Philly appeals court rejects inmate request

Baer asserts he is ‘not a career offender’

The appeals court for the 3rd Circuit in Philadelphia has rejected a request by an inmate in the Federal Correctional Institution at Loretto to speed up a hearing he is seeking in an attempt to correct his sentence, which he claims has become illegal due to a recent U.S. Supreme Court decision.

The inmate, Clyde Baer III, 56, is housed in Loretto’s Prison Camp.

He is nearing the end of a 22-year sentence imposed by a federal judge in Northern Ohio for conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana.

He received a 260-month sentence after he pled guilty to the charge, which was filed in 2001.

Baer was also sentenced to a concurrent sentence of 240 months for money laundering.

He contends his sentences were enhanced by a finding that he was a career criminal.

Without that finding, his sentence would have been in the range of 155 months as opposed to 260 months, Baer states.

Baer last July filed a petition with the federal court in Johnstown challenging his status as a career offender.

He requested his petition be transferred to the sentencing court in Northern Ohio.

U.S. District Judge Kim R. Gibson in Johnstown referred Baer’s petition to Magistrate Judge Lisa Pupo Lenihan for initial review.

Lenihan has not yet issued an opinion on the Baer request, and as a result, in December Baer filed a request with the 3rd Circuit asking it step in and grant his request to transfer his petition to the Ohio court.

Baer stated that his listed release date is Dec. 13, 2020, and he wants to have his status as a career offender altered prior to that date.

His status as a career offender was imposed, he indicates, because of prior drug offenses at the state level.

According to Baer, one of the cases used in seeking the sentencing enhancement no longer qualifies because of a 2016 U.S. Supreme Court decision that overhauled the federal sentencing guidelines.

In January 2017, Baer filed a motion in Ohio to vacate his sentence due to the 2016 decision by the Supreme Court, but it was dismissed because it was untimely, filed 14 years after his sentence was final.

In that petition Baer stated, “I am not a career offender. Recent circuit law and Supreme Court law have made my designation as a career offender unlawful.”

He filed a new petition last July in the Western Pennsylvania District Court, where he presently resides, asking that his challenge to his sentence be referred back to the Ohio court for rehearing, taking into consideration the 2016 Supreme Court ruling.

He contends that the Ohio court never heard the “merits” of his case.

He calls his continuing status as a career offender, “and all of its accompanying disadvantages,” a miscarriage of justice.

In an opinion issued Thursday by 3rd Circuit Judges Theodore A. McKee, Patty Schwartz and Stephanos Bibas, Baer’s request for an “extreme remedy” can be granted only in extraordinary situations.

He must show a “clear and indisputable right” to his request and that he has no other adequate means to obtain what he is requesting, the 3rd Circuit opinion stated.

The appeals court judges decided to let Baer’s case play out in the Western Pennsylvania Court.

They pointed out that the Johnstown court has not unduly delayed its decision, concluding the petition has been pending for only about six months.

The proceedings clearly are not stalled in that the government submitted a “thorough response” to Baer’s petition in November, the opinion stated.

“Accordingly, the delay alleged does not rise to the level warranting mandamus relief and thus we will deny the petition,” it concluded.

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