Opinion
16 Cr. 346 (PAC)
07-23-2019
THOMAS SPROLLING, a/k/a "Thomas Hargrove, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
OPINION & ORDER :
Petitioner Thomas Sprolling, pro se, moves for a writ of mandamus compelling the United States Probation Office to amend Petitioner's Presentence Investigation Report. Dkt. 22. Sprolling's petition is DENIED.
BACKGROUND
On August 16, 2016, Petitioner pled guilty, pursuant to the terms of a Pimentel letter, dated August 13, 2016, to a one count indictment, which charged him with possessing a firearm and ammunition after having been convicted of a crime punishable by more than one year in prison, in violation of 18 U.S.C. § 922(g). Dkt. 5. The letter calculated the offense level at 21 and the Criminal History Category at VI for a Guidelines range of 77 to 96 months. Petitioner reviewed the Pimentel letter with his attorney and confirmed that he "understands everything" pertaining to the calculation and application of the applicable Guidelines range. Plea Tr., Dkt. 18, at 10, ¶¶ 8-21.
The United States Probation Office ("Probation") submitted its final Presentencing Investigation Report (the "PSR") to the parties and the Court on November 4, 2016. Dkt.10. Like the Pimentel letter, the PSR calculated the offense level at 21 and the Criminal History Category at VI, resulting in a Guidelines range of 77 to 96 months. At the sentencing held on January 19, 2017, the Court asked if there were any corrections either to the facts or the Guidelines calculations:
The Court: And the Guidelines as calculated by the presentence report is offense level of 21 and a criminal history category of VI resulting in a guidelines of 77 to 96 months. Is that an accurate calculation of the offense level and criminal history category?Sent. Tr., Dkt. 20, at 3, ¶¶ 3-13.
Defendant: Yes, it is, your Honor.
The Court: I'm going to accept the guidelines calculation as accurate and the facts as stated in the presentence report as accurate.
Following this colloquy, the Court moved on to determine the appropriate sentence. Looking at Sprolling's criminal history, the Court stated it was "not going to recognize those nine [criminal history] points," accumulated for crimes the Petitioner committed when he was 16 years old, id. at 15, and sentenced him to 72 months' imprisonment—a downward variance from the calculated range. Id. at 17; Judgment, Dkt 17, at 2. Petitioner now asks the Court to compel Probation to remove those nine criminal history points from his PSR. Petition, Dkt. 22, at 1.
Sproiling believes his criminal history points affect his conditions of confinement, because, "[a]ccording to the Bureau of Prisons, the [PSR] information prohibits, and affects academic achievement which aids me with an effective re-entry back into society, and does not allow transfers to a lower level facility." Petition at 2.
DISCUSSION
I. Standard
A. Pro Se Motions
"[T]he submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest." Williams v. Annucci, 895 F.3d 180, 187 (2d Cir. 2018) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). Accordingly, the preceding facts—which are taken from the Petition, materials it incorporates, and matters of which the Court may take judicial notice—are construed in the light most favorable to Sprolling. See, e.g., Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d. Cir. 2013); ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
The basis for Petitioner's claim is imprecise. Petitioner's motion is entitled "Petition for Leaving, Seeking an Order and Directives, Granting a Writ of Mandamis," and throughout, makes reference to 28 U.S.C. § 1361, Federal Rule of Criminal Procedure ("FRCP") 32, 28 U.S.C. § 3742, and Amendment 591 of the Guidelines. Petition at 2. Beyond 28 U.S.C. § 1361, however, none of the referenced provisions provide Petitioner with a cause of action for the relief he seeks—an order compelling Probation "to correct mistakes committed in the Pre-Sentence Report." Petition at 1. The Court accordingly contrues Petitioner's motion as a petition for writ of mandamus pursuant to 28 U.S.C. § 1361.
See FRCP 32(f)(1) (limiting a criminal defendant's time to object to the PSR to "within 14 days after receiving the presentence report"); 28 USC § 3742(a) (limiting Defendant's right to appeal "an otherwise final sentence" to enumerated circumstances including if a sentence "was imposed as a result of an incorrect application of the sentencing guidelines"); U.S. v. Rivera, 293 F.3d 584, 585 (2d Cir. 2002) ("The plain wording of Amendment 591 applies only to the choice of the applicable offense guideline, not to the subsequent selection of the base offense level [or criminal history category].")
B. Mandamus Act
Under 28 U.S.C. § 1361, known as the "Mandamus Act," a court may "compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Mandamus, however, "is a 'drastic and extraordinary' remedy 'reserved for really extraordinary causes,'" Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259 (1947)) and should be "granted only in the exercise of sound discretion." Whitehouse v. Ill. Cent. R.R. Co., 349 U.S. 366, 373 (1955). To prevail in an action for a writ of mandamus, a petitioner must show: "(1) a clear right in the [Petitioner] to the relief sought; (2) a plainly defined and preemptory duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available." Anderson v. Bowen, 881 F.2d 1, 5 (2d, Cir. 1989) (quoting Lovallo v. Froehike, 468 F.2d 340, 343 (2d Cir. 1972)).
