United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter is before the Court on Defendant Matthew
Sample’s Motion for Stay of Further Criminal
Proceedings Until Decision of the United States Supreme Court
on the Petition for Certiorari which will be Timely Filed,
and to Modify Conditions of Release (ECF No. 80). In
Paragraph 14 of his motion, Sample seeks a modification of
the conditions of release to allow him to continue to make
restitution to the victims in this case through the Clerk of
the Court. The Government does not oppose the relief
requested in Paragraph 14. The Government opposes
Defendant’s request to stay his resentencing hearing
until the United States Supreme Court rules on whether to
grant certiorari in this case. The Court, having considered
the motion, briefs, record, applicable law, and otherwise
being fully advised, concludes that the motion should be
granted as to the request for relief in Paragraph 14, but
denied as to the request for stay.
Court entered its Judgment imposing a five-year term of
probation, among other conditions, including a requirement to
maintain gainful employment and pay restitution to
Sample’s victims. See Judgment 3-7, ECF No.
54. On August 27, 2018, the United States Court of Appeals
entered its opinion vacating the sentence this Court imposed.
United States v. Sample, 901 F.3d 1196, 1201 (2018).
The Tenth Circuit concluded that this Court imposed an
unreasonably lenient sentence by its “reliance on
Sample’s salary as overriding all other sentencing
considerations,” which “exceeded the bounds of
permissible choice.” Id. at 1200. The Tenth
Circuit vacated Sample’s sentence and remanded for
resentencing. Id. at 1201.
September 10, 2018, Defendant filed a Petition for
Reconsideration before the Tenth Circuit, which the Tenth
Circuit denied. On September 20, 2018, Defendant filed a
“Motion for Stay of Mandate” under Federal Rule
of Appellate Procedure 41(d)(2)(A) to “stay the mandate
pending the filing of a petition for writ of certiorari in
the United States Supreme Court.” The Tenth Circuit on
September 21, 2018, denied the motion to stay his
resentencing in a two-sentence Order. On September 24, 2018,
the Tenth Circuit issued its mandate in this case (ECF No.
thereafter, this Court set a resentencing hearing date for
January 10, 2019. On November 28, 2018, Defendant moved to
stay proceedings in this case until the United States Supreme
Court decides whether to grant certiorari. Defendant filed
his Petition for a Writ of Certiorari (the
“Petition”) on December 17, 2018, on the question
of “[w]hether a district court may reduce a prison
sentence, or impose a probationary term in lieu of
imprisonment, to enable a defendant to earn income to pay
restitution to his victims.” Def.’s Ex. A, ECF
Government argues this Court lacks jurisdiction to grant the
motion under 28 U.S.C. § 2101(f). Section 2101(f)
In any case in which the final judgment or decree of any
court is subject to review by the Supreme Court on writ of
certiorari, the execution and enforcement of such judgment or
decree may be stayed for a reasonable time to enable the
party aggrieved to obtain a writ of certiorari from the
Supreme Court. The stay may be granted by a judge of the
court rendering the judgment or decree or by a justice of the
28 U.S.C. § 2101(f) (italics added). According to the
Government, this section only allows an appellate court or
justice of the Supreme Court to stay an appellate
court’s final judgment or decree, divesting this Court
of jurisdiction to entertain Defendant’s request.
majority of courts to have addressed this issue have
concluded that Section 2101(f) does not permit a district
court to stay a circuit court’s final judgment or
decree pending resolution on a petition for certiorari.
See In re Stumes, 681 F.2d 524, 525 (8th Cir. 1982)
(“It appears, therefore, that only a judge of this
Court, or a justice of the Supreme Court, is empowered by 28
U.S.C. Section 2101(f) to stay the execution or enforcement
of this Court's judgment.”); United States v.
