Opinion
04 Cr. 29-7 (HB).
May 26, 2005
OPINION ORDER
On April 25, 2005, Defendant Mario Garcia ("Garcia") filed a pro se motion for (1) a modification of his sentence, pursuant to 18 U.S.C. § 3582(c)(1)(B), and (2) a stay of his transfer to the designated Bureau of Prisons correctional facility pending the outcome of this motion, pursuant to Rule 38(b)(2) of the Federal Rules of Criminal Procedure. The motion was sub judice on May 4, 2005. For the following reasons, Defendant's motion is DENIED.
I. BACKGROUND
On June 24, 2004, Garcia pled guilty to a one-count Superseding Indictment ("Indictment") which charged him with conspiracy to distribute five kilograms of cocaine and one-thousand kilograms of marijuana in violation of 21 U.S.C. §§ 846, 812, 841(a)(1) and 841(b)(1)(A).
The same day, Garcia and the Government entered into a cooperation agreement. (Ltr. from David Goldstein, former Def. Counsel, to Judge Baer, Jr., dated May 4, 2005, at Ex. B, Jun. 1, 2004 Cooperation Agreement) ("Cooperation Agreement"). Pursuant to the terms of the Cooperation Agreement, Garcia agreed, inter alia, to assist the Government in their ongoing criminal investigations, "truthfully and completely disclose all information with respect to the activities of himself and others concerning all matters" and "truthfully testify before the grand jury and at any trial and other court proceeding with respect to any matters" about which the Government requests. (Id. at 2) In return, the Government agreed, inter alia, to not further prosecute Garcia for any crimes related to his "participation in a conspiracy to distribute cocaine and marijuana, from in or about November 2002 through on or about January 2, 2004, as charged in Count One" of the Indictment and the Government "will file a motion, pursuant to 5K1.1 of the Sentencing Guidelines and 18 U.S.C. § 3553(e), requesting the Court to sentence Mario Garcia in light of the factors set forth in Section 5K1.1(a)(1)-(5)." (Id. at 3) In addition, the Cooperation Agreement acknowledged that it was the Court, not the Government, that determined Garcia's sentence and that "Count One carries a maximum sentence of life imprisonment" and "a mandatory minimum sentence of ten-years' imprisonment." (Id. at 1.)
In accordance with the terms of the Cooperation Agreement, on March 25, 2005, the Government filed a letter with the Court pursuant to U.S.S.G. 5K1.1 ("5K1 Letter") in which the Government detailed, among other things, the substantial assistance Garcia provided to the Government in the course of the investigation and prosecution of his co-defendants.
Garcia was sentenced on March 31, 2005. At the sentencing hearing, pursuant to U.S.S.G. 5K1.1, the Government suggested that Garcia's sentence reflect the substantial cooperation and assistance detailed in the 5K1 Letter. In addition, the Court heard testimony from Garcia and Garcia's wife. Taking into consideration the testimony presented, and the letters and affidavits submitted by the Defendant and the Government, this Court sentenced Garcia to 48 months of incarceration to be followed by five years supervised release.
Garcia now moves for a reduction of his sentence. According to Garcia, "there is a real and substantial [risk] of serious bodily injury and death posed to defendant and his family as a result of his cooperation with the Government" and his counsel failed "to apprise the court of these facts" which, in turn, "deprived this defendant of his right to effective assistance of counsel." (Garcia Mot. at ¶ 6.) In addition, Garcia maintains that his 48-month sentence exceeds the statutory maximum.
II. DISCUSSION
Garcia premises his motion on 18 U.S.C. §§ 3582(c)(1)(B) and (c)(2). Section 3582(c)(1)(B) provides, in relevant part, that "the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." United States v. Triestman, 178 F.3d 624, 628 n. 2 (2d Cir. 1999). The two statutory exceptions articulated by Section 3582 are (1) a remand from the Court of Appeals or Supreme Court to resentence, or (2) pursuant to 28 U.S.C. § 2255. The first statutory exception does not apply because the motion does not arise from a remand from a higher court. The second statutory exception does not apply because Garcia did not expressly file a motion pursuant to 28 U.S.C. § 2255 and the Supreme Court has held that unless a pro se litigant expressly files a motion pursuant to 28 U.S.C. § 2255 the Court should not treat the motion as a request for habeas relief. See United States v. Castro, 540 U.S. 375, 377 (2003). Thus, Garcia's motion is governed by Rule 35 of the Federal Rules of Criminal Procedure ("Rule 35")
See e.g., United States v. Ross, 245 F.3d 577, 586 (6th Cir. 2001) ("Only two other statutory exceptions modify the general rule expressed in 18 U.S.C. § 3582 that a district court may not modify a term of imprisonment once the same has been imposed. Upon the issuance of relief under 28 U.S.C. § 2255, a resentencing may occur. Similarly, under 28 U.S.C. § 2106, upon remand from a Court of Appeals or the Supreme Court to the district court, a resentencing is authorized by law.")
Rule 35 authorizes a district court to correct or reduce a sentence in limited circumstances:
(1) Upon the government's motion made within one year of sentencing, the court may reduce a sentence if: (A) the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person; and (B) reducing the sentence accords with the Sentencing Commission's guidelines and policy statements.
