United States District Court, E.D. New York
August 25, 2004.
MANUEL CONCEPCION, Petitioner,
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Presently before the Court is the motion by Manuel Concepcion
("Petitioner" or "Concepcion") for reconsideration pursuant to
Rule 59(e) of the Federal Rules of Civil Procedure. The
Petitioner asks this Court to alter or amend its January 24, 2002
Decision denying on the merits his motion to vacate, set aside,
or correct his 1991 sentences, pursuant to 28 U.S.C. § 2255. See
Concepcion v. United States, 181 F. Supp. 2d 206 (E.D.N.Y.
In his pro se motion, Concepcion re-argues the following
claims: (1) that the evidence was legally insufficient to support
his conviction under 18 U.S.C. § 924(c) and the Court relied upon
a factual misrepresentation by the Government in reaching its
conclusion; (2) that the indictment was deficient and his
convictions did not support a sentence for life imprisonment; (3)
that the jury instructions were "defective" for failing to
include a manslaughter charge; and (4) that his life sentence was
improper under the Sentencing Guidelines and under Apprendi v.
United States, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000). In his supplemental and amended motions, Concepcion
challenges his sentences under the Court's recent holding in
Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531,
___ L.Ed. 2d ___ (2004) and he also avers that his rights under the
Confrontation Clause were violated in light of Crawford v.
Washington, ___ U.S. ___, 124 S. Ct. 1354, 158 L. Ed. 2d 177
Because the parties are fully familiar with the factual and
procedural history of this case, the Court will only discuss
those facts and procedure necessary for the determination of the
instant motion. See United States v. Concepcion, 983 F.2d 369
(2d Cir. 1992) (affirming Concepcion's convictions), cert.
denied, 510 U.S. 856, 114 S. Ct. 163, 126 L. Ed. 2d 124 (1993);
Concepcion v. United States, 298 F. Supp. 2d 351 (E.D.N.Y.
2004) (denying Concepcion's motion seeking the return of a seized
automobile); Concepcion, 181 F. Supp. 2d at 206 (denying
Concepcion's Section 2255 motion).
A motion for reconsideration should generally be denied "unless
the moving party can point to controlling decisions or data that
the court overlooked matters, in other words, that might
reasonably be expected to alter the conclusion reached by the
court." Shrader v. Transportation Inc., 70 F.3d 255, 257 (2d
Cir. 1995). The standard for a Rule 59(e) motion is "strict" and
exists in order to dissuade parties from re-litigating issues
that have already been fully considered by the Court. Id. at
257; Lee v. Ashcroft, No. 01-CV-0997, 2003 WL 21310247
(E.D.N.Y. May 27, 2003).
As to his second, third, and fourth claims, Concepcion presents
no new matters that the Court overlooked in denying these claims
on their merits. Therefore, the Court denies these claims because
Concepcion "seeks solely to re-litigate an issue already
decided." Shrader, 70 F.3d at 257.
Moreover, the Court notes that, after Concepcion's habeas
petition was denied, the Second Circuit has held that Apprendi
does not apply retroactively to cases on collateral review. See
Coleman v. United States, 329 F.3d 77, 79 (2d Cir. 2003)
(holding that "Apprendi does not apply retroactively to initial
section 2255 motions for habeas relief"), cert denied,
___ US ___, 124 S. Ct. 840, 157 L. Ed. 2d 719 (2003). In any event, this
Court fully discussed the merits of Concepcion's Apprendi claim
and concluded that any sentence error due to Apprendi would
have been considered harmless because Concepcion was subject to a
sentence of life imprisonment for more than one of his
convictions. Concepcion, 181 F. Supp. 2d at 234-236.
Accordingly, Concepcion was properly sentenced to life in prison.
Furthermore, the Supreme Court's recent holdings in Blakely
and Crawford are not applicable to Concepcion's case. This case
is distinguishable from Crawford in that the statements to
which Concepcion refers were sufficiently redacted and thus,
properly admitted at trial. See Concepcion,
181 F. Supp. 2d at 222-223 and "Appendix A."
With regard to Concepcion's argument that Blakely applies
retroactively to his motion, the Court disagrees. See Garcia v.
