Opinion
06 Civ. 7170, 04 Cr. 17.
June 25, 2007
Petitioner, Pro Se: ROBERT WEBER, Reg. No. 55714-054, FCI Otisville, Satellite Camp, Otisville, NY.
For the Respondent: MICHAEL J. GARCIA, United States Attorney, Southern District of New York, New York, New York, Of Counsel: AUSA Daniel W. Levy.
OPINION AND ORDER
Petitioner Robert Weber ("Weber") moves pro se to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, Weber's petition is denied.
Background
On January 29, 2004, Weber was indicted for (i) conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine, ecstasy, ketamine and cocaine; (ii) possession with intent to distribute Ecstasy; (iii) possession with intent to distribute ketamine; and (iv) possession with intent to distribute a mixture containing a detectable amount of methamphetamine. On December 3, 2004, Weber pled guilty to the first three counts of the Indictment.
Less than one month later, on January 12, 2005, the Supreme Court decided United States v. Booker, 125 S.Ct. 738 (2005). TheBooker Court found unconstitutional 18 U.S.C. 3553(b)(1) of the Federal Sentencing Act, which had made the Sentencing Guidelines mandatory. By excising this section from the Act, the Court made the Guidelines advisory. With this modification, the Act "requires a sentencing court to consider Guidelines ranges . . . but it permits the court to tailor the sentence in light of other statutory concerns as well, see 3553(a)." Id. at 757.
On February 4, 2005, Weber was charged via Superseding Information with simple possession of methamphetamine, which essentially replaced Count Four of the Indictment, which charged possession with intent to distribute. He pled guilty to this count. Before accepting the guilty plea, the Court explained that "portions of the guideline statute have been declared unconstitutional," but that the Court would "use their advice in a reasonable fashion in sentencing you." The Court asked, "Do you understand that?" and Weber responded, "I do." (Tr. 9-11.)
The Court also explained to Weber, "you are subject to an additional term of imprisonment for not more than one year, and that could be consecutive to any other sentence of imprisonment because you committed the crime in Count 1 of the information while on release from other charges that were pending against you." See 18 U.S.C. § 3147. The Court asked Weber whether he understood, and Weber responded "I do." (Tr. 10.)
Section 3147 states that "A person convicted of an offense committed while released . . . shall be sentenced . . . to a term of imprisonment of not more than one year . . . [and] the term shall be consecutive to any other sentence of imprisonment."
At Weber's sentencing on September 21, 2005, the Court found that Weber qualified for the safety-valve and was, therefore, not subject to the 120-month statutory mandatory minimum on count one of the Indictment on his December 3, 2004 plea. With regard to the Guidelines, the Court stated that "the guidelines are only advisory," and "the advisory guideline range calls for a sentence of 87 to 108 months." (Tr. 3, 15.) The Court then sentenced Weber to a total of 72 months in prison: 60 months on counts one through three of the Indictment to run concurrently and 12 months on count one of the Superseding Information to run consecutively with the 60 months on counts one through three of the Indictment.
Weber did not make any direct appeal of his sentence. He filed the instant petition on September 11, 2006.
Discussion
Weber asserts two claims in his petition. First, Weber claims the Court was unaware that the Sentencing Guidelines had been rendered advisory in nature. Second, Weber claims the Court erred in sentencing him to 12 months on count one of the Superseding Information to run consecutively with his sentence on counts one through three of the Indictment. Weber argues that Booker made 18 U.S.C. § 3147's consecutive provision advisory.
A. Procedural Bar
Generally speaking, claims made in a 28 U.S.C. § 2255 petition are barred if the defendant did not raise them on a direct appeal. Weber clearly did not raise the issues in this petition on direct appeal, given that he made no direct appeal.
One exception to this procedural bar is when a defendant shows a "cause" for the procedural default and "prejudice" arising from the failure. Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998). Weber does not attempt to argue either cause or prejudice in his petition.
Another exception is when the defendant claims he or she is "actually" innocent of the conviction. Id. Claims regarding sentencing, such as Weber's, are not claims of innocence. See United States v. Mikalajunas, 186 F.3d 490, 494-95 (4th Cir. 1999). Weber's claims are procedurally barred.
Even if Weber's claims were not procedurally barred, his petition would be denied on the merits.
B. The Merits of Weber's Petition
1. Sentencing Guidelines
As to Weber's first ground for habeas relief, the Supreme Court made clear in Booker, 125 S. Ct. at 765, that district courts "while not bound to apply the Guidelines, must consult these Guidelines and take them into account when sentencing." During this case, the Court acknowledged Booker's effect several times; first, during Weber's guilty plea on February 4, 2005 and second, at Weber's sentencing. Notably, this Court actually imposed a sentence 15 months below the range recommended by the Guidelines. By its words and actions, this Court clearly recognized the Guideline's advisory role at the time of sentencing.
2. Title 18 U.S.C. § 3147
As to Weber's second claim, he is mistaken that Booker rendered the consecutive requirement of § 3147 merely advisory. Booker applies specifically to the Sentencing Guidelines, not to Congressionally enacted sentencing statutes. Title 18 U.S.C. § 3147 is a sentencing statute. The Court followed the statute by sentencing Weber to 12 months, a term "of not more than one year," and required that the term of imprisonment run consecutively to the term of imprisonment imposed on counts one through three of the indictment.
Conclusion
Weber's habeas petition is denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253;see United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). The Court orders this case closed, and directs the Clerk of the Court to remove it from the Court's active docket.