United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE
case is before the Court on the Government's motion for
reconsideration of the Hon. Michael J. Telesca's Decision
and Order (Docket No. 38), which granted Petitioner's
§ 2255 petition and transferred this case to the
undersigned for resentencing. In response to the
Government's motion, Petitioner argues that the motion is
reasons stated below, the Court concludes that it has
authority to reconsider Judge Telesca's Decision and
Order. The Court also concludes that the Government's
motion for reconsideration is timely.
October 19, 2016, Judge Telesca granted Petitioner's
§ 2255 petition and transferred this case to the
undersigned for resentencing. However, given that the
legality of Petitioner's original sentence, as well as
any new sentence, would turn on the outcome of the Supreme
Court's then-pending decision in Beckles v. United
States, the Court declined to immediately resentence
Petitioner. Instead, the Court issued two orders staying any
resentencing proceedings until the Supreme Court decided
Beckles. See Docket Nos. 40 & 44. Thus,
to date, Petitioner has not been resentenced.
Supreme Court decided Beckles on March 6, 2017.
See Beckles v. United States, 137 S.Ct. 886 (2017).
At a status conference several days later, the Court directed
the parties to file briefs addressing whether the Court has
authority to vacate Judge Telesca's Decision and Order in
light of Beckles. The Government, as noted, now
moves for reconsideration of Judge Telesca's Decision and
Order. Petitioner opposes the Government's motion,
arguing that it is untimely.
Telesca's Decision and Order did not conclusively resolve
Petitioner's § 2255 petition. This is because
“what was . . . asked” in Petitioner's §
2255 petition “was [his] resentencing.”
Andrews v. United States, 373 U.S. 334, 340 (1963).
It is therefore “obvious that there could be no final
disposition of the § 2255 proceedings until . . .
petitioner w[as] resentenced.” Id. See
also United States v. Martin, 226 F.3d 1042, 1048 (9th
Cir. 2000). Cf. United States v. Hammer, 564 F.3d
628, (3d Cir. 2009) (on appeal from district court order
vacating capital sentence and ordering resentencing, holding
that “[a]n order that contemplates a future
resentencing but does not accomplish it is not an
‘order entered on the motion' and is not final and
appealable”) (quoting 28 U.S.C. § 2255);
United States v. Stitt, 459 F.3d 483, 485 (4th Cir.
2006) (on similar facts, noting that “cases
interpreting Andrews squarely hold that a district
court's judgment vacating a sentence does not become
final . . . until the court has resentenced the
defendant”). Thus, as both parties agree, Judge
Telesca's Decision and Order was interlocutory.
Judge Telesca's Decision and Order was interlocutory, the
Court has authority to reconsider it. “[S]o long as [a]
district court has jurisdiction over [a] case”-a point
neither party disputes here-“it possess inherent power
over interlocutory orders, and can reconsider them when it is
consonant with justice to do so.” United States v.
LoRusso, 695 F.2d 45, 53 (2d Cir. 1982) (quotation marks
omitted). See also Martin, 226 F.3d at 1049 (noting
that a court has “inherent jurisdiction to modify,
alter, or revoke” an interlocutory order granting a
§ 2255 petition). The Court therefore concludes that it
has authority to reconsider Judge Telesca's Decision and
responds that, even though Judge Telesca's Decision and
Order is interlocutory, the Court should deny the
Government's motion for reconsideration because the
motion is untimely. In support of his argument, Petitioner
points to Local Rule of Civil Procedure 7(d)(3), which states
that “[a] motion for reconsideration or reargument,
unless governed by Fed.R.Civ.P. 60, shall be treated as
falling within the scope of Fed.R.Civ.P. 59(e).” A Rule
59 motion must “be filed and served no later than
twenty-eight . . . days after the entry of the challenged
judgment, order, or decree.” L.R. Civ. P. 7(d)(3).
Thus, Petitioner argues, the Government's motion-which
was filed several months after Judge Telesca filed his
Decision and Order-is untimely.
Civil Rule 7(d)(3), however, governs motions for
reconsideration brought pursuant to Federal Rules of Civil
Procedure 59(e) and 60. Those Rules apply only to motions to
alter, amend, or vacate either a “judgment” (Fed.
R. Civ. P. 59(e)) or a “final judgment, order, or
proceeding.” Fed.R.Civ.P. 60(b). Judge Telesca's
Decision and Order is none of these. Rather, it is an
interlocutory order. Thus, Rule 59(e) and Rule 60(b)'s
rigid timing requirements-and, as a result, Local Civil Rule
7(d)(3)-do not govern the timeliness of the Government's
standard for judging the timeliness of the Government's
motion for reconsideration is, instead, much more flexible:
“[W]hether a motion for reconsideration [of an
interlocutory order] has been timely filed or not rests
solely on whether or not the motion was filed unreasonably
late.” 11 Wright & Miller, Federal Practice
& Proc. § 2812 n. 22 (3d ed. 2012). See
also In re United States (In re “Agent Orange”
Prod. Liability Litig.), 733 F.2d 10, 13 (2d Cir. 1984)
(“It is well established that the interlocutory orders
and rulings made pre-trial by a district judge are subject to
modification by the district judge at any time prior to
final judgment.”) (emphasis added).
by that standard, the Government's motion for
reconsideration is unquestionably timely. The Supreme Court
decided Beckles on March 6, 2017. The Court then
scheduled a status conference for March 10, at which time the
Government expressed its belief that Judge Telesca's
Decision and Order should be vacated. And the following
Monday, March 13-just one week after Beckles was
decided-the Government filed a protective motion for
reconsideration. The Government therefore promptly and
diligently moved for reconsideration after the basis for its
motion (Beckles) became available. The Court
therefore concludes that the Government's motion for
reconsideration is timely.
concluded that it has authority to entertain the
Government's motion for reconsideration, the Court must
decide whether to vacate Judge Telesca's Decision and
Order. Beckles appears to clearly reject one of the
key premises underlying Judge Telesca's Decision and
Order: that the Sentencing Guidelines (or, at the very least,
the residual clause of the Career Offender Guideline) are
subject to void-for-vagueness challenges.See
Beckles, 137 S.Ct. at 892 (“[T]he Guidelines are
not subject ...