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EUBANKS v. U.S.

United States District Court, S.D. New York


August 11, 2005.

JOHN EUBANKS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: PETER LEISURE, District Judge

OPINION AND ORDER

On December 11, 1992, a jury found John Eubanks ("petitioner") guilty of one count of conspiracy to distribute cocaine base, commonly known as "crack," in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B). On February 1, 1994, this Court sentenced Eubanks to life imprisonment on the conspiracy count and a concurrent forty-year term of imprisonment on the possession count. In a Summary Order entered December 8, 1994, the United States Court of Appeals for the Second Circuit affirmed petitioner's conviction.

  On May 28, 1997, petitioner filed his first § 2255 motion seeking collateral review of his conviction. This Court denied that petition on August 11, 1998. See Eubanks v. United States, 11 F. Supp. 2d 455 (S.D.N.Y. 1998). Shortly thereafter, this Court denied petitioner's motion for reconsideration of the denial of his § 2255 petition. On August 10, 2000, the Second Circuit denied petitioner's application for a certificate of appealability. On June 18, 2001, petitioner filed an Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, pursuant to § 2255, based on the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The Second Circuit denied this motion by Order dated August 6, 2001.

  On November 25, 1996, petitioner filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. On July 16, 1997, this Court denied petitioner's Rule 33 motion, see United States v. Eubanks, Nos. S7 92 Cr. 392, 96 Civ. 2992, 1997 WL 401667 (S.D.N.Y. July 16, 1997), and on April 11, 2001, the Second Circuit affirmed the denial by Summary Order.

  The instant Opinion and Order addresses several pending motions that petitioner has filed seeking post-conviction relief. On September 27, 2002, petitioner filed a Motion to Vacate the Judgment of Denial of his § 2255 motion pursuant to Fed.R. Civ. P. 60(b)(5) and (6).*fn1 In addition, petitioner filed a Motion to Modify Sentence Pursuant to 18 U.S.C. § 3582(c)(2) on June 18, 2004. The Court addresses petitioner's claims in turn below.

  I. Petitioner's Rule 60(b) Motion

  Federal Rule of Civil Procedure 60(b) provides, in relevant part, that:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: . . . (5) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time. . . .
Fed.R.Civ.P. 60(b). In contrast to a § 2255 motion, a Rule 60(b) motion filed in the habeas context does not seek to set aside or vacate a sentence imposed by the federal court. A motion pursuant to Rule 60(b) only seeks to vacate the federal court judgment concerning the prior habeas petition. Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir. 2001). Relief under Rule 60(b) is therefore available with respect to a previous habeas proceeding only when the Rule 60(b) motion attacks the integrity of the habeas proceeding and not the underlying criminal conviction. Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004).

  Petitioner raises three arguments in his original and amended Rule 60(b) motion. First, petitioner claims that this Court should vacate the judgment of denial in his § 2255 motion based on the Second Circuit's decisions in United States v. Thomas, 274 F.3d 655 (2d Cir. 2001), and United States v. Guevara, 277 F.3d 111 (2d Cir. 2001). Petitioner argues that these cases directly overrule the legal interpretation on which the denial of his § 2255 motion was based. Second, petitioner contends that his counsel was constitutionally ineffective under the standard set forth by the Supreme Court in Wiggins v. Smith, 539 U.S. 510 (2003). Finally, petitioner argues that this Court either failed to consider two claims in his amended § 2255 motion or, alternatively, applied an incorrect legal standard to those claims based on the recent Supreme Court decision in Banks v. Dretke, 540 U.S. 668 (2004).

  A. Claims Based Upon Thomas and Guevara

  Petitioner claims that relief under Rule 60(b)(5) is appropriate here because this Court's denial of his § 2255 motion was based on "pre-Apprendi" case law that has since been abrogated in the Second Circuit by Thomas and Guevara. In Apprendi, the Supreme Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 490. The Second Circuit thereafter concluded that Apprendi applied to the federal narcotics statute and held "that if the type and quantity of drugs involved in a charged crime may be used to impose a sentence above the statutory maximum for an indeterminate quantity of drugs, then the type and quantity of drugs is an element of the offense that must be charged in the indictment and submitted to the jury." See Thomas, 274 F.3d at 660. At trial, the jury convicted petitioner on both the conspiracy and possession counts without deciding the amount of narcotics involved, and the Court then sentenced him to life imprisonment based on a "conservatively estimated" figure of 26.1 kilograms of crack. See Eubanks v. United States, Nos. S7 92 Cr. 392, 96 Civ. 5883, 1996 WL 706934, at *1 (S.D.N.Y. Dec. 9, 1996).

