Opinion — U.S. v. Rocco Americo Malanga (D.N.J.)

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An opinion in United States v. Rocco Americo Malanga, Criminal Action No. 22-cr-00438 (JXN), in the U.S. District Court for the District of New Jersey, dated 5/6/2026 and filed as Document 70. It recounts that Malanga pleaded guilty on June 28, 2022 to bank fraud under 18 U.S.C. § 1344(2) and money laundering under 18 U.S.C. § 1957 in connection with PPP loan applications, and was sentenced on March 22, 2023 to thirty-six (36) months and $1,816,186.00 in restitution. The Third Circuit affirmed and the Supreme Court denied certiorari. The court denies without prejudice Malanga's pro se motion to modify the sentence (ECF No. 60), holding that 18 U.S.C. § 3582 allows no modification before Malanga begins serving the sentence in BOP custody. The signature block names United States District Judge Julien Xavier Neals.

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    Case 2:22-cr-00438-JXN           Document 70           Filed 05/06/26         Page 1 of 8 PageID: 620




                                UNITED STATES DISTRICT COURT
                                   DISTRICT OF NEW JERSEY


    UNITED STATES OF AMERICA,
                                                            Criminal Action No. 22-cr-00438 (JXN)
                           Plaintiff,

          v.                                                                    OPINION

    ROCCO AMERICO MALANGA,

                           Defendant.


NEALS, District Judge

          Before the Court is pro se 1 Defendant Rocco Americo Malanga’s (“Malanga” or

“Defendant”) motion to modify his sentence. (ECF No. 60.) The Government opposed the motion.

(ECF No. 68), and Malanga replied in further support (ECF No. 69). The Court has considered the

parties' submissions and decides this matter without oral argument pursuant to Local Civil Rule

78.1(b), which applies to criminal cases pursuant to Local Criminal Rule 1.1. For the reasons set

forth below, Malanga’s motion to modify his sentence will be DENIED.

     I.   BACKGROUND

          On June 28, 2022, Malanga entered a guilty plea before this Court to a two-count

Information charging him with Bank Fraud in violation of 18 U.S.C. § 1344(2) (Count One), and

Money Laundering in violation of 18 U.S.C. § 1957 (Count Two) in connection with his

application for loans through the Paycheck Protection Program (“PPP”). (See ECF Nos. 23, 28.)

On March 22, 2023, this Court sentenced Malanga to thirty-six (36) months of imprisonment on




1
 Defendant was represented by counsel in this matter during his guilty plea, sentencing, and appeal. (See ECF Nos.
28, 43, 47; United States v. Malanga, No. 23-1602, 2024 WL 4024036 (3d Cir. Sept. 3, 2024), cert. denied, 145 S. Ct.
2692, 221 L. Ed. 2d 960 (2025), reh'g denied, 146 S. Ct. 64, 222 L. Ed. 2d 1189 (2025).
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each Count, to be served concurrently; and ordered payment of a special assessment ($200.00) and

restitution ($1,816,186.00). (ECF No. 43.) Malanga filed a notice of appeal on April 3, 2023, to

contest, among other issues, the Court’s loss calculation and in failing to properly consider certain

factors under § 3553(a). United States v. Malanga, No. 23-1602, 2024 WL 4024036, at *1 (3d Cir.

Sept. 3, 2024), cert. denied, 145 S. Ct. 2692, 221 L. Ed. 2d 960 (2025), reh'g denied, 146 S. Ct.

64, 222 L. Ed. 2d 1189 (2025).

          On June 20, 2023, Malanga filed a motion requesting that he be allowed to remain out on

bail pending appeal, and for a stay in execution of his sentence. (ECF No. 52.) The Court granted

Malanga’s motion on June 29, 2023. (ECF No. 55.)

