Opinion
No. 97 Civ. 1904 (CSH).
March 10, 2005
MEMORANDUM OPINION AND ORDER
On December 14, 1992, a jury convicted defendant Roy William Harris on 22 counts of a 24-count indictment that charged Harris with, inter alia, wire fraud, bank fraud, money laundering, conducting a continuing financial crimes enterprise, and making a false statement on a loan application. These charges arose out of Harris's conduct as chief executive officer of the Arochem oil companies in defrauding a consortium of banks lending money to Arochem, which thereafter defaulted on indebtedness totaling nearly $200 million.
Following several failed post-trial motions, see Harris v. United States, No. 97 Civ. 1904 (CSH), 2002 WL 31427358, at *2 (S.D.N.Y. Oct. 30, 2002) (" Harris I"), on December 22, 1994, I sentenced Harris to 188 months' imprisonment, the shortest sentence permitted by the United States Sentencing Guidelines ("USSG" or the "Guidelines"), as I calculated them, followed by a five-year term of supervised release.
The procedural history of this case following sentencing is a long and complicated one, generating numerous opinions by this Court and the Court of Appeals. See generally Harris I, supra; Harris v. United States, No. 97 Civ. 1904 (CSH), 2004 WL 2297362 (S.D.N.Y. Oct. 12, 2004) (" Harris II"). That history need not be recounted for purposes of this opinion. Familiarity with the circumstances relevant to Harris's incarceration is assumed.
I
Presently before me is Harris's pro se motion, by letter dated August 5, 2004, requesting a downward departure based on the Second Circuit's recent decisions in United States v. Lauersen, 348 F.3d 329 (2d Cir. 2003) and United States v. Jackson, 346 F.3d 22 (2d Cir. 2003), consolidated and aff'd on reh'g, United States v. Lauersen, 362 F.3d 160 (2d Cir. 2004), cert. denied, 124 S.Ct. 2190 (2004), reh'g granted, cert. granted, judgment vacated and remanded, ___ S.Ct. ___, 2005 WL 124244 (Jan. 24, 2005). In these decisions, the Second Circuit held, for the first time, that under the United States Sentencing Guidelines "the cumulation of such substantially overlapping enhancements, when imposed upon a defendant whose adjusted offense level translates to a high sentencing range, presents a circumstance that is present to a degree not adequately considered by the Commission," and therefore permits "the District Court to exercise discretion to mitigate the effect of the enhancement by making a downward departure." Lauersen, 362 F.3d at 162 (internal quotations and citations omitted). Harris contends that such circumstances are present in his case and that this Court should now consider and grant a downward departure from the sentence originally imposed upon him.
Inevitably, phrases such as "overlapping enhancements" and "downward departure" raise red flags, in light of the Supreme Court's recent decision, United States v. Booker, 125 S.Ct. 738 (2005). I must therefore pause to consider Harris's motion in light of Booker.
First, I consider the general question of whether Harris's sentence can be reconsidered in light of Booker. The answer to that question is no, as was made clear in the Second Circuit's recent decision, Green v. United States, ___ F.3d ___, 2005 WL 237204 (2d Cir. Feb. 2, 2005). There the Second Circuit denied a petitioner's application to file a second or successive 28 U.S.C. § 2255 petition challenging his sentence based on the holdings of Booker and Blakely v. Washington, 124 S. Ct. 2531 (2004). The application was denied because "neither Blakely nor Booker apply retroactively to [petitioner's] collateral challenge." Id. at *1.
Second, I note that Lauersen has been vacated by the Supreme Court, and remanded to the Second Circuit for further consideration in light of Booker. See Lauersen v. U.S., ___ S.Ct. ___, 2005 WL 124244 (Jan. 24, 2005). It is unclear precisely how the Second Circuit will decide Lauersen on remand, particularly in light of Justice Breyer's remedial majority opinion in Booker in which he held that the guidelines were advisory, rather than mandatory. Booker, 125 S. Ct., at 757 ("The . . . approach, which we now adopt, would (through severance and excision of two provisions) make the Guidelines system advisory while maintaining a strong connection between the sentence imposed and the offender's real conduct."). In any event, because Lauersen has been vacated, Harris can no longer rest a motion for a downward departure on its holding.
Conceptually, at least, I cannot rule out the possibility that the Second Circuit may reinterpret Lauersen in such fashion that Harris would consider his entitlement to a downward departure based on its holding extant. For this reason, I shall address whether Harris has a procedural vehicle to claim relief. I conclude that he does not.
II
From the outset, Harris had difficulty finding an appropriate procedural vehicle for the relief he is now seeking. In the first paragraph of Harris's August 5, 2004 letter, Harris asked the Court: "Please accept the following letter as a Motion to be styled in accordance with and pursuant to such appropriate rule as your Honor may deem proper in order to grant relief." In my most recent opinion, Harris II, at *2, I noted both the complexity of the procedural question Harris currently faces, as well as my own continuing responsibility for the just administration of this case. I also noted my perception of Harris's present motion as a second motion for relief under Rule 60(b)(6). Id. Harris had previously filed a motion pursuant to Rule 60(b)(6) for relief from this Court's opinion dismissing Harris's petition for a writ of habeas corpus under 28 U.S.C. § 2255. See Harris v. United States, 9 F.Supp.2d 246 (S.D.N.Y. 1998), aff'd., 216 F.3d 1072, 2000 WL 730375 (2d Cir. 2000) (table). I ruled that that motion was procedurally barred, based on the Second Circuit's opinion in Gitten v. United States, 311 F.3d 529 (2d Cir. 2002), as an improper second or successive habeas petition in circumvention of the statutory restrictions on the same found in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(b). Harris v. United States, 293 F.Supp.2d 259, 261 (S.D.N.Y. 2003). Harris's present motion is unrelated to his prior habeas corpus proceedings. Therefore the AEDPA's prohibition against bringing a second or successive habeas petition is inapplicable.