United States, No. 04-CV-0465, 2004 WL 1752588 at *5 (N.D.N.Y.
Aug. 4, 2004) (holding that "Blakely does not apply
retroactively to § 2255 motions"). The Supreme Court has not, as
yet, ruled that Blakely is applicable to the federal sentencing
guidelines. Even if held to be applicable, the Supreme Court has
not determined that Blakely applies retroactively to cases on
collateral review. Therefore, the rule in Blakely is of no aid
to Concepion in the resolution of this motion. See Simpson v.
United States, 376 F.3d 679, 681-682 (7th Cir. 2004)
(finding that, even if Blakely announced a new constitutional
rule, "the Supreme Court has not made the Blakely rule
applicable to cases on collateral review"); In re: Dean,
375 F.3d 1287, 1290 (11th Cir. 2004) (holding that the Blakely
rule does not apply retroactively on collateral review and cannot
authorize a successive habeas petition); Garcia, 2004 WL
1752588 at *5 (noting that "because Apprendi does not apply
retroactively to collateral attacks and Blakely is an extension
of Apprendi, Blakely is similarly limited to prospective
Finally, Concepcion argues that the Court erred in concluding
that there was sufficient evidence to support his conviction
under 18 U.S.C. § 924(c) for knowingly "using" or "carrying"
firearms to the site of the narcotics transactions. He claims
that, in reaching its conclusion, the Court mistakenly relied
upon the Government's representation that Concepcion arrived at
the location of the narcotics transactions in the vehicle in
which the firearms were located. Concepcion provided trial
testimony that demonstrates that he came in the van which carried
the cash for the purchase, and not the Cadillac which contained
the firearms. Concepcion therefore concludes that the Court
should have vacated his Section 924(c) conviction in accordance
with Muscarello v. United States, 524 U.S. 125,
118 S. Ct. 1911, 141 L. Ed. 2d 111 (1998) and Bailey v. United States,
516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995).
The United States Attorney's Office, as attorney for the
Respondent, concedes this factual misrepresentation. See Resp't
Ltr to Court dated Apr. 18, 2002 at 2. However, the Respondent
argues that, notwithstanding this error, Concepcion was properly
found to be "guilty of aiding and abetting the carrying of the
firearms in connection with the narcotics deal at issue because
he knowingly provided the car in which his weapons (and
another's) were carried to the site of the narcotics transactions
the same site to which he also traveled in another one of his
vehicles." Id. at 5. The Respondent further maintains that
Concepcion owned both vehicles used for the narcotics deal; he
knew of and owned the firearms; and he played a "critical role in
the movement of the firearms to the scene of the drug deal by
providing his car." Id. at 2.
The Court acknowledges the Government's factual
misrepresentation and that this error provided, in part, the
basis for the Court's conclusion. See Concepcion,
181 F. Supp. 2d at 216 (stating that "the guns were in the trunk of the car in
which [Concepcion] came to the scene. Under the specific language
of Muscarello, by reason of the established fact that the guns
were in the trunk of the car near where Concepcion was standing
in the midst of a major drug deal, he was properly convicted of
`carrying' those weapons"). Nevertheless, despite this error, in
order to prevail on the instant motion for reconsideration,
Concepcion must show that, if the Court had considered this
testimony, it would have reasonably altered the Court's
conclusion. See Shrader, 70 F.3d at 257.
Under 18 U.S.C. § 924(c), a defendant who knowingly "uses" or
"carries" a firearm "during and in relation to" a "drug
trafficking crime" is subject to a mandatory minimum prison term
of five years. Muscarello, 524 U.S. at 136; United States v.
Cox, 324 F.3d 77, 81 (2d Cir.), cert. denied, ___ U.S. ___,
124 S. Ct. 143, 157 L. Ed. 2d 97 (2003). "A defendant `uses' a
firearm by actively employing it." United States v. DeSena,
287 F.3d 170, 180 (2d Cir. 2002) (citing Bailey, 516 U.S. at 143).
A defendant "carries" a firearm by either having it on his or her
person, or knowingly possessing and conveying the firearm "in a
vehicle, including in the locked glove compartment or trunk of a
car, which the person accompanies." Muscarello,
524 U.S. at 126-127. In the Second Circuit, the "carry" prong may also be
established by showing that the defendant "had physical
possession of the firearm" or "moved the firearm from one place
to another." Cox, 324 F.3d at 82 (citing United States v.
