United States v. Vigna

• Decision Date: 17 April 2020
• Docket Number: No. S1 16-CR-786-3 (NSR),S1 16-CR-786-3 (NSR)
• Citation: 455 F.Supp.3d 68
• Parties: UNITED STATES of America, v. Anthony VIGNA, Defendant.
• Court: U.S. District Court — Southern District of New York

455 F.Supp.3d 68

UNITED STATES of America,

v.Anthony VIGNA, Defendant.

No. S1 16-CR-786-3 (NSR)

United States District Court, S.D. New York.

Signed April 17, 2020

David Russell Felton, James Franklin McMahon, US Attorneys Office, White Plains, NY, Jennifer L. Beidel, Michael Douglas Maimin, United States Attorney's Office, New York, NY, for United States of America.

OPINION & ORDER

NELSON S. ROMÁN, United States District Judge

On April 1, 2020, Defendant Anthony Vigna ("Mr. Vigna") filed a motion to modify his sentence under 18 U.S.C. § 3582(c)(1)(A) (" Section 3582(c)(1)(A)"). (ECF No. 258.) Asserting that he is at high risk of severe illness if he contracts the Coronavirus Disease of 2019 ("COVID-19") during his incarceration, Mr. Vigna seeks an order (1) reducing the term of his imprisonment to time served and (2) imposing a term of home detention for the amount of time left to be served on his term of imprisonment. (Def. Mem. of Law in Supp. of Mot. ("Mot."), ECF No. 260.) The Government opposes Mr. Vigna's motion on the grounds that, inter alia , the Court (a) lacks jurisdiction to grant Mr. Vigna relief because of his pending appeal before the Second Circuit and (b) lacks statutory authority under Section 3582(c)(1)(A) to modify Mr. Vigna's sentence or, in the event the Court agrees that it lacks jurisdiction, to issue an indicative ruling under Rule 37(a) of the Federal Rules of Criminal Procedure. (Gov't Mem. in Opp. to Def. Mot. ("Opp."), ECF No. 265.) This Court held a telephonic hearing on April 16, 2020 to address the parties’ arguments.

For the following reasons, the Court DENIES Mr. Vigna's motion for lack of jurisdiction, without prejudice to renew if the Court re-obtains jurisdiction. To the extent there is a question as to whether it may issue an indicative ruling under Federal Rule of Criminal Procedure 37(a), the Court DEFERS deciding the issue to allow Mr. Vigna to make an application under Section 3582(c)(1)(A) to the Bureau of Prisons. In deferring this decision, the Court recommends that the Bureau of Prisons give expeditious and favorable consideration to Mr. Vigna's request for compassionate release.

BACKGROUND

A. Mr. Vigna's Age and Health Issues

Mr. Vigna is a 62-year-old male currently incarcerated at Federal Correctional Institution, Otisville ("FCI Otisville"). (Mot. 6.) As he has previously explained in his sentencing submission, dated July 11, 2019, Mr. Vigna suffers from a litany of chronic and debilitating illnesses and diseases. Mr. Vigna has type 2 diabetes mellitus

, a chronic disease with which he was diagnosed in 2013. (ECF No. 215 at 18.) His diabetes is complicated by several factors, such as neuropathy—a condition consistent with nerve damage from elevated blood sugars over time—and elevated urine microalbumin—which represents early kidney damage. (Id. ) Mr. Vigna also suffers from hypertension, dyslipidemia (abnormal cholesterol), sleep apnea, and morbid obesity. (Id. )

Mr. Vigna takes many medications to treat his various ailments. Specifically, he has been prescribed (1) Lantus

insulin (long acting insulin ), (2) Novolog insulin (rapid acting insulin ), (3) Invokana (diabetes pill), (4) Metformin (diabetes pill), (5) Trulicity (diabetes medication), (6) Lisinopril (blood pressure medication), and (7) Rosuvastatin (cholesterol medication). (Id. at 18-19.) As stressed by his physician, Dr. Chee Yeung Chan, "at his present course and pace, Mr. Vigna is likely to have progression of [his] complications," leading to further ailments such as kidney disease, heart disease, stroke, and retinopathy (eye damage). (Id. at 19.)

B. Mr. Vigna's Current Sentence and Incarceration

On March 22, 2019, Mr. Vigna pleaded guilty to a one-count superseding indictment charging him with participating in a conspiracy to commit mail, wire, and bank fraud, in violation of 18 U.S.C. § 371. (ECF No. 211.) As a result of his plea, on July 25, 2019, Mr. Vigna was sentenced to a term of imprisonment of one year and one day, to be followed by three years of supervised release. (ECF No. 228.) Mr. Vigna filed a notice of appeal regarding his sentence on August 7, 2019, which is still pending. (ECF No. 231.)

Mr. Vigna began serving his sentence on September 9, 2019 at FCI Otisville. (Mot. 7.) Although Mr. Vigna is scheduled to be released from the custody of the Bureau of Prisons ("BOP") on July 16, 2020 (Opp. 2), he has been approved for a pre-release transfer to a residential halfway house in Brooklyn, New York. (Mot. 7; Opp. 2.) Mr. Vigna's transfer is scheduled for April 22, 2020. (Mot. 7; Opp. 2.) Mr. Vigna has further represented to the Court that he will be eligible to serve the remainder of his sentence in home confinement on May 10, 2020.