  In his original § 2255 motion, petitioner raised this issue under an ineffective assistance of counsel theory. Specifically, petitioner argued that trial counsel unreasonably allowed sentencing to proceed with an inaccurate estimation of the amount of crack attributable to Eubanks. This Court found that trial counsel had in fact challenged the amount of crack attributable to Eubanks and that the Court had rejected that argument during sentencing. See Eubanks, 11 F.Supp.2d at 464. Petitioner did not raise any Apprendi-based challenges to his sentence in his initial § 2255 motion. As such, petitioner's Rule 60(b) motion can only be construed as an attack on the underlying conviction and sentence rather than the integrity of his original habeas proceeding. Courts, however, will only entertain a motion under Rule 60(b) if it relates to the integrity of the federal habeas proceeding, not the integrity of the criminal trial or sentencing. Compare Rodriguez, 252 F.3d at 199 (deciding a Rule 60(b) motion on its merits where petitioner alleged that his attorney made fraudulent representations to the habeas court) and Harris, 367 F.3d at 77 (deciding a Rule 60(b) motion on its merits where petitioner alleged ineffective counsel at the habeas proceeding) with Rodriguez v. United States, Nos. S2 90 Cr. 890, 97 Civ. 2545, 2005 WL 887142, at *6 (S.D.N.Y. Apr. 15, 2005) (Leisure, J.) (denying a Rule 60(b) motion that only attacked the underlying conviction) and Grullon v. United States, No. 99 Civ. 1877, 2004 WL 1900340, at *4 (S.D.N.Y. Aug. 24, 2004) (Keenan, J.) (refusing to review arguments made under Rule 60(b) that challenged the underlying conviction and sentence). As a result, petitioner's Rule 60(b)(5) claim based on Thomas and Guevara is denied.

  Even if petitioner had challenged his sentence in his initial § 2255 motion, he still could not avail himself of Rule 60(b)(5) under these circumstances. Rule 60(b)(5) has "very little application" and is "limited to cases in which the present judgment is based on the prior judgment in the sense of claim or issue preclusion." 11 Charles Alan Wright et al., Federal Practice and Procedure § 2863 (2d ed. 1995). While there is a dearth of relevant case law on this issue in the Second Circuit, other circuit courts have held that Rule 60(b)(5) does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another unrelated proceeding. See Bailey v. Ryan Stevedoring, Inc., 894 F.2d 157, 160 (5th Cir. 1990) (noting that Rule 60(b)(5) does not contemplate relief based merely upon precedential evolution); Tomlin v. McDaniel, 865 F.2d 209, 211 (9th Cir. 1989) (same); Harris v. Martin, 834 F.2d 361, 364-65 (3d Cir. 1987) (same); see also Moses v. United States, Nos. 90 Cr. 863, 97 Civ. 2833, 2005 WL 292976, at *3 (S.D.N.Y. Feb. 8, 2005) (citing Lubben v. Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 650 (1st Cir. 1972)).

