Opinion
89 Cr. 478 (RPP).
June 12, 2001
Petitioner Pro Se, HERNANDO VASQUEZ, Fort Dix, NJ.
LISA A. BARONI, AUSA, MARY JO WHITE, United States Attorney for the Southern District of New York, NY., for Respondent.
OPINION AND ORDER
Petitioner Hernando Vasquez brings a motion pursuant to 18 U.S.C. § 3582(c) for a modification of his term of imprisonment, imposed by this Court on March 14, 1990. Because this application is properly construed as a motion pursuant to 28 U.S.C. § 2255 and because this Court does not have jurisdiction to hear this successive application, Petitioner's motion is transferred to the Second Circuit for further consideration.
Background
Following a jury trial in December 1989, Petitioner was convicted of conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(A), and 846, and possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2. This Court sentenced Petitioner to a prison term of eighteen years, plus a term of supervised release of five years. After losing his appeal, Petitioner filed a motion pursuant to 28 U.S.C. § 2255. This Court denied the motion on all grounds on November 9, 1994.
In his appeal, Petitioner challenged: (1) the legality of the seizure of the cocaine; (2) the prosecutor's summation, in which he mentioned a prior crime; (3) the jury charge on the conspiracy count; and (4) the sentencing judge's refusal to grant a reduction for being a minor participant. The Second Circuit rejected all of these arguments and affirmed the conviction and sentence. United States v. Lopez, 937 F.2d 716 (2d Cir. 1991).
In his § 2255 motion, Petitioner argued that his sentence was erroneous and should be corrected on three grounds: (1) his trial and appellate counsel were ineffective; (2) the trial evidence was insufficient to convict him; and (3) the court improperly denied him a sentence reduction for acceptance of responsibility. This Court rejected all of these grounds and denied Petitioner's motion. United States v. Vasguez, Nos. 89 Cr. 478 (RPP), 94 Civ. 2034 (RPP), 1994 WL 623023 (S.D.N.Y. Nov. 9, 1994).
On March 30, 2000, Petitioner filed a motion for modification of his sentence pursuant to 28 U.S.C. § 753 and Fed.R.Crim.P. 32, alleging that he was not provided with the transcripts of his sentencing, and pursuant to 18 U.S.C. § 3582(c), alleging that the retroactive application of Amendment 518 of the U.S. Sentencing Guidelines Manual (hereinafter "U.S.S.G." or "Guidelines") required a reduction of his prison sentence. In an order dated June 22, 2000, Chief Judge Mukasey construed the motions as properly filed pursuant to 28 U.S.C. § 2255, consolidated them, and transferred them to the Second Circuit for permission to pursue a successive application. Vasquez v. United States, 00 Civ. 4620 (MBM) (S.D.N.Y. June 22, 2000). Judge Mukasey did not consider the merits of the motions. After Petitioner failed to file the necessary application within the specified time limit, the Second Circuit issued an order denying authorization for a successive petition. Vasguez v. United States, 00-3577 (2d Cir. Aug. 30, 2000).
In papers dated January 18, 2001, Petitioner filed the instant motion for modification of an imposed term of imprisonment. Petitioner argues that his motion is properly filed under 18 U.S.C. § 3582(c). The basis of the motion is Petitioner's claim that his sentence should be modified based on the retroactive application of Amendment 518, which clarifies § 2D1.1, Application Note 12 of the Guidelines. Petitioner's argument is that the sentencing judge used the wrong amount of cocaine in determining Petitioner's sentence for the conspiracy conviction. Petitioner claims that Amendment 518 clarified how to calculate the correct amount of a controlled substance for sentencing purposes and that Amendment 518 must be applied retroactively to his sentence.
Discussion
The threshold issue the Court must address is whether Petitioner's application is properly construed as a motion for modification under 18 U.S.C. § 3582(c) or a motion to correct a sentence under 28 U.S.C. § 2255. If Petitioner's application is a motion pursuant to 18 U.S.C. § 3582(c), this Court may consider it on its merits. If Petitioner's application is a motion pursuant to 28 U.S.C. § 2255, this Court lacks jurisdiction to hear the motion and must either dismiss it outright or transfer it to the Second Circuit for consideration.
I. Motion for Modification Pursuant to 18 U.S.C. § 3582
Title 18, United States Code, Section 3582, subsection c, states:
The court may not modify a term of imprisonment once it has been imposed except that —
. . . (2) 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 . . . 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.