          On September 3, 2024, the United States Court of Appeals for the Third Circuit denied

Malanga’s appeal and affirmed the Court’s March 22, 2023, judgment of sentence. See Malanga,

2024 WL 4024036, at *3. Malanga filed a petition for a writ of certiorari with the United States

Supreme Court seeking review of the Third Circuit’s decision. Malanga’s petition for a writ of

certiorari and his subsequent petition for rehearing were denied on May 5, 2025, and August 18,

2025, respectively. See Malanga v. United States, 145 S. Ct. 2692, reh'g denied, 146 S. Ct. 64

(2025).

          On March 20, 2025, Malanga filed the instant motion to modify his sentence. (ECF No.

60.) The Government opposed the motion (ECF No. 68), and Malanga replied in further support

(ECF No. 69). This matter is now ripe for the Court’s consideration.

 II.      LEGAL STANDARD

          Once a federally imposed sentence commences, a district court has limited authority to

modify that sentence. Dillon v. United States, 560 U.S. 817, 824–25 (2010). There are very few

statutory provisions that allow modification, correction, or appeal of a sentence already imposed



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by the Court. Id. at 824. Almost all are referenced and/or codified in 18 U.S.C. § 3582(b) and (c),

which provide in pertinent part:

       (b) Effect of finality of judgment. Notwithstanding the fact that a sentence to
       imprisonment can subsequently be—

           (1) modified pursuant to the provisions of subsection (c);
           (2) corrected pursuant to the provisions of rule 35 of the Federal Rules of
               Criminal Procedure and section 3742; or
           (3) appealed and modified, if outside the guideline range, pursuant to the
               provisions of section 3742;

       a judgment of conviction that includes such a sentence constitutes a final judgment
       for all other purposes.

18 U.S.C. § 3582(b).

       Further, § 3582(c) provides that “[t]he court may not modify a term of imprisonment once

it has been imposed” until certain parameters are met. See 18 U.S.C. § 3582(c)(1)(A). Specifically,

before an incarcerated defendant can bring a motion for a reduced sentence on their own behalf

directly with the district court, they “must at least ask the Bureau of Prisons (BOP) to do so on

their behalf and give BOP thirty days to respond.” United States v. Raia, 954 F.3d 594, 595 (3d

Cir. 2020) (discussing the exhaustion requirement).

       Once Section 3582(c)(1)(A)’s exhaustion requirements are met, a court may reduce an

inmate's sentence if it finds that there are “extraordinary and compelling reasons” that warrant a

reduction; and it considers the sentencing factors set forth in § 3553(a), as applicable. United States

v. Pawlowski, 967 F.3d 327, 329–30 (3d Cir. 2020).

III.   DISCUSSION

       In his motion, Malanga requests that the Court modify his 36-month sentence to time

served or a non-custodial alternative by “invok[ing] the Court’s pre-surrender jurisdiction” and

“equitable discretion under 18 U.S.C. § 3553(a)” to sua sponte apply 18 U.S.C. § 3553(a) factors


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to his wife’s medical condition and modify his sentence. (Def.’s Mot. at *8, 2 ECF No. 60; Def.’s

Reply at *11, ECF No. 69.)

           The Government, on the other hand, argues, inter alia, that: (1) there is no statutory

authority allowing the Court to grant Malanga’s request, (2) there is no common law precedent

that provides the Court with inherent equitable power to modify Malanga’s sentence outside

statutory authority; and (3) that the appropriate remedy in this case is for Malanga to surrender to

the custody of the BOP and once in the custody of the BOP, Malanga can refile his motion pursuant

to the compassionate release provisions of 18 U.S.C. § 3582(c)(1)(A)(1). (Pl.’s Opp’n at 3, ECF

No. 68.) The Court agrees.

                A. Malanga is Ineligible for a Sentence Modification Under 18 U.S.C. § 3582

           First, the Court notes that Malanga does not qualify for a modification under § 3582(b).

