United States of America v. Derek Isaac Allmon, Sr.

United States Court of Appeals
For the Eighth Circuit
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No. 12-1271
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Derek Isaac Allmon, Sr.
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: September 21, 2012
Filed: December 28, 2012
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Before MELLOY, BEAM, and BENTON, Circuit Judges.
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BEAM, Circuit Judge.
Derek Allmon appeals the district court's order modifying his communication
restriction imposed pursuant to 18 U.S.C. § 3582(d). Allmon argues the district court
did not have jurisdiction to make such a modification without a motion from the
Director of the Bureau of Prisons ("BOP") or the United States attorney, and there was
not probable cause to justify the modification under § 3582(d). We vacate the district

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court's March 15, 2010, order, and all subsequent orders to the extent they enforce the
restrictions imposed by the March 15, 2010, order.
I. BACKGROUND
On April 4, 2006, a jury convicted Allmon on multiple counts for his
involvement in a drug trafficking operation and a conspiracy to kill a witness. On
June 15, 2006, he was sentenced to imprisonment for life. Four days after sentencing,
the district court granted the government's motion to restrict Allmon's mail privileges
by prohibiting him from communicating directly or indirectly with 29 named
individuals and requiring that all communications directed to the persons listed in the
order be confiscated and forwarded to the United States Attorney for the Eastern
District of Arkansas. Allmon appealed his sentence, and we affirmed the district
court's judgment. United States v. Allmon, 500 F.3d 800, 808 (8th Cir. 2007).
Allmon did not appeal the communication restriction.
On November 13, 2007, Allmon asked the district court to amend its order
restricting his communications. Allmon requested the court modify its order so that
he could communicate with his daughter, Modesti, and his brother, Kevin Allmon.
The district court granted Allmon's request on March 12, 2008.
On March 15, 2010, the district court sua sponte ordered more stringent
restrictions on Allmon's communications. The district court noted that Allmon
attempted to circumvent, and in at least one instance did circumvent, its original order
restricting his communications. 1 Acting under § 3582(d), the district court ordered
that Allmon "communicate, via mail or phone, with only his counsel of record"; that
1 The district court relied on evidence submitted in another case, Allmon v.
Bureau of Prisons, No. 08-cv-01183-ZLW-CBS, 2010 WL 2163773 (D. Colo. May
26, 2010).
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Allmon's "[c]ounsel of record may distribute legal materials to third parties only for
the purpose of providing necessary legal services related to Defendant's post-
sentencing proceedings"; and finally, that Allmon "may not receive the Arkansas
Democrat Gazette, nor any other publication from central Arkansas." In its order, the
district court weighed Allmon's First Amendment rights against the interest of
protecting human lives and concluded that these more stringent restrictions were
necessary.
Allmon filed numerous pro se motions, including a motion for reconsideration,
objecting to the district court's March 15, 2010, order. On February 25, 2011, the
district court, after detailing its reasoning for the heightened restrictions, concluded
its restrictions remained in effect, except Allmon could subscribe to magazines and
newspapers excluding the Arkansas Democrat Gazette. Thereafter, the district court
continued to deny Allmon's numerous challenges to the March 15, 2010, order. The
district court issued its final denial on January 12, 2012. Allmon appeals.
Allmon argues that the district court did not have jurisdiction to sua sponte
further restrict his communications, and that there was not probable cause, as required
by § 3582(d), to support the district court's order.
II. DISCUSSION
Allmon argues that the district court did not have jurisdiction to add a
communication restriction without a motion from the Director of the BOP or the
United States attorney. Sentencing courts may impose communication restrictions
under 18 U.S.C. § 3582(d):
The court, in imposing a sentence to a term of imprisonment upon a
defendant convicted of a felony set forth in chapter 95 (racketeering) or
96 (racketeer influenced and corrupt organizations) of this title or in the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
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U.S.C. 801 et seq.), or at any time thereafter upon motion by the Director
of the Bureau of Prisons or a United States attorney, may include as a
part of the sentence an order that requires that the defendant not associate
or communicate with a specified person, other than his attorney, upon a
showing of probable cause to believe that association or communication
with such person is for the purpose of enabling the defendant to control,
manage, direct, finance, or otherwise participate in an illegal enterprise.
(emphasis added).
The government argues that § 3582(d) requires a motion only when the court,
for the first time, imposes a restriction after sentencing has occurred. The government
contends, therefore, that because the district court ordered the communication
restriction at the initial sentencing, the court could act without a motion from the
Director of the BOP or the United States attorney and modify its restrictions at
anytime thereafter. The government reads the statute as contemplating two scenarios:
first, granting the district court the authority to add a communication restriction at the
time of sentencing with or without a motion; and, second, requiring a motion only if
the communication restriction is added for the first time after the initial sentencing.
The government argues, then, that because the court issued the communication
restriction at the initial sentencing, the district court retained jurisdiction to alter the
restriction after sentencing at any time, without a motion. Allmon, on the other hand,
reads the statute as requiring a motion for further restriction at all times following the
initial sentencing. We agree with Allmon.
Whether § 3582(d) requires a motion by the Director of the BOP or the United
States attorney is a question of statutory interpretation, a question of law that we
review de novo. United States v. Harris, 574 F.3d 971, 972 (8th Cir. 2009). "When
interpreting a statute, we first look to its plain language. We examine the text of the
statute as a whole by considering its context, object, and policy. When the words of
a statute are unambiguous, then, this first canon is also the last: judicial inquiry is
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complete." United States v. Mann, Nos. 11-1500, 11-2187, 2012 WL 6049716, at *3
(8th Cir. Dec. 6, 2012) (internal quotations and citations omitted).
