United States v. Robert Bard ( 2021 )

DLD-224 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-1979
___________
UNITED STATES OF AMERICA
v.
ROBERT G. BARD,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 1-12-cr-00181-001)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted on the Appellee’s Motion for Summary Affirmance
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 15, 2021
Before: JORDAN, KRAUSE and PHIPPS, Circuit Judges
(Opinion filed August 10, 2021)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Robert Bard appeals from the District Court’s rulings relating to his motion for
compassionate release filed pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). The Government
has filed a motion for summary affirmance. For the reasons that follow, we grant the
Government’s motion and will summarily affirm.
In 2013, Bard was sentenced to 262 months in prison after being convicted of
fraud and related charges. Bard, an investment advisor, had defrauded 66 of his clients,
many of them elderly, out of millions of dollars. We affirmed his conviction and
sentence on appeal. See United States v. Bard, 625 F. App’x 57, 61 (3d Cir. 2015).
In June 2020, Bard filed a pro se motion for compassionate release, arguing that
he suffered from medical conditions that increased his risk of severe illness from
COVID-19. The District Court appointed counsel, who filed a brief in support. The
Government opposed the motion. After the District Court denied the motion in
September 2020, Bard filed a pro se motion for reconsideration in February 2021. The
District Court denied the motion, and Bard subsequently filed motions to supplement his
motion for reconsideration. Treating the motions to supplement as motions for
reconsideration of the previous orders, the District Court denied them. Bard then filed a
2
pro se notice of appeal.1 The Government has filed a motion for summary affirmance.
We have jurisdiction over the appeal under 28 U.S.C. § 1291.2Motion for compassionate release
We review the District Court’s order denying the motion for compassionate
release for an abuse of discretion and will not disturb that decision unless the District
Court committed a clear error of judgment after weighing the relevant factors. See
United States v. Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020). We may summarily
affirm a district court’s decision “on any basis supported by the record” if the appeal fails
to present a substantial question. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir.
2011) (per curiam).
Pursuant to 18 U.S.C. § 3582(c)(1)(A), a District Court may reduce a sentence if
extraordinary and compelling reasons warrant such a reduction. Before granting
compassionate release, however, a district court must consider “the factors set forth in
1
In his notice of appeal, Bard may have specified only the District Court’s last order, but
he discussed his motion for compassionate release and his subsequent motions and asked
that his “complete file” be forwarded to this Court. ECF #236. He also he suggests in his
brief that he wishes to appeal all three of the District Court’s orders.
2
Bard’s appeal was timely only as to the District Court ruling on the motions to
supplement. However, as the Government does not raise the issue of the timeliness of the
notice of appeal with respect to the earlier orders, instead addressing the original decision
in its motion to summarily affirm, we will review the earlier orders as well. See Gov’t of
the V.I. v. Martinez, 620 F.3d 321, 328 (3d Cir. 2010) (holding that the failure to file a
timely notice of appeal in a criminal case does not deprive the Court of jurisdiction, but,
if the Government invokes the deadline of Fed. R. App. P. 4(b)(1), the Court must
dismiss the appeal).
3
[18 U.S.C. §] 3553(a) to the extent that they are applicable.” Id. § 3582(c)(1)(A). In its
September 2020 order, the District Court determined that Bard had arguably made a
showing of a compelling and extraordinary circumstance, but he had not shown remorse
for his crimes and posed a significant danger to the community if released. In particular,
the District Court noted the following:
Mr. Bard has repeatedly showed the court--and continues to do so today--
that he has shown no remorse for his crimes and will continue to pose a
significant danger to the community if he does not serve his full sentence.
Mr. Bard is in prison for successfully executing a long-deliberated and
coldly calculated fraudulent scheme targeting vulnerable people that left
many in total financial ruin. In multiple previous orders--including during
Mr. Bard’s original sentencing hearing--the court noted that Mr. Bard
appeared to be flagrantly disregarding any culpability for this wrongdoing.
In fact, in Mr. Bard’s own words before the court today, Mr. Bard describes
himself as “impeccable.” Mr. Bard has not learned from his time in prison,
and he needs to serve his full sentence to protect the public from him
inflicting further wrongdoing upon them.
D. Ct. Ord. at 4, ECF #229.
The District Court did not abuse its discretion in denying a sentence reduction
based on its weighing of the § 3353 factors. Bard’s offenses—arising from defrauding
clients of millions of dollars—are serious, and the District Court could consider the
nature of those offenses and Bard’s character. See 18 U.S.C. § 3553(a)(1) & (2)(A) &
(C) (including the nature and circumstances of the offense, characteristics of the
defendant, and protection of the public as sentencing factors as well as the need for the
sentence “to reflect the seriousness of the offense, to promote respect for the law, and to
4
provide just punishment for the offense”). The District Court did not commit a clear
error of judgment in its consideration and weighing of the relevant factors.3
Motions for Reconsideration
We review the denial of a motion for reconsideration for an abuse of discretion.
United States v. Kalb, 891 F.3d 455, 459 (3d Cir. 2018). The District Court did not abuse
its discretion in denying the motion for reconsideration. In that motion, Bard presented
new information, i.e., that he had tested positive for COVID-19 in December 2020. He
also provided purported statistics on the numbers of inmates who had tested positive and
who had died. However, that information did not provide a basis for reconsideration
where the District Court had acknowledged the risk to him in determining, in his favor,
that Bard had arguably shown a compelling and extraordinary circumstance.
Bard also argued that he regretted his actions and had been scored by the Bureau
of Prisons as a low risk to the community and a low risk for recidivism.4 Neither his self-
serving statement of remorse nor a prison official’s conclusion that he is at a low risk of
recidivism provides grounds for reconsideration of the District Court’s informed and
3
As proof of his remorse, Bard asserts that he gave a proffer to the Government four
years before he was indicted. Bard, however, leaves out the fact that he did not plead
guilty and accept responsibility for his crimes. At sentencing, Bard discussed the impact
of the criminal charges on his family without expressing any remorse for the financial
devastation his crimes inflicted on his victims. See Tr. 7/31/14 at 42 (“So the victims
claim that they are the only ones that are going through something, we are, too.”)
5
reasoned determination that Bard has not shown remorse and presents a risk to the
community.
Finally, the District Court properly denied the motions to supplement, in which
Bard sought to present additional information regarding his medical conditions. As noted
above, the District Court determined that Bard had arguably shown a compelling and
extraordinary circumstance. Thus, the additional medical information he submitted did
not provide a basis for reconsideration of an issue decided in his favor.
As the District Court clearly did not abuse its discretion in denying Bard’s motion
for a sentence reduction or his motions for reconsideration, this appeal does not present a
substantial question. Accordingly, we grant the Government’s motion, and we will
summarily affirm the District Court’s orders.
4
Bard does not explain what factors were considered in making this determination. He
submitted a simple form with the words “recidivism risk level” and the word “minimum”
circled.
6