Specifically, he does not qualify under § 3582(c)(1)(A) or (B) because he has not yet begun serving

his sentence in the custody of the BOP and has therefore not exhausted his administrative remedies

with the BOP, as required. United States v. Picardo, Crim. No. 19-401, 2020 WL 6501730, at *2

(D.N.J. Nov. 5, 2020) (citing United States v. Konny, 463 F. Supp. 3d 402, 2020 WL 2836783, at

*2 (S.D.N.Y. May 30, 2020) (denying the motion filed by a defendant who had not yet surrendered

to BOP custody at FCI Fort Dix, reasoning that “by its plain terms, [Section 3582(c)(1)(A)] applies

only to those defendants who have begun serving their term of imprisonment at a BOP facility”);

accord United States v. Spruill, Crim. No. 18-22, 2020 WL 2113621, at *3 (D. Conn. May 4, 2020)

(denying a motion for compassionate release pursuant to Section 3582(c)(1)(A) as premature

because the defendant filed his motion before reporting to the BOP to begin his custodial sentence).

The Court in Pichardo found that "legislative history indicates that the addition of the parenthetical


2
    Pin-cites preceded by an asterisk (*) refer to the pagination atop the CM/ECF header.

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authorizing probation or supervised release provides supplemental authority when a court reduces

an imprisonment term, not the power to resentence." Picardo, 2020 WL 6501730, at *2 (finding

that defendants request to serve his sentence under probation or as home confinement is

“essentially a request for a new sentence and thus exceeds the limited relief available under Section

3582(c)(1)(A)”) (internal citations omitted).

         Second, Malanga does not qualify for a modification of his sentence under any other statute

or Federal Rules of Criminal Procedure 35. (Pl.’s Opp’n at 5.) Rule 35 allows for a modification

of a sentence within 14 days of sentencing and only under two circumstances: (1) to correct an

arithmetical, technical, or other clear error, or (2) on motion from the Government where a

defendant has provided substantial assistance to the Government. See Fed. R. Crim. P. 35.

Malanga does not qualify for a modification under Rule 35 because his motion was not filed within

14 days of his sentencing, there is no claim of clear error by the Court, and the Government is not

seeking modification based on substantial assistance provided by Malanga.

         Finally, Malanga has not been “sentenced to a term of imprisonment based on a sentencing

range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C.

994(o), 3 and Malanga’s motion is not an appeal and, thus, does not qualify for relief under §

3582(b) and the provisions of § 3742.

         Accordingly, the Court finds that Malanga does not meet any of the exceptions prescribed

by 18 U.S.C. § 3582(c) and therefore does not qualify for a modification under § 3582(b).

             B. The Cases Cited by Malanga Do Not Support His Request for Relief



3
 Section 3582(c)(2) provides that “in the case of a defendant who has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C.
994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may
reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."

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       Next, the Court notes that in his motion and subsequent letter to the Court, Malanga

acknowledges that he is not relying on any statutory authority to seek modification of his sentence.

(See Def.’s Mot. at *7-8; Def.’s Letter, ECF No. 66.) Instead, Malanga relies on cases purportedly

holding that, even without statutory authority, the Court has inherent equitable authority to modify

his sentence. (See Def.’s Mot. at *10-13; Def.’s Reply at *9-12.) However, the cases cited by

Malanga do not establish this Court’s equitable power to modify his sentence at this juncture.

Malanga cites United States v. Ross, 801 F.3d 374 (3d Cir. 2015), which, contrary to Malanga’s

contention, does not discuss pre-surrender jurisdiction. (Def.’s Reply at *10-11, 19, 25.) Ross

involved the Third Circuit's review of a district court’s refusal to consider a 28 U.S.C. § 2255

motion filed by a defendant who had not yet surrendered to the BOP on a sentence of incarceration.