  Furthermore, Rule 60(b)(5) motions must be made within a reasonable time. Fed.R.Civ.P. 60(b). In considering whether petitioner's Rule 60(b) motion was filed within a reasonable time, the Court "must scrutinize the particular circumstances of the case, and balance the interest in finality with the reasons for delay." Moses v. United States, Nos. 90 Cr. 863, 97 Civ. 2833, 2002 WL 31011864, at *2 (S.D.N.Y. Sept. 9, 2002). Petitioner's motion was filed more than four years after the denial of his original habeas petition on August 11, 1998, and approximately twenty-seven months after the Supreme Court handed down its decision in Apprendi on June 26, 2000. Such a delay, without excuse, will ordinarily result in the denial of a Rule 60(b) motion. Id.; see Warren v. Garvin, No. 97 Civ. 494117, 1999 WL 494117, at *6-7 (S.D.N.Y. July 13, 1999) (holding that a delay of twenty months is not reasonable under Rule 60(b)); Ford v. United States, Nos. 4:95 Cr. 016-A, 4:97 Civ. 1047, 2002 WL 83743, at *2 (N.D. Tex. Jan. 14, 2002) (holding that a Rule 60(b) motion was time-barred where defendant waited more than sixteen months after Apprendi before filing motion); Crosslin v. United States, Nos. 4:96 Cr. 0131-R, 4:99 Civ. 0447-R, 2001 WL 863616, at *2 (N.D. Tex. July 13, 2001) (finding Rule 60(b) motion time-barred because defendant waited ten months after Apprendi decision). Admittedly, the Second Circuit decided both Thomas and Guevara approximately nine months before petitioner filed the instant motion. However, this Court has already stated that the timeliness of a Rule 60(b) motion based on Thomas and Guevara shall be measured from the date that Apprendi was decided. See Moses, 2002 WL 31011864, at *3 n. 2. Because petitioner waited more than two years from the date of the Supreme Court's decision in Apprendi, his Rule 60(b)(5) claim was not made within a "reasonable time," and as such, may not be considered.

  Petitioner claims in the alternative that he is entitled to relief under Rule 60(b)(6), which allows the Court to "relieve a party or a party's legal representative from a final judgment, order, or proceeding for" any reason "justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6). Rule 60(b)(6) "confers broad discretion on the trial court to grant relief when appropriate to accomplish justice and it constitutes a grand reservoir of equitable power to do justice in a particular case." Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004). However, the Second Circuit has interpreted Rule 60(b)(6) as justifying relief only in cases presenting "extraordinary circumstances" or when necessary to cure "an extreme and undue hardship." Id. For the reasons discussed above, petitioner's Rule 60(b)(6) motion also fails because it attacks the underlying conviction rather than the subsequent habeas proceeding and because it was not filed within a "reasonable time." See supra Part I.A. However, in the interest of completeness, the Court will address two additional grounds that preclude petitioner from relief under Rule 60(b)(6).

  First, petitioner's Rule 60(b)(6) claim is barred because he simultaneously seeks relief under Rule 60(b)(5). Courts have repeatedly interpreted the language of Rule 60(b)(6), specifically the phrase "other reason" to mean "reasons other than those covered by subsections (1) through (5)." See Grullon, 2004 WL 1900340, at *5; Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986) (stating that Rule 60(b)(6) may only be used when no other subsection is available). While petitioner's claim based on Thomas and Guevara may not be successful under Rule 60(b)(5), it nevertheless is clearly governed by that subsection. As such, petitioner is barred from raising the same claim under Rule 60(b)(6).

  Even if petitioner were permitted to bring a claim under Rule 60(b)(6), he still could not establish the "extraordinary circumstances" needed to justify relief. A change in decisional law generally does not constitute an "extraordinary circumstance" for the purposes of Rule 60(b)(6). Pichardo, 374 F.3d at 55. Whether petitioner couches his Rule 60(b)(6) motion in terms of Apprendi, Thomas or Guevara, his claim is nevertheless based on a change in decisional law, which the Second Circuit has repeatedly stated does not rise to the level of an "extraordinary circumstance." See id. at 56; Harris, 367 F.3d at 81. Thus, petitioner's Rule 60(b)(6) motion based on Thomas and Guevara is also denied.

  B. Claim Based on Wiggins v. Smith

  In his First Motion to Amend, petitioner requests reconsideration of this Court's denial of his ineffective assistance of counsel claims. Specifically, petitioner argues that in light of the Supreme Court's recent decision in Wiggins v. Smith, 539 U.S. 510 (2003), this Court incorrectly applied the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), to his original § 2255 motion.

