Argued: March 23, 2016
from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:04-cr-00250-RJC-19;
Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant.
Michael R. Dreeben, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. Steven Harris Goldblatt,
GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., as
Court-Assigned Amicus Counsel. Erika L. Maley, SIDLEY AUSTIN
LLP, Washington, D.C., for Amici Curiae.
Hall Richardson, Executive Director, Charlotte, North
Carolina, Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Asheville, North Carolina, for
A.C. Meisler, Assistant to the Solicitor General, Nina
Goodman, Lena Hughes, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Anne M. Tompkins, United States Attorney,
Jill Westmoreland Rose, United States Attorney, Charlotte,
North Carolina, Amy E. Ray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee. Ruthanne M. Deutsch, Shon Hopwood,
Supervising Attorneys, Utsav Gupta, William Hornbeck,
Meredith Wood, Ryan W. Cooke, Courtney A. Elgart, Elizabeth
Sebesky, Student Counsel, Appellate Litigation Program,
GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for
Court-Assigned Amicus Counsel. Douglas A. Berman, Professor
of Law, THE OHIO STATE UNIVERSITY, Columbus, Ohio; Jeffrey T.
Green, Kimberly A. Leaman, SIDLEY AUSTIN LLP, Washington,
D.C., for Amici Curiae.
GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, TRAXLER,
KING, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD,
THACKER, and HARRIS, Circuit Judges.
order dated February 14, 2017, the court directed the parties
to address the impact of the President's commutation of
Appellant Surratt's sentence and, in particular, the
questions of mootness and jurisdiction. Upon consideration of
the responses to the court's order, the court finds this
appeal to be moot.
appeal is, accordingly, dismissed as moot.
at the direction of Chief Judge Gregory for the Court.
WILKINSON, Circuit Judge, concurring:
has received the relief from life imprisonment he was seeking
in this case and more. He is also no longer serving a
judicially imposed sentence, but a presidentially commuted
one. The President's commutation order simply closes the
judicial door. Absent some constitutional infirmity in the
commutation order, which is not present here, we may not
readjust or rescind what the President, in the exercise of
his pardon power, has done.
matters not whether we believe the commutation was too
lenient or not lenient enough. We are simply without power to
inject ourselves into the lawful act of a coordinate branch
of government-one that Surratt willingly agreed to-and
supersede a presidential pardon or commutation with a
contravening order of our own. After all, "[i]t would be
a curious logic to allow a convicted person who petitions for
mercy to retain the full benefit of a lesser punishment with
conditions, yet escape burdens readily assumed in accepting
the commutation which he sought." Schick v.
Reed, 419 U.S. 256, 267 (1974). Surratt "cannot
complain if the law executes the choice he has made, "
id. at 265 (quoting Ex parte Wells, 59 U.S.
307, 315 (1855)), even if my dissenting colleague thinks he
made a "bad bargain" by accepting the commuted
sentence, id. at 259.
dissenting colleague's unwillingness to find moot even
this clear-cut a case points to a broader problem affecting
our criminal justice system. Insofar as I can detect, there
is no such thing as finality in my dissenting colleague's
view. Indeed, the principle of finality is not even paid the
lip service that presages disregard. Some reason is somehow
always found for a case to go on and on and on. To so freely
revisit final judgments, as my dissenting colleague would, is
to embark on a course that is so vague and so open-ended as
to render criminal judgments entirely provisional and good
for one day only.
my dissenting colleague alleges that Surratt's initial
sentence was "unlawful, " it was indisputably
lawful when entered and the correctness of the sentence has
divided judges ever since. Let it be said that strict
sentences always make for hard cases. It is not for pleasure
that the system imposes them. But Surratt had been convicted
time and time again for drug-related offenses-including
distributional felonies-under federal and state law. The
President had every right to calibrate his commutation with
these considerations in mind, bringing this saga to an end,
both merciful and firm.
GRIBBON MOTZ, concurring:
concur in the court's order dismissing this case as moot.
Throughout this difficult litigation, the Government has
conducted itself in a most admirable manner, offering us
candid and insightful assistance. Even my dissenting
colleague acknowledges that the Government acted
"[c]ommendably" in agreeing that Surratt was
entitled to relief regarding his original sentence. I do not
read the Government's recent letter regarding mootness to
present any departure from its previous commendable
assistance to us.
Circuit Judge, dissenting from dismissal:
Jefferson wrote that "the most sacred of the duties of a
government is to do equal and impartial justice to all its
citizens." Those words impart that all citizens, no
matter their plight in life, should be accorded justice in
our court system. Today's perfunctory dismissal of
Petitioner Raymond Surratt, Jr.'s 10-year effort to
obtain a fair and impartial disposition of his case in the
federal courts is, if not an outright injustice, at least an
abandonment of fairness.
began when we incorrectly construed 21 U.S.C. §
841(b)(1), the statute pursuant to which Petitioner was
sentenced, and thereby subjected Petitioner to a mandatory
life sentence, when Congress had established a far shorter
mandatory minimum. Then, when Petitioner, with the
government's support, sought collateral relief on
grounds that his unlawful life sentence constituted a
fundamental defect of constitutional dimension, we actively
appointed independent counsel to argue that Petitioner should
spend his life in prison. Apparently unsatisfied with the
executive branch's conclusion that Petitioner's
sentence was sufficiently unjust to warrant resentencing, we
then allowed Petitioner's appeal to go unresolved for
years, while Petitioner remained incarcerated under his
unlawful life sentence.
when, in the face of our delay, the President commuted
Petitioner's sentence-partially remedying the
error-we, without prompting or request by either party, but
actively on our own, suggested to the government that
Petitioner's action was moot. The government got the
message, arguing in response to our prompting that (1)
Petitioner's collateral attack is moot and (2) ...