Simon v. United States

Background

Daryl Simon was serving a 285-month sentence at FCI Allenwood Low for access-device fraud and failure to appear. On September 28, 2020, the court denied his motion for compassionate release. The court assumed, without deciding, that Simon’s medical conditions could qualify as extraordinary and compelling reasons, but concluded that the nature of his offense and conduct did not support release.

The earlier order relied on Simon’s post-plea arrest for possessing stolen property, missed appointments with pretrial services, failure to appear for sentencing, and fugitive status for more than a year. During that period, law enforcement found evidence of Simon’s involvement in a second credit-card scheme. The court concluded that his 285-month sentence was consistent with his repeated fraud and evasion of the law.

Motion for Reconsideration

Simon moved for reconsideration 35 days after the September order and 20 days after, according to his representation, receiving it. He argued that he failed to attend his first sentencing date because he had learned of his son’s death the previous day, that his arrest for possessing stolen property was later dismissed, and that the second credit-card scheme involved duplicative information. He also argued that his conduct was less serious than the conduct in a case the court had cited and challenged a level-six sentence enhancement.

The court applied Southern District of New York Local Criminal Rule 49.1(d), which requires a criminal reconsideration motion to be filed within 14 days and to identify matters or controlling decisions the court overlooked. The court explained that reconsideration is an extraordinary remedy and generally cannot be used to present new facts or arguments, relitigate issues already decided, or take a second opportunity to make the same case.

Court’s Analysis

The court held that Simon’s motion was untimely. It further stated that the motion would fail even if it had been timely because Simon relied on circumstances not presented in his original compassionate-release motion or on arguments the court had already rejected.

The court found that Simon’s explanation for missing the first sentencing date did not excuse his later failure to appear at the adjourned sentencing date, his missed pretrial-services appointments, or his disappearance for more than a year. It also concluded that dismissal of the stolen-property charge or possible duplication in the second credit-card scheme did not negate his fugitive status. The court said the length of the fugitive period and the comparative seriousness of the offense in another case did not alter its analysis.

The court separately addressed Simon’s challenge to the sentence enhancement. It stated that the court had already decided Simon’s earlier motion under 28 U.S.C. § 2255, a procedure for challenging a federal sentence, on the merits. To the extent Simon was presenting another challenge to the same sentence, the court said he needed permission from the United States Court of Appeals for the Second Circuit before filing a successive § 2255 motion. The court transferred that successive motion to the Second Circuit in the interest of justice.

Disposition

Judge Ramos denied Simon’s motion for reconsideration. The Clerk of Court was directed to transfer Simon’s successive § 2255 motion to the Second Circuit. The opinion also states that the Government had not responded to the reconsideration motion by the directed deadline.