Opinion
98 Cr. 617 (TPG), 04 Civ. 9442 (TPG).
January 9, 2007
OPINION
This is a motion by a federal prisoner under 28 U.S.C. § 2255. Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings, the court has examined the motion and has determined that it must be denied and dismissed.
Petitioner was convicted in a jury trial of conspiracy to commit wire fraud, conspiracy to launder money, and committing substantive crimes of wire fraud and money laundering. Based on a downward departure, petitioner was sentenced to 60 months in prison.
Petitioner appealed from the conviction. The Government crossappealed from the sentence. In a summary order, the Court of Appeals affirmed the conviction on September 15, 2003. In a separate opinion of the same day the Court of Appeals reversed the sentence, and remanded for resentencing, directing that the guideline range of 78 to 97 months' imprisonment be used. The District Court then resentenced petitioner to 78 months in prison.
The present petition seeks to set aside the 78 months sentence. The contention is that various factors were used to raise the Offense Level, and that these factors were not based on any findings by the jury. The petition refers to two Supreme Court cases, which had been decided by the time of the petition —Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).
However, Apprendi has no application to the present case, since the sentence does not begin to exceed the statutory maximums which would have been possible under the statutes involved in the case. Under those statutes the total possible maximum sentence was decades in prison. Likewise, Blakely has no application here. That case dealt with sentencing provisions in the state of Washington, arguably analogous to the Federal Sentencing Guidelines. However, the Court expressly declined to express an opinion about the Federal Guidelines. 542 U.S. 296 n. 9.
A later case, United States v. Booker, 543 U.S. 220 (2005), did declare the mandatory application of the Federal Guidelines unconstitutional. However, that case has no retroactive effect.Guzman v. United States, 404 F.3d 139 (2d Cir. 2005).
The motion is denied and dismissed.
The moving party has not made a substantial showing of the denial of a constitutional right. Therefore a certificate of appealability will not issue. 28 U.S.C. § 2253.
In respect to the in forma pauperis statute, the court certifies that an appeal would not be taken in good faith. 28 U.S.C. § 1915(a)(3).
SO ORDERED.