                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-31-2008

USA v. Bruce James Roberts
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2796




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"USA v. Bruce James Roberts" (2008). 2008 Decisions. Paper 290.
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ALD-12                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 08-2796


                           UNITED STATES OF AMERICA

                                            v.

                             BRUCE JAMES ROBERTS,
                                                 Appellant
                        __________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                             (D.C. Crim. No. 95-cr-00225-2)
                     District Judge: Honorable Katharine S. Hayden

                      ____________________________________

                    Submitted for Possible Summary Action Pursuant
                       to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    October 17, 2008

             Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

                            (Opinion filed: October 31, 2008)


                                        OPINION




PER CURIAM

      Appellant Bruce Roberts, a federal prisoner, was found guilty following a jury trial

in United States District Court for the District of New Jersey of conspiring to commit
bank robbery in violation of 18 U.S.C. § 371 and bank robbery in violation of 18 U.S.C. §

2113(a). On February 12, 1996, he was sentenced as a career offender to a term of

imprisonment of 210 months and fined $5,000.00. We affirmed the judgment on October

9, 1996 in United States v. Roberts, No. 96-5142, and the United States Supreme Court

thereafter denied certiorari. On February 28, 1998, Roberts filed a motion to vacate

sentence pursuant to 28 U.S.C. § 2255, which the sentencing court denied on the merits.

On March 10, 1999, we denied Roberts’ request for a certificate of appealability in United

States v. Roberts, No. 98-6388.

       On August 27, 2004, Roberts filed a motion in his criminal case, seeking

modification of his sentence under 18 U.S.C. § 3582(c)(2) on the basis of the Supreme

Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004). In addition to

docketing this motion in Roberts’ criminal case, the District Court Clerk’s Office opened

a new civil case, Roberts v. United States, D.C. Civ. No. 04-05045. In the civil case, the

section 3582(c)(2) motion was docketed as a section 2255 motion. On September 7,

2007, Roberts filed a motion in his criminal case pursuant to Fed. R. Crim. Pro. 52(b), in

which he contended that he was indigent and “the delegation of an installment plan to the

Bureau of Prisons” to collect his fine was improper. See generally United States v.

Corley, 500 F.3d 210 (3d Cir. 2007) (restitution order which delegates to BOP how

defendant will pay improperly delegates judicial function). Again, this Rule 52(b) motion

was docketed by the District Court Clerk’s Office in both Roberts’ criminal and civil



                                             2
cases.

         On December 31, 2007, in the civil case, the District Court dismissed both the

section 3582(c)(2) and Rule 52(b) applications for relief for lack of jurisdiction,

reasoning that they were unauthorized second or successive section 2255 motions. The

court noted further that Blakely and United States v. Booker, 543 U.S. 220 (2005), had

not been made retroactive to cases on collateral review. See Lloyd v. United States, 407

F.3d 608 (3d Cir. 2005), In re: Olopade, 403 F.3d 159 (3d Cir. 2005). Roberts did not file

a timely notice of appeal of this decision in either his civil or his criminal case.

         On March 24, 2008, Roberts filed a petition for writ of mandamus in the instant

criminal case, seeking disposition of his section 3582(c)(2) and Rule 52(b) motions. (It

was dated March 12, 2008.) In an order entered on April 15, 2008, the District Court

denied the mandamus petition as moot on the ground that these motions had been

disposed of by its December 31, 2007 Order in the civil case, Roberts v. United States,

D.C. Civ. No. 04-05045. The court attached a copy of the December 31, 2007 order to

this April 15, 2008 order.

         On June 18, 2008, Roberts filed a motion seeking permission to appeal the April

15 order denying his mandamus petition. This same item also was docketed as a Notice

of Appeal. The District Court subsequently granted Roberts permission to appeal.1



   1
     Roberts’ appeal was timely even without permission to appeal insofar as his motion
indicated an intent to appeal, see Fed. R. App. Pro. 3, and was mailed from the prison on
June 12, 2008, see Fed. R. App. Pro. 4(a)(1)(B)(providing for 60-day appeal period when

                                               3
       Our Clerk notified Roberts by letter that this appeal was subject to summary

disposition under Third Cir. LAR 27.4 and I.O.P. 10.6. Roberts was invited to submit

argument in writing, but he has not done so.

       We will summarily affirm the order of the District Court denying Roberts’ petition

for writ of mandamus as moot. Under Third Circuit LAR 27.4 and I.O.P. 10.6, we may

summarily dispose of an appeal when it clearly appears that no substantial question is

presented by the appeal. We have jurisdiction under 28 U.S.C. § 1291. Although we

review the discretionary elements of a District Court's denial of a writ of mandamus for

abuse of discretion, see Stehney v. Perry, 101 F.3d 925, 929 (3d Cir. 1996), our review

over the non-discretionary elements, including the question of mootness, is plenary, id.;

Ruocchio v. United Transp. Union, Local 60, 181 F.3d 376, 382 n.8 (3d Cir. 1999).

       In his mandamus petition, Roberts sought disposition of his section 3582(c)(2) and

Rule 52(b) motions for relief. These motions, which had been filed simultaneously in his

civil case, were disposed of by the District Court on December 31, 2007. The court’s

previous action in disposing of the motions in his civil case forestalled any occasion for it

to provide meaningful mandamus relief in his criminal case, see Artway v. Attorney

General of New Jersey, 81 F.3d 1235, 1246 (3d Cir. 1996), and it thus properly denied

Roberts’ mandamus petition as moot.




United States is a party); Rule 4(c)(1) (inmate’s notice of appeal timely when deposited in
prison’s mail system on or before last day for filing).

                                               4
      For the foregoing reasons, we will summarily affirm the order of the District Court

denying Roberts’ petition for writ of mandamus as moot.




                                           5
