Opinion
No. 02 Civ. 1662 (LAK), (96 Crim. 1099 (LAK))
July 30, 2002
ORDER
This Section 2255 motion attacks movant's sentence on the second of two violations of supervised release.
The Original Conviction Movant pleaded guilty to an eleven count information charging him with participation in a racketeering enterprise, eight substantive counts of Hobbs Act robbery, using and carrying firearms during and in relation to the foregoing crimes of violence, and conspiring to distribute and possess with intent to distribute five kilograms and more of cocaine. The Court granted the government's motion for a downward departure for substantial assistance, see U.S.S.G. § 5K1.1, and sentenced movant principally to time served and five years of supervised release. Movant did not appeal his sentence.
The Supervised Release Violations In 1999, movant pleaded guilty to violation of certain conditions of his supervised release. He was sentenced principally to time served and seven years of supervised release. Again he took no appeal.
Unable to abide by the terms of his supervised release, movant again was charged with violations. In late February 2001, he pleaded guilty to failing to notify his probation officer of a change in residence. The Court revoked his term of supervised release and sentenced him to 60 months' imprisonment and ten years of supervised release. Neither movant nor his counsel objected to the sentence, either before or after its imposition, though given ample opportunity. Once again, no appeal was taken.
The Present Motion On March 4, 2002, movant filed the present motion to vacate, set aside or correct the sentence imposed in consequence of the second supervised release violation. He makes three claims:
a. The five year term of supervised release imposed upon his conviction of the underlying offense of conspiracy to possess with intent to distribute cocaine exceeded the applicable statutory maximum term of supervised release. The premise of this argument is that his plea did not establish his knowledge, understanding or stipulation to facts constituting a violation of 21 U.S.C. § 841(b)(1)(A), that his plea therefore should be construed as a plea to a violation of 21 U.S.C. § 841(b)(1)(C), and that the maximum supervised release term under the latter statute is three years.
b. The sentence of 60 months imprisonment on the second violation of supervised release exceeded the Guideline range and that the Court failed to state reasons for such an upward departure.
c. The term of 10 years of supervised release on the second violation of supervised release was not permitted by statute.
All three arguments are couched in terms of ineffective assistance of counsel.
The Merits
1. Movant's two principal claims, supra, are procedurally barred. Even if there was cause for the failure to raise these arguments on appeal — and, given the lack of an appeal, it appears that there was not — there was no prejudice as both arguments are without merit for the reasons set forth below.
2. The claim that the supervised release term of five years on the original conviction exceeded the statutory maximum is baseless for a variety of independent reasons:
a. The claim is time barred, as this Section 2255 motion was filed far more than a year after the date on which the conviction on the underlying offense became final. Govt. Mem. 10-11.
b. The premise of the argument is that the maximum term of supervised release on the narcotics conspiracy count is three years, pursuant to 18 U.S.C. § 3583(b). In fact, however, the supervised release provisions of 21 U.S.C. § 841(b)(1) trump those of Section 3583(b) in cases to which they apply. See United States v. Eng, 14 F.3d 165, 173 (2d Cir. 1994). The five year term was appropriate under the latter statute regardless of whether movant had been convicted under Section 841((b)(1)(A) or (b)(1)(C). Indeed, a life term of supervised release could have been imposed. United States v. Gibbs, 58 F.3d 36, 37-38 (2d Cir. 1995).
c. Movant's contention that he pleaded guilty only to a violation of 21 U.S.C. § 841(b)(1)(C) is inconsistent with the record, as he specifically admitted conspiring to distribute or possess with intent to distribute at least five kilograms of cocaine and thus to conspiring to violate Section 841(b)(1)(A). Thus, he would have no Apprendi argument, even if Apprendi applied here.
d. This Court agrees with the plethora of courts holding that Apprendi does not apply retroactively on collateral review. See Govt. Mem. 13-15.
3. Movant's contention that the 60 month term of imprisonment imposed for his second violation of supervised release exceeds the Guideline range and that the Court failed to state its reasons for a departure is meritless.
a. This alleged sentencing defect is not cognizable under Section 2255, as it does not involved constitutional, jurisdictional or other fundamental error.
b. Even if it were cognizable, it would be without merit. The Guidelines for violations of supervised release are policy statements only and "are advisory, rather than binding." United States v. Anderson, 15 F.3d 278, 284 (2d Cir. 1994). A sentence that exceeds the recommended range is permissible as long as "(1) the district court considered the . . . policy statements; (2) the sentence is within the statutory maximum; and (3) the sentence is reasonable." Id. The sentencing minutes shows that these criteria all were satisfied. Govt. Mem. 18-19 Ex. I, at 5-6.
c. The Court plainly stated the reasons for imposing the sentence that it did. Id. Ex. I, at 12.
4. The final aspect of the motion is movant's contention that the imposition of a term of 10 years of supervised release, in addition to the sixty months of imprisonment, upon the second violation of supervised release was improper.
a. This contention is available under Section 2255 because it is a contention that the "sentence was in excess of the maximum authorized by law . . ." 28 U.S.C. § 2255. It is timely because just under one year elapsed between the judgment of conviction on the violation and the filing of the present motion. The government concedes that it is not procedurally barred.
b. The government concedes that the additional 10-year supervised release term imposed in consequence of the second violation — a term that both the government and defense counsel at the time of sentencing specifically agreed was permissible — was impermissible in light of the Court's imposition of the term of 60 months imprisonment. Govt. Mem. 21-23. The Court agrees.
* * *
For the foregoing reasons, the motion to vacate, set aside or correct sentence is granted to the extent that so much of the judgment as sentenced movant to 60 months imprisonment followed by 10 years of supervised release is corrected to sentence him to 58 months and 10 days of imprisonment and no additional term of supervised release thereafter. An amended judgment will enter.
In all respects save that immediately above, the motion is entirely frivolous and is denied. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3).
SO ORDERED.