Opinion
12 Cr. 859 (VM)
09-07-2016
UNITED STATES of America v. Santiago POSADA, Defendant.
Christopher Joseph Dimase, Timothy Turner Howard, U.S. Attorney'S Office, New York, NY, for United States of America.
Christopher Joseph Dimase, Timothy Turner Howard, U.S. Attorney'S Office, New York, NY, for United States of America.
DECISION AND ORDER
VICTOR MARRERO, United States District Judge.
By Order dated March 31, 2015 ("March 31 Order"), the Court denied defendant Santiago Posada ("Posada") a sentencing reduction pursuant to Amendments 782 and 788 of the United States Sentencing Guidelines ("Sentencing Guidelines"), which retroactively lowered the Sentencing Guidelines' range for some drug offenders. (Dkt. No. 353.) By letter dated August 6, 2016 ("Motion"), Posada requests that the Court reconsider the March 31 Order. (Dkt. No. 435.) For the reasons discussed below, Posada's Motion is DENIED.
I. STANDARD OF REVIEW
Reconsideration of a previous order by the court is an "extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." In re Health Mgmt. Sys. Inc. Sec. Litig. , 113 F.Supp.2d 613, 614 (S.D.N.Y.2000) (internal citations and quotation marks omitted). "The provision for reargument is not designed to allow wasteful repetition of arguments already briefed, considered and decided." Schonberger v. Serchuk , 742 F.Supp. 108, 119 (S.D.N.Y.1990). "The major grounds justifying reconsideration are ‘an intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’ " Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd. , 956 F.2d 1245, 1255 (2d Cir.1992) (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4478 at 790 (2d ed.) ). To these ends, a request for reconsideration under Local Rule 6.3 ("Rule 6.3") must point to controlling law or factual matters put before the court in its decision on the underlying matter that the movant believes the court overlooked and that might reasonably be expected to alter the conclusion reached by the court. See Shrader v. CSX Transp., Inc. , 70 F.3d 255, 257 (2d Cir.1995).
Rule 6.3 is intended to " ‘ensure the finality of decisions and to prevent the practice of a losing party ... plugging the gaps of a lost motion with additional matters.’ " S.E.C. v. Ashbury Capital Partners , No. 00 Civ. 7898, 2001 WL 604044, at *1 (S.D.N.Y. May 31, 2001) (quoting Carolco Pictures, Inc. v. Sirota , 700 F.Supp. 169, 170 (S.D.N.Y.1988) ). A court must narrowly construe and strictly apply Rule 6.3 so as to avoid duplicative rulings on previously considered issues and prevent Rule 6.3 from being used to advance different theories not previously argued or as a substitute for appealing a final judgment. See Montanile v. Nat'l Broad. Co. , 216 F.Supp.2d 341, 342 (S.D.N.Y.2002) ; Shamis v. Ambassador Factors Corp. , 187 F.R.D. 148, 151 (S.D.N.Y.1999).
Recognizing that Posada is proceeding pro se , the Court will construe the Motion liberally "to raise the strongest arguments that [it] suggest[s]." Green v. United States , 260 F.3d 78, 83 (2d Cir.2001) (internal quotation marks omitted); see also Simmons v. Abruzzo , 49 F.3d 83, 87 (2d Cir.1995) ( "The complaint of a pro se litigant is to be liberally construed in his favor.").
II. DISCUSSION
A. INTERVENING CHANGE OF CONTROLLING LAW
The first major ground justifying reconsideration is an intervening change in controlling law. See Virgin Atl. Airways, Ltd. , 956 F.2d at 1255. The Motion cites no controlling law overlooked by the Court that might "reasonably be expected to alter" the outcome of the March 31 Order. Shrader , 70 F.3d at 257. The Court therefore finds that there has been no "intervening change of controlling law" which justifies reconsideration of the March 31 Order.
B. AVAILABILITY OF NEW EVIDENCE
The second major ground justifying reconsideration is the availability of new evidence. See Virgin Atl. Airways, Ltd. , 956 F.2d at 1255. For evidence to be considered "newly available," it must be "evidence that was truly newly discovered or could not have been found by due diligence." Space Hunters, Inc. v. United States , 500 Fed.Appx. 76, 81 (2d Cir.2012) (internal quotation marks omitted). "A motion to reconsider is not petitioner's opportunity to put forward evidence that he could have, but failed, to provide the Court when the Court initially considered the motion." Muyet v. United States , No. 03 Civ. 4247, 2009 WL 2568430, at *3 (S.D.N.Y. Aug. 19, 2009) ; see also Davidson v. Scully , 172 F.Supp.2d 458, 463 (S.D.N.Y.2001) (precluding movant from offering "additional evidence not previously submitted to the Court"); Goldstein v. New York , No. 00 Civ. 7463, 2001 WL 893867, at *1 (S.D.N.Y. Aug. 7, 2001) (holding that a motion to reconsider is not an opportunity "to put forward additional arguments which the movant could have made, but neglected to make before judgment") (internal quotation marks omitted).
The Motion does not cite any newly available evidence that would affect the outcome of the March 31 Order. The Court therefore finds that this factor does not justify reconsideration of the March 31 Order.
C. NEED TO CORRECT CLEAR ERROR OR PREVENT MANIFEST INJUSTICE
Finally, the third major ground justifying reconsideration is the "need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways , 956 F.2d at 1255 (internal quotation marks omitted).
As stated in the March 31 Order, had Amendment 782 been in effect at the time of sentencing, Posada's total offense level would have been twenty-seven (27) instead of twenty-nine (29), resulting in a Sentencing Guidelines' range of seventy (70) to eighty-seven (87) months instead of eighty-seven (87) to one hundred and eight (108) months. (See Dkt. No. 353 at 5.) The Court sentenced Posada to a term of incarceration of sixty (60) months. Because this departure was not made pursuant to a government motion regarding substantial assistance to authorities, the Court is not permitted to reduce Posada's "term of imprisonment under 18 U.S.C. [Section] 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range[.]" U.S.S.G. § 1B1.10(b)(2)(A) ; see also United States v. Erskine , 717 F.3d 131, 137 (2d Cir.2013) ("Johnson argues that [Section] 1B1.10 exceeds the Commission's authority under the SRA by generally prohibiting district courts from re-imposing departures or variances imposed at a defendant's original sentencing hearing. This argument is without merit."); United States v. Ramirez , No. 03 CR 1104, 2015 WL 4557386, at *1 (S.D.N.Y. July 24, 2015) ("The defendant argues that the Court should impose a sentence that takes into account that the Court originally varied downwardly below the Guidelines['] Range in effect at the time of sentencing, and that the Court should apply a similar reduction now. But that argument is plainly foreclosed by the language of the Guidelines as they exist today and pursuant to which the Court is considering the motion for a reduction of sentence."). Therefore, the Court was only permitted to reduce Posada's term of incarceration to as low as seventy (70) months. Because the Court already sentenced Posada to sixty (60) months, the Court was not authorized to make any further reduction to Posada's sentence pursuant to Amendments 782 and 788.
The Motion fails to identify any clear error or manifest injustice in the Court's finding that it was not permitted to grant a further reduction to Posada's term of imprisonment that would justify reconsideration of the March 31 Order.
III. ORDER
For the reasons stated above, it is hereby
ORDERED that the motion (Dkt. No. 435) of defendant Santiago Posada ("Posada") for reconsideration of the Court's Order dated March 31, 2015 (Dkt. No. 353) is DENIED.