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United States v. Pressley

United States District Court, E.D. New York

August 23, 2017




         Defendant Eddie Pressley, appearing pro se, moves this court pursuant to Federal Rule of Criminal Procedure 36 to correct the sentencing record and pre-sentence report ("the PSR") to accurately reflect the drug quantities for which he is responsible (the "Rule 36 Motion").[1] (See Rule 36 Mot. (Dkt. 646).) He also moves for a reduction of his sentence based on a series of amendments to the Sentencing Guidelines that retroactively reduced the base offense levels applicable to certain cocaine base ("crack cocaine") offenses (the "Motions to Reduce Sentence").[2] (1st Mot. to Reduce Sent. (Dkt. 562); 2d Mot. to Reduce Sent. (Dkt. 644); 3d Mot. to Reduce Sent. (Dkt. 714); 4th Mot. to Reduce Sent. (Dkt. 731).) Defendant further requests that the court appoint counsel to assist him with his Motions to Reduce Sentence (the "Motions to Appoint Counsel"). (See Mot. to Appoint Counsel (Dkt. 704); 4th Mot. to Reduce Sent. (seeking appointment of counsel).) For the reasons set forth below, Defendant's Rule 36 Motion, Motions to Reduce Sentence, and Motions to Appoint Counsel are DENIED.

         I. BACKGROUND

         On January 31, 2005, Defendant entered a guilty plea to (1) conspiring to distribute and possess with intent to distribute crack cocaine and heroin in violation of 21 U.S.C. §§ 841, 846 (Count One of the Third Superseding Indictment (Dkt. 223)); and (2) using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count Twenty-Two). (Min. Entry (Dkt. 322).) Although Defendant elected to plead guilty, one of his co-defendants, Robert Price, proceeded to and was convicted at trial-including on Count One of the Third Superseding Indictment. (See Jury Verdict (Dkt. 334).)

         Prior to Defendant's sentencing, the U.S. Probation Department ("Probation") prepared the PSR, which calculated Defendant's sentencing exposure under the United States Sentencing Guidelines (the "Guidelines"). (See PSR (Dkt. 714-1 at ECF p.l).) Probation found that Defendant and Price were leaders of a heroin and crack cocaine distribution organization based in the Gowanus Housing Projects (the "Price/Pressley Narcotics Organization"), which was "responsible for the distribution of approximately 6 kilograms of heroin and approximately 3.5 kilograms of crack per year between 1992 and 2003." (Id. ¶¶ 5, 6.) Based on these annual distribution figures, Probation calculated that Defendant was responsible for 66 kilograms of heroin and 33 kilograms of crack cocaine during the course of the 11-year conspiracy. (Id. ¶ 12.)

         Under the Guidelines in effect at the time of Defendant's sentencing, an amount of either (1) 1.5 kilograms of crack cocaine; (2) 30 kilograms of heroin; or (3) 30, 000 kilograms of marijuana was all that was required to justify a base offense level of 38 (the highest base offense level on the Drug Quantity Table). (See U.S.S.G. § 2D1.1(c)(1) (Nov. 2004).) Probation concluded therefore that Defendant's base offense level was 38 with respect to Count One. (PSR ¶ 17.)

         Prior to sentencing, Defendant objected to the drug quantities outlined in the PSR, arguing that the computations were "largely speculative and unsupported, with respect to huge stretches of time, by cooperator testimony." (See Def. Objs. to PSR (Dkt. 356) at 2.) In response to Defendant's objections, the Government maintained that the evidence adduced at Price's trial "clearly established that the defendant and his co-conspirators were distributing well over 3.5 kilograms of crack cocaine and 6 kilograms of heroin per year during the course of the conspiracy." (See Gov't Sent'g Mem. (Dkt. 358) at 3.) It argued that, "[r]egardless of whether the Court accepts the methodology utilized by the Probation Department, or simply aggregates the amount of narcotics sold by each cooperating witness who testified at trial, [3] the result is the same-the defendant's base offense level is a level 38." (Id. at 5.)

         At Defendant's sentencing on June 9, 2005, the court determined that Defendant's base offense level was 38. The undersigned stated:

There was considerable testimony during the trial-and which I credit, certainly by a preponderance, and, in my view, beyond a reasonable doubt-that the drug quantities that were testified to were the actual quantities, at least in those quantities. There may have been others who participated in the conspiracy who didn't testify, who simply pled guilty pursuant to a plea agreement, and we don't have their testimony as to what they did. But I think that whether one chooses to use the calculation of the Probation Department or the more conservative calculation in the government's letter [responding to Defendant's objections to the PSR], ... a base offense level of 38 is accurate.

