Opinion
90 Cr. 359 (LMM).
July 13, 2005
MEMORANDUM AND ORDER
1.
The above defendant was convicted after a jury trial of conspiring to commit armed robbery, in violation of 18 U.S.C. § 371, and of armed robbery, in violation of id. §§ 2113(a) (d) and 2, and sentenced by the late Hon. Dominick L. DiCarlo of the Court of International Trade, sitting by designation, who presided at trial, principally to 23 years of imprisonment. Defendant was sentenced as a career offender, see U.S.S.G. § 4B1.1, on the basis of prior New York State convictions for attempted robbery in the third degree and robbery in the second degree.
On his direct appeal, the Second Circuit vacated the conviction, remanding to the district court for a determination as to whether defendant had knowingly and voluntarily waived his right to counsel in relation to certain statements made to arresting FBI agents, and affirmed Judge DiCarlo's sentence of defendant as a career offender. United States v. Spencer, 955 F.2d 814 (2d Cir. 1992). On remand, the undersigned found that defendant's waiver was knowing and voluntary, and the Second Circuit, which had retained jurisdiction in remanding, affirmed and reinstated the conviction. United States v. Spencer, 995 F.2d 10 (2d Cir. 1993). In 1997, defendant challenged his conviction and his sentence as a career offender in a petition filed under 28 U.S.C. § 2255, which was denied. Spencer v. United States, No. 97 Civ. 3256, 2000 WL 172636 (S.D.N.Y. Feb. 14, 2000).
Petitioner now moves pursuant to 18 U.S.C. § 3582(c)(2) for a reduction of his sentence (from 276 to 135 months) because of changes made in the Sentencing Guidelines by the Sentencing Commission's Amendment 461, effective November 1, 1992. U.S.S.G. 1 Appendix C at 337-339. That Amendment is listed in U.S.S.G. § 1B1.10(c), bringing it within the guideline providing that "[w]here a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, a reduction in the defendant's term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2)." U.S.S.G. § 1B1.10(a).
2.
The first issue is whether defendant's present motion is a "second or successive application" which must be transferred to the Court of Appeals. 28 U.S.C. § 2244(b)(3)(A). See Adams v. United States, 372 F.3d 132, 135 (2d Cir. 2004).
The Court concludes that a motion, made under 18 U.S.C. § 3582(c), not 28 U.S.C. § 2255, is properly before the district court, and need not be transferred to the Court of Appeals. The Second Circuit, albeit in a different context, has noted the real distinction between the kinds of relief available under the two statutes, see United States v. Perez, 129 F.3d 255, 258-59 (2d Cir. 1997), cert. denied, 525 U.S. 953 (1998). However, it appears that this motion, though expressly identified as brought under 28 U.S.C. § 3582(c)(2), is not properly brought under that section.
3.
As appears from the first of the Court of Appeals decisions in this case, defendant was sentenced as a career offender, pursuant to U.S.S.G. § 4B1.1. 955 F.2d at 820. The Presentence Investigation Report ("PSR") list two relevant convictions: one in Bronx County, New York, for robbery in the second degree and reckless endangerment, for which defendant was sentenced on January 18, 1983 to 3-9 years (PSR ¶ 48); and one in New York County, New York for attempted robbery in the third degree, for which defendant was sentenced on February 10, 1987 to 2-4 years (PSR ¶ 57).
Under U.S.S.G. § 4B1.1: "A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1 (1990). "The term `crime of violence' [as relevant here] means any offense under federal or state law punishable by imprisonment for a term exceeding one year that — (i) has as an element the use, attempted use, or threatened use of physical force against the person of another. . . ." U.S.S.G. § 4B1.2(1) (1990). Defendant does not dispute that the first two factors are present. (Mot. at 2.) He argues that he does not have crimes of violence, as defined by the Guideline, because "[t]he 1987 conviction does not meet the guidelines definition of a `crime of violence.'" (Id. at 3.)
Defendant was sentenced by Judge DiCarlo on March 28, 1991 (Judgment at 1), when the 1990 Guideline Manual was in effect.
In support of his argument, defendant annexes to his motion a copy of a decision of Justice Daniels of the New York County Supreme Court relating to the 1987 conviction, denying defendant's motion for leave to withdraw his guilty plea, in which Justice Daniels states: "Even though the judge during the plea proceedings erroneously indicated that the defendant would be sentenced as a second violent felon, attempted robbery in the third degree is not a violent felony offense (see Penal Law § 70.02[1][d]." (People v. Spencer, Ind. # 4522/86 Decision Order, Dec. 15, 1997, at 3.)
While it is not clear whether the Court of Appeals had Justice Daniels' quoted decision before it in relation to its first decision in this case, it is clear that it considered, and rejected, the argument that defendant's "1987 conviction for attempted robbery in the third degree cannot constitute a conviction for a `crime of violence,' because the New York statutory definition of robbery includes the `threaten[ed] immediate use of physical force." 955 F.2d at 820.
The Sentencing Commission's Amendment 461, however, does not bear on defendant's sentence in any manner the Court can perceive (see also Gov't Letter Mem., June 16, 2004, at 3-4), and the Court cannot grant relief on the present motion under 18 U.S.C. § 3582(c)(2). Quesada-Mosquera v. United States, 243 F.3d 685, 686-87 (2d Cir. 2001) (per curiam).
Nor can the Court address defendant's actual argument, because defendant's motion, properly understood, is a "second or successive" petition under 28 U.S.C. § 2255, which cannot be considered without authority to do so being first granted by the Court of Appeals. Id. § 2244(b)(1)(3)(A).
4.
For the reasons set forth above, this motion, insofar as it is brought under 18 U.S.C. § 3582(c)(2), is denied.
However, since the motion is more properly characterized as a second or successive motion brought under 28 U.S.C. § 2255, without the authorization from the Court of Appeals required byid. § 2244(b)(3)(A), the Clerk is directed to transfer the motion to the United States Court of Appeals for the Second Circuit. See Liriano v. United States, 95 F.3d 119, 122-23 (2d Cir. 1996).
SO ORDERED.