Opinion
05 Civ. 10342 (RPP), 97 Cr. 1041 (RPP).
July 17, 2006
OPINION AND ORDER
Pro se petitioner, Gioacchino Acquista ("Acquista"), presently in custody serving a sentence imposed by this Court, seeks to vacate, set aside, or correct his sentence pursuant to Title 18, United States Code, Section 3582(c)(2) on the ground that this Court improperly applied a four-level increase pursuant to United States Sentencing Guidelines ("U.S.S.G"), Section 3B1.1(a). Acquista's petition is denied for the reasons set forth below.
BACKGROUND
On September 30, 1997, a grand jury returned Indictment 97 Cr. 1041, which charged Acquista and nine other co-defendants with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.
On April 2, 1998, Acquista pled guilty pursuant to a plea agreement with the Government. In the agreement, Acquista and the Government stipulated that Acquista participated in a conspiracy involving more than fifteen, but less than fifty, kilograms of cocaine, resulting in a base offense level of 34 pursuant to U.S.S.G. § 2D1.1(c)(3). Plea Agreement ("Plea Agmt."), dated April 2, 1998, at 2. The parties also stipulated to a four-level upward adjustment pursuant to U.S.S.G. § 3B1.1(a) because Acquista was an organizer and leader of the charged criminal activity involving five or more participants. Id. Acquista had no criminal history. Id. In addition, the parties stipulated to a three-level downward departure for Acquista's acceptance of responsibility pursuant to U.S.S.G §§ 3E1.1(a) and 3E1.1(b)(2). Acquista's applicable Guidelines offense level was 35 with a sentencing range of 168-210 months. Id. The parties agreed not to seek either upward or downward departures from the stipulated sentencing range. Id. In consideration for Acquista's plea, the Government agreed not to prosecute Acquista any further for the conspiracy to distribute cocaine charged in the Indictment. Id. at 1.
At Acquista's plea allocution, Acquista acknowledged that he had entered into his plea agreement freely and voluntarily. Transcript of April 2, 1998 Plea Hearing ("Plea Tr.") at 5. After appropriate inquiry, the Court also found that Acquista was fully competent and capable of entering his plea of guilty. Id. at 14. Acquista stated was fully was thirty-eight years old, had a high school education, had lived in the United States for twenty-five years, had no difficulty understanding English, and was then not under the influence of alcohol, drugs, or any medication. Id. at 3-4. Acquista indicated that he was satisfied with his lawyer and that Acquista had discussed the Indictment and plea agreement with him. Acquista stated that after his lawyer read the agreement to him, Acquista entered into the agreement freely and voluntarily. Id. at 4-5.
During Acquista's plea, the Court summarized for Acquista the nature and objects of the conspiracy and each overt act that the Government had charged in the Indictment. For each charge, the Court told Acquista each of the essential elements that the Government had to prove beyond a reasonable doubt to the unanimous satisfaction of a twelve-person jury.Id. at 11-13. Acquista pled guilty to each of the essential elements of the conspiracy charged and acknowledged driving to 719 St. Nicholas Avenue in New York, NY on June 2, 1997 in order to accomplish the objective of the conspiracy to distribute five kilograms or more of cocaine. Id. at 13-14.
On July 22, 1998, the Court sentenced Acquista to 168 months in prison in accordance with the plea agreement and Presentence Investigation Report ("PSR"). Transcript of July 22, 1998 sentencing ("Sentencing Tr.") at 6. The Court also imposed a special assessment of $100 and five years of mandatory supervised release. Id. In addition, the Court informed Acquista that he had ten days in which to file a notice of appeal. Id. at 8. Acquista did not file any such notice.
Acquista, proceeding pro se, petitioned the Court on October 25, 2005 to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). In his motion, Acquista asserts that the Court improperly enhanced his sentence by four levels pursuant to U.S.S.G. § 3B1.1. Acquista contends that Amendment 500 to the Sentencing Guidelines states that a court may, in its discretion, impose a leadership enhancement "in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization." Acquista's Motion for Modification of Sentence Pursuant to 18 U.S.C. § 3582 (c)(2) ("Acquista Mem.") at 1, quoting U.S.S.G. § 3B1.1 n. 2. Acquista argues that the evidence shows that he "did not organize any individual but was very much in tune with managing the responsibility over the property[,] assets, and activities of the organization." Acquista Mem. at 2. The Government filed a letter a letter brief opposing Acquista's motion on March 14, 2006.
DISCUSSION
I. Standard of Review
Acquista has proceeded pro se in submitting his petition and brief. For this reason, Acquista is entitled to a liberal construction of his submission. Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Accordingly, this Court reads his submission "to raise the strongest arguments that [it] suggests."Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quotingBurgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
II. Section 3582(c)(2) Does Not Allow this Court to Modify Acquista's Sentence.
Section 3582 of Title 18 of the United States Code provides that a sentencing court "in determining the length of a term, shall consider the factors set forth in section 3553 [ 18 U.S.C. § 3553(a)] to the extent that they are applicable[.]" 18 U.S.C. § 3582(a) (2002). These factors include, among others:
The nature and circumstances of the offense and the history and characteristics of the defendant; . . . the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; [and] . . . the kinds of sentence and the sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines[.]18 U.S.C. § 3553(a) (2003). In addition to considering these factors when imposing sentencing, a court may modify a sentence pursuant to Section 3582(c)(2), which provides:
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 or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) [ 18 USCS § 3553(a)] to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
(2002). The Sentencing Commission's relevant policy statement provides that only those amendments listed in subsection (c) of United States Sentencing Guidelines § 1B1.10 can authorize a court to reduce a defendant's term of imprisonment. U.S.S.G. § 1B1.10(a) (2003). However, "[i]f 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." Id.
