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Gil v. United States

United States District Court, S.D. New York

August 3, 2015

FERNANDO GIL, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

OPINION & ORDER

KIMBA M. WOOD, District Judge.

In 1992, the Court sentenced Fernando Gil to life in prison after he was convicted of conspiracy to distribute cocaine. Gil now moves to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 ("§ 2255"), based on the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). Because Alleyne does not apply retroactively on collateral review, the Court DENIES Gil's motion.

I. Background

On March 25, 1992, after a six-month jury trial, Gil was convicted of conspiracy to distribute cocaine under 21 U.S.C. §§ 841 and 846. At the time, as now, the statutory sentencing range for conspiracy depended on the quantity of drugs involved: a conspiracy to distribute fewer than five kilograms of cocaine, or an indeterminate amount, carried a statutory sentencing range of zero to twenty years in prison, while a conspiracy to distribute at least five kilograms of cocaine carried an elevated statutory sentencing range of ten years to life in prison. 21 U.S.C. § 841(b)(1)(A)-(C).

The jury did not determine the quantity of cocaine that Gil conspired to distribute.[1] During sentencing, however, the Court reviewed the trial record and decided, by a preponderance of the evidence, that Gil had conspired to distribute 1, 653 kilograms of cocaine. (Sentencing Tr. at 44:23-24). Based on that finding, the Court concluded that Gil faced the elevated statutory sentencing range of ten years to life in prison, rather than the lower range of zero to twenty years that would have applied absent a determination of drug quantity. The Sentencing Guidelines, which were then mandatory, required a life sentence, which the Court imposed. ( Id. at 59:4-6). Gil's subsequent appeal was unsuccessful.

At the time of Gil's sentencing, it was permissible for the Court to sentence him to life in prison based on a judicial finding that his conspiracy involved at least five kilograms of cocaine. In 1992, the Second Circuit classified the quantity of drugs involved in a conspiracy as a "sentencing factor" that prosecutors "were not required to charge in the indictment, submit to the jury, or prove beyond a reasonable doubt." Coleman v. United States, 329 F.3d 77, 82 (2d Cir. 2003) (internal quotation marks omitted). As an alternative, courts could determine the quantity of drugs by a preponderance of the evidence.

If Gil were sentenced today, however, it would not be permissible for the Court to sentence him to life in prison unless the jury found that his conspiracy involved at least five kilograms of cocaine. That is so because of two intervening decisions by the Supreme Court: Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne. Apprendi held that the Sixth Amendment requires "any fact that increases the penalty for a crime beyond the prescribed statutory maximum, " other than a prior conviction, to "be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. In Gil's case, the quantity of cocaine was such a fact, because it elevated his sentence beyond the otherwise-applicable statutory maximum of twenty years in prison. Alleyne, in turn, extended Apprendi 's Sixth-Amendment logic and concluded that "any fact that increases the mandatory minimum" sentence must also "be submitted to the jury." 133 S.Ct. at 2155. In Gil's case, the quantity of cocaine was such a fact, because it elevated his statutory minimum sentence from zero to ten years in prison.

On February 22, 2014, Gil filed his motion under § 2255, a provision of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Gil argues that Alleyne invalidated his life sentence because (1) Alleyne announced a new rule of criminal law that applies retroactively to his case, and (2) the Court violated that rule by deciding the issue of drug quantity. ( See Habeas Mot. [ECF No. 1]).

On April 22, 2014, in response to an order to show cause why his motion should not be denied as time-barred, Gil filed a supplemental affirmation of timeliness. The affirmation argues that Gil's initial motion is timely because it satisfied the one-year limitation period set out in § 2255(f)(3) - or, alternatively, because the applicable limitation period should be equitably tolled in light of Gil's inability to understand English. (Affirmation of Timeliness [ECF No. 4]). The Government opposes Gil's § 2255 motion and affirmation of timeliness. (Gov't Opp. [ECF No. 7]).

II. Legal Standard

A. Retroactivity of a Supreme Court Decision

Gil's substantive claim is viable only if Alleyne announced a new rule of criminal law that applies retroactively. The standard for retroactive application depends on the nature of the rule at issue. A new substantive rule - one that alters the meaning of a criminal statute - presumptively applies retroactively. See Coleman, 329 F.3d at 84. But a new procedural rule - one that alters the way prosecutors must prove violations of criminal statutes - applies retroactively only if it falls within one of two narrow categories defined in Teague v. Lane, 489 U.S. 288 (1989): (1) "new rules that place an entire category of primary conduct beyond the reach of the criminal law, or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense"; and (2) "new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding." Coleman, 329 F.3d at 88 (internal quotation marks omitted).

B. Timeliness Under § 2255(f)(3)

Gil's timeliness argument under § 2255(f)(3) also depends on the retroactive application of Alleyne. To be timely, a § 2255 motion must be filed ...


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