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Primo v. United States

February 14, 2008

GARY PRIMO, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

Gary Primo ("Primo") was convicted on November 3, 2004 after a jury trial of (1) conspiring to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 846 and 841, and (2) knowingly and intentionally distributing and possessing with intent to distribute cocaine base and marijuana in violation of 21 U.S.C. § 841. On June 30, 2005, Primo was sentenced to 41 months imprisonment on each count, to run concurrently, and to 3 years supervised release, on each count, to run concurrently. Now before the court is Primo's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the petition is denied.

BACKGROUND

The following facts are drawn from the parties' submissions in connection with this motion and the record from the underlying criminal proceedings before the undersigned.

On August 8, 2003, Primo, along with seventeen co- defendants, was indicted for conspiring to distribute and possession with intent to distribute cocaine base and marijuana, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(iii) and (b)(1)(C).

On August 13, 2003, Primo was arrested at his residence for his alleged participation in a conspiracy to distribute cocaine base and marijuana at Marcus Garvey Village, a New York City Housing Authority apartment complex in Brooklyn, NY. That same day Allen Lashley was appointed as counsel for Primo under the Criminal Justice Act. On August 14, 2003, Primo was released on $150,000 unsecured bond after agreeing to the conditions of pretrial release set by Magistrate Judge Steven M. Gold.

On August 7, 2004, the August 8, 2003 indictment was superseded by a three count indictment, which charged Primo with the same count as the original indictment. On October 15, 2004, the August 7, 2004 indictment was superseded by a seven count indictment, charging Primo with the same count from the original indictment as well as one additional count of distributing and possessing with the intent to distribute cocaine base and marijuana in violation of 21 U.S.C. §§ 841(a)(1),(b)(1)(B)(iii), and (b)(1)(D). On November 3, 2004, after a jury trial, Primo was found guilty on both counts.

In connection with Primo's sentencing, Primo's counsel provided the court with a written submission drawing attention to Primo's "favorable family history." Letter from Allen Lashley, dated March 16, 2005, p. 2. Primo's counsel also submitted letters from his wife and pastor to the court. See Letters from Maurette Primo and Pastor Ellsworth D. Chester, attached to Letter from Allen Lashley, dated April 25, 2005.

At Primo's June 30, 2005 sentencing before the undersigned, Primo's counsel argued that under 18 U.S.C. § 3553(a), the court should take into consideration Primo's status as a family man with a wife and three kids, citing to the letters submitted on Primo's behalf. Transcript of June 30, 2005 Sentencing("June 30 Tr.") at 12-13. Primo also referenced his family when addressing the Court. Id. at 13-14.

Before imposing his sentence, I considered the factors set forth by 18 U.S.C. § 3355(a), including Primo's marital status and his relationship with his children. Id. at 15. I found that 50 grams of crack were involved in the conspiracy for which Primo was convicted and I sentenced Primo to a non-guideline sentence of 41 months imprisonment on each count, to run concurrently, and to 3 years supervised release, on each count, to run concurrently. Primo's originally imposed sentence of 41 months was below the 5 year statutory minimum. See 28 U.S.C. § 841(b)(1).

Primo appealed the judgment to the United States Court of Appeals for the Second Circuit ("Second Circuit"). On September 26, 2006, the Second Circuit affirmed both the conviction and sentencing imposed by this court. United States v. McFarlane, 198 Fed.Appx. 56 (2d Cir. 2006). Primo then filed a writ of certiorati, which was denied by the United States Supreme Court in December 2006. Primo v. United States, 127 S.Ct. 747 (2006).

On August 15, 2007, Primo filed a motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255.

While the instant motion was pending, the United States Supreme Court decided Kimbrough v. United States, 128 S.Ct. 558 (2007) and the United States Sentencing Guidelines ("Sentencing Guidelines") were amended with respect to the calculation of base offense levels for cocaine base ("crack") offenses.

In Kimbrough, the Supreme Court held in pertinent part that a district court can depart from the guidelines crack-quantity ratio if the court concludes that the guidelines ratio yields a sentence "greater than necessary" to achieve the ...


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