The opinion of the court was delivered by: John F. Keenan, United States District Judge:
Before the Court is Petitioner Jose Manuel Urena's ("Urena" or "Petitioner") motion pursuant to Rule 36 of the Federal Rules of Criminal Procedure to modify his judgment, or alternately, for relief under the All Writs Act. Urena seeks correction of his status as a career offender based on recently obtained state court records which clarify that two prior arrests were in fact consolidated for sentencing. Each of these requests is denied.
Following a jury trial before the late Honorable Allen G. Schwartz, on February 22, 2000, Urena was convicted of conspiracy to distribute cocaine, cocaine base, and heroin in violation of 21 U.S.C. § 846. After several adjournments, in part granted to clarify the very issue now raised, Judge Schwartz sentenced Urena on February 14, 2001.*fn1
The Probation Department prepared a Pre-Sentence Report ("PSR") dated May 16, 2000, with an addendum dated October 5, 2000, using the May 2000 version of the United States Sentencing Commission Guidelines Manual ("U.S.S.G."). The PSR reported that Urena had three prior narcotics-related convictions.*fn2
First, Urena was arrested on July 2, 1996 after police observed him exchange small white glassine envelopes of heroin for money on school grounds. (PSR ¶¶ 195-97). On June 10, 1997, Urena was convicted of criminal sale of a controlled substance in the third degree; he received a youthful offender adjudication in New York County Supreme Court and was sentenced to one year in prison. (Id.). Second, the PSR advised that Urena was arrested on August 15, 1996 after he sold heroin to an undercover police officer. (PSR ¶¶ 198-200). On June 18, 1997, Urena was convicted of criminal sale of a controlled substance in the third degree in New York County Supreme Court and sentenced to one to three years in prison. (Id.). Finally, the PSR stated that Urena was arrested on August 19, 1996 after he sold heroin to an undercover police officer on school grounds. (PSR ¶¶ 201-02). On October 15, 1998, he was convicted of attempted criminal sale of a controlled substance in the third degree, and was sentenced to time served. (Id.). Urena was born in February of 1978, and therefore he was eighteen years old at the time of each of these offenses.
At sentencing, defense counsel argued that the August 15 and 19, 1996 cases had been consolidated, but that he had not yet obtained records from the state court to confirm this fact. Since the case had been pending for two years at that point, Judge Schwartz elected to go forward with sentencing, but stated that "if it turns out that I'm in error, you can certainly bring that matter before me. And I'm prepared to reopen a record if I operated on some basis that was not correct." (Feb. 14, 2001 Sentencing Tr. at 5).*fn3 Judge Schwartz then determined that [Urena] has two felony convictions in August of 1996. The evidence on this record indicates that the defendant was involved in two separate and unrelated criminal matters; that he was sentenced separately on these two matters; that the second sentence that he received, which occurred . . . two years and two months after the arrest, . . . was not either treated with, treated as a concurrent sentence or consolidated or in any way treated by the Court as one matter with an earlier conviction. Therefore, since they are two separate matters, two unrelated arrests, and what appears to be two separate sentences, each of those felonies is now of record. The fact that the defendant has two felony convictions places him in the category of a career offender. (Id. at 36-37).
As reported in the PSR, the base offense level for a violation of 21 U.S.C. § 846 is thirty-two. (PSR ¶ 178). The Probation Department recommended, and Judge Schwartz applied, a three level aggravating role enhancement pursuant to U.S.S.G. § 3B1.1(b) since Urena played a managerial role in an offense involving more than five participants. (PSR ¶ 181; Feb. 14, 2001 Sentencing Tr. at 34). Probation also recommended, and Judge Schwartz applied, a two-level career offender enhancement pursuant to U.S.S.G. § 4B1.1 on the basis of the August 15, 1996 criminal sale of a controlled substance and the August 19, 1996 attempted criminal sale of a controlled substance. (PSR ¶ 186; Feb. 14, 2001 Sentencing Tr. at 36-37). Judge Schwartz explicitly relied on the two August 1996 cases in determining that Urena was a career offender, noting that "I count . . . five convictions, at least two of which are clear felonies, and maybe [a] third is also a felony. But, in any event, I'm not making any determination on youthful offender status." (Feb. 14, 2001 Sentencing Tr. at 41).
