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United States v. McCurdy

United States District Court, D. Maine

December 14, 2015

UNITED STATES OF AMERICA
v.
MARK MCCURDY

ORDER DENYING MOTION TO APPEND AND CORRECT THE RECORD

JOHN A. WOODCOCK, JR UNITED STATES DISTRICT JUDGE

More than six years after his sentencing hearing, Mark McCurdy moves the Court to make factual findings about matters he contends are contained in his Presentence Investigation Report and are inaccurate. The Court denies the motion because it made the findings Mr. McCurdy contends it should have made, because Mr. McCurdy waived the right to the relief he has requested, because the Court is without jurisdiction to hear his motion, and because the Court was not required to make the findings in the first place.

I. BACKGROUND

On October 16, 2015, Mark McCurdy filed a motion to append and correct the record in this case. Pet’r’s Mot. to Append and Correct the R. (ECF No. 357) (Def.’s Mot.); Def.’s Mot. Attach. 1 Court Determinations on Pet’r’s Objections to PSR (ECF No. 357) (Def.’s Factual Objections). On October 27, 2015, the Government objected. Gov’t’s Opp’n to ‘Pet’r’s Mot. to Append and Correct the R.’ (ECF No. 358) (Gov’t’s Opp’n). On November 9, 2015, Mr. McCurdy replied. Pet’r’s Reply to Gov’t’s Opp’n to Mot. to Append and Correct the R. (ECF No. 361) (Def.’s Reply).

When Mark McCurdy was twenty-five, he committed four violent felonies in the space of about two weeks, burglarizing two pharmacies and robbing two other pharmacies at gunpoint. Revised Presentence Investigation Report ¶¶ 31-32 (PSR). From at least April 14, 1984, when he was sentenced for the first two burglaries, Mr. McCurdy has been prohibited as a matter of federal law from possessing a firearm. See 18 U.S.C. § 922(g)(1). The same prohibition is a matter of state law, and on December 30, 1994, Mr. McCurdy was convicted in Hancock County Superior Court for the state of Maine of being a felon in possession of a firearm. PSR ¶ 34.

On November 15, 2006, a federal grand jury indicted Mr. McCurdy for possessing a firearm on March 26, 2006 after having been convicted of a felony, an alleged violation of 18 U.S.C. § 922(g)(1). Indictment (ECF No. 1). On October 9, 2007, Mr. McCurdy pleaded guilty to the charge. Min. Entry (ECF No. 57). However, at the Rule 11 proceeding, the Court had informed Mr. McCurdy that the maximum period of incarceration was ten years, and after the PSR was completed, it was discovered that because of his prior criminal history, he was subject to the enhanced penalties of the Armed Career Criminal Act. Order Granting Mot. to Withdraw Guilty Plea (ECF No. 74). The Court allowed Mr. McCurdy to withdraw his guilty plea. Id.

The Court held a three-day jury trial beginning December 29, 2009. Min. Entries (ECF Nos. 144, 146, 147). On December 31, 2008, a jury found Mr. McCurdy guilty. Jury Verdict (ECF No. 148). On July 20, 2009, the Court sentenced Mr. McCurdy to 210 months incarceration, the bottom of the United States Sentencing Commission Guideline range. J. (ECF No. 195); Tr. of Proceedings 38:14-39:6 (ECF No. 208) (Sentencing Hr’g). Mr. McCurdy has never accepted either the verdict or the sentence, and ever since July 20, 2009, he has set about a determined course of contention, objecting to matters large and small.

II. THE POSITIONS OF THE PARTIES

A. Mark McCurdy’s Motion

The focus of this motion is some of the contents of the PSR that Mr. McCurdy contends are erroneous and are now having an adverse impact on his time in prison. Def.’s Factual Objections at 1-3. Specifically, Mr. McCurdy objects to the statements in the PSR (1) that he violated bail conditions, (2) that he was using opiate-based medications, amphetamines, marijuana, and alcohol illegally up to and including November 2007, and (3) that he failed a drug treatment program in 1979. Id.

Mr. McCurdy states that the Bureau of Prisons (BOP) is using these statements in the PSR to deny him “programs.” Id. Citing United States v. Cruz, 981 F.2d 613, 619 (1st Cir. 1992); United States v. Geer, 923 F.2d 892, 897 (1st Cir. 1991); and United States v. Jimenez-Rivera, 842 F.2d 545, 551 (1st Cir. 1988), Mr. McCurdy says that Rule 32(i)(3)(C) requires the sentencing court to make determinations about disputed facts in the PSR and to attach a copy of those determinations to the PSR. Def.’s Mot. at 2. He contends that this Court erred in failing to make mandatory Rule 32 determinations. Id.

B. The Government’s Opposition

The Government opposes Mr. McCurdy’s motion. Gov’t’s Opp’n at 1-5. First, the Government says that in 2002, the Criminal Rules Advisory Committee clarified that Rule 32 does not require a sentencing court to resolve all factual disputes with the PSR. Id. at 2-3 (quoting Fed. R. Crim. P. 32 advisory committee note to 2002 amendments).

Next, the Government says that, contrary to Mr. McCurdy’s assertions, the PSR did not claim that Mr. McCurdy violated bail conditions; that the Court never found Mr. McCurdy had used opiate-based medications, amphetamines, marijuana, and alcohol illegally up to and including November 2007; and that the Court never found that he had failed a drug treatment program in 1997. Id. at 3-4.

C. Mark McCurdy’s Reply

Mr. McCurdy replied to the Government’s opposition. First, he maintains that the BOP “utilizes the PSR for all its classification decisions.” Def.’s Reply at 1 (citing United States v. Caparotta, No. 1:10-cr-00147-JAW, 2011 U.S. Dist. LEXIS 32522, *7 (D. Me. Mar. 28, 2011)). He argues that the “Government’s suggestion that Petitioner provide the BOP with his sentencing transcripts to prove that allegations in his PSR are in error is misguided.” Id. at 1-2. Mr. McCurdy then presents a synopsis of conversations he has had ...


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