Ross, 801 F.3d at 375. The Third Circuit affirmed the district court’s refusal, holding that the

defendant was not in the custody of the BOP as required under § 2255. Id. at 383. Thus, contrary

to Malanga's contention, the Third Circuit’s opinion in Ross does not address or mention the

Court’s equitable authority to reduce a sentence outside statutory authority.

       Malanga relies on United States v. Tomko, 562 F.3d 558, 562 (3d Cir. 2009), to argue that

the Court has discretion to consider family hardship. (Def.’s Reply at *11.) However, unlike this

case, Tomko involved the Government’s appeal of the reasonableness of a defendant’s below-

Guidelines sentence and the court’s consideration of § 3553(a) factors when imposing the

sentence; it did not involve a sentence modification. Tomko, 562 F.3d at 558, 560.

       Malanga also cites United States v. Lacy, Crim. No. 15-30038, 2020 WL 2093363 (C.D.

Ill. May 1, 2020). (Def.’s Reply at *11.) In Lacy, the district court considered health-related issues

during the COVID-19 pandemic and waived the 30-day requirement set forth in § 3582(c)(1)(A),

finding that the exhaustion requirement may be waived on a case-by-case basis. Lacy, 2020 WL



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2093363, at *5. However, Lacy is distinguishable because it involved a motion for Compassionate

Release filed by an incarcerated defendant seeking a reduction in his term of imprisonment

pursuant to 18 U.S.C. § 3582(c)(1)(A). Id. at *1.

       Similarly, the Court finds Malanga’s reliance on United States v. Gaskill, 991 F.2d 82 (3d

Cir. 1993), and United States v. Monaco, 23 F.3d 793 (3d Cir. 1994), misplaced. (Def.’s Mot. at

*11; Def.’s Reply at *12.) Both Gaskill and Monaco concern the district court’s power to make a

downward departure from the sentencing guidelines when the circumstances so require, but neither

addresses post-sentencing modifications. See Monaco, 23 F.3d at 803; Gaskill, 991 F.2d at 86.

Ultimately, the Court finds that the cases cited by Malanga do not authorize the Court to modify

an existing sentence before a defendant begins serving it. In fact, the overwhelming weight of

authority in this district holds that Malanga must begin serving his sentence before a court may

rule on his motion. See Picardo, 2020 WL 6501730, at *2; United States v. Ahmad, Crim. No. 19-

493, 2021 WL 1300288, at *1-2 (D.N.J. Apr. 7, 2021); and United States v. Desu, Crim. No. 18-

613, 2021 WL 2012235, at *3 (D.N.J. Apr. 30, 2021).

       Further, the Court is sympathetic to the issues Malanga raises regarding his wife’s medical

condition and his concerns about her treatment and care needs upon his reporting to the BOP

facility. (Def.’s Mot. at *10-12.) The Court notes however that Malanga must satisfy the

“procedural prerequisites for judicial review,” and thus, at this stage, the Court will not proceed to

an analysis of whether “compelling and extraordinary reasons exist to justify compassionate

release.”" United States v. Verasawmi, No. 17-254, 2021 WL 2549303, at *8 (D.N.J. June 22,

2021). In addition, the Court commends Malanga’s post-sentencing efforts to engage positively

with his community, care for his family, and take accountability for his actions. (Def.’s Reply at

*13-19.) However laudable, these actions do not provide a legal basis to modify Malanga’s



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sentence, as Section 3582 permits such relief only under specific statutory circumstances, none of

which are present here. Accordingly, Malanga’s motion for sentence modification is hereby

denied.

IV.       CONCLUSION

          For the foregoing reasons, Malanga’s motion for sentence modification (ECF No. 60) is

DENIED without prejudice. Malanga may renew his motion, in accordance with the requirements

set forth in 18 U.S.C. § 3582(c)(1), once he is in custody to begin serving his sentence. An

appropriate Order accompanies this Opinion.



DATED:           5/6/2026

                                                      _______________________
                                                      JULIEN XAVIER NEALS
                                                      United States District Judge




                                                8


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