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United States v. Wint

September 15, 2008

UNITED STATES OF AMERICA,
v.
WAYNE WINT, DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Defendant Wayne Wint was convicted upon his guilty plea of conspiracy to possess with intent to distribute and distribution of cocaine and cocaine base in violation of 21 U.S.C. § 846. The quantity of cocaine base involved was 50 or more grams and Wint had a prior state felony narcotics conviction.*fn1 At sentencing on August 20, 2001, the Court imposed the statutory mandatory minimum term of imprisonment of 20 years (240 months) pursuant to 21 U.S.C. §§ 846 and 841 (b)(1)(A). See Judgment of Conviction, dkt. # 489. The statutory minimum sentence far exceeded Defendant's presumptive sentencing range under the United States Sentencing Guidelines ("U.S.S.G."). Id.*fn2

Thereafter, Wint filed a motion pursuant to 28 U.S.C. § 2255 asserting, inter alia, that his trial counsel was constitutionally ineffective for failing to file a timely notice of appeal from his conviction. See 225 Motion, dkt. # 508. After holding a hearing, the Court granted Wint's § 2255 motion and re-sentenced him to the same sentenced as was imposed on August 20, 2001. See 7/28/04 Minute Entry, dkt. # 589; Amended Judgment of Conviction, dkt. # 591.

Wint then appealed his conviction and sentence to the United States Court of Appeals for the Second Circuit. Notice of Appeal, dkt. # 590. On July 25, 2005, the Second Circuit affirmed the conviction and sentence. See 2nd Cir. Summary Order, dkt. # 665. On November 27, 2008, Wint filed a § 2255 motion seeking to vacate his sentence imposed pursuant to the Amended Judgment of Conviction. See § 2255 motion, dkt. # 680. This Court denied the motion on February 8, 2007. See Decision & Ord., dkt. # 688.

On May 5, 2008, Wint filed a motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10, in light of Amendment 706 to the United States Sentencing Guidelines which reduced the base offense level for most cocaine base (crack cocaine) offenses. See Def. § 3582(c)(2) Motion, dkt. # 743. He also filed a "supplemental motion" arguing that, once the Court reconsiders his sentence under § 3582(c)(2), it should reduce his sentence even further based upon post-sentencing family circumstances, post-sentencing rehabilitation, and a disparity in his sentence compared to defendants sentenced after United States v. Booker, 125 S.Ct. 738 (2005), United States v. Crosby, 397 F. 3d 103, 113 (2d Cir. 2005), and Kimbrough v. United States, 128 S.Ct. 558 (2007). See Suppl. Motion, dkt. # 744.

On June 16, 2008, Wint filed a motion pursuant to 28 U.S.C. § 2244 "and/or" Fed. R. Civ. P. 60(b) asserting, as yet another "supplement" to his § 3582(c)(2) Motion, that, for various reasons, the Court "must . . . dismiss the defendant's conviction and indictment . . . ." See Def. § 2244/ Rule 60(b) Motion, dkt. # 748.

On June 27, 2008, Wint filed a "Motion for Enforcement and Further Relief" seeking (1) to be produced in court on the return date of his pending motions; (2) the appointment of a private investigator to interview Grand Jurors; and (3) a stay of proceedings or an enlargement of time in which to reply to the Government's opposition to his motion. See Motion for Enforcement and Further Relief, dkt. # 749. On July 7, 2008, the Court issued an Endorsed Order denying the application to be produced in court and a stay or to extend his time to reply. See Endorsed Order, dkt. # 750. The Court took under advisement his application for a private investigator. Id.

On August 21 and August 25, 2008, Wint filed separate motions to strike the Government's opposition to his pending motions. See dkt. #s 766, 763. On August 25, 2008, Wint filed a "Motion for Summary Judgment" relative to his Rule 60(b) motion. See dkt. # 764. He also filed a reply to the Government's opposition to his Rule 60(b) motion. Dkt. # 765.

II. DISCUSSION

a. Defendant's Motions to Strike Documents - dkt. # s 763 & 766

Defendant's motions to strike the Government's memoranda of law relative to his pending motions, dkt. # s 763 & 766, are DENIED. Defendant clearly received the challenged documents. He offers no meritorious reason why the documents should be stricken.

b. Defendant's § 3582(c)(2) Motion - dkt. # 743

The Court next turns to Defendant's motion for a reduction of his sentence pursuant to 18 U.S.C. ยง ...


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