Lentz, 352 F.Supp.2d 718, 725 (E.D. Va. 2005) (“To
begin with, 28 U.S.C. § 2101(f) makes clear that only an
appellate court or a justice of the Supreme Court has
jurisdiction to stay an appellate court's final judgment
pending Supreme Court review of a certiorari
petition.”); United States v. Wittig, 2008 WL
5119986, at *2 (citing cases); Brinkman v. Department of
Corrections of State of Kan., 857 F.Supp. 775, 777
(D.Kan. 1994) (“Recent authority uniformly holds that
only the court of appeals or a justice of the Supreme Court
can stay the execution or enforcement of the court of
appeals' judgment.”) (citing cases).
case, the Tenth Circuit issued a decision holding that this
Court’s previous sentence was unreasonable and remanded
for resentencing. That ruling arguably, however, was not a
“final judgment or decree” because it did not end
the case and required further proceedings. See
Lentz, 352 F.Supp.2d at 726 n.18 (“Worth noting is
that it might be argued that the Fourth Circuit's
decision is not a ‘final judgment or decree’ as
it does not end the case.”); Citibank, N.A. v. Stok
& Assocs., P.A., No.
09-20770-MC-SEITZ/O’SULLIVAN, 2010 WL 11553382, at *1
n.1 (S.D. Fla. Dec. 15, 2010) (explaining that reliance on
§ 2101(f) was misplaced because court of appeals did not
require entry of a final judgment). Some courts have
nevertheless found little reason to distinguish a final
decision on a case-dispositive issue from an appellate ruling
that ends the matter. See Lentz, 352 F.Supp.2d at
726 & n.18 (finding that § 2101(f) applied to Fourth
Circuit’s ruling overturning the district court’s
judgment of acquittal because it was its “final
judgment or decree” with respect to judgment of
Government alternatively argues that the “mandate
rule” compels denying Defendant’s request for a
stay. The “mandate rule” states “that a
district court must comply strictly with the mandate rendered
by the reviewing court.” Huffman v. Saul Holdings
Ltd. Partnership, 262 F.3d 1128, 1132 (10th Cir. 2001).
The mandate rule is not jurisdictional. Id. at 1133.
Defendant argues, however, that the Tenth Circuit’s
mandate required resentencing, but did not impose any
timetable for that resentencing. Defendant also contends that
a district court has the power to stay proceedings generally
and control its docket.
Court agrees with Defendant that it has discretion in
controlling its docket and scheduling the resentencing.
See Baca v. Berry, 806 F.3d 1262, 1269-70 (10th Cir.
2015). For example, although the Eighth Circuit concluded in
In re Stumes that the district court could not rely
on Section 2101(f) to issue a stay, it nevertheless refused
to issue relief by mandamus to review the district
court’s stay under the circumstances because the
circuit’s opinion did not direct the district court to
issue a writ of habeas corpus unconditionally; rather, the
order ordered the discharge of petitioner from custody unless
the State commenced proceedings to try him again within such
reasonable time as the court may fix. See In re
Stumes, 681 F.2d at 525. The Eighth Circuit concluded
that the district court’s stay of proceedings did no
more than hold that the reasonable time for retrial should be
determined with the pending writ of certiorari in mind.
Id. See also Harte v. Board of Commissioners of Johnson
County, KS, 2017 WL 4697506, at *3 (D. Kan. Oct. 19,
2017) (“Regardless of whether § 2101(f) or the
mandate rule precludes the court from granting a stay pending
defendants' certiorari petition, the court agrees with
the defendants that the court, without deviating from the
Circuit’s mandate, has the inherent authority to manage
its trial docket and to schedule the trial of this case at
its discretion-even if that trial setting occurred after
resolution of the defendants' anticipated certiorari
stage, however, Defendant has not moved to continue his
resentencing on any other basis than the pending Petition.
That specific issue is not before the Court on a clean slate.
The Tenth Circuit has already denied a request to stay the
execution of its decision pending resolution of the Petition.
In Lentz, the district court persuasively reasoned
why, in accordance with the spirit of the mandate rule, a
district court should not ...