Rule 60(b) provides, in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; (3) fraud . . . misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied . . . or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
It is the sixth and final subpart upon which Harris might seek to rest his motion. Subpart (6) "confers broad discretion on the trial court to grant relief when appropriate to accomplish justice." International Controls Corp. v. Vesco, 556 F.2d 665, 668 n. 2 (2d Cir. 1977) (internal citations and quotations omitted). Subpart (6) has been recognized as constituting a "grand reservoir of equitable power to do justice in a particular case," Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir. 1986), cert. denied, 480 U.S. 908 (1987). It is "properly invoked where there are extraordinary circumstances," Ackermann v. United States, 340 U.S. 193, 199 (1950) or "where the judgment may work an extreme and undue hardship." United States v. Karahalias, 205 F.2d 331, 333 (2d Cir. 1953).
Despite the seeming expansiveness of language such as "grand reservoir of equitable power" and "broad discretion," the "extraordinary circumstances" requirement makes Rule 60(b)(6) relief a rather narrow one. Moreover, it is "well settled that a change in decisional law is not grounds for relief under Rule 60(b)(6)." Travelers Indem. Co. v. Sarkisian, 794 F.2d 754, 757 (2d Cir. 1986), citing Ackermann v. United States, 340 U.S. 193 (1950); Loucke v. United States, 21 F.R.D. 305 (S.D.N.Y. 1957). Therefore, it would be inappropriate to "disturb a final judgment in a case that had been fully litigated and was long since closed," based solely upon changes in decisional law. DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994).
There are at least two reasons why courts demand "extraordinary circumstances" to be present prior to granting Rule 60(b)(6) relief. First, to read the provision otherwise would allow the exception to swallow the rule, and void the important limitations imposed on those specific provisions in Rules 60(b)(1)-(5). Second, the requirement preserves the interest of finality of sentences, a principle whose importance was set out in DeWeerth.
In that case a Second Circuit panel, interpreting New York state law, held against the plaintiff, based on its reading of New York law. Approximately three and a half years after that judgment, the New York Court of Appeals issued a decision contrary to the Second Circuit's original interpretation of New York law. Plaintiff then pursued a motion to vacate the prior judgment in light of the state court ruling. The Second Circuit upheld the District Court's denial of that motion, holding that "a subsequent change in the law of the state" did not provide grounds for relief under 60(b)(6). Id. at 1273.
With respect to Harris's present motion, I do not find that there exists any extraordinary circumstances or extreme hardship to warrant relief. There have been no material changes in Harris's sentence for over ten years, and there are no circumstances beyond the Lauersen and Jackson decisions that would be cause for a downward departure from Harris's sentence.
In very rare cases, courts have found that a "postjudgment change in the law having retroactive application," in and of itself, may "constitute an extraordinary circumstance warranting vacation of a judgment." Matarese, 801 F.2d at 106. A close examination of such cases, however, demonstrates that Harris's circumstance does not fit within the narrow exception.
In Matarese, for instance, petitioner filed a Rule 60(b)(6) motion requesting relief from a prior judgment by the district court, which had denied petitioner's motion for habeas corpus. After the district court rejected the motion, petitioner appealed to the Second Circuit, which found "it particularly appropriate for the district court to entertain a Rule 60(b)(6) motion on grounds of a retroactive change in the law in the context of a habeas corpus proceeding, in which `[c]onventional notions of finality of litigation have no place.'" Id. at 106, quoting Sanders v. United States, 373 U.S. 1, 8 (1963).
That holding is inapplicable to Harris's present motion which, as noted above, is not a habeas proceeding. Unlike a habeas proceeding, notions of finality of litigation do have a place in this case. It has been over ten years since I sentenced Harris.
More recently, the Second Circuit revisited this issue in Marrero Pichardo v. Ashcroft, 374 F.3d 46 (2d Cir. 2004). There, the Second Circuit found that while, "as a general matter, a mere change in decisional law does not constitute an `extraordinary circumstance' for purposes of Rule 60(b)(6) . . . for all of the reasons discussed above, this case is different." Id. at 56. Examining those reasons leads me to conclude that Pichardo is qualitatively different from Harris's case.
First, like Matarese, Pichardo involved a Rule 60(b)(6) motion to reconsider denial of a petition for writ of habeas corpus. Without relief, Pichardo, the habeas petitioner, faced the unique consequence of deportation from the United State to the Dominican Republic, even while he had resided in the U.S. for over twenty-six years with his wife, daughter, and extended family, and claimed to have no ties with the D.R. Id. at 54. Finally, the change in the decisional law at issue in Pichardo took place less than a year after a United States Immigration Judge ordered Picardo's deportation and, more importantly, during the time his habeas petition was pending before the District Court. The Second Circuit found it "inexplicable" that neither Pichardo's attorney nor the government noted the change in controlling law during the habeas proceeding, and concluded that such an oversight led to "incompetent lawyering." Id. at 56. For those reasons, the Court held that extraordinary circumstances existed to warrant reconsideration of the lower court's judgment.
No such circumstances exist in this present case. Harris does not ask me to reconsider the denial of his habeas petition; Harris is not subject to deportation; and the change in controlling law took place many years after Harris's conviction and sentence.
Finally, as the government notes, the Second Circuit has not interpreted Lauersen to be retroactive.
Because I find no circumstances that warrant reconsideration of sentence, Harris's motion is denied.
It is SO ORDERED.