more fully explained in the prior opinion in this matter, this court -- in reliance upon the Bureau's assurance that 21 months was sufficient -- reduced defendant's sentence from 46 to 21 months. Id. at 9.
On March 2, 1996, one month after the entry of the court's decision, defendant submitted a written request to a staff member at the Federal Correctional Institution in Morgantown, West Virginia seeking entry into the Program. Ex. I att'd to Def.'s Mot., Doc. 23. Surprisingly, he was told that he did "not have enough time to take the Residential Drug Program." Id. A similar inquiry produced the same answer. Ex. II att'd to Def.'s Mot., Doc. 23. Defendant was enrolled in a more modest 40-hour program which he has already completed.
Defendant petitioned the court for another reduction of sentence on March 25, 1996. Def.'s Mot., Doc. 23. Defendant argues that because the court would have resentenced him to 15 months but for the desirability of allocating sufficient time to complete the Program, he should be resentenced again -- this time to the bottom of the range. Id. at 2-3.
The government was invited to respond on an expedited basis. The United States opposes any further reduction. They repeat arguments made in their opposition to defendant's first motion for reduction of sentence. Compare U.S. Mem. Law in Opp'n, Doc. 19 with Letter from Grant C. Jaquith, Doc. 25. To these objections, the court proffers the same answers it set forth in its prior decision, summarized in the margin.
The government also contends that there is no statutory basis for further reduction, see U.S. Mem. Law. in Opp'n, Doc. 24, a more challenging argument which the court addresses now.
The court believes that it can consider this motion pursuant to 18 U.S.C. § 3582(c)(2). It is true that in imposing an initial sentence, a court generally cannot modify it in the absence of a government motion more than seven days after passing judgment. Fed. R. Crim. P. 35(c). Analogously, one might argue that once the court resentences a defendant pursuant to section 3582 (c)(2), the court cannot entertain a second motion under that statute absent another intervening retroactive guideline amendment. But section 3582(c)(2) does not explicitly limit the court's power to one modification. Moreover, the interests in finality underlying the limits on a district court's authority to modify an initial sentence are not as compelling in a case where there has already been one reduction.
Alternatively, the court could interpret defendant's motion as one to correct sentence pursuant to 22 U.S.C. § 2255. Although defendant did not so characterize his motion, such an alternative reading is permitted by the rule that a pro se petitioner must be accorded "every reasonable opportunity to demonstrate a valid complaint." Gould v. Russi, 830 F. Supp. 139, 142 (N.D.N.Y. 1993) (citing LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir. 1991); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)).
Defendant's failure to take a direct appeal from this court's February 2 decision does not procedurally bar him from a collateral attack upon his sentence. Although Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1994), usually precludes claims not raised on appeal from being adjudicated in a section 2255 proceeding, such a failure will not frustrate review if the defendant can demonstrate "both cause for the procedural default and actual prejudice resulting therefrom." Id. at 113-14. In this case, defendant did not learn that the data the Bureau of Prisons had supplied the court was inaccurate until March 2, 1996. See Exs. I & II att'd to Def.'s Mot., Doc. 23. By the time the Bureau informed defendant that his 21 month sentence would in fact not be sufficiently long to complete the Program, the ten day time limit for filing an appeal had expired. See Fed. R. App. P. 4(b). Thus, defendant has demonstrated sufficient cause for his default. Prejudice is obvious: defendant will be imprisoned six months longer than he would have had the Bureau supplied the court with accurate information. We will proceed to the merits of the section 2255 argument.
A petitioner mounting a collateral attack upon a sentence bears the burden of establishing by a preponderance of the evidence that he is entitled to relief. United States v. DiCarlo, 575 F.2d 952, 955 (1st Cir.), cert. denied, 439 U.S. 834 (1978). Sentences may be modified in section 2255 actions in limited circumstances:
[A] collateral attack on a final judgment in a federal criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a "fundamental defect which inherently results in a complete miscarriage of justice."