(2) Upon the government's motion made more than one year after sentencing, the court may reduce a sentence if the defendant's substantial assistance involved: (A) information not known to the defendant until one year or more after sentencing; (B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or (C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.
Fed.R.Crim.P. 35(b) (emphasis added). According to the Federal Rules of Criminal Procedure, the scope of Rule 35 is limited. Only the Government may bring a Rule 35 motion for a reduction of sentence. See e.g., United States v. Gangi, 45 F.3d 28 (2nd Cir. 1995) ("the Rule permits only the government to move for a reduction of sentence and only on the basis of a defendant's subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense.") (emphasis added) (citation omitted); see United States v. Handal, No. 02 Cr. 5195, 70 Fed. Appx. 243, 244 (6th Cir. Jun. 17, 2003) (unpublished) ("Rule 35 — and, hence, § 3582(c)(1)(B) — does not provide authority for a defendant to file a motion seeking a change in or correction of his sentence.")
Here, Garcia, not the Government, filed a motion to resentence and, pursuant to Castro, this Court did not, and should not, treat Garcia's motion as a petition for habeas relief although this avenue remains open to the Defendant. Consequently, Garcia's motion for a reduction in his sentence must be DENIED.
B. Merits
Assuming arguendo that Garcia has legal standing to file a motion under Section 3582(c)(1)(B), Garcia's motion for a reduced sentence: (1) fails on the merits, and (2) the record contradicts his contention that the risk of danger was not presented to the Court.
First, Garcia maintains that his sentence violates the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). According to the Second Circuit, Apprendi requires that "unless [certain] facts were found by a jury beyond a reasonable doubt, the defendant may not be sentenced more heavily than the maximum sentence allowed by the statute without regard to those [particular] facts." United States v. Luciano, 311 F.3d 146, 151 (2d Cir. 2002). More specifically, "[a]s long as the sentence imposed is not greater than the maximum penalty authorized by statute for the offense charged and (in cases involving a guilty plea) allocuted to by the defendant, a district court may consider drug quantity in determining a defendant's relevant conduct for sentencing purposes." United States v. McLean, 287 F.3d 127, 133 (2d Cir. 2002) (citing United States v. Thomas, 274 F.3d 655, 663-64 (2d Cir. 2001) (en banc)).
Here, Garcia was indicted for violations of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A) which prohibits, inter alia, distribution and possession with intent to distribute cocaine and marijuana. The Indictment expressly charged him with conspiracy to distribute five kilograms of cocaine and one-thousand kilograms of marijuana, and Garcia acknowledged during his plea that he possessed this amount. Section 841(b)(1)(A) carries a maximum statutory penalty of life imprisonment. Garcia was sentenced principally to forty-eight (48) months in prison. Accordingly, "the sentence imposed is not greater than the maximum penalty authorized by statute" and, therefore, noApprendi violation has occurred. See McLean, 287 F.3d at 133.
Second, Garcia argues that the risk of danger to him and his family "was not brought to the attention of the Court at sentencing." (Mot. at ¶ 6.) The record contradicts Garcia's contention. During the March 31, 2005 sentencing, the Government ensured that the Court was fully abreast of the danger in which Garcia was placed: contention. During the March 31, 2005 sentencing, the Government ensured that the Court was fully abreast of the danger in which Garcia was placed:
The defendant put himself in a dangerous position by cooperating right from the outset, flying down to El Paso and engaging in the meeting which led to the arrests of the co-defendants.
(AUSA Berger, Tr. 7:18-21.) Garcia's attorney echoed the Government's statements and explained how Garcia put himself in harm's way in an effort to assist the Government: ". . . [Garcia] continued to cooperate and, as the [5K1] Letter states, he did a very good job at the risk of his own personal safety." (Weinstein, Tr. 6:10-12). Indeed, the Court acknowledged Garcia's efforts and "obviously [took] into consideration, the extent of your cooperation and I certainly find that it has been significant. . . . So I, taking that into consideration, as well as the time you have already served, I will sentence you to a period of 48 months in the custody of the Attorney General of the United States to be followed by five years of supervised release." (Tr. 14:10-15:2.) Parenthetically, if your safety or that of your family continues to be a concern, it should be brought to the attention of the Assistant United States Attorney (AUSA), the Drug Enforcement Administration (DEA) agents with whom you worked, and your attorney. This Court has no jurisdiction in the safety arena.
Accordingly, the record clearly indicates that in deciding the sentence, the Court considered these factors and, therefore, Garcia's request is be DENIED.
As a consequence of this Court's decision to deny the motion for a modification of Garcia's sentence, Garcia's motion for a stay of his transfer to a designated Bureau of Prisons' correctional facility pending the outcome of this motion, pursuant to Fed.R.Crim.Proc. 38(b)(2), is moot and, therefore DENIED.
III. CONCLUSION
For the aforementioned reasons, Defendants' motion for a modification of sentence and stay of his transfer is DENIED. The Clerk of the Court is ORDERED to close this motion and all other open motions and remove this case from my docket.
IT IS SO ORDERED.