The PSR assessed nine criminal history points for Urena's five prior convictions, then added two points because Urena was on parole at the time of the instant offense, and one additional point because the offense was committed less than two years after his release from custody for the June 18, 1997 criminal sale of a controlled substance conviction. (PSR ¶¶ 203-05). Twelve criminal history points resulted in a criminal history category of V; Urena received an automatic enhancement to criminal history category VI because Judge Schwartz determined that he was a career offender. Based on a total offense level of 37, and a criminal history category of VI, the Sentencing Guidelines dictated a sentence between 360 months and life in prison. Urena also faced a mandatory minimum sentence of 240 months. 21 U.S.C. § 846(b)(1)(A). However, taking into consideration Urena's youth, the fact that he had two young children, the fact that he participated in small quantity heroin transactions, and the fact that a co-defendant received a sentence substantially below Urena's Guidelines range, Judge Schwartz determined that a category of VI overstated the seriousness of Urena's criminal history. (Feb. 14, 2001 Sentencing Tr. at 44-45). Therefore, Judge Schwartz granted Urena a downward departure, effectively deducting the career offender enhancements, and finding that the appropriate total offense level was 35 with a criminal history category of V. (Feb. 16, 2001 Judgment at 7). Judge Schwartz specifically noted that, independent of any career offender status, Urena had "been repeatedly involved in criminal activity involving narcotics, and I think he's not, therefore, entitled to the minimum under the Guidelines, but to some greater sentence." (Feb. 14, 2001 Sentencing Tr. at 47). Urena was sentenced to 270 months in prison and ten years of supervised release.*fn4 (Feb. 14, 2001 Sentencing Tr. at 47). The Court of Appeals for the Second Circuit affirmed the conviction and sentence, United States v. Arroyo, 31 F. App'x 9 (2d Cir. 2002), and the United States Supreme Court denied Urena's petition for a writ of certiorari on June 28, 2002. Urena v. United States, 536 U.S. 969 (2002). Urena's July 14, 2003 petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 was denied as untimely. Urena v. United States, No. 03 Civ. 6722, 2005 WL 1653888, at *3 (S.D.N.Y. July 13, 2005).
Sometime after sentencing in this matter, Urena received the transcript of his October 15, 1998 sentencing in New York Supreme Court. Although the minutes are not as explicit as one might hope, Judge Edward McLaughlin stated:
I should have had two of your cases in June of '97. I only had one of them. So you, me, the lawyer, the DA in the courtroom, we're now going to go back to June of '97. We all get to stay here but we're going to go mentally back. When I take the plea [for the attempted criminal sale of a controlled substance on August 19, 1996], when I impose the one to three, then we'll come forward again and you will have served one to three without having to do a day in jail. (Oct. 15, 1998 Sentencing Tr. at 2). Urena subsequently filed a motion in New York State Supreme Court dated June 21, 2004 seeking clarification of the October 15, 1998 sentencing proceedings. In response to that motion, New York County Assistant District Attorney Craig Ascher filed an affirmation dated August 24, 2004 which explained that: (1) Urena's August 19, 1996 arrest related to events that occurred on that day; (2) although Urena was involved in a heroin sale on August 15, 1996, he was not arrested for that conduct until December 4, 1996; and (3) it appeared that these two cases were in fact consolidated nunc pro tunc. (Ascher Aff. at ¶¶ 7-8). As far as the Court can discern, Urena received a copy of this affirmation in 2004, but waited almost six years to file the instant motion.
Under the applicable version of the Sentencing Guidelines, sentences imposed in related cases are treated as one sentence in calculating a defendant's criminal history. U.S.S.G. § 4A1.2(a)(2). "Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). Otherwise, prior sentences are considered related if they resulted from offenses that . . . were consolidated for trial or sentencing." U.S.S.G. § 4A1.2 app. n.3. Since it is now clear that Urena was arrested for the August 15, 1996 heroin sale on December 4, 1996, after he committed the August 19, 1996 offense, there is no intervening arrest between the August 15th conduct and the August 19th conduct; the PSR should have reflected the fact that these two cases were related for Guidelines purposes.
Based on this information, both parties agree that Judge Schwartz erred in his determination that what the PSR labeled as the August 15 and 19, 1996 arrests triggered the career offender enhancement. Urena now moves pursuant to Rule 36 of the Federal Rules of Criminal Procedure or the All Writs Act to correct the Guidelines calculation in his judgment as contemplated by Judge Schwartz. Although Urena characterizes the motion as seeking "limited redress," it is clear that his ultimate goal is to be resentenced. Thus, the issues to be determined are whether this ...