United States District Court, E.D. Virginia, Norfolk Division
ROBERT E. PAYNE, Senior District Judge.
By Memorandum Opinion and Order entered March 21, 2014 ("March 21 Opinion"), the Court granted in part and denied in part, Ronald Evans's successive motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion"). United States v. Evans, No. 2:92CR163-5, 2014 WL 1165858, at *13 (E.D. Va. Mar. 21, 2014.) The matter now comes before the Court on Evans's Motion to Alter the Court's Judgment filed pursuant to Fed.R.Civ.P. Rule 59(e) ("Evans's Rule 59(e) Motion, " ECF No. 102), the Government's Response, and the Government's Motion to Reconsider ("Government's Rule 59(e) Motion, " ECF No. 103) the Court's Order. For the reasons stated below, the Court will deny Evans's Rule 59(e) Motion. The Court will grant the Government's Rule 59(e) Motion because any error in sentencing Evans to life imprisonment on Count Thirty-Six is harmless. The Court therefore will vacate the portion of the Order granting Evans's § 2255 Motion as to Count Thirty-Six and ordering a resentencing as to that count. The Court will deny Evans's § 2255 Motion as to Count Thirty-Six.
I. PROCEDURAL HISTORY
On December 12, 1992, a jury convicted Evans of conspiracy to distribute and possession with intent to distribute in excess of five kilograms of cocaine, in excess of one kilogram of heroin, and more than fifty grams of a mixture containing cocaine base, in violation of 21 U.S.C. § 846 (Count One), and possession with intent to distribute heroin, cocaine, and cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Counts Eight, Eleven, Fourteen, Twenty-Three, Thirty-Six, Forty-One). (Judgment in a Criminal Case 1-2.) On July 30, 1993, the Court sentenced Evans to life in prison on Counts One and Thirty-Six, 240 months on Counts Eight, Fourteen, Twenty-Three, Forty-One, and 480 months on Count Eleven. (Judgment in a Criminal Case 3-4.) The United States Court of Appeals for the Fourth Circuit affirmed. United States v. Hazel, Nos. 93-5634, 93-5635, 93-5636, 93-5637, 1994 WL 642198, *8 (4th Cir. Nov. 15, 1994). On April 24, 1995, the Supreme Court of the United States denied Evans's petition for a writ of certiorari. Evans v. United States, 514 U.S. 1087 (1995).
On February 26, 1998, this Court denied Evans's first motion filed pursuant to 28 U.S.C. § 2255. Thereafter, Evans sought permission from the Fourth Circuit to file a successive § 2255 motion based upon the Supreme Court's decision in Graham v. Florida, 560 U.S. 48 (2010). On October 6, 2011, the Fourth Circuit granted Evans authorization to file this successive § 2255. In re Evans, 449 F.Appx. 284, 284 (4th Cir. 2011).
In his § 2255 Motion, Evans argued that his life sentence without possibility of parole violated the Eighth Amendment under Graham v. Florida, 560 U.S. 48 (2010), and that Graham announced a new, previously unavailable rule of constitutional law made retroactive to cases on collateral review by the Supreme Court of the United States, thus entitling Evans to relief. In the March 21, 2014, Memorandum Opinion and Order, the Court concluded that "that Evans has shown that Graham v. Florida, 560 U.S. 48 (2010), announced a new rule of constitutional law retroactively applicable on collateral review, " United States v. Evans, No. 2:92CR163-5, 2014 WL 1165858, at *13 (E.D. Va. Mar. 21, 2014), and accordingly, that Evans "demonstrate[d] entitlement to relief with respect to his sentence of life imprisonment for Count Thirty-Six." Id. at *5. Nevertheless, the Court concluded that "Evans fails to demonstrate that Graham extends to his adult conviction and sentence for Count One." Id . The Court denied Evans's § 2255 Motion with respect to Count One and granted the motion with respect to Count Thirty-Six in the form of resentencing for that count. Id. at *13. The Court "enter[ed] final judgment on Evan's § 2255 Motion and reserve[d] resentencing on Count Thirty-Six until [the] conclusion of any appeal." (Order 1, ECF No. 99.)
II. STANDARD FOR RULE 59(e) RELIEF
The reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly. Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (citation omitted). The United States Court of Appeals for the Fourth Circuit has recognized three grounds for relief under Rule 59(e): Ml) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice." Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (citing Weyerhaeuser Corp. v. Koppers Co., 771 F.Supp. 1406, 1419 (D. Md. 1991); Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D.Miss. 1990)).
A. Evans's Rule 59(e) Motion
First, Evans argues that the Court's conclusion that Evans has adult liability for Count One because Evans failed to withdraw from the drug distribution conspiracy before his eighteenth birthday is "clear error of law or a manifest injustice." (Evans's Rule 59(e) Mot. 2 (citation omitted).) Second, Evans requests that the Court vacate the portion of the Order entering final judgment and resentence Evans on Count Thirty-Six. The Court will deny Evans's Rule 59(e) Motion challenging the Court's judgment with respect to Count One. The Court will deny Evans's Rule 59(e) Motion to the extent it seeks resentencing on Count Thirty-Six.
1. No Entitlement to Rule 59(e) Relief for Count One
Evans argues that the Court erred in finding that he failed to demonstrate that Graham v. Florida, 560 U.S. 48 (2010) extended to his adult conviction and sentence for Count One. Evans contends that the Court relied on the wrong standard for determining that Evans had adult liability. On that point, Evans states:
In its March 21, 2014 [M] emorandum [O] pinion, the Court framed its inquiry as two separate questions: whether Mr. Evans withdrew from the conspiracy before he turned 18, and whether Mr. Evans took any action to advance the conspiracy after he turned 18. However, the first question is based on a clear error of law: for someone who joined a conspiracy as a juvenile, the proper analysis is whether he ratified his participation in the conspiracy once he became an adult, not whether he affirmatively withdrew while he was still a juvenile. The Court answered the second question by failing to consider the entire record, and thus mistakenly concluded that Mr. Evans acted as an adult to further the conspiracy. (Evans's Rule 59(e) Mot. 2-3.) Evans cites to United States v. Spoone, 741 F.2d 680, 687 (4th Cir. 1984) and essentially suggests that the Court committed clear error of law by failing to take into account statutory standards under the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031. Evans contends that Spoone stands for the proposition that the "[G]overnment must prove [that a] defendant engaged in [an] act indicating his ...