(Sent'g Hr'g. Tr. (Dkt. 417) 15:18-16:4.) The court further concluded that a 4 level enhancement was appropriate for Defendant's role as a leader of the drug-trafficking organization and that Defendant should receive a 2 point reduction for acceptance of responsibility, bringing Defendant's total offense level to 40. (Id. 16:5-15). Based on a criminal history category of I, the court calculated Defendant's Guidelines range as 292 to 396 months' imprisonment for Count One. (Id. 16:23-17:3.) The court found that a Guidelines sentence was appropriate (id. at 22:21-23:6), [4] and sentenced Defendant to 292 months' imprisonment on Count One and a mandatory consecutive term of 60 months' imprisonment on Count Twenty-Two, resulting in a total sentence of 352 months' imprisonment. (J. (Dkt. 363).) The court also imposed two 5-year concurrent terms of supervised release and a special assessment of $200. (Id.)


         A. Motion to Correct "Clerical Error"

         In his Rule 36 Motion, Defendant requests that the court correct the sentencing record and PSR to accurately reflect the drug quantities for which he claims he is responsible. (See generally Rule 36 Mot.) Defendant argues that it was constitutional error for this court to hold him responsible for certain drug quantities based on testimony adduced at Price's trial. (See id.) Specifically, Defendant asserts that it was a violation of his Sixth Amendment right to confrontation to hold him accountable for any testimony submitted against him at Price's trial. (See Id. at 8-9.) Defendant therefore requests that the court conduct an evidentiary hearing to permit him "an opportunity to dispute any drug quantit[y] amounts that were never recorded in [his] case and [were] relied upon, " and in order to "finalize with certainty the drug amounts needed to adjudicate his [motions for a sentencing reduction]." (See id. at 24.)

         As a threshold issue, a Rule 36 motion is not the proper vehicle for Defendant to challenge the constitutionality of his sentence. Rule 36 of the Federal Rules of Criminal Procedure authorizes a district judge to "correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission." Fed. R. Crim. P. 36. Importantly, the rule "covers only minor, uncontroversial errors, " and is not intended "'to allow reassessment of the merits of an earlier decision after the time for reconsideration or appeal ha[s] elapsed.'" United States v. Werber, 51 F.3d 342, 347 (2d Cir. 1995) (quoting United States v. Jones, 608 F.2d 386, 389 (9th Cir. 1979)). Since his time to appeal his sentence has long passed, [5] the proper vehicle for Defendant to claim error in his original sentencing proceeding is a 28 U.S.C. § 2255 petition. See Id. at 349 n.l7. While the court has authority to convert Defendant's Rule 36 motion to a Section 2255 petition, see id, it declines to do so here because Defendant's claim is without merit.

         The Supreme Court and the Second Circuit have "consistently held that the right of confrontation does not apply to the sentencing context and does not prohibit the consideration of hearsay testimony in sentencing proceedings." United States v. Martinez, 413 F.3d 239, 242 (2d Cir. 2005) (collecting cases). Moreover, "[i]t is not a denial of due process for the trial judge, when determining sentence, to rely on evidence given by witnesses whom the defendant could neither confront nor cross-examine.... The fact that some material, upon which the trial judge relied, may have had its source in a judicial proceeding in which appellant was not a defendant or represented by counsel does not bar its use." United States v. Carmona, 873 F.2d 569, 574 (2d Cir. 1989). Considering facts similar to those presented here, the Second Circuit rejected an appellant's argument that the district court erred in imposing a sentence based on a drug quantity that was not proven beyond a reasonable doubt or admitted by the appellant-defendant during his guilty plea allocution. See United States v. Garcia, 167 F.App'x 259, 260 (2d Cir. 2006) (summary order). The panel similarly rejected the appellant's argument that the "district court improperly considered at sentencing the hearsay testimony of a cooperating witness who testified at the trial of [appellant's] co-defendants, in violation of the Confrontation Clause of the Sixth Amendment."[6] Id. at 260-61. Accordingly, Defendant's Rule 36 Motion is denied.

         The court also denies Defendant's motion made pursuant to 28 U.S.C. § 2248 (the "Section 2248 Motion"). (See Mot. Pursuant to 28 U.S.C. § 2248 ("§ 2248 Mot.") (Dkt. 681).) Section 2248 provides that "[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true." Defendant argues that, pursuant to this statute, the court must accept the allegations contained within his Rule 36 Motion as true because the Government has not responded to that motion. (See § 2248 Mot. at 1, 5-6.) Defendant's reliance on Section 2248 is misplaced as the statute, by its text, applies only to habeas corpus proceedings. Defendant's Section 2248 Motion is therefore denied.

         B. Motions to ...

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