USA v. Gebregiorgis

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States of America v. Zerisenay Gebregiorgis
Case No. 1:17-cr-00003-TMB-1
By: THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: ORDER FROM CHAMBERS
The matter comes before the Court on Defendant Zerisenay Gebregiorgis’ “Motion to Reconsider”
(the “Motion”) the Court’s Order at Docket 202 (the “Order”) denying Defendant’s motion for a
full resentencing.1 At the Court’s direction, the Government filed a response (the “Response”)
and opposes the Motion.2 The matter is ready for disposition without oral argument. For the
following reasons, the Motion is DENIED.
Defendant argues that the Court committed a “‘manifest error of law’” by denying Defendant’s
motion for a full resentencing.3 Defendant asserts that the Court did not address his argument, that
under United States v. Napier, “the proper remedy is a full resentencing when the court orders
special conditions that are not pronounced as part of the oral sentence.”4 He argues that the Court
misapplied Napier and should conduct a full resentencing.5 In support of his proffered application
of Napier, he also cites the Ninth Circuit case United States v. Lopez, an example in which the
Ninth Circuit remanded a case without vacating the underlying sentence.6 He argues that Lopez is
“consistent with the practice established in Napier[.]7 He concludes by stating “[t]he fact that the
Napier court’s order unambiguously vacated the entire sentence, and the Ninth Circuit’s order in
Mr. Gebregiorgis’s case was more ambiguous, does not change the holding in Napier,” which
requires a full resentencing.8
The Government opposes the Motion.9 The Government argues that Defendant’s application of
Lopez does not support the notion that “when it is ambiguous there is a requirement for a full
resentencing.”10 It instead argues that the Court must proceed “in accordance with the mandate
and law of the case established on appeal.”11 The Government states that the Ninth Circuit’s
1 Dkts. 203 (Motion); 202 (Order Denying Motion for Full Resentencing).
2 Dkts. 205 (Text Order); 206 (Response).
3 Dkt. 203 at 3 (quoting D. Alaska Local R. Crim. P. 47.1(g)(1)(A)).
4 Id. at 1.
5 463 F.3d 1040, 1044 (9th Cir. 2006); Dkt. 203 at 2–3.
6 Dkt. 203 at 2 (discussing United States v. Lopez, 818 F. App’x 654, 657 (9th Cir. 2020)).
7 Id.
8 Id. at 2–3.
9 Dkt. 206.
10 Id. at 3.
11 Id. at 3 (citing United States v. Washington, 172 F.3d 1116, 1118 (9th Cir. 1999) (citing Stevens
v. F/V Bonnie Doon, 731 F.2d 1433, 1435 (9th Cir. 1984)).
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mandate is “narrowly tailored . . . so the [C]ourt may consider implementing special conditions of
supervised release.”12
“‘Although not expressly authorized by the Federal Rules of Criminal Procedure, motions
for reconsideration are allowed in criminal cases.’”13 Under Local Criminal Rule 47.1(g)(1), a
“court will ordinarily deny a motion for reconsideration absent a showing of one of the following:
[A] manifest error of the law or fact; [B] discovery of new material facts not previously available;
or [C] intervening change in the law.”
Here, Defendant moves for reconsideration under Local Criminal Rule 47.1(g)(1)[A], yet shows
no manifest error of law.14 First, this Court is bound by the Ninth Circuit’s decision in this case,
which “AFFIRMED in part, and REVERSED and REMANDED in part.”15 The Ninth Circuit did
not vacate Defendant’s sentence and, in fact, affirmed all other portions of the sentence that were
challenged on appeal.16 The Court found the Ninth Circuit’s Memorandum Opinion was “clear
evidence” that resentencing was required as to only the special conditions of supervised release.17
Nothing raised in this Motion disturbs the Court’s prior analysis.
Second, the Court in its Order addressed Defendant’s second argument, that “the proper remedy
is a full resentencing when the court orders special conditions that are not pronounced as part of
the oral sentence.”18 The Court described Ninth Circuit precedent requiring “clear evidence” for
the Court to properly proceed with a limited resentencing, the impact of the Napier precedent on
Defendant’s case, and notably, the Ninth Circuit’s actions in this case.19
Third, the Defendant’s citation to Lopez is unpersuasive.20 In Lopez, the Ninth Circuit concluded
that the district court erred by imposing written conditions of supervised release that conflicted
with its oral sentence pronouncement.21 Because the oral sentence pronouncement was a
“complete and unambiguous sentence” that controlled over the conflicting written judgment, the
Ninth Circuit remanded without vacating the sentence for the limited purpose of correcting the
written judgment.22 While the Court agrees with Defendant that Lopez is consistent with Napier,
the Lopez decision does not establish that the Court made a manifest error of law requiring
reconsideration of Defendant’s motion for a full resentencing.
12 Id. at 5.
13 United States v. Goulding, No. 1:18-cr-00240-LJO, 2020 WL 6131688, at *1 (E.D. Cal. Oct. 19,
2020) (quoting United States v. Jones, 916 F. Supp. 2d 83, 86 (D.D.C. 2013)).
14 See Dkt. 203 at 1; D. Alaska L. Crim. R. 47.1(g)(1)(A).
15 Dkt. 183 at 5 (Ninth Circuit Mem. Op., Case. No. 18-30126).
16 See id. at 3–5.
17 Dkt. 202 at 2.
18 See Dkt. 203 at 1.
19 See Dkt. 202 at 2–3.
20 Dkt. 203 at 2.
21 Lopez, 818 F. App’x at 657.
22 Id.
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This Court is bound by the Ninth Circuit’s decision.23 Accordingly, the Court will proceed with a
limited resentencing as outlined in the Court’s Order.
The Motion at Docket 203 is therefore DENIED.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: April 21, 2021.
23 Washington, 172 F.3d at 1118 (citing Stevens, 731 F.2d at 1435) (“If the case is remanded for
further proceedings, the trial court must proceed in accordance with the mandate and the law of
the case as established on appeal.”).
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