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United States District Court, S.D. New York

June 29, 2004.

GORDON DAVIS, Petitioner,
U.S., Respondent.

The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge


Pro se petitioner Gordon Davis pled guilty to a three count indictment, and was sentenced to a term of imprisonment of 41 months. Davis now moves pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. For the reasons set forth below, the motion is denied.


  A. Offense Conduct

  On October 28, 1999, a federal grand jury sitting in the Southern District of New York returned a three-count indictment against Davis and several others. Davis was charged in all three counts. Count One charged conspiracy to commit bank fraud and to transport stolen checks in interstate and foreign commerce in violation of 18 U.S.C. § 371. Count Two charged bank fraud in violation of 18 U.S.C. § 1344, and Count Three charged transportation of stolen checks in interstate commerce in violation of 18 U.S.C. § 2314.

  The prosecution arose from a scheme devised by Davis and his co-conspirator, Rasheed Sanni, to alter and negotiate checks that were stolen from the mail room of Pfizer, Inc. in New York, New York. The checks were removed from the mail room by another coconspirator, Patrena Harris, a Pfizer mail room employee, who then gave them to Davis. See Pre-Sentence Investigation Report ("PSR"), at 6. In all, twelve checks with a total face value exceeding $300,000 were misappropriated. After the checks were stolen, at least one check was altered to increase its amount by $500,000. See id. at 8.

  Femi Emmanuel Jacob and Tunde attempted to negotiate the stolen checks in Moscow, Russia on behalf of Davis and Sanni. In Moscow, Jacob and Tunde approached a cooperating witness ("CW"), and, after a series of meetings, provided the CW with one of the stolen checks in the amount of $150,000. The CW in turn gave Jacob and Tunde the number of a contact in New York City who was to provide the proceeds of the cashed check to the conspirators. The contact was an undercover police officer. See id. at 4-5.

  Davis and Sanni met with the undercover officer at the Marriott Marquis Hotel in New York, New York, in order to discuss the negotiation of the $150,000 check. See id. at 5. Approximately one week thereafter, Davis and Sanni again met with the undercover officer. At the second meeting, Davis and Sanni informed the officer that a check in the approximate amount of $520,000 had been sent to Russia and that they were in possession of an additional check in the approximate amount of $720,000. Davis further offered to provide the undercover officer with a check in the amount of $500,000. After agreeing to this transaction, Davis and Sanni discussed possible future transactions involving millions of dollars. At the conclusion of the meeting, Davis and Sanni were arrested. See id.

  B. Guilty Plea

  On May 15, 2000, the day on which trial was to commence, Davis indicated a desire to plead guilty. Shortly thereafter, the Government provided Davis with a letter pursuant to United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991), setting forth the Government's position with respect to the application of the United States Sentencing Guidelines to Davis's offenses. On the same day, Davis pled guilty to all three counts. See Transcript of Plea held on May 15, 2000, at 22.

  The Government took the position that Davis's adjusted offense level was 24, resulting from a base offense level of six pursuant to § 2F1.1(a), because the offense conduct involved fraud; a 12-level upward adjustment pursuant to § 2F1.1(b)(1)(m), because the intended loss was more than $1.5 million; an additional 2-level upward adjustment pursuant to § 2F1.1(b)(2), because the scheme involved more than minimal planning and more than one victim; and a 4-level enhancement pursuant to § 3B1.1(a), because Davis was an organizer of the scheme. The PSR calculated a total offense level of 22 and a criminal history category of I.

  C. Sentencing

  Davis's sentencing hearing was held before this Court on January 17, 2001. At the hearing, Davis acknowledged that he had reviewed the PSR and spoken with his attorney about it. See Transcript of Sentencing held on January 17, 2001, at 3. In addition, Davis represented that he had no questions about the report, and he neither objected to the loss amount set forth in the PSR nor requested a Fatico hearing. See id. Rather, counsel for Davis, Wayne Holder, Esq., and Davis himself, only argued that Davis should be treated as a minor or minimal participant in the scheme and that his family circumstances should mitigate his sentence. See id. at 9, 14.

