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GORDILS v. UNITED STATES

October 23, 1996

JOSE GORDILS and NICHOLAS MPOUNAS, Petitioners, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge :

 This matter is before this Court on the petitions of Jose Gordils ("Gordils") and Nicholas Mpounas (Mpounas") ("petitioners") pursuant to Title 28, United States Code, Section 2255 ("Section 2255" or the "habeas corpus statute") to vacate their convictions under Title 18, United States Code, Section 924(c) ("Section 924(c)") in the wake of Bailey v. United States, U.S. , 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995). This Court previously vacated petitioners' Section 924(c) sentences and found that they should be resentenced on their remaining convictions, but reserved decision on the issue of whether to enhance petitioners' offense levels under United States Sentencing Guidelines Section 2D1.1(b)(1) ("Guidelines Section 2D1.1(b)(1)") for possession of a firearm in connection with a drug trafficking offense. This Court ruled on this issue during a hearing held on October 21, 1996, and the instant opinion memorializes its ruling.

 I. BACKGROUND

 A full recitation of the facts underlying petitioners' sentences is set forth in United States v. Gordils, 982 F.2d 64, 66-69 (2d Cir. 1992), cert. denied, 507 U.S. 1054 (1993), and familiarity with them is assumed. Nevertheless, the subject matter of the instant petition necessitates an abbreviated review of the events leading to petitioners' arrests and convictions.

 This case originally involved four defendants. In addition to petitioners, also charged as co-defendants were Francisco Bastar ("Bastar") and Gregory Melendez ("Melendez"). (Government's Memorandum of Law in Opposition to Pro Se Petitions of Nicholas Mpounas and Jose Gordils Pursuant to 28 U.S.C. § 2255, Gordils and Mpounas v. United States, 96 Civ. 3664 and 96 Civ. 1747 ("Government's Opp. Memo") at 4 (July 12, 1996).) Neither Bastar nor Melendez is a party to the instant resentencing.

 On May 15, 1989, Gordils and Hernandez travelled to 97th Street and Riverside Drive in Manhattan, a location previously agreed upon, to consummate their transaction. Id. Gordils instructed Bastar to remain in the apartment and not to admit anyone except Mpounas, Melendez, or another individual named "Piki." Id. When Gordils and Hernandez arrived at 97th Street and Riverside Drive, DEA agents arrested Gordils and seized two kilograms of cocaine from the floor of his car. Id. Gordils informed the DEA that, among other things, Bastar, Mpounas, and "Piki" were awaiting his return with the proceeds from the drug sale at the apartment. Id. at 67-68.

 The DEA decided to secure the apartment to prevent the flight of suspects and the removal or destruction of evidence. Id. at 68. The agents proceeded to the vicinity of the apartment and found Mpounas stationed at the corner of 224th Street and White Plains Road, looking up and down the street. (Government's Opp. Memo at 9.) They arrested Mpounas and seized approximately 123 grams of heroin, a beeper, and handwritten records of narcotics transactions with various individuals, including Gordils. Id. at 9-10. The agents went to the door of the apartment, announced in both English and Spanish: "Police, open up." Gordils, 982 F.2d at 68. No one opened the door, and when one of the agents heard shuffling noises inside, the agents broke the door down with a battering ram. Id.

 The agents arrested Bastar who was sitting in a chair in the living room. Id. Lying on the floor near the chair was a fully operable .9 millimeter semi-automatic pistol ready to fire: it was loaded, its safety was off, and it had a live round in its chamber. Id. ; (Government's Opp. Memo at 10). From elsewhere in the apartment, the agents seized a fully operable .22 caliber Winchester semi-automatic rifle, heroin, approximately one kilogram of cocaine, drug records and paraphernalia, and approximately $ 9,000 in cash. (Government's Opp. Memo at 10.)

 Gordils and Mpounas were both charged in a five count superseding indictment. Count One charged petitioners with conspiracy to distribute cocaine in violation of Title 21, United States Code, Section 846. Count Two charged petitioners with possessing with intent to distribute cocaine in violation of Title 21, United States Code, Section 841(b)(1)(B). Count Three charged petitioners with possessing with intent to distribute heroin in violation of Title 21, United States Code, Section 841(b)(1)(C). Count Four charged Mr. Mpounas alone with possessing with intent to distribute heroin in violation of Title 21, United States Code, Section 841(b)(1)(B). Count Five charged petitioners with using and carrying firearms during and in relation to drug trafficking crimes in violation of Section 924(c).

 Following a jury trial, both petitioners were found guilty on all counts with which they were charged on December 8, 1989. On April 24, 1990, this Court sentenced Gordils to three concurrent 151-month terms on Counts One through Three. On that same day, this Court sentenced Mpounas to four concurrent 188-month terms on Counts One through Four. On Count Five, this Court also imposed on both Gordils and Mpounas a mandatory consecutive sentence of five years to be served after each of their concurrent terms expires. In addition, this Court ordered that a five year period of supervised release follow each of petitioners' terms of incarceration with several special conditions. This Court further required Mpounas to pay a fine of $ 17,500 over the term of his supervised release. Finally, this Court imposed mandatory special assessments of $ 250 on Mpounas and $ 200 on Gordils.

