The opinion of the court was delivered by: JOHN R. BARTELS
MEMORANDUM-DECISION AND ORDER
Defendants Gene Gotti and John Carneglia move pursuant to Fed.R.Crim.P. 35(b) for reduction of sentences imposed by this Court on July 7, 1989.
The following statement of facts appearing in the Government's brief is adopted by the Court:
"On May 23, 1989, following a six-week jury trial, the defendants Gene Gotti and John Carneglia were convicted of racketeering conspiracy (18 U.S.C. § 1962(d)), narcotics conspiracy (21 U.S.C. § 846), and possession of heroin with intent to distribute (21 U.S.C. § 841(a)(1)). Carneglia was also convicted of traveling in interstate commerce to promote and facilitate the conduct of a narcotics business enterprise (18 U.S.C. § 1952). After a post-trial evidentiary hearing [to determine whether they should be remanded without bail prior to sentencing, with the understanding that the information adduced would be used as part of the Government's Fatico presentation at sentencing], wherein the Government established the defendants' membership in the Gambino organized crime family and their continued participation in narcotics trafficking and other criminal activities, the Court on July 7, 1989, sentenced both Gotti and Carneglia to consecutive prison terms of 20 years on the racketeering conspiracy charge, 15 years on the narcotics conspiracy charge, and IS years on the substantive possession count, for a total of 50 years imprisonment. Carneglia was given a five year concurrent term on the Travel Act violation. In addition, both defendants were ordered to pay $ 75,000 in fines."
The defendants unsuccessfully appealed to the United States Court of Appeals for the Second Circuit after sentencing. U.S. v. Ruggiero, 928 F.2d 1289 (2d Cir. 1991), cert. den. Gotti v. U.S., U.S. , 112 S. Ct. 372 (1991). Since their petition for a writ of certiorari to the United States Supreme Court was denied on November 4, 1991, the defendants' motions for relief under Rule 35(b) were filed in a timely manner. Having made an exception to the Court's Rules, Procedures and Forms, the Court entertained oral argument on these motions.
The version of Rule 35(b) for offenses committed prior to November 1, 1987 states, in pertinent part:
"Although the language of Rule 35(b) does not specify the grounds for reduction of sentence, its provisions have been uniformly construed to be limited to consideration of the validity of a sentence itself. Courts have refused to consider claims under the rule that involve the merits of the defendant's conviction." U.S. v. Smith, 839 F.2d at 181-82; U.S. v Schiff, 876 F.2d 272, 274-75 (2d Cir. 1989).
Upon their motions, defendants ask the Court to review the sufficiency of the evidence of the trial and, in particular, the testimony of the Government's expert witness, F.B.I. Special Agent Gerald Franciosa. As Smith and Schiff indicate, the function of Rule 35(b) is very narrow. These issues have been decided by the jury's verdict and cannot be reviewed by the Court on a Rule 35(b) motion, particularly after the case has been affirmed by the Second Circuit and certiorari denied by the Supreme Court. The Court cannot and will not re-examine the evidence.
The defendants further ask the Court to review the sufficiency of its sentencing determinations and, in particular, its reliance on certain confidential Government sources and on evidence concerning the quantity of heroin involved in commission of the offenses. These arguments were unsuccessfully raised at the time of sentencing and on appeal to the Second Circuit. U.S. v. Ruggiero, 928 F.2d at 1305-06. The Court cannot and will not, under the parameters of Rule 35(b), re-examine its sentencing determinations.
The defendants further claim that their sentences were excessive and extraordinarily severe, but do not claim that they violate the Eighth Amendment prohibition against cruel and unusual punishment. Unless a defendant's sentence is so disproportionately excessive as to violate the Eighth Amendment, the mere disparity between a sentence a defendant received and the sentence imposed upon others provides no justification for vacating his conviction. U.S. v. Rios, 893 F.2d 479, 481 (2d Cir. 1990); U.S. v. Jaramillo-Montoya, 834 F.2d 279-80 (2d Cir. 1987), cert. den. 486 U.S. 1023 (1988).
The defendants also assert that since the racketeering conspiracy, narcotics conspiracy and possession of heroin with intent to distribute charges involved the "same conduct," the imposition of consecutive sentences punished the same conduct three times. This argument is based on a flawed premise because, as any reading of the relevant statutes reveals, these three counts involve different criminal acts and conduct. The defendants also state that the sentences were greater than those discussed at plea negotiations with the Government. The disparity, if any, between any sentences contemplated during ...