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United States v. Modeste

United States District Court, Fourth Circuit

December 12, 2013

UNITED STATES OF AMERICA,
v.
KURT T. MODESTE

MEMORANDUM OPINION AND ORDER

DEBORAH K. CHASANOW, District Judge.

Pending before the court is an appeal filed by Appellant Kurt T. Modeste from a judgment of conviction entered by United States Magistrate Judge Charles B. Day on June 25, 2002. For the reasons that follow, the judgment will be vacated.

On January 7, 2002, Appellant pleaded guilty to a charge of larceny in violation 18 U.S.C. ยง 641. He agreed to the following facts proffered by the government:

[O]n the 21st of September [Appellant] was at the Main Exchange for Andrews Air Force Base. He was observed by the video camera system placing stickers for discounts of 75 percent off onto a pair of sandals [-] [a] pair of women's sandals and a box of men's shoes that were not supposed to be 75 percent off.
He then paid for the shoes at the unauthorized discounted price and parted from the exchange. Again, this was all caught on videotape, and... [t]he value of the shoes was $69.00.

(ECF No. 5, Ex. A, at 6-7).

Appellant's trial counsel requested that the court impose a sentence of probation, adding, "if the Court sees any way to avoid a criminal conviction, Mr. Modeste would appreciate the Court's consideration." ( Id. at 8). When provided the opportunity to allocute, Appellant stated:

The only thing I'd like to say, Your Honor, is that's - you know, it's [a] costly mistake and it's just going to cost me. That's all. It was dumb. It just was something I figured I could get away with, but, you know, I just got caught, and I guess I have to deal with the consequences now, don't I?

( Id. at 9). Judge Day orally pronounced the disposition as follows:

I will place you on probation under probation before judgment, Criminal Procedure Article 6-220. I place you on probation for a period of one year, with the following special conditions: You must perform 30 hours of community service as directed and pay a fine in the amount of $150.00.

( Id. at 9-10). Upon receiving Appellant's written consent, the court entered an order staying the entry of judgment and order of probation.

On June 25, 2002, Judge Day sua sponte issued a memorandum opinion and order striking the stay of judgment in Appellant's case, as well as a stay issued in the case of another defendant appearing on the same date. He explained:

After the papers establishing the probationary disposition were signed, the Court realized that it might not have had the authority to stay judgment for these federal offenses, thereby making its Orders unlawful. The Court would have been able to stay judgment if it had jurisdiction under [the Assimilative Crimes Act ("ACA")] for State of Maryland offenses. However, ACA only applies to state crimes, while the crimes charged had been federal crimes. By the time the Court realized the error, one of the defendants was no longer in the courtroom, and the Court believed that the best course of action was to leave the dispositions as they were and to direct Defendants to submit briefs on whether the Court had the authority to impose such dispositions.

(ECF No. 5, Ex. D, at 1-2). After reviewing the parties' briefs, the court determined that Appellant's sentence was unauthorized. It was unable, however, to find any authority that would permit it to correct this error over five months after the original disposition. Nevertheless, it determined that the error must be corrected. In vacating the order staying entry of judgment, the court acknowledged "that there is no federal law that gives it express authority to do so." (ECF No. 5, Ex. D, at 6). By a judgment of conviction dated June 25, 2002, Appellant ...


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