The opinion of the court was delivered by: Sifton, Senior Judge
MEMORANDUM OPINION AND ORDER
Petitioner Antone Porter was convicted on November 3, 2004 before the undersigned of conspiring to distribute and possess with intent to distribute marijuana and cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1). On April 13, 2006, petitioner was sentenced to 94 months in custody, to be followed by a three year period of supervised release. That sentence was affirmed by the Second Circuit on December 14, 2007.
On July 18, 2008, petitioner moved pursuant to 18 U.S.C. § 3582*fn1 to have his sentence reduced pursuant to the United States Sentencing Commission's November 1, 2007 and May 1, 2008 amendments to Guideline § 2D1.1*fn2. On December 23, 2008, petitioner supplemented his motion to add a claim that his PreSentence Report ("PSR") erroneously calculated his criminal history. On February 23, 2009, I denied petitioners request on both grounds.
Petitioner now moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, raising the following claims: (1) that defense counsel rendered ineffective assistance at sentencing by failing to object to certain errors in the PSR's sentencing calculations; and (2) that the sentencing errors themselves constitute independent grounds for relief under 28 U.S.C. § 2255. For the reasons set forth below, petitioner's § 2255 application is granted with respect to the first ground, and denied as to the second ground.
Familiarity with the factual background of this matter is presumed based on the record of proceedings before the undersigned. For a more complete description of the facts of this case, see U.S. v. Porter, No. 03-CR-00910 (CPS), 2009 WL 455475 (E.D.N.Y. Feb. 23, 2009).
Defendant was arrested on August 13, 2003 and indicted on August 7, 2004 on one count of drug conspiracy. The original indictment was superceded by an October 15, 2004 indictment, which named the defendant on an identical count, and on November 3, 2004, defendant was convicted of one count of conspiracy to distribute and to possess with intent to distribute cocaine base and marijuana in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(iii) and (b)(1)(D) (iii). The jury found that the drug quantity involved as to defendant was more than 0.25 grams of cocaine base.
On June 30, 2005, I sentenced defendant to the mandatory minimum sentence of ten years (120 months) with 5 years supervised release. Considering the trial evidence as well as evidence from the plea-allocutions of defendant's co-defendants, I found, by a preponderance of the evidence, that the amount of cocaine base involved in the conspiracy was more than 50 grams. I calculated that defendant's base offense level was 32 due to his participation in a conspiracy involving more than 50 grams of cocaine base, which was reduced to 28 in light of defendant's minimal level of participation, pursuant to United States Sentencing Guideline ("U.S .S.G.") § 3B1.2. Given defendant's criminal offense history level of VI, the resulting Guidelines sentencing range for the narcotics offense was 140 to 175 months imprisonment. I chose to impose a non-Guideline sentence because I found that the recommended Sentencing Guidelines range substantially overstated the seriousness of cocaine base offenses, when compared with offenses involving comparable quantities of powder cocaine. Applying a 10- or 20-to-1 ratio of cocaine base to powder cocaine rather than a 100-to-1 ratio, I determined that defendant's base offense level was 24 after the U.S.S.G. § 3B1.2 reduction, resulting in a sentencing range of 100 to 125 months. After taking into consideration the § 3553(a) factors, I concluded that the mandatory minimum sentence of 120 months, followed by five years of supervised release and a special assessment of $100, was sufficient but not greater than necessary to accomplish the objectives of sentencing.
Thereafter, the Second Circuit decided United States v. Gonzales, 420 F.3d 111 (2d Cir. 2005), in which it held that a statutory mandatory minimum sentence can only apply if the drug quantity is proven to a jury beyond a reasonable doubt. The government consented to a remand for re-sentencing in light of Gonzales. On April 13, 2006, I re-sentenced defendant to a 94-month prison term, three years of supervised release, a $100 assessment fee, and no fine. In determining this sentence, I used a Sentencing Guideline level of 24 without objection from either party. I reached this level using the same Sentencing Guidelines calculations and the same downward departure from the Guidelines range to account for the adjusted ratio between crack cocaine and powdered cocaine that I used at the June 30, 2005 sentencing. In light of defendant's criminal offense history level of VI, the resulting Guidelines sentencing range for the narcotics offense was 100 to 125 months imprisonment. After considering the § 3553(a) factors, I concluded that a sentence at the bottom end of this range was sufficient. However, I noted that had I imposed this sentence at the original June 30, 2005 sentencing hearing, six months of defendant's state court sentence, which he served, would have been credited against the sentence I imposed. Therefore, I imposed a reduced sentence of 94 months, to be followed by a three-year period of supervision and a $100 special assessment fee.
On April 20, 2006, petitioner appealed his conviction and amended sentence to the Second Circuit Court of Appeals. That appeal was denied on November 19, 2007. See U.S. v. Antone Porter, No. 06-1957-CR, 2007 WL 4103679 (2d Cir. Nov. 19, 2007). The United States Supreme Court denied certiorari on March 17, 2008. Porter v. U.S., 128 S.Ct. 1690 (2008).
On November 1, 2007, Amendment 706, as further amended by Amendment 711, to U.S.S.G. § 2D1.1 took effect. Amendment 706 generally reduced by two levels the base offense levels applicable to crack offenses. On December 11, 2007, the United States Sentencing Commission (the "Sentencing Commission") voted to apply the amendments to U.S.S.G. § 2D1.1 retroactively, effective March 3, 2008. The Sentencing Commission also promulgated amendments to Policy Statement § 1B1.10, which implemented the retroactive application of amended U.S.S.G. § 2D1.1, as of March 3, 2008.
On July 18, 2008, petitioner moved pursuant to 18 U.S.C. § 3582*fn3 to have his sentence reduced pursuant to the United States Sentencing Commission's amendments to Guideline § 2D1.1. On December 23, 2008, petitioner supplemented his motion with the claim that his Pre-Sentence Report ("PSR") had erroneously incorporated a juvenile conviction and thus incorrectly calculated his criminal history. On February 23, 2009, I denied both of petitioner's claims. Regarding the Sentencing Guideline's amendments to Guideline 2D1.1, I found that the disparity between Guideline sentences for cocaine base and powder cocaine offenses had already been taken into account at defendant's April 13, 2006 sentencing, and thus a further reduction of defendant's sentence was not appropriate. Regarding the petitioner's claim that the sentencing calculation was incorrect, I construed his claim as one under Rule 35(a)*fn4 and denied it as time-barred.
Petitioner filed the instant motion on March 17, 2009.
In this petition to vacate, set aside, or correct petitioner's conviction pursuant to 28 U.S.C. § 2255,*fn5 petitioner raises two claims: 1) that he was deprived of the effective assistance of counsel at sentencing, in violation of his rights under the Sixth Amendment; and (2) that the misapplication of the sentencing guidelines itself constitutes an independent ground for relief.
Relief "is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in complete miscarriage of justice." Graziano v. U.S., 83 F.3d ...