Amendment 500, which Acquista cites as the basis for reversing his four-level enhancement, Acquista Mem. at 1, is not included among the Commission's enumerated amendments in subsection (c). § 1B1.10(c). As the Commission makes clear in the commentary to its policy statement, "[e]ligibility 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." § 1B1.10 cmt. n. 1. Accordingly, the Court has no authority to modify Acquista's sentence pursuant to § 3582(c)(2).
Furthermore, even if the Commission had included Amendment 500 in § 1B1.10(c), the Court still could not modify Acquista's sentence pursuant to § 3582(c)(2). The plain language of the statute indicates that a court may only modify a sentence under this provision if, subsequent to sentencing, the Sentencing Commission lowers a defendant's sentencing range. § 3582(c)(2) (emphasis added). Amendment 500, which the Commission issued on November 1, 1993, preceded Acquista's sentencing by five years. See U.S.S.G., Appendix C, Amendment 500. Section 3582(c)(2) therefore provides Acquista no relief.
III. This Court Need Not Modify Acquista's Sentence Because Acquista's Factual Argument is Untimely.
Acquista asserts that he did not exercise a leadership role over people, but instead "was very much in tune with managing the responsibility over the property[,] assets, and activities of the [conspiracy.]" Acquista Mem. at 2. He argues that the factual record does not warrant a mandatory four-level enhancement under § 3B1.1 and asserts that this Court "imposed the leadership role [enhancement] under the impression that [it] had to even amidst . . . the only evidence present that the defendant did not supervise any particular participants, but over [sic] the property, assets, and activities of the conspiracy[.]" Acquista Mem. at 3 (emphasis in original).
Acquista, however, not only agreed to the four-level enhancement in his plea agreement, but also failed to challenge the facts contained in the PSR when he had an opportunity to do so. Prior to sentencing, the Probation Department sent both the Government and Acquista draft copies of the PSR in order to file any objections they had. PSR at 39. Neither party made any objections. Id. At sentencing, the Court asked Acquista if he and his counsel had reviewed the PSR.
THE COURT: I have a presentence report dated July 2nd on the outside. Have you and the defendant had a chance to read it, Mr. Fallick?
MR. FALLICK: Your Honor, we have had a chance to read the presentence report and the recommendation of the Probation Department. We've gone over [it] thoroughly. We have no objections to the report.Sentencing Tr. at 2. The Court reminded Acquista that he was entitled to have more time to review the PSR:
THE COURT: The 30 days has not run since the report was prepared and you're entitled to have 30 days to review it.
MR. FALLICK: We would waive that, your Honor.Id. Defense counsel then endorsed the sentence contained in the PSR:
MR. FALLICK: Your Honor, I would ask your Honor to sentence Mr. Acquista pursuant to the recommendation of the Probation Department and for the reasons set forth therein. . . . I just ask your Honor to sentence Mr. Acquista — unfortunately, it's a lengthy term of imprisonment — to the recommendation of the Probation Department.Id. at 3. Acquista now seeks to dispute facts contained in the PSR eight years after failing to challenge those facts at sentencing before this Court. Acquista's argument is therefore untimely and the Court need not consider it. See United States v. Soliman, 889 F.2d 441, 445 (2d Cir. 1989) (finding that defendant waived right to dispute facts of his PSR after informing the district court at sentencing that he reviewed the report with counsel and declined to challenge it).
IV. This Court Did Not Abuse its Discretion By Imposing a Leadership Role Enhancement Pursuant to § 3B1.1.
Even if Acquista had not endorsed the facts contained in the PSR, the Court did not abuse its discretion by imposing the leadership role enhancement pursuant to § 3B1.1. Although the Court is no longer bound to adhere to the Guidelines, see United States v. Booker, 543 U.S. 220, 245-46 (2005), it is permitted "to tailor the sentence in light of other statutory concerns[,]" specifically those enumerated in § 3553(a). Id. As indicated above, § 3553(a) allows a court to consider "the nature and circumstances of the offense" in addition to "the kinds of sentence and sentencing range established for the applicable sentencing range for . . . the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines." § 3553(a). The record reveals that the Court acted properly by adopting the facts set forth in the PSR — facts that neither Acquista nor his counsel contested — and by calculating the appropriate Guidelines range based on those facts. Sentencing Tr. at 5. Acquista has not provided the Court with any new evidence. Indeed, Acquista acknowledges in his moving papers that he supervised the activities of a narcotics conspiracy, thus providing the Court with grounds to impose the four-level enhancement for being a supervisor or leader when, as here, there were over four other members of the conspiracy. U.S.S.G. § 3B1.1(a). Accordingly, there is no basis for the Court to modify its factual findings regarding Acquista's leadership role in the conspiracy.
CONCLUSION
For the foregoing reasons, Acquista's motion to modify his sentence is denied. Pursuant to 28 U.S.C. § 1915(a)(3) (1996), any appeal of this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
IT IS SO ORDERED.