Persico, 164 F.3d 796, 802 (2d Cir. 1999)). See also DeSena,
287 F.3d at 180 (stating that a defendant can be found guilty of
"carrying" a firearm even if he did not actively employ it).
Concepcion's argument that he is not guilty of "carrying"
firearms to the narcotics deal because the subject firearms were
located in the locked trunk of a second vehicle, a vehicle in
which he did not come to the scene, lacks merit. In denying
habeas relief, this Court adhered to the holding in Muscarello
and found that "the `generally accepted contemporary meaning' of
the word `carry' includes the carrying of a firearm in a
vehicle." Concepcion, 181 F. Supp. 2d at 215-216 (citing
Muscarello, 524 U.S. at 139). As noted above, the word
"carrying" applies to firearms locked in the trunk of a vehicle.
Therefore, Concepcion's argument that he could not have utilized
the firearms is not a determining factor here.
Moreover, in Muscarello, the Court specifically rejected a
narrow interpretation of the word "carry," such as the one
proposed by Concepcion where "carrying" should be limited to the
vehicle in which a defendant arrives. The Muscarello Court
noted that such a finding would undermine the purpose of Section
924(c), stating that "it is difficult to believe, however, that
Congress intended to limit the statutory word to this definition
imposing special punishment upon the comatose gangster while
ignoring drug lords who drive to a sale carrying an arsenal of
weapons in their van." Id. at 131.
In this case, in the late 1980s in the East section of Brooklyn
and elsewhere, Manuel Concepcion was the leader of a major drug
trafficking ring known as the "Unknown Organization," which was
comprised of over "100 members and grossed over ten million
dollars a month from heroin sales, together with additional
revenue from cocaine transactions." Concepcion,
181 F. Supp. 2d at 210. At the time of the relevant drug deal, Concepcion was
attempting to purchase seven kilograms of heroin from a
confidential informant for more than one million dollars in cash.
Id. at 214. He was arrested during this reverse sting operation
and he was found to be "in possession of more than one million
dollars in cash, an Uzi submachine gun and two handguns." Id.
The trial testimony demonstrates that Concepcion owned the Uzi
submachine gun, one of the handguns, and both of the vehicles
used for the drug deal. See Resp't Ltr. to Court dated Apr. 18,
2002 at 4 (citing Trial Transcript at 9430-9433). As the leader
of this Organization, he played a critical role in moving the
firearms to the drug deal, including meeting with his team prior
to the drug deal where he distributed the cash into one vehicle
and the firearms into the other vehicle.
Therefore, the Court adheres to its January 24, 2002 holding
and finds that there was sufficient evidence to sustain
Concepcion's conviction for "carrying" firearms under
18 U.S.C. § 924(c). See United States v. Pipola, 83 F.3d 556, 564-565 (2d
Cir.) (finding that the defendant was properly convicted under
Section 924(c) because he "specifically encouraged" his
co-conspirators to carry guns during the robberies), cert.
denied, 519 U.S. 869, 117 S. Ct. 183, 136 L. Ed. 2d 122 (1996);
United States v. Medina, 32 F.3d 40, 45 (2d Cir. 1994) (holding
that a defendant must "directly facilitate or encourage the use
or carrying of a firearm" in order to be convicted under Section
924(c)); United States v. Cambrelen, 18 F. Supp. 2d 226,
230-231 (E.D.N.Y. 1998) (finding that the defendant was properly
convicted under Section 924(c) where the guns were seized from
his co-conspirators in waiting vehicles while the defendant
attempted to steal narcotics from a warehouse), aff'd by 5 Fed.
Appx. 30, 2001 WL 219285 (2d Cir. Mar. 6, 2001).
Therefore, based on the foregoing reasons, the Court denies in
its entirety Manuel Concepcion's motion for reconsideration
pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.
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