II. Analysis
A. Petitioner's Motion Docs Not Constitute an Extraordinary Circumstance
"A district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range," which "should be the starting point and the initial benchmark." Gall v. United States, 552 U.S. 38, 49 (2007). Under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005), sentencing courts are not bound to sentence a defendant within the Guidelines calculation, but instead have the discretion to impose sentences sufficient but not greater than necessary to promote the administration of justice. Indeed, where a defendant's calculated criminal history category "substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes" the Guidelines specifically contemplate that a downward departure may be warranted. See U.S.S.G. § 4A1.3(b)(1).
Sprolling argues that this Court's statements at sentencing require an amendment to his PSR because in imposing sentence, the Court stated that it was "not going to recognize those nine criminal history points," Sent. Tr. at 20-21, therefore "establishing as record that the [criminal history] points were 12." Petition at 2. The Court, however, neither overruled nor disputed Probation's findings of fact and calculation regarding Petitioner's criminal history. Indeed, the Court did precisely the opposite; it found the Guidelines calculation accurate and Defendant did not object. Petitioner erroneously interprets the Court's justification for a downward departure from the Guidelines as a dispute with the Guideline calculation itself, confusing two distinct phases of the sentencing inquiry.
Under U.S.S.G § 2K2.1(a)(2) of the Guidelines, a defendant's base offense level will be assessed at "24, if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." Petitioner asserts that this calculation was made in error because he only accumulated "drug offenses" and "received 3 criminal history points for charges received when [he] was 16 years old that should not have been used." Petition at 2. Petitioner's reading misconstrues the facts of his criminal convictions. Sprolling sustained convictions that satisfied the applicable offense level calculation and, as such, the calculation made pursuant to U.S.S.G § 2K2.1(a)(2) is accurate. Even assuming the enhancement was wrongfully applied, Petitioner's objection to its application is timed barred. See FRCP 32(f)(1).
Even assuming the Court adopted Petitioner's interpretation of its statements at sentencing, such judicial conduct would fail as a matter of law. Sentencing courts do not have the discretion to award fewer criminal history points than those properly calculated under the Guidelines. See United States v. Barrero, 425 F.3d 154,157 (2d Cir. 2005). Petitioner's misunderstanding of this Court's statements does not meet the "extraordinary circumstance" standard required to justify a writ of mandamus.
Petitioner also argues that issuance of a writ is justified here because: (1) his counsel "used F.E.A.R. (False Evidence Appearing Real), to induce his client in embracing the Government's plea offer"; and (2) his counsel "knew that his client's inability to meet the knowledge element of possession of a firearm . . . [but] as a strategic decision coerced a plea deal." Petition at 1. Petitioner has not brought an ineffective assistance of counsel claim, however, and his complaints regarding his counsel do not provide an extraordinary circumstance with regard to mandamus.
B. Petitioner Does Not Have A Clear Right to the Relief Sought
Sprolling's motion also fails because he does not have a clear right to the relief sought—an order compelling modification of his PSR by Probation. In a writ of mandamus, the petitioner bears "the burden of showing that its right to issuance of the writ is 'clear and indisputable.'" Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953); see United States ex rel. Bernardin v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 287 (1899). But here, as already stated, sentencing courts do not have discretion to remove criminal history points that are properly calculated under the Guidelines. Barrero, 425 F.3d at 157. Furthermore, even had the Court made some kind of error, "[m]andamus is not used simply to correct error." Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005). Thus, Sprolling cannot meet this burden.
C. Petitioner's Claim is Procedurally Barred
Finally, Sprolling's petition is rejected as untimely. "[A]lthough classed as a legal remedy, issuance [of a writ of mandamus] is largely controlled by equitable principles." Duncan Townsite Co. v. Lane, 245 U.S. 308, 38 S.Ct. 99, 62 L.Ed. 309, 312 (1917). "As any remedy governed by equitable principles, mandamus must be sought with reasonable promptness." 13th Regional Corp. v. U.S. Dept. of Interior, 654 F.2d 758 (D.C. Cir. 1980) (internal quotation omitted). Sprolling filed his motion two years and two months after Judgment was entered in his case. See Judgment, Dkt. 17. He provides no justification or "good cause" for his delay, and his petition is accordingly denied on timeliness grounds as well.
CONCLUSION
For the reasons stated above, Petitioner's motion is DENIED. The Clerk of the Court is instructed to close the motion at Dkt. 22. Dated: New York, New York
July 23, 2019
SO ORDERED
/s/_________
PAUL A. CROTTY
United States District Judge