  In his initial § 2255 motion, petitioner claimed that his trial counsel failed (1) to move to suppress evidence of his prior convictions; (2) to investigate several potential witnesses; (3) to present evidence at trial that would have supported the defense's theory of multiple conspiracies; and (4) to effectively cross-examine several witnesses. Eubanks also argued that his counsel at sentencing and on appeal: (1) allowed Eubanks to be sentenced based on an erroneous amount of crack; (2) allowed Eubanks to be inaccurately identified in the Pre-Sentence Report as a leader of the drug conspiracy; and (3) failed to raise the claim that Eubanks' trial counsel was ineffective due to a conflict of interest. The Court rejected each of these arguments in its Opinion and Order dated August 11, 1998. See Eubanks, 11 F. Supp. 2d at 462. In his Rule 60(b) motion, petitioner does not revise any of his original claims but only argues that this Court applied the incorrect legal standard in rejecting his contention that his counsel had been constitutionally ineffective.

  This Court applied the standard set forth in Strickland in its analysis of petitioner's original § 2255 motion. In Strickland, the Supreme Court stated that in order to show ineffective assistance of counsel, the defendant must prove that (1) counsel's performance was deficient, and (2) counsel's deficient performance actually prejudiced the defense. 466 U.S. at 687. To satisfy the first prong of this test, a defendant must prove that counsel made errors so serious as to effectively deprive the defendant of his right to counsel as guaranteed by the Sixth Amendment. Id. Defendant is therefore required to show that counsel's performance fell below "an objective standard of reasonableness under prevailing professional norms." Id. at 688. In resolving this issue, a court "must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. "Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690. Even if petitioner is able to show that counsel's performance was deficient, he still must prove that counsel's errors actually prejudiced his case. To prove actual prejudice, a defendant "must show that there is a reasonable probability, that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

  The Supreme Court applied this "clearly established" standard in Wiggins, vacating a defendant's death sentence where trial counsel failed to utilize "reasonable professional judgment" in deciding not to investigate the defendant's troubled background for mitigating evidence that could have been presented during the sentencing phase of the trial. Wiggins, 539 U.S. at 523. The Supreme Court emphasized that Strickland does not require counsel to "investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant." Id. at 533. The Supreme Court thus restricted its holding to those situations where counsel makes a strategic choice after less than complete investigations and the decision to cease investigations cannot be supported by reasonable professional judgment. Id.

  Petitioner's only ineffective assistance claim that relates to Wiggins is based on counsel's alleged failure to investigate the possibility of petitioner's sister and a co-defendant named Lester Sykes testifying at trial. This Court, however, has rejected that claim on several previous occasions. See Eubanks, 11 F.Supp. 2d at 464 (holding that counsel's decision to refrain from calling co-defendant Sykes was reasonable); United States v. Eubanks, No. S7 92 Cr. 392, 1999 WL 1261256, at *6 n. 5 (S.D.N.Y. Dec. 27, 1999). In each case, the Court noted that petitioner has yet to produce any evidence to support his claim that counsel unreasonably failed to investigate witnesses. Here, petitioner again fails to identify any facts that support this claim. Furthermore, petitioner offers no evidence to suggest that, even if trial counsel was deficient in failing to investigate possible witnesses, the outcome of the trial would have been different. In fact, this Court has previously stated that petitioner's conviction rested upon an abundance of evidence, including (1) the testimony of Cynthia Sales, who worked directly for Eubanks packaging and delivering crack; (2) incriminating drug records seized from the homes of other members of the conspiracy that contain Eubanks' nickname; (3) the testimony of undercover agent Delano Reid; (4) videotapes of Eubanks receiving drug proceeds, a firearm, and ammunition from co-conspirators; and (5) audiotapes in which other members of the conspiracy directly implicate Eubanks. See Eubanks 11 F.Supp. 2d at 461 n. 7. In light of the considerable amount of evidence against petitioner, it cannot be said that there is a "reasonable probability" that Eubanks would have been acquitted had counsel conducted further investigations. As such, petitioner's Rule 60(b)(6) motion based on the Supreme Court's ruling in Wiggins is denied.