 On January 30, 1991, this Court denied petitioners' respective motions for retrial based on newly discovered evidence pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Petitioners appealed their respective convictions and this Court's denial of their respective motions for a new trial. The Second Circuit affirmed this Court's rulings in all respects in United States v. Gordils, 982 F.2d 64 (2d Cir. 1992), cert. denied, 507 U.S. 1054 (1993).

 Pursuant to Section 2255, this year both petitioners filed petitions for habeas corpus to vacate their Count Five convictions and sentences under Section 924(c) in light of the United States Supreme Court's decision in Bailey v. United States, U.S. , 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), as well as several other grounds. In Bailey, the Supreme Court limited the scope of the term "use" in Section 924(c), which criminalizes the "use" of a firearm in a narcotics offense. The Court held that Section 924(c) "requires evidence sufficient to show an active employment of the firearm by the defendant, a use which makes the firearm an operative factor in relation to the predicate offense." U.S. , 116 S. Ct. at 505. 2d 472. "Active employment," the Court elaborated, "certainly includes brandishing, displaying, bartering, striking, and, of course, firing or attempting to fire, a firearm." Id. at , 116 S. Ct. at 508. Bailey thus represents a substantial departure from the Second Circuit's firmly established holdings that active use was not required to sustain a conviction under Section 924(c). See, e.g., United States v. Fermin, 32 F.3d 674, 678 (2d Cir. 1994), cert. denied, U.S. , 115 S. Ct. 1145 (1995); United States v. Medina, 944 F.2d 60, 66-67 (2d Cir. 1991), cert. denied, 503 U.S. 949 (1992); United States v. Meggett, 875 F.2d 24, 29 (2d Cir.), cert. denied, 493 U.S. 858 (1989). The Government conceded that, in light of Bailey, petitioners' respective Section 924(c) convictions should be vacated. (Government's Opp. Memo at 16-27.)

 In separate Orders dated July 16, 1996, this Court vacated each petitioner's conviction under Section 924(c), pursuant to Bailey. In those Orders, this Court also found that petitioners should be resentenced on the remaining counts on which they were convicted and that this Court should consider whether to enhance petitioners' offense levels under Guidelines Section 2D1.1(b)(1) for possession of a firearm in connection with a drug trafficking offense.

 II. DISCUSSION

 Before this Court resentenced petitioners, it resolved two issues: (1) whether petitioners' offense level could be enhanced under Section 2D1.1(b)(1) of the Sentencing Guidelines; and (2) whether Mpounas could challenge his Criminal History Category, which this Court calculated at his original sentencing in 1990.

 A. Two Level Enhancement

 The Government requested that petitioners be resentenced on their narcotics convictions, and seeks to add two levels to each of their total offense levels pursuant to Guidelines Section 2D1.1(b)(1). Guidelines Section 2D1.1(b)(1) mandates that a two level enhancement be imposed "if a dangerous weapon (including a firearm) was possessed " during a drug offense. U.S.S.G. 2D1.1(b)(1) (emphasis added). The two level enhancement "should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1 Application Note 3. "The defendant need not have had personal possession, or even actual knowledge of the weapon's presence; the enhancement is required so long as the possession of the firearm was reasonably foreseeable to the defendant." United States v. Stevens, 985 F.2d 1175, 1188 (2d Cir. 1993) (internal quotations omitted).

 Under the terms of the Sentencing Guidelines, however, the two level enhancement was unavailable to the Government at the time of petitioners' original sentencing. When a defendant is convicted and sentenced for "use" of a firearm in violation of Section 924(c), the Sentencing Guidelines' ban on "double counting" prohibits courts from also enhancing that defendant's sentence under Guidelines Section 2D1.1(b)(1) for "possession" of a firearm. See U.S.S.G. § 2K2.4, Application Note 2; United States v. Howard, 998 F.2d 42, 48 (2d Cir. 1993). The evidence at trial established that these petitioners "possessed" firearms during their crimes. However, because petitioners were convicted and sentenced for their Section 924(c) violations, this Court did not enhance their sentences under Guidelines Section 2D1.1(b)(1).

 In their submissions to this Court, petitioners do not contest that they "possessed" firearms during the commission of their narcotics offenses. However, now that their Section 924(c) convictions no longer pose "double counting" obstacles, petitioners do dispute this Court's authority on resentencing to add a two level enhancement to their sentences under Guidelines Section 2D1.1(b)(1). In support of their position, petitioners rely upon Title 18, United States Code, Section 3582(c)(1)(B), which provides that "the court may not modify a term of imprisonment once it has been imposed except that[,] in any case[,] the court may modify an imposed term of imprisonment to the extent otherwise permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." (Letter from Edward S. Zas, Esq., to the Hon. David N. Edelstein, United States District Judge for the Southern District of New York, Gordils and Mpounas v. United States, 96 Civ. 3664 and 96 Civ. 1747 ("Zas Letter") at 2 (Oct. 2, 1996).) Petitioners contend that, because Fed. R. Crim. P. 35 is inapplicable to this case, Section 2255 is the only other statute which might confer jurisdiction upon this Court to modify petitioners' sentences. Id. Petitioners then argue that Section 2255 does not confer such jurisdiction in the case at bar.

 Petitioners' argument rests almost entirely upon their construction of Section 2255, which reads, in relevant part:

 
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the grounds that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral ...

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