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September 8, 2005.


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Todd Eberhard (hereinafter "Eberhard") moved, pursuant to Rules 33 and 35 of the Federal Rules of Criminal Procedure, for reconsideration and re-sentence of the 160-month term of incarceration imposed on him by this Court on June 7, 2005. For the reasons set forth below, Eberhard's motion for reconsideration and resentence is denied.

Background and Prior Proceedings

  This Court recited the relevant factual background and procedural history in a sentencing opinion, dated June 9, 2005. see United States v. Eberhard, No. 03 Cr. 562-01 (RWS), 2005 WL 1384038 (S.D.N.Y. June 9, 2005), familiarity with which is assumed.

  Eberhard, having entered a plea of guilty before this Court on September 14, 2004, was sentenced to a term of incarceration of 160 months*fn1 to be followed by three years of supervised release. A fine in the amount of $15,000 was imposed, as was restitution in an amount to be determined within 90 days of the imposition of sentence.

  On June 14, 2005, Eberhard moved pursuant to Rules 33 and 35, Fed.R.Crim.P., for reconsideration and re-sentence. The government filed its opposition to this motion on August 3, 2005, and Eberhard filed his reply brief on August 9, 2005, at which time the motion was deemed fully submitted.

  Motion to Reconsider Is Denied

  Eberhard moves for reconsideration of his sentence under Rules 33 and 35, Fed.R.Crim.P., asserting that the Court committed "clear error" by imposing a term of incarceration that exceeded the stipulated range of 97 to 121 months of imprisonment set forth in the parties' plea agreement dated September 9, 2004.

  Specifically, Eberhard argues that the Court engaged in unlawful fact-finding when it applied a four-level enhancement pursuant to U.S.S.G. § 3B1.1(a), thereby punishing Eberhard as "an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive," see U.S.S.G. § 3B1.1(a), in the absence of sufficient facts. According to Eberhard, the factual stipulations contained in the plea agreement failed to establish him as an "organizer or leader" and likewise failed to establish the fraudulent activity of which he was convicted as "otherwise extensive." As such, Eberhard concludes, the Court relied on unsubstantiated facts and erroneously imposed a four level "leadership role" enhancement.

  Eberhard's motion fails on three grounds. First, from a procedural posture, Rules 33 and 35, Fed.R.Crim.P., do not confer authority upon the Court to reconsider Eberhard's sentence under the existing circumstances. Second, as is evident from section 6B1.4(d) of the United States Sentencing Guidelines (hereinafter, the "Guidelines"), the Court is not bound by the factual stipulations offered in the plea agreement but may refer to the Presentence Investigation Report (hereinafter, the "PSR") to determine additional facts relevant to sentencing. And third, given the factual record developed in this case through the PSR, defense counsel's pre-sentencing submissions on behalf of Eberhard, and Eberhard's own statements during his plea allocution, ample grounds exist to impose the four-level "leadership role" enhancement pursuant to section 3B1.1(a) of the Guidelines.

  A. Rules 33 and 35 Fail to Confer Authority for Reconsideration

  Rule 33 provides for a motion for a new trial. See Fed.R.Crim.P. 33(a)-(b). Since Eberhard pled guilty in this case, no trial occurred; and, as he does not seek to withdraw his guilty plea at this time, his plea remains intact, rendering Rule 33 wholly inapplicable. Rule 35 allows for "correcting or reducing a sentence," see Fed.R.Crim.P. 35(a)-(c), but limits a trial court's authority to do so to only two narrow circumstances: either to correct clear error or to reduce a sentence for substantial assistance provided to the government by a defendant. In particular, Rule 35(a), formerly denominated 35(c) prior to the 2002 Amendments, see Fed.R.Crim.P. 35 Advisory Committee Notes, authorizes that "within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." Fed.R.Crim.P. 35(a).

  The Second Circuit unequivocally has established that the terms of Rule 35(a) are:
to extend only to those cases in which an obvious error or mistake has occurred in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court for further action . . . The subdivision is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence. Nor should it be used to reopen issues previously resolved at the sentencing hearing through the exercise of the court's discretion with regard to the application of the sentencing guidelines.
United States v. Abreu-Cabrera, 64 F.3d 67, 72 (2d Cir. 1995) (emphasis in original) (citations omitted) (quoting Fed.R.Crim.P. 35 Advisory Committee's Note). Eberhard filed the instant motion for reconsideration within the statutorily prescribed seven day window, but his reliance on Rule 35(a) is misplaced. As the Second Circuit makes clear in Abreu-Cabrera, Rule 35(a) does not authorize a sentencing court to reconsider either the facts or the sentencing guidelines underlying its originally imposed sentence. The only sentences that may be corrected are those that are "illegal" or that result from "an incorrect application of the guidelines." Id. Thus, lacking the requisite jurisdiction, this Court cannot reconsider the substantive, cumulative factors that resulted in the 160-month sentence imposed on Eberhard during the June 7, 2005 sentencing hearing.

  Furthermore, no "clear error" was committed such that reconsideration is warranted under Rule 35(a). While Eberhard does not contend that the Court made an arithmetical or technical error, he alternatively argues that the Court committed clear error by imposing a sentence arrived at through unlawful judicial fact-finding. However, the clear error intended to be ...

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