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United States of America v. Darryl Board

December 22, 2010

UNITED STATES OF AMERICA,
v.
DARRYL BOARD DEFENDENT.



The opinion of the court was delivered by: Denis R. Hurley, U.S.D.J.

MEMORANDUM AND ORDER

BACKGROUND

I. Trial

Defendant's trial, and that of his co-defendants, lasted from April 27, 1993 to July 21, 1993. At its conclusion, defendant was convicted of the following offenses: conspiracy to commit armed robberies in violation of 18 U.S.C. § 371 (Count 1); one count of armed robbery in violation of 18 U.S.C. § 2114 (Count 2 - Brevoort Postal Station); two counts of armed robbery in violation of 18 U.S.C. § 2113 (Count 20 - Bowery Savings Bank, and Count 28 - Anchor Savings Bank); three counts of using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c), viz.: Count 3 - Brevoort Postal Station, Count 21 - Bowery Savings Bank, and Count 29 - Anchor Savings Bank; and one count of possession of proceeds from an armed robbery in violation of 18 U.S.C. § 2113 (Count 30 - Anchor Savings Bank).

II. Sentence

Sentence was imposed on April 28, 1994. As to Count 1, the conspiracy count, defendant was sentenced to a 60 month term of incarceration. As to Counts 2, 20, 28, and 30, the substantive robbery counts, he was sentenced to 140 months to be served concurrently with each other, and with the sentence under Count 1. As to Count 3, the first of the three § 924(c) counts, defendant was sentenced to a 5 year prison term, which was directed to run consecutively. Under Count 21 and 29, the two remaining § 924(c) counts, he was sentenced to 20 years for each count, to run consecutively to each other and to the sentences imposed on the other counts. In total, defendant was sentenced to 56 years and 8 months in prison.*fn2 On April 30, 1996, the Second Circuit Court of Appeals affirmed defendant's conviction and sentence. See United States v. Williams, 101 F.3d 683 (2d Cir. 1996), cert. denied, 519 U.S. 900 (1996).

III. Defendant's Prior Applications Targeting His 1993 Convictions and 1994 Sentence

A. Applications Made Pursuant to 28 U.S.C. § 2255

Defendant has made several unsuccessful post-sentence collateral attacks on his conviction and/or sentence pursuant to 28 U.S.C. § 2255. See, e.g., Board v. United States, No. 96-CV-3840 (E.D.N.Y., dismissed by Order dated Sept. 20, 1999)(application for leave to file a successive petition denied by Second Circuit by Order dated February 15, 2006, see Mandate, Docket Entry No. 87) and Board v. United States, 01-CV-2974 (E.D.N.Y., dismissed by Order dated Sept. 9, 2003) (application for leave to file a successive petition denied by Second Circuit by Order dated Nov. 4, 2003 see Mandate, Docket Entry No. 35).

B. Application Made Pursuant to 18 U.S.C. 3582(c)(2)

In the Spring of 2001, defendant filed a motion seeking a sentence modification based on the retroactive application of Sentencing Guideline Amendments 598, 599 and 600. By Memorandum and Order dated September 9, 2003, the requested relief was denied in that (a) Amendments 598 and 600 could not be applied retroactively, and (b) defendant's sentence did not run afoul of Amendment 599 given that the four-level weapon enhancement that he received pursuant to Guideline § 2B3.1(b)(2)(B) pertaining to the Mount Vernon robbery was imposed under Count 1, the conspiracy count, i.e. was not related to a substantive robbery count of conviction.

IV. Defendant's Present Application Defendant's present application falls far short of being a model of clarity. I have reviewed his submissions, including a letter dated March 26, 2007, filed on April 16, 2007; a motion dated April 1, 2007, also filed on April 16, 2007; an undated "reply to Government's Response" filed August 24, 2007; a letter dated September 5, 2007, filed September 7, 2007; and his letter dated February 25, 2008.*fn3 As best I can determine based on that review, defendant seemingly seeks, pursuant to "18 U.S.C. § 3582(c)(2)," to be "resentenced" based on the retroactive application of Sentencing Guideline "Amendment 599" (Def.'s Feb. 25, 2008 Letter at 1), to correct the following purported sentencing errors:

a) the forty-five years he received based on his three ยง 924(c) convictions which, he proffers, "exceed the maximum sentence authorize[d] for ...


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