  Following Davis's statement, the Court recognized that it had the authority to depart on the basis of family circumstances and to reduce Davis's offense level based upon his purported minor or minimal participation in the scheme. See id. at 14. The Court determined, however, that neither a downward departure nor a reduction for Davis's role in the scheme was warranted. See id. The Court then ordered Davis to serve a sentence of 41 months on each count to run concurrently, followed by a four-year term of supervised release, restitution in the amount of $13,552.00, and a $300 special assessment. See id. at 14-15.

  D. Appeal

  On February 14, 2001, Davis filed a notice of appeal. Davis, through new counsel, Robert E. Nicholson, Esq., filed a brief with the United States Court of Appeals for the Second Circuit challenging the four-level enhancement he received as an organizer of the scheme and arguing that Davis received ineffective assistance from his trial attorney. In addition, Davis submitted a pro se supplemental brief in which he contended (1) the Court erred in attributing a loss amount to Davis in excess of $1.5 million, and failed to state the reasons for imposing such a sentence or hold a hearing prior to sentencing; (2) the indictment failed to allege an element of the offense which increased the potential sentence; (3) his sentence was constitutionally infirm under Apprendi v. New Jersey, 530 U.S. 466 (2000); and (4) he received ineffective assistance of counsel from trial counsel. On October 22, 2002, the Second Circuit affirmed Davis's conviction. See United States v. Davis, No. 01-1154 (2d Cir. May 2, 2002).

  On February 10, 2003, Davis filed the instant action, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence on the following grounds: (1) the Court erred by attributing to Davis an intended loss in excess of more than $1.5 million; (2) the Court erred by not conducting a factual hearing at his plea proceeding regarding the loss amount; (3) his sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000); and (4) he received ineffective assistance of counsel from both trial counsel and appellate counsel. See Petitioner's Motion at 5-6.

  While Davis, a citizen and native of Trinidad and Tobago, was serving his time on the instant conviction, the I.N.S. served him with removal papers. On January 20, 2004, Davis was released from the Federal Correctional Institution at Fort Dix, New Jersey. On January 21, 2004, Davis was detained by the Bureau of Citizenship and Immigration Services (BCIS) of the Department of Homeland Security. At a removal hearing on March 2, 2004, Immigration Judge Esmeralda Cabrera determined that Davis was removable on the basis of the instant conviction under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA) (8 U.S.C. § 1227(a)(2)(A)(iii)) as an alien who has committed an "aggravated felony," as that term is defined by INA § 101(a)(43)(M){U} (8 U.S.C. § 1101(a)(43)(M)(i)). Davis waived appeal. On May 14, 2004, Davis was removed to Trinidad and Tobago.


  Under § 2255, the district court may consider a habeas petition from a prisoner who is "in custody under sentence of a court established by Act of Congress. . . ." 28 U.S.C. § 2255. In the present case, Davis has been released from custody and has already been removed from the United States to Trinidad and Tobago. Davis has not challenged his removal order nor amended his petition. Although Davis is no longer in physical custody, having been released from prison and then deported, he was, however, in custody at the time he filed his petition. The statutory "in custody" requirement is therefore satisfied. See Spencer v. Kemna, 523 U.S. 1, 7 (1998) (holding that the "in custody" requirement under the federal habeas statute is satisfied if the petitioner filed petition before deportation); see also Maleng v. Cook, 490 U.S. 488, 490-92 (1989) (stating that the "in custody" requirement for purposes of the federal habeas statutes is to be liberally construed).

  While Davis has satisfied the statutory "in custody" requirement, this Court is precluded by Article III, § 2 of the Constitution from exercising jurisdiction if there is no longer a case or controversy. See, e.g., DeFunis v. Odegaard, 416 U.S. 312, 316 (1974). Because Davis has been released from prison and subsequently deported, the Court can no longer provide him the primary relief sought in his habeas corpus petition. His challenges to his sentence are therefore moot, and must be dismissed.


  For the foregoing reasons, Davis's petition is denied as moot. Because no address is available for Davis, this Opinion and Order is being delivered to the Clerk. Cf. Fed.R.Civ.P. 5(b)(2)(C) (providing for service on litigants for whom there is no known address).



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