Opinion
(S6)89 Cr. 346-01 (SWK).
June 25, 2003.
OPINION AND ORDER
Petitioner George Rivera moves to correct his sentence pursuant to a former version of Rule 35(a) of the Federal Rules of Criminal Procedure, or in the alternative, under the district court's "inherent authority." For the reasons set forth below, Rivera's motion is denied.
BACKGROUND
After an eleven week jury trial, George Rivera was found guilty of two counts, conspiracy to distribute heroin, 21 U.S.C. § 846, and tax evasion, pursuant to 26 U.S.C. § 7206. The Presentence Report ("PSR") prepared by the Probation Office calculated a base offense level of 36 under the pre-November 1, 1989 Sentencing Guidelines. Pursuant to U.S.S.G. § 2 D1.1(b)(1), a two level increase was proposed for the multiple firearms used in the commission of the offense. See PSR at ¶¶ 92-94. A four-level increase for Rivera's leadership role in the heroin distribution organization, pursuant to U.S.S.G. § 3 B1.1, and a two-level increase for threatening witnesses, the Court, and the prosecutors, pursuant to U.S.S.G. § 3 C1.1(a), were also recommended. See id. at ¶¶ 95, 97. On April 24, 1991, the Court adopted the recommendations of the PSR and sentenced Rivera to life imprisonment, a five-year term of supervised release, a $25,000 fine and mandatory assessments.
In January 1994, Rivera filed a petition pursuant to 28 U.S.C. § 2255 to vacate his conviction. This petition was denied and the denial was upheld by the Second Circuit. See Rivera v. United States, 159 F.3d 1348 (2d Cir.), cert. denied, 525 U.S. 1047 (1998). In April 2001, Rivera moved for modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2), in which he argued that Amendment 591 to the Sentencing Guidelines required his sentence to be reduced. That motion was also denied and upheld by the Second Circuit. See Rivera v. United States, No. 89 Cr. 346, 2001 WL 736778 at *3 (S.D.N.Y. June 29, 2001),aff'd, United States v. Rivera, No. 01-1390, 2002 WL 257233, at *1 (2d Cir. Feb. 21, 2002). Rivera now moves this Court to correct his sentence pursuant to a former version of Federal Rule of Criminal Procedure 35(a).
DISCUSSION
I. RULE 35 MOTION
Rivera argues that his sentence was illegal because it exceeded the statutory maximum sentence, as prescribed by 21 U.S.C. § 846, and should be corrected pursuant to the 1985 version of Rule 35(a), which allows for correction of an illegal sentence at any time. See Pet.'s Motion for Correction of Sentence ("Pet. Motion") at 1-2. This former version of the rule remains applicable to offenses committed prior to November 1, 1987. See United States v. Blackmer, 909 F.2d 66, 67 (2d Cir. 1990), vacated without opinion, remanded by Blackmer v. United States 499 U.S. 944 (1991). Petitioner contends that former Rule 35(a) is applicable to his petition because the jury failed to make a specified finding that the conspiracy continued past November 1, 1987 as he alleges is required by the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000), and absent such a finding, this Court should have sentenced him to a pre-Guidelines sentence. See Pet. Motion at 3, 12. However, the determination as to whether the conspiracy continued past the effective date of the Guidelines is a "sentencing factor" to be determined by the court using a preponderance of the evidence standard. See United States v. Underwood, 932 F.2d 1049, 1053 (2d Cir. 1991). In making such a determination, the court should consider the facts as adduced at trial rather than the facts as charged in the indictment. See United States v. Bloom, 945 F.2d 14, 17 (2d Cir. 1991). As to Count One, at trial the Government presented evidence of drug money and drug seizures, some of which took place as late as April 1989, as well as drug records showing that Rivera distributed heroin well past November 1, 1987. See Letter from AUSA Helen Cantwell, dated March 11, 2003, at 5. Additionally, the Government presented tape recordings of conversations resulting from an April 1989 wiretap on Rivera's home telephone. Id. "A conspiracy is presumed to continue until the last overt act of any of the conspirators." See United States v. Romero, 897 F.2d 47, 52 (2d Cir. 1990). As to Count Fourteen, the indictment charged Rivera with tax evasion for 1988 and the jury found him guilty of that charge. Since Rivera's offenses continued past November 1, 1987, he is subject to the amended version of Rule 35, and was properly sentenced under the sentencing guidelines.See United States v. Henrique, 988 F.2d 85, 86 (9th Cir. 1993); United States v. Rico, 902 F.2d 1065, 1067 (2d Cir. 1990).
Fed.R.Crim.Pro. 35(a), Pub.L. No. 99-217, 99 Stat. 1728 (1985) provides: "[t]he court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence."
Moreover, the amended version of Rule 35(a) is also inapplicable to Rivera's motion. The 1988 version authorized the district court, on remand, only to correct a sentence determined on appeal to have been imposed in violation of law. See United States v. Lussier, 104 F.3d 32, 37 (2d Cir. 1997). As Rivera was properly sentenced under the Sentencing Guidelines, neither the former, nor the current versions of Rule 35(a) is applicable to his petition.
Furthermore, Rivera's reliance on Apprendi is misplaced because Apprendi does not apply retroactively to second or successive petitions filed under Section 2255. See United States v. Forbes, 262 F.3d 143, 146 (2d Cir. 2001). Petitioner argues that his Rule 35(a) motion is not a collateral attack, but instead is a continuation of his appeal. However, "it is routine for courts to construe prisoner petitions without regard to labeling in determining what, if any, relief petitioner is entitled to." See Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997). Because petitioner's motion cannot properly be brought as a Rule 35(a) motion, this Court construes it as a motion to vacate, correct or set aside his sentence under 28 U.S.C. § 2255. See, e.g. Vasquez v. United States, No. 89 Cr. 478, 2001 U.S. Dist. LEXIS 7831 (petitioner's application was labeled as a motion under 18 U.S.C. § 3582(c), but was properly construed as a 28 U.S.C. § 2255 motion). Under Section 2255, petitioners are only allowed to file one application directly with the district court. See id. at 13. A second or successive motion must be certified by the appropriate court of appeals. Id. Rivera previously filed a Section 2255 petition in January 1994, thus this motion constitutes a second or successive petition. Furthermore, Rivera has not obtained permission from the Second Circuit to file a second or successive petition, therefore he cannot file such petition with the Court at this time.
II. INHERENT AUTHORITY
Finally, petitioner alternatively moves this court to correct his sentence under the district court's "inherent authority."See Pet. Motion at 1. Petitioner cites United States v. Rico, 902 F.2d at 1067, in support of his argument. However, inRico, the Second Circuit held that "the district court has inherent power to correct a mistaken sentence within the time fixed for filing an appeal . . ." Id. at 1069. Here, petitioner is requesting the district court exercise its inherent authority several years after the completion of his appeals. Accordingly, petitioner's motion to correct his sentence pursuant to the inherent authority of the district court is denied.
CONCLUSION
For the reasons set forth above, Rivera's motion for correction of his sentence is denied.
SO ORDERED.