  C. Claims Based on the Amended § 2255 Issues and Banks v. Dretke

  Petitioner's final Rule 60(b) claim stems from the Government's alleged failure to disclose the disciplinary history and post-trial misconduct of Peter Thron, a police officer who testified at petitioner's trial and was later convicted of grand larceny and falsification of records. Petitioner first raised this claim on November 25, 1996, when he moved for a new trial pursuant to Federal Rule of Criminal Procedure 33. In light of the pendency of his Rule 33 motion, which the Court later denied, petitioner requested an extension of time to file his first § 2255 petition. This Court found that petitioner's application for an extension was premature, but placed petitioner on notice that he would risk dismissal of his § 2255 motion if he failed to file timely. See United States v. Eubanks, No. S7 92 Cr. 392, 1997 WL 115647, at *1 (S.D.N.Y. Mar. 14, 1997). Apparently concerned that his § 2255 motion would be considered untimely, petitioner filed his habeas motion without including claims based on Officer Thron's misconduct. On August 19, 1997, petitioner filed a motion to amend his § 2255 petition to include claims relating to the Government's alleged failure to disclose information regarding Thron's disciplinary infractions, see Eubanks, 11 F.Supp. 2d at 459 n. 2, and on August 11, 1998, this Court simultaneously granted petitioner's motion to amend and denied his § 2255 petition. Id. at 466.

  Petitioner advances two additional Rule 60(b) arguments in his Second Motion to Amend. First, petitioner claims that this Court failed to properly consider two issues arising out of Officer Thron's misconduct that petitioner raised in his amended § 2255 motion. Second, petitioner argues that, in light of the Supreme Court's recent decision in Banks v. Dretke, 540 U.S. 668 (2004), this Court applied an incorrect legal standard in denying his claims relating to Thron's misconduct.

  Petitioner initially argues that the Court failed to give a ruling on claims that he included in his amended § 2255 motion. While petitioner does not explicitly state which subsection of Rule 60 that he believes this claim implicates, the only arguably applicable language is that of Rule 60(b)(6). Rule 60(b)(6) allows the district court to relieve a party from a final judgment for any "reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6). As noted above, relief under Rule 60(b)(6) is only appropriate in cases presenting "extraordinary circumstances." See supra Part I.A; First Fidelity Bank, N.A. v. Gov't of Antigua & Barbuda, 877 F.2d 189, 196 (2d Cir. 1989).

  Petitioner is correct that the Court did not specifically address these two claims in its denial of his initial § 2255 motion. However, the Court was cognizant of the claims as evidenced by its granting petitioner's motion to amend to add the claims. See Eubanks, 11 F. Supp. 2d at 459 n. 2. Furthermore, this Court had already considered and disposed of these exact claims in its denial of petitioner's Rule 33 motion, which was issued before petitioner amended his § 2255 motion. See Eubanks, 1997 WL 401667, at *5. Moreover, in ruling upon petitioner's motion for reconsideration of the denial of his § 2255 petition, this Court stated "it is evident that these claims have no substantive merit." See Eubanks, 1999 WL 1261256, at *6 n. 7. Because these claims have been before the Court on three separate occasions and expressly disposed of in the Court's denial of petitioner's motion for a new trial, petitioner cannot now claim that the Court never ruled on them. Even if the Court did not discuss the claims relating to Officer Thron's misconduct in its denial of petitioner's § 2255 motion, in light of the breadth of the Court's consideration of these issues in other opinions, it does not amount to the "extraordinary circumstances" needed to vacate a judgment under Rule 60(b)(6). As such, petitioner's Rule 60(b)(6) motion based on his claim that the Court failed to consider arguments arising out of Officer Thron's misconduct is denied.