The plain language of § 3582(d) is unambiguous. Section 3582(d) allows the
sentencing court to include a communication restriction either when "imposing a
sentence . . . or at any time thereafter upon motion by the Director of the [BOP] or a
United States attorney." 18 U.S.C. § 3582(d). Accordingly, § 3582(d) requires a
motion by the Director of the BOP or a United States attorney when a communication
restriction is imposed under § 3582(d) after the initial sentencing, no matter whether
the court is imposing the restriction the first time or modifying an already-existing
restriction.
Generally, sentencing courts have "almost unfettered discretion" in determining
sentences. Misretta v. United States, 488 U.S. 361, 364 (1989); see, e.g., United
States v. Ruelas-Mendez, 556 F.3d 655, 658 (8th Cir. 2009) (noting the "considerable
discretion available to a sentencing court" when considering 18 U.S.C. § 3553(a)
factors); United States v. Mosley, 672 F.3d 586, 589 (8th Cir. 2012) (noting
sentencing courts' broad discretion in setting terms of supervised release). Congress,
however, "has the power to fix . . . the scope of judicial discretion with respect to a
sentence." Misretta, 488 U.S. at 364. With that power, Congress has limited
sentencing courts' authority after a sentence is imposed. United States v. Tingle, 524
F.3d 839, 840 (8th Cir. 2008) (per curiam) (stating courts "may not modify a term of
imprisonment once it has been imposed" (quotation omitted)); see also Wheeler v.
United States, 640 F.2d 1116, 1121 (9th Cir. 1981) ("Generally, the trial judge has no
authority over the defendant once [a] sentence has been entered.").
Section 3582(d) explicitly allows the sentencing court to impose a
communication restriction "at some time other than sentencing." Dolan v. United
States, 130 S.Ct. 2533, 2545 (2010) (Roberts, J. dissenting). It is clear that through
§ 3582(d), Congress has provided the sentencing court the authority to impose
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communication restrictions after sentencing, but the statute further states it may do so:
"upon motion by the Director of the [BOP] or a United States attorney." 18 U.S.C.
§ 3582(d). Thus § 3582(d) requires a motion by the Director of the BOP or a United
States attorney to invoke the district court's authority to impose a communication
restriction after sentencing. The sentencing court may not, upon its own motion,
invoke this same authority.
The government urges us to apply the Second Circuit's reasoning employed in
United States v. Felipe, 148 F.3d 101 (2d Cir. 1998). There, Luis Felipe was
convicted on several racketeering charges and sentenced to life imprisonment. Id. at
105-06. As a part of his sentence, the district court imposed "special conditions of
confinement," including a restriction on Felipe's ability to correspond with anyone
except his attorney and close family members. Id. at 107. The district court later
altered the communication restriction in response to Felipe's motion to vacate and set
aside the sentence, broadening the restriction to include a few additional individuals
not previously contemplated by the restriction. Id. The court otherwise denied
Felipe's motion to vacate the sentence and the court also denied a later request by
Felipe to have the restriction amended. Id.
Felipe appealed, claiming the district court did not have authority to implement
such conditions of confinement and that the conditions violated his constitutional
rights. Id. at 109. The Second Circuit concluded (1) that the sentencing court had the
authority to impose the restrictions even though the order failed to enumerate each
individual Felipe was prohibited from communicating with, and (2) the conditions did
not violate his constitutional rights. Id. at 109-10.
Felipe is distinguishable. In Felipe, the sentencing court imposed the
communication restriction at sentencing and altered the communication restriction in
response to Felipe's motion, rather than on its own motion, as is this case. Id. at 107.
Arguing that the district court retained jurisdiction to impose the restrictions at issue
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here, the government highlights the Second Circuit's statement that the communication
restrictions in Felipe were appropriate because "the same district judge has retained
jurisdiction over Felipe's case to consider either his [Felipe's] or [the BOP's]
applications to modify the conditions on the basis of any change of circumstances or
for any other just cause." Id. at 111. This statement, however, only highlights our
own determination in this case–that a district court may only alter a restriction already
imposed upon motion by the Director of the BOP or a United States attorney.2 Here,
the sentencing court imposed the restriction currently at issue upon its own motion,
a situation not contemplated by Felipe.
Our ruling in no way impacts a sentencing court's inherent sentencing authority,
nor does it infringe upon the BOP's power.3 Rather, we apply § 3582(d) as written.
We recognize that Congress provided the sentencing court authority to issue a
communication restriction post-sentencing, but also limited the sentencing court's
authority. We simply hold that the plain language of § 3582(d) requires a motion
from the Director of the BOP or a United States attorney in order to restrict an
inmate's communications at any time after sentencing. And because no such motion
was filed, we decline to address Allmon's final question, whether the evidence was
sufficient to find the necessary probable cause to support further restriction on
Allmon's communication.
2 Felipe may also stand for the proposition that a sentencing court may alter
already-imposed restrictions upon motion by the defendant. 148 F.3d at 111.
However, because the restrictions currently challenged by Allmon were not imposed
in response to Allmon's motion, that is a matter we need not contemplate.
3 See, e.g., 28 C.F.R. § 540.15 which allows wardens to restrict an inmate's
general correspondence.
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III. CONCLUSION
For the forgoing reasons we vacate the district court's March 15, 2010, order,
and all subsequent orders to the extent they enforce the restrictions imposed by the
March 15, 2010, order, leaving in place the district court's amended order of March
12, 2008.
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