C. Mr. Vigna's Application With BOP

Mr. Vigna has represented that, on December 18, 2019, he requested "an early release" from FCI Otisville. (ECF No. 264-1 at 2.) He was instructed to submit a letter and provide a resume to make his request. (Id. ) On January 10, 2020, his case manager told him that she recommended for his release to home confinement on April 1, 2020. (Id. ) After several months passed, Mr. Vigna was informed on or about March 24, 2020 that he had been approved for the above-noted pre-release transfer to a halfway house. (Id. at 4.)

Despite this approval, on March 31, 2020, Mr. Vigna wrote to an officer at FCI Otisville seeking "early release due to health and compassionate reasons." (Id. at 8.) Specifically, Mr. Vigna requested that BOP switch the location where he would serve the remainder of his sentence from a halfway house to home confinement. (Id. at 8-9.) In support, Mr. Vigna explained his concerns about the recent COVID-19 pandemic. (Id. at 8.) Mr. Vigna further noted his underlying medical issues, such as diabetes¹ and high blood pressure, as other relevant factors supporting his application. (Id. ) He then concluded that the "recently enacted CARES [Coronavirus Aid, Relief, and Economic Security] Act ... permits the BOP authority in a time of emergency to lengthen the maximum amount of time of home confinement" under 18 U.S.C. § 3624(c)(3).² (Id. )

The next day, Mr. Vigna, through his counsel, submitted a formal application to FCI Otisville Warden James Petrucci ("Warden Petrucci"), requesting that BOP release Mr. Vigna to home or community confinement under 18 U.S.C. § 3624(c). (Mot. Ex. A at 1.) Like his March 31 application, Mr. Vigna's letter to Warden Petrucci cited concerns about the COVID-19 pandemic and Mr. Vigna's various medical conditions that, as recognized by the Centers for Disease Control and Prevention ("CDC"), placed him at "high risk" of suffering from serious illness if he were to contract the disease. (Id. at 2.) Mr. Vigna's letter also noted that he poses no threat to the community and that he lacks any prior criminal history. (Id. )

That same day, Mr. Vigna filed the present motion. (ECF No. 258.) The Court conducted a hearing on the motion on April 16, 2020, and this Opinion and Order followed.

DISCUSSION

Citing understandable concerns about the COVID-19 pandemic and the potentially devastating effects the disease may have on his health, Mr. Vigna moves this Court under 18 U.S.C. § 3582(c)(1)(A) for an order (1) reducing the term of his imprisonment to time served and (2) imposing a term of home detention for the amount of time left to be served on his term of imprisonment. (Mot. 1.) In opposition, the Government argues that, because Mr. Vigna filed a notice of appeal concerning his sentence, this Court has been divested of jurisdiction over any modification to Mr. Vigna's sentence. (Opp. 5.) The Court must agree.

"The filing of a notice of appeal is an event of jurisdictional significance" because "it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co. , 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). This rule applies with equal force in criminal cases. United States v. Ransom , 866 F.2d 574, 575 (2d Cir. 1989) (citing Berman v. United States , 302 U.S. 211, 214, 58 S.Ct. 164, 82 L.Ed. 204 (1937) ; United States v. Katsougrakis , 715 F.2d 769 (2d Cir. 1983) ). A district court will not regain jurisdiction until the issuance of the mandate by the clerk of the court of the appeals. United States v. Rodgers , 101 F.3d 247, 251 (2d Cir. 1996) (citing United States v. Rivera , 844 F.2d 916, 921 (2d Cir. 1988) ).

Although exceptions to this jurisdictional rule exist, see United States v. Martin , No. 18-CR-834-7 (PAE), 2020 WL 1819961, at *1 (S.D.N.Y. Apr. 10, 2020) (noting exceptions such as attorneys’ fees, proceedings on the merits after grant or denial of a preliminary injunction, and clerical errors), the rule does not permit courts to "modify a judgment substantively." See United States v. Viola , 555 F. App'x 57, 60 (2d Cir. 2014). This bar encompasses motions brought under Section 3582(c)(1)(A). See Martin , 2020 WL 1819961 at *2 ("Once Martin filed his notice of appeal challenging the Court's sentence, jurisdiction over the questions raised in his § 3582(c) motion transferred to the Second Circuit."); United States v. Ward , No. 01-40050-01-DDC, 2019 WL 1620439, at *3 (D. Kan. Apr. 16, 2019) ("The court thus cannot enter an order reducing Mr. Ward's sentence while his appeal—collaterally challenging the basis for his sentence—is pending.").

Here, neither party disputes that Mr. Vigna filed a notice of appeal of his sentence on August 7, 2019. (ECF No. 231.) That appeal is still pending, with Mr. Vigna having until June 9, 2020 to perfect his appeal and file his principal brief. (See Opp. 3 (quoting United States v. Vigna , No. 19-2430, Dkt. 40 (2d Cir. Feb. 7, 2020)).) Although this will understandably be a frustrating outcome for Mr. Vigna, under these circumstances, this Court is without authority to rule on his Section 3582(c)(1)(A) application because it would affect ...