The opinion of the court was delivered by: Neal P. Mccurn, Senior District Judge.
Petitioner, Leonardo Santana-Madera was found guilty after a jury trial on all counts of an indictment charging him with ten narcotics offenses*fn1 and was sentenced to 324 months incarceration. On appeal to the Second Circuit Court of Appeals his conviction was affirmed. At sentencing on October 12, 1993, the court found the base offense level to be 36 as a result of petitioner's participation in the conspiracy involving at least 50, but less than 150, kilograms of cocaine. The court further found the total offense level to be 41 after scoring enhancements of one point because drugs were found in a house located near an elementary school, and four points for petitioner's role as an organizer of a criminal activity that involved five or more participants pursuant to U.S.S.G. § 3B1.1(a).
On December 6, 1995 petitioner filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) and § 1B1.10 of the Sentencing Guidelines. The motion was denied on February 13, 1996.
On May 29, 1998, petitioner filed a motion for leave to file a second or successive motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. The Second Circuit Court of Appeals denied this motion as unnecessary, holding that since petitioner's December 6, 1995 motion was not pursuant to § 2255, a certificate by that court was not required.
On July 2, 1998 petitioner filed a motion with this court pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence. The court denied the motion, which was affirmed on appeal by the Second Circuit Court of Appeals on August 3, 2001.
On August 13, 2001 petitioner moved this court to modify or amend his sentence pursuant to 18 U.S.C. § 3582(c)(2) based upon an amendment to the Sentencing Guidelines.*fn2 On December 20, 2001, the court found that petitioner's offense level should be reduced from 41 to 40, eliminating the one point enhancement for the sale of drugs near an elementary school, thereby reducing his sentence from 324 months to 292 months.
Presently before the court is petitioner's motion for a new sentence pursuant to 28 U.S.C. § 2255, or alternatively, 18 U.S.C. § 3582.
Petitioner contends that the court erred in its determination of petitioner's total offense level at his resentencing on December 20, 2001. Specifically, petitioner argues that the court utilized U.S.S.G. § 3B1.1(a), although pursuant to Amendment 591, the court should have instead acted in accordance with U.S.S.G. § 2D1.5. Petitioner also claims ineffective assistance of appellate counsel, even though he argues that his appellate counsel advanced this very argument on petitioner's behalf at resentencing. See Pet Mem. of Law in Supp. of Mot. to Dismiss at 3.
The government argues that for various reasons the present motion is not properly brought before the court. First, it argues that the present motion is prohibited as second or successive pursuant to 28 U.S.C. § 2255. Next, the government argues that the present motion is barred by the applicable one year statute of limitations, assuming that the appropriate commencement date for the statute of limitations on the present motion is the date of petitioner's original sentencing, October 12, 1993, and not December 20, 2001, the date of resentencing. Finally, the government contends that, while the court erred in its application of the Sentencing Guidelines, the error did not result in prejudice to petitioner, as his offense level is 40 pursuant to either U.S.S.G. § 2D1.1 or § 3B1.1(a).
The court finds that, although petitioner's underlying argument has merit, the government is correct in its conclusion that petitioner's offense level remains the same under either § 2D1.1 or § 3B1.1(a). Therefore, because petitioner was not prejudiced by the court's use of § 3B1.1(a) instead of § 2D1.1, the court will deny the present motion without addressing the government's remaining arguments.
At resentencing, the court reduced petitioner's offense level from 41 to 40, thereby reducing his sentence to 292 months. This reduction reflects the elimination of one offense level for the school zone enhancement in accordance with Amendment 591. In his present motion, petitioner argues for a further reduction in his offense level and sentence to 38 and 235 months, respectively. Petitioner argues that the court erred when it included a four level enhancement pursuant to § 3B1.1(a) for his leadership role in the criminal enterprise. According to petitioner, the language of §§ 2D1.1 & 2D1.5 require that instead, the court should have determined his offense level to be 38, and accordingly should have sentenced him to 235 months incarceration.
Section 3B1.1(a) of the Sentencing Guidelines states that "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive," the offense level should be increased by four levels to reflect his aggravating role in the offense. See U.S.S.G. § 3B1.1(a). At petitioner's sentencing on October 12, 1993 the court determined petitioner's base level to be 36 in accordance with § 2D1.1, and added the four level enhancement in ...