United States v. Scott A. Kuehn ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 1, 2019*
Decided November 4, 2019
Before
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-2217
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 3:14-CR-30151-NJR-1
SCOTT A. KUEHN, Nancy J. Rosenstengel,
Defendant-Appellant. Chief Judge.
ORDER
Scott Kuehn, a federal inmate, appeals orders denying two motions to modify his
terms of supervision. Kuehn is serving a 60-month sentence for possession and
distribution of child pornography, to be followed by five years of supervised release.
About two years before his scheduled release date, Kuehn moved under 18 U.S.C.
§ 3583(e)(2) to modify his conditions of supervision. Without addressing the merits of
Kuehn’s request, the district court denied the motion as premature and directed Kuehn
to refile it closer to his planned release. A mere 19 days later, Kuehn filed a motion to
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 19-2217 Page 2
reconsider, which the court also denied as premature and gave renewed assurance that
it would consider Kuehn’s request if he filed it within three months of his release. The
court also said that it would consider then whether to hold a hearing and appoint
counsel. Kuehn’s appeal of the first order is untimely, and the district court did not
abuse its discretion in the second order, so we dismiss in part and affirm in part.
Kuehn appealed both orders, but only the second order is properly before us.
The district court denied Kuehn’s first motion on November 7, 2018, after which Kuehn
had 14 days to file either a notice of appeal or a motion for reconsideration. FED. R. APP.
P. 4(b)(1)(A); United States v. Rollins, 607 F.3d 500, 501 (7th Cir. 2010). Kuehn missed this
deadline; he did not file his motion for reconsideration until 19 days later, five days too
late. A motion filed after the time to appeal an order is “ineffectual” as a request to
reconsider that order or an attempt to toll the time to appeal it. United States v. Redd,
630 F.3d 649, 650 (7th Cir. 2011). Kuehn’s second motion could thus function only as an
independent motion for relief under § 3583(e)(2). See id. Kuehn filed his notice of appeal
within 14 days of the ruling on that second motion, so his appeal is timely with respect
to that ruling. But as just mentioned, he missed the deadline for appealing the original
order, and because the government seeks to enforce that deadline, we must do so.
See Rollins, 607 F.3d at 501. We therefore limit our review to the district court’s order
denying Kuehn’s second motion.
Kuehn contends that his second motion was not premature, observing that he
filed it less than two years before his release date. He relies on United States v. Williams,
840 F.3d 865 (7th Cir. 2016), in which we said that we “would be reluctant to allow a
judge to deem premature a request in the final year or two of imprisonment.” Kuehn
pulls this sentence out of context. We also wrote: “If the district judge had proposed to
defer decision until [the defendant] was actually out of prison, we would be inclined to
think that a mistake. [The defendant] is entitled to know, before he leaves prison, what
terms and conditions govern his supervised release.” Id. We concluded that “requiring
the prisoner to make all potential arguments at one time in the year or so before release,
is a sound exercise of discretion.” Id (emphasis added). Thus, we afford judges wide
discretion to set a time, within two years of release, to address these motions.
The district court properly exercised its discretion. Consistent with Williams, the
court did not require that Kuehn wait until after release for a ruling. And it assured
Kuehn, who gave no reason for seeking a speedier ruling, that if he made his request
three months before his release, the court would evaluate the request then and decide
whether a hearing with appointed counsel was necessary. This procedure, which will
No. 19-2217 Page 3
allow the district court to apply the then-governing law, will ensure that Kuehn knows
the terms of his release well before he leaves prison. We have endorsed similar
procedures in the past. See United States v. Siegel, 753 F.3d 705, 716–17 (7th Cir. 2014)
(calling it “best practice” for district courts to hold a hearing to consider modifying the
conditions of supervision on “the eve” of release).
One final note: the government asks us to enlarge its victory in the district court
by ruling on the merits that Kuehn’s objections are barred under United States v. Neal,
810 F.3d 512, 514 (7th Cir. 2016). Neal holds that defendants may not use § 3583(e)(2)
motions to bring objections based on procedural errors that could have been raised at
sentencing. But the district court avoided deciding the effect of Neal on Kuehn’s motion,
and the government has not cross-appealed that decision. Like the district court, we
therefore decline to enlarge the judgment, which was without prejudice, to one on the
merits. See Greenlaw v. United States, 554 U.S. 237, 244 (2008).
AFFIRMED in part and DISMISSED in part