Opinion
No. 98 Crim. 0876 (LAK).
January 21, 2005
ORDER
Defendant was convicted in 1999 of conspiracy, in violation of 18 U.S.C. § 371, to commit bank fraud and to possess a counterfeit security and of making false statements to a federal agent in violation of 18 U.S.C. § 1001, and sentenced principally to a term of imprisonment of one year and a day followed by three years of supervised release. The conviction was affirmed. United States v. Conteh, 2 Fed. Appx. 202 (2d Cir. 2001). A stream of post-conviction applications have been denied.
The Court is in receipt of a new pro se application. The application recites that the term of imprisonment "was served and satisfied at the FMC Fort Devens facility in Ayer, Massachusetts." It goes on to relate that defendant now is being held at the Plymouth County Correctional Facility in Massachusetts "because of the sentence of over one year, which is potentially indefinite." And it asks "[i]n light of the recent Supreme Court decision on the Sentencing Guidelines" that I reduce the sentence to less than 12 months.
This application is so spare on facts that it is difficult to know what to make of it. There is no indication why defendant is in the Plymouth County Correctional Facility or what would be accomplished by reducing the sentence that he already has served. But the Court assumes that defendant, an alien, is in the custody of the Bureau of Immigration and Customs Enforcement ("BICE") pending removal proceedings or removal from the United States, that BICE has contracted with Plymouth County to house prisoners including defendant, and that a source of defendant's difficulty with BICE is that he was sentenced to a term of over one year.
Even given these assumptions, the Court sees no path to affording defendant any relief. The Court has no authority to reduce his sentence, even for the purpose of ameliorating any immigration consequences that it may have, least of all after the term of imprisonment has been served. If the intent of the reference to "the recent Supreme Court decision on the Sentencing Guidelines" is to imply that defendant contends that his sentence was enhanced on the basis of facts found by the Court rather than a jury and thus raises a Blakely-Booker issue, the application presumably would be properly made as a Section 2255 motion. But this would be a second or otherwise successive Section 2255 motion and thus cannot be made absent leave of the Court of Appeals.
The application might be intended also to challenge defendant's present custody, in which case it would fall under 28 U.S.C. § 2241. But the application names no respondent, and it appears that defendant has not served anyone. Thus, even if a Section 2241 proceeding challenging defendant's present custody properly could be filed in this Court, the application would be deficient even if the Court treated it as a Section 2241 petition.
Accordingly, the application is denied. To the extent that defendant might be construed as attempting to mount a Blakely-Booker challenge to his sentence, the denial is without prejudice to the filing of an application in the United States Court of Appeals for the Second Circuit for leave to file a second or successive Section 2255 motion. To the extent that defendant might be construed as seeking to challenge his present custody, the denial is without prejudice to the filing of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the District of Massachusetts.
SO ORDERED.