Title 28, United States Code, Section 994(o) states:
The Commission periodically shall review and revise, in consideration of comments and data coming to its attention, the guidelines promulgated pursuant to the provisions of this section. In fulfilling its duties and in exercising its powers, the Commission shall consult with authorities on, and individual and institutional representatives of, various aspects of the Federal criminal justice system. The United States Probation System, the Bureau of Prisons, the Judicial Conference of the United States, the Criminal Division of the United States Department of Justice, and a representative of the Federal Public Defenders shall submit to the Commission any observations, comments, or questions pertinent to the work of the Commission whenever they believe such communication would be useful, and shall, at least annually, submit to the Commission a written report commenting on the operation of the Commission's guidelines, suggesting changes in the guidelines that appear to be warranted, and otherwise assessing the Commission's work.
Title 18, United States Code, Section 3553(a) identifies the factors to be considered in imposing a sentence.
The general rule is that a court may not modify a sentence imposing imprisonment. Section 3582 makes a specific exception to this general rule and allows a court to modify a sentence of imprisonment if the Sentencing Commission amends a section of the Guidelines such that it results in the lowering of an applicable sentencing range. This exception only applies, however, if the reduction is consistent with the policy statements. A reduction is consistent with the policy statements of the Guidelines if the Sentencing Commission includes the amendment that created the reduction in the list of amendments to be applied retroactively, enumerated in U.S.S.G. § 1B1.10. Section 1B1.10, entitled, "Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)," provides as follows:
(a) Where 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). If none of the amendments listed in subsection (c) is applicable, a reduction in the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) is not consistent with this policy statement and thus is not authorized.
. . . (c) Amendments covered by this policy statement are listed in Appendix C as follows: 126, 130, 156, 176, 269, 329, 341, 371, 379, 380, 433, 454, 461, 484, 488, 490, 499, 505, 506, 516, 591, 599, and 606.
As is stated in the clear language of § 1B1.10(a), an amendment must be listed in § 1B1.10(c) in order for that amendment to apply after the imposition of sentence. In addition, the commentary to § 1B1.10 states, "Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range." U.S.S.G. § 1B1.10, cmt. n. 1 (2000). Furthermore, the background comments note:
This policy statement provides guidance for a court when considering a motion under 18 U.S.C. § 3582(c)(2) and implements 28 U.S.C. § 944(u), which provides: "If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced."
U.S.S.G. § 1B1.10, cmt. background (2000).
The case law confirms the necessity of a § 1B1.10(c) listing for an 18 U.S.C. § 3582 motion. See United States v. Cruz-Mendoza, 147 F.3d 1069, 1073 (affirming that the district court could not apply Amendment 518 retroactively on a motion pursuant to 18 U.S.C. 3582(c)(2) because the amendment was not included in the list of retroactive amendments in U.S.S.G. 1B1.10(c)), amended by 163 F.3d 1149 (9th Cir. 1998), cert. denied, 528 U.S. 1013 (1999); United States v. Hernandez, 18 F.3d 601, 602 (8th Cir. 1994) (holding that amendments must be listed in § 1B1.10 to apply retroactively on a motion for modification under 18 U.S.C. § 3582); United States v. Caceda, 990 F.2d 707, 710 (2d Cir. 1993) ("Only certain enumerated amendments are specified by the Guidelines as exceptions to the general rule that amendments are not to be applied retroactively . . ."). Furthermore, in United States v. Perez the Second Circuit affirmed the district court's decision to construe a petitioner's motion for modification of a sentence as properly brought under 28 U.S.C. § 2255, not 18 U.S.C. § 3582, because the relevant amendment was not among those listed in U.S.S.G. § 1B1.10(c), "which governs the retroactivity of Guideline amendments and specifies which amendments a defendant may invoke pursuant to § 3582(c)(2)." 129 F.3d 255, 258-59 (2d Cir. 1997). In summary, the only way for an amendment to apply retroactively on a motion for modification under 18 U.S.C. § 3582 is for the amendment to be listed in U.S.S.G. § 1B1.10(c) as an amendment covered by the policy statement. If an amendment is not listed in § 1B1.10(c), its reduction is not consistent with the applicable policy statements, and it may not be applied retroactively on a motion for modification. Amendment 518 is not listed in § 1B1.10; therefore, it does not apply retroactively on a motion for reconsideration.
II. Alternative Grounds for Sentence Modification
Petitioner acknowledges that Amendment 518 is not included in the list enumerated in § 1B1.10 but argues that an amendment does not need to be contained in that list to apply retroactively. Petitioner justifies retroactive application absent inclusion in § 1B1.10 by arguing that Amendment 518 is a clarifying amendment and that clarifying amendments can always be applied retroactively.
A clarifying amendment is an amendment that "merely `clarifies and simplifies the guideline provisions' . . . [but] do[es] not substantively change the Guidelines." United States v. Hendrickson, 26 F.3d 321, 330 n. 6 (2d Cir. 1994) (quoting U.S.S.G. App. C, Amendment 447). Because clarifying amendments do not represent a change in the law but simply clarify the existing law, such amendments may apply retroactively in certain circumstances, even if they are not included in the list of retroactive amendments contained in § 1B1.10.
