Defendant received a two point aggravating role adjustment under USSG § 2Dl.l(b)(15)(E), as well as a two point increase because he was the organizer, leader, manager, or supervisor in the drug trafficking conspiracy pursuant to USSG § 3B 1.1(c). Defendant's offense level was reduced by three points based on his acceptance of responsibility pursuant to USSG § 3E1.1, resulting in a total offense level of 35. Defendant had eight criminal history points and a criminal history category of IV. Defendant's Guideline range was thus 235 to 293 months, but because the statutorily authorized maximum sentence of twenty years was less than the maximum Guideline range, Defendant's Guideline range was 235 to 240 months. See USSG § 5G 1.1(c)(1).
Defendant's Guideline range for his supervised release violation was 33 to 36 months. The Sentencing Guidelines provide that any term of incarceration for the supervised release violation be imposed consecutively. See United States Sentencing Guidelines Manual ("USSG") § 7B 1.3(f) (U.S. Sentencing Comm'n 2014).
The court sentenced Defendant to the mandatory minimum term of 120 months imprisonment for conspiring to distribute Oxycodone and a consecutive term of thirteen months imprisonment on the supervised release violation.
In imposing the sentence, the court advised Defendant on the record of his appellate rights as follows:
Both the defendant and the government may have the right to appeal this sentence, as set forth in Title 18, U.S. Code, section 3742. If the defendant is unable to pay the cost of an appeal, he has the right to apply for leave to appeal in forma pauperis in which event the court would waive the cost of an appeal, and request the court to appoint counsel for him. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant. Notice of appeal by the defendant must be filed within 14 days of the date judgment is entered on the docket, pursuant to Rule 4(b) of the Federal Rules of Appellate Procedure.
Defendant's judgment was entered on the court docket on October 1, 2015, and his notice of appeal was thus required to be filed on or before October 15, 2015.
From October 1, 2015 until October 14, 2015, Defendant was incarcerated at Northwest State Correctional Facility in Vermont. During that time, Defendant corresponded with the Federal Public Defender's Office both in person and by telephone and stated that he did not wish to pursue an appeal. On October 15, 2015, Defendant was transferred to Strafford, New Hampshire, and he was subsequently ...