United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.
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"). (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"). (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.
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
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.)
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
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,
result is the same-the defendant's base offense level is
a level 38." (Id. at 5.)
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),  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.)
Motion to Correct "Clerical Error"
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.)
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,  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.
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." Id. at 260-61. Accordingly,
Defendant's Rule 36 Motion is denied.
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.
Motions to ...