United States District Court, Southern District of New York
August 18, 2003
UNITED STATES OF AMERICA AGAINST SAVERIO SENAPE, DEFENDANT
The opinion of the court was delivered by: Shira Scheindlin, District Judge
OPINION AND ORDER
Defendant Saverio Senape has submitted a petition for a writ of "Clear Error Correction Under [Federal Rule of Criminal Procedure] 52(b)" seeking to correct his sentence by reducing: (1) the amount of loss applicable to him and (2) the amount of restitution imposed at sentencing. The Government opposes the petition which it claims must be summarily denied.
Rule 52(b) does not contain a procedural mechanism that can be used to challenge the validity of, or correct errors in, a sentence. Rather, Rule 52(b) contains a standard to be used by courts in reviewing claims of error.*fn1 Senape, who is in custody, is claiming that his sentence is subject to collateral attack and is asking the "court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. Accordingly, the instant petition should have been brought as a motion for habeas corpus relief under section 2255 of Title 28 of the United States Code. [ Page 2]
Habeas relief is not available, however, for two reasons. First, section 2255 contains a one-year limitation period which runs from the date the judgment of conviction becomes final. Because Senape failed to file a direct appeal, his sentence became final shortly after it was imposed on May 25, 2001. Accordingly, the present petition, if recast as a motion for habeas relief, would be time-barred. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). Second, by failing to file a direct appeal, Senape has waived the right to assert a claim of error at sentencing. The Second Circuit has held that "[i]f the defendant fails to raise a claim of error on direct appeal, habeas relief is generally available only upon a showing of cause and prejudice." United States v. Warren, 335 F.3d 76, 79 (2d Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 622-23 (1998)). Because Senape has not made such a showing, habeas relief is unavailable.
Even if the instant petition is not recast as a section 2255 motion, it is devoid of merit and must nonetheless be dismissed. Under the circumstances of this case and the nature of the billing scheme, there was no error here, let alone plain error. "A district court need not establish loss with precision [but] need only make a reasonable estimate of the loss given the available information." United States v. Coriaty, 300 F.3d 244, [ Page 3]
250 (2d Cir. 2002). I addressed loss amount in a written opinion issued on September 22, 2000. See United States v. Nachamie, 121 F. Supp.2d 285, 290-94 (S.D.N.Y. 2000). Senape was informed at his sentence that the rulings in that Opinion also apply to him. See Sentencing Transcript at 4. After setting the loss amount figure at $2,372,021.51 and the restitution figure at $1,698,724.48, I asked the parties if there were any fact issues in dispute which would require a Fatico hearing. See id. at 5. Both parties responded that there were none. See id. To substitute Senape's self-serving calculation, which is replete with errors and faulty assumptions, for the Court's detailed loss analysis would be inappropriate. See Government's Response in Opposition to the Petition of Saverio Senape to Correct His Sentence at 4-6. Indeed, it would be clearly erroneous to limit Senape's loss accountability using his convoluted formulas. Accordingly, the instant petition, in whatever form analyzed, is denied.