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United States v. Surratt

United States Court of Appeals, Fourth Circuit

April 21, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
RAYMOND ROGER SURRATT, JR., Defendant-Appellant. STEVEN HARRIS GOLDBLATT, Court-Assigned Amicus Counsel, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; DOUGLAS A. BERMAN, Professor, Amici Supporting Appellant.

          Argued: March 23, 2016

         Appeal 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; 3:12-cv-00513-RJC)

         ARGUED:

          Ann 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.

         ON BRIEF:

          Ross Hall Richardson, Executive Director, Charlotte, North Carolina, Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant.

          Scott 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.

          Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, TRAXLER, KING, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, and HARRIS, Circuit Judges.

          ORDER

         By 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.

         The appeal is, accordingly, dismissed as moot.

         Entered at the direction of Chief Judge Gregory for the Court.

          WILKINSON, Circuit Judge, concurring:

         Surratt 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.

         It 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.

         My 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.

         While 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.

          DIANA GRIBBON MOTZ, concurring:

         I 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.

          WYNN, Circuit Judge, dissenting from dismissal:

         Thomas 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.

         It 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.

         And 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) ...


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