Opinion
97 Civ. 1633 (MGC)
July, 2000
Owen Scott, Petitioner, Pro Se.
Mary Jo White, United States Attorney, Alex Young K. Oh, Assistant United States Attorney, Southern District of New York, New York, New York, for respondent.
MEMORANDUM OPINION AND ORDER
Petitioner Owen Scott has moved pursuant to 28 U.S.C. § 2255 to vacate his sentence. The grounds for petitioner's motion are that his sentence was based on a quantity of drugs for which he should not be held responsible and that he received ineffective assistance of counsel. In connection with the motion to vacate his sentence, petitioner has also moved for an evidentiary hearing and for appointment of counsel. For the reasons discussed below, petitioner's motion to vacate his sentence is granted, and his motions for an evidentiary hearing for this motion is denied. Petitioner's motion for appointment of counsel is denied as to this motion, but is granted for resentencing.
BACKGROUND
Petitioner was charged with five counts of a thirteen count indictment. Count One charged petitioner and three codefendants with conspiracy to distribute and to possess with intent to distribute more than five kilograms of cocaine from February of 1989 to January of 1990 in violation of 21 U.S.C. § 846. Count Four charged petitioner and a codefendant with distributing and aiding and abetting the distribution of 220 vials of cocaine on September 13, 1989 in violation of 21 U.S.C. § 812, 841(b)(1)(C), and 18 U.S.C. § 2. Count Five charged petitioner and two codefendants with distributing and aiding and abetting the distribution of 265 vials of cocaine on September 26, 1989 in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2. Count Eleven charged petitioner and a codefendant with using and carrying a firearm on September 13, 1989 during and in relation to the cocaine conspiracy charged in Count One, in violation of 18 U.S.C. § 924 (c). Count Twelve charged petitioner with being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922 (g)(1).
On October 10, 1990, the jury found petitioner guilty of Counts One, Four, Eleven, and Twelve, but found petitioner not guilty of Count Five. Prior to sentencing, petitioner's motion for a judgment of acquittal of Count Eleven was granted. United States v. Riley, 1991 WL 24322 (S.D.N.Y., Feb. 15, 1991). Petitioner was sentenced for Counts One, Four, and Twelve to 235 months of imprisonment to be followed by five years of supervised release.
DISCUSSION I. Procedural Bar
Petitioner did not raise the claims he raises in his § 2255 motion on direct appeal. "Collateral attack on a final judgment in a federal criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes `a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). Claims like petitioner's that are based on the allegedly improper application of the United States Sentencing Guidelines will not be considered on a § 2255 motion if they were not raised on direct appeal unless there was an error that results in a complete miscarriage of justice. Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996). An examination of the evidence at trial shows that such an error has occurred.
II. The Merits
Petitioner claims that he should not have been held responsible in the calculation of his sentence for all drugs sold by the conspiracy because there is no evidence of his membership in the conspiracy prior to September 13, 1989.
United States Sentencing Guideline § 1B1.3(a)(1) defines "relevant conduct" from which the applicable base offense level is determined. At the time of petitioner's sentence, U.S.S.G. § 1B1.3(a)(1) stated that the relevant conduct from which the defendant's base offense level is determined includes:
all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense.
The Second Circuit has explained the application of this provision in the context of a party who joins a conspiracy after it has begun, as petitioner claims he did:
[W]hen a late-comer has been convicted of a broad-ranging narcotics conspiracy, his "relevant conduct" may not be the same as the relevant conduct of those who were members of the conspiracy at all stages. The late-entering coconspirator should be sentenced on the basis of the full quantity of narcotics distributed by other members of the conspiracy only if, when he joined the conspiracy, he could reasonably foresee the distributions of future amounts, or knew or reasonably should have known what the past quantities were.
United States v. Miranda-Ortiz, 926 F.2d 172, 178-79 (2d Cir. 1991).
An examination of the evidence at trial shows that there was not sufficient evidence to support the conclusion that petitioner knew or reasonably should have known what amount of cocaine the conspiracy had sold prior to September 13, 1989. At trial the government presented evidence of a conspiracy to distribute cocaine and to possess cocaine with intent to distribute it. The witnesses at trial included two undercover investigators employed by the Manhattan District Attorney's office. These undercover investigators purchased cocaine directly from petitioner's co-defendants and tape recorded petitioner's co-defendants in the course of numerous drug sales.
Petitioner's membership in the conspiracy was only shown on three specific occasions. First, an undercover investigator testified that petitioner participated in the sale of cocaine and a gun on September 13, 1989. Petitioner produced the gun and ammunition at the sale. Second, petitioner was photographed by law enforcement agents with several of his co-defendants on September 26, 1989. Finally, petitioner was implicated in the conspiracy by a ledger containing entries for drugs sold over a 50 day period from December of 1989 to January of 1990. The ledger had been seized from the apartment of a co-defendant and contained an entry for drugs distributed to "Patrick" for sale. At trial, petitioner stipulated that he used the name "Patrick Brown" from time to time.
This evidence does not establish that petitioner was a member of the conspiracy prior to September 13, 1989. Furthermore, this evidence fails to provide any basis from which to conclude that petitioner knew or reasonably should have known what quantity of drugs the conspiracy sold prior to September 13, 1989. Sentencing petitioner based on conduct for which he bears no legal responsibility is manifestly unjust. Therefore, petitioner's sentence should be vacated and reduced. It is unnecessary to reach petitioner's claim of ineffective assistance of counsel.
CONCLUSION
For the foregoing reasons, petitioner's motion to vacate his sentence is granted. Petitioner will be resentenced on September 12, 2000 at 4:30 p.m. in Courtroom 14-A at the United States Courthouse, 500 Pearl Street, New York, New York. Petitioner's motion for an evidentiary hearing on this motion is denied as unnecessary. Petitioner's application for counsel on this motion is denied, but counsel will be appointed to represent petitioner at resentencing.
SO ORDERED.