  Petitioner argues in the alternative that this Court applied an incorrect legal standard when it determined that the Government's alleged failure to disclose documents relating to Officer Thron did not amount to a violation of petitioner's rights under Brady v. Maryland, 373 U.S. 83 (1963). At its base, petitioner is again attempting to avail himself of a supposed change in decisional law, which as previously discussed, does not amount to the "extraordinary circumstances" needed to vacate a judgment under Rule 60(b)(6). Moreover, the Supreme Court's decision in Banks v. Dretke did not change the law that this Court applied to petitioner's claims. This Court applied the standard set forth in Brady in its analysis of petitioner's claims relating to Thron. In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment." 373 U.S. at 87. Thus, the three essential elements of a Brady prosecutorial misconduct claim are (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the State must have suppressed that evidence, either willfully or inadvertently; and (3) prejudice must have ensued. Banks, 540 U.S. at 691. In Banks, the Supreme Court applied this three-part Brady test in deciding whether the State violated a prisoner's rights when it failed to disclose that witnesses had been coached before testifying and had been paid to cooperate. Id. This Court applied the very same test to petitioner's claims when it determined that there could not have been a Brady violation in regard to Officer Thron's post-trial misconduct because he was not indicted until after petitioner was sentenced. See Eubanks, 1997 WL 401667, at *5. Similarly, the Court found that the Government had no knowledge of Officer Thron's pre-trial disciplinary infractions, and even if it had, the substance of the disciplinary charges did not qualify as Brady material. Id.

  While the Court has already found that the Government satisfied its Brady obligations, for the sake of completeness, the Court will again address petitioner's claims. Petitioner argues that the Government failed to notify him of an interview that it conducted with a witness named Charmaine Francis, in which she was asked if Thron had robbed her. Petitioner, in essence, claims that the fact that the Government even asked this question put Thron's credibility in doubt and, as such, the interview report should have been disclosed. This Court, however, has already considered the circumstances surrounding the interview of Francis, noting that Francis "unambiguously stated" that Officer Thron did not rob her, and finding petitioner's "transparent attempt to concoct out of this episode an incident of misconduct by Thron [to be] unpersuasive." Id. at *7 n. 5. In light of the "entirely unsubstantiated" charge that Officer Thron was involved in the robbery of Francis, id., it cannot be said that the credibility of Officer Thron was impeached during the Government's interview of Francis. Thus, the Government's alleged failure to disclose the interview report does not rise to the level of a Brady violation. For these reasons, as well as those cited in previous opinions, petitioner's Rule 60(b)(6) claim based on Officer Thron's misconduct and Banks is denied.

  II. Petitioner's 18 U.S.C. § 3582(c)(2) Claim

  Petitioner also brings a motion under 18 U.S.C. § 3582(c)(2), urging the Court to reduce his sentence pursuant to Amendment 591 of the Federal Sentencing Guidelines (the "Guidelines") on the grounds that the Court utilized an incorrect base level offense in calculating his sentence. For the reasons stated below, the petition is denied.

  § 3582(c)(2) allows a court to modify a sentence based on an amendment to the Guidelines "if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). Prior to Amendment 591, a court could consider relevant conduct when selecting the applicable offense guideline section. See United States v. Rivera, 293 F.3d 584, 585 (2d Cir. 2002). Amendment 591, which became effective November 1, 2000, requires that the initial selection of the offense guideline be based only on the statute of conviction rather than on judicial findings of actual conduct that will never be made by the jury. Id. Petitioner argues that in light of Amendment 591, the selection of base level 42 (under offense guideline § 2D1.1) is impermissible because it was made on the basis of the Court's drug quantity finding rather than on the basis of the underlying criminal conviction. This claim, however, "confuses two distinct steps taken to arrive at a guidelines sentence: (1) selection of the applicable offense guideline, and (2) selection of the base offense level within that applicable offense guideline." Id. at 586. The purpose of Amendment 591 is to "emphasize that the sentencing court must apply the offense guideline listed in the Statutory Index for the statute of conviction." See United States Sentencing Commission, Guidelines Manual, App. C, amdt. 591 (Nov. 2004). Amendment 591 is therefore only pertinent in considering the Court's determination of the applicable sentencing guideline, not the base offense level that the Court selected once the proper guideline has been chosen. Here, it is indisputable that USSG § 2D1.1 is the applicable offense guideline for a violation of 21 U.S.C. § 846.*fn2 See USSG App. A at 528. Since the Court applied the correct offense guideline in determining petitioner's sentence, his § 3582(c)(2) motion based on Amendment 591 is without merit and is therefore denied.

  III. Conclusion

  For the reasons stated above, petitioner John Eubanks' motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) as well as his motion to modify sentence pursuant to 18 U.S.C. § 3582 are hereby DENIED.

  SO ORDERED.


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