Most circuits agree that a court must give retroactive effect to clarifying amendments to sentences on direct review, even if those amendments are not contained in § 1B1.10. See, e.g., United States v. Yeung, 241 F.3d 321, 325 n. 2 (3d Cir. 2001) (noting that Amendment 518 "merely clarified section 2D1.1" and, therefore, the district court was correct to apply it retroactively in sentencing defendant even though it is not in § 1B1.10); United States v. Kirham, 195 F.3d 126, 131 (2d Cir. 1999) (noting that "this Court is required to apply amendments to the Guidelines that clarify their application on direct review" (citing Hendrickson, 26 F.3d 321, 330 n. 6 (2d Cir. 1994) and United States v. Colon, 961 F.2d 41, 45 (2d Cir. 1992)); United States v. Drath, 89 F.3d 216, 217 (5th Cir. 1996) (noting that clarifying amendments only apply retroactively on direct appeal, not on motions pursuant to § 3582(c)(2) in which the amendment is not listed in § 1B1.10). The Second Circuit, however, has specifically declined to retroactively apply clarifying but non-Section 1B1.10 amendments on motions for modification. See, e.g., Perez, 129 F.3d at 258-59 (holding § 3582 inapplicable to an amendment not listed in § 1B1.10(c)). Therefore, even if Amendment 518 is a clarifying amendment, it cannot be applied retroactively on a motion for modification under § 3582, absent inclusion in § 1B1.10, and, thus, Petitioner's argument fails. Because Petitioner's motion cannot be brought as a § 3582 motion, this Court construes it as a 28 U.S.C. § 2255 motion. See Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997) ("It is routine for courts to construe prisoner petitions without regard to labeling in determining what, if any, relief the particular petitioner is entitled to.").
The cases that Petitioner cites for the proposition that clarifying amendments apply retroactively are not applicable. All of the cases involve either cases on direct review, habeas corpus petitions, or § 2255 motions. None of the cases involve § 3582 motions. Specifically, United States v. Marmolejos, on which Petitioner heavily relies, holds that "§ 1B1.10 is not relevant to our consideration of the instant § 2255 motion" because the ground for review is whether Amendment 518 clarifies existing law. 140 F.3d 488, 491 (3d Cir. 1998).Marmolejos holds that § 1B1.10 does not apply because the petitioner's motion is under § 2255 on grounds that the amendment is clarifying, not under § 3582. Petitioner cites no cases supporting the retroactive application of a clarifying amendment on a motion for modification, and this Court could find none.
Because Amendment 518 would not apply retroactively on a motion for modification even if it is a clarifying amendment, this Court does not address whether it is a clarifying amendment.
Because this Court lacks jurisdiction to consider Petitioner's motion under § 2255 see Section III, supra, it does not address whether Second Circuit precedent holds that clarifying amendments should be applied retroactively on applications pursuant to § 2255.
III. Motion for Relief Pursuant to 28 U.S.C. § 2255
A petitioner in federal custody may file a motion to vacate or correct a sentence under 28 U.S.C. § 2255. Section 2255 establishes the general rule that petitioners are only allowed to file one such application directly with the district court. In order to file an additional application, petitioners must meet the requirements of § 2255 and § 2244.
Section 2255 states, in relevant part:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
Section 2244 states:
(b)(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
. . . (b)(3)(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.
Thus, before a petitioner can file a successive § 2255 motion with a district court, he must receive permission to file a successive application from the court of appeals in his jurisdiction. Without the approval of the court of appeals, the district court has no jurisdiction to consider a successive application.
Petitioner already filed a § 2255 motion with this Court. The motion was denied on November 9, 1994. United States v. Vasquez, Nos. 89 Cr. 478 (RPP), 94 Civ. 2034(RPP), 1994 WL 623023 (S.D.N.Y. Nov. 9, 1994). Thus, before Petitioner may proceed with his current motion, he must file an application in the Second Circuit Court of Appeals for permission to file this successive § 2255 motion. Accordingly, Petitioner's motion is transferred to the Second Circuit for consideration. See Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996) ("[W]hen a second or successive petition for habeas corpus relief or § 2255 motion is filed in a district court without the authorization by this Court that is mandated by § 2244(b)(3), the district court should transfer the petition or motion to this Court in the interest of justice pursuant to [28 U.S.C.] § 1631.").
The Court notes that this is the same conclusion Chief Judge Mukasey reached when considering Petitioner's previous motions for modification. Vasquez v. United States, 00 Civ. 4620 (MBM) (S.D.N.Y. June 22, 2000).
Conclusion
For the reasons discussed above, Petitioner's motion is construed as a 28 U.S.C. § 2255 motion and is transferred to the Court of Appeals for the Second Circuit.
IT IS SO ORDERED.