Opinion
97CR 1146 (ILG).
May 9, 2000.
MEMORANDUM ORDER
On January 25, 1999, after a jury had been selected and the trial of this defendant and six others was about to begin, an oral agreement was reached between them and the government requiring that all plead guilty to various counts in the indictment and sentences ranging from 30 years to 10 years would be imposed pursuant to Rule 11(e)(1)(C), Fed.R.Cr. Pr. This defendant was sentenced to 10 years to be followed by five years of supervised release on June 9, 1999. Thereafter, on March 23, 2000, acting pro se, he filed this "Motion to Correct Illegal Sentence" pursuant to 18 U.S.C. § 3582 (b)(2) and Rule 35(a)(2), Fed.R. Cr. Pr.
A plain reading of Rule 35(a)(2) compels the denial of this motion. That Rule provides in pertinent part as follows:
(a) Correction of a Sentence on Remand. The court shall correct a sentence that is determined on appeal under 18 U.S.C. § 3742 to have been imposed in violation of law, . . . upon remand of the case to the court —
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(2) for further sentencing proceedings if, after such proceedings, the court determines that the original sentence was incorrect. (emphasis added).
In a letter response to his motion dated April 11, 2000, a copy of which was sent to Mr. Nix, the government noted that Nix did not appeal his conviction or sentence and that Rule 35 was clearly not applicable. In that letter the government made reference to Adams v. United States, 155 F.3d 582 (2d Cir. 1998) in which district courts were cautioned not to "recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharacterized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized." 155 F.3d at 584.
In a letter to Mr. Nix dated April 11, 2000, the Court, in an excess of caution, enclosed a copy of the government's letter and extended to him an opportunity to decide whether he wished the Court to convert his improvidently brought motions to one pursuant to § 2255.
The defendant, in reply, opposed the recharacterization of his motion and asserted instead, his right to the relief he seeks under Rule 60 (b), Fed.R.Civ.Pr. Passing for the moment whether that Rule is at all applicable to criminal proceedings, Cf., e.g. United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (per curium) with United States v. Clark, 984 F.2d 31 (2d Cir. 1993) it is equally clear that the sentence imposed was not the result of mistake, inadvertence, excusable neglect, newly discovered evidence, fraud or any other reason justifying the relief Nix seeks. Nor is Rule 60 a substitute for appeal. 11 Wright, Miller Kane, Federal practice and Procedure: Civil 2d § 2851 at p. 23.
The defendant's claim of entitlement to the relief he seeks is predicated entirely upon a letter to the Court dated May 9, 1999, in which the government recited the many reasons for which the Court should impose the sentences agreed upon pursuant to Rule 11(e)(1)(C). The defendant would have the Court construe that letter, together with some isolated excerpts from the plea allocution taken out of context, as the embodiment of the complete agreement between the parties. That he was fully advised as required by Rule 11, not only of the term of imprisonment but also of the imposition of a term of supervised release is evidenced by the following colloquy during the plea allocution:
The Court: Did your respective lawyers tell you, Mr. Arroyo, Mr. Straight, Mr. Nix and Mr. Hutchinson, that mandatory sentence or maximum sentence — I am sorry, the maximum sentence which the statute provides is imprisonment for life . . . and that there is a mandatory minimum of ten years. Mr. Hutchinson, did your lawyer tell you that?
Defendant Hutchinson: Yes.
The Court: Mr. Nix?
Defendant Nix: Yes.
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The Court: Were you also told that in addition to any term of imprisonment, the Court could add a period of supervised release up to five years, Mr. Hutchinson, do you understand that?
Defendant Hutchinson: Yes.
The Court: Mr. Nix?
Defendant Nix: Yes.
Transcript of Plea, January 28, 1999 at 14-15.
The defendant also asserts a claim of ineffectiveness of counsel which is improvidently included in this motion and which, in any event, is without merit.
For the foregoing reasons, his motion is denied.
SO ORDERED.