United States District Court, District of New Jersey, D
May 23, 2002
UNITED STATES OF AMERICA,
MANUEL GARCIA, DEFENDANT.
The opinion of the court was delivered by: Jerome B. Simandle, United States District Court Judge.
This matter comes before the Court upon motion by defendant Manuel
Garcia for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2).
Defendant is currently incarcerated in the federal penitentiary in Terre
Haute, Indiana. Defendant seeks to reduce his sentence of life
imposed by this Court on September 24, 1994, for his
conviction after trial for murder for hire, in violation of
18 U.S.C. § 1958. Defendant contends that Amendment 591, an
amendment to, inter alia, Sections 1B1.1 and 1B1.2 of the United States
Sentencing Guidelines ("U.S.S.G."), mandates a recalculation of his
guidelines and a resentencing. For the reasons discussed below,
defendant's motion for reduction of sentence will be denied.
On November 9, 1993, a grand jury sitting in Newark, New Jersey,
returned a four-count indictment against defendant Manuel Garcia, and
co-defendants Richard Balter, Kenneth Cutler, and Chris Oscar DeJesus for
the murder of Robert Cohen. (Indictment, 11/9/93.) Count One of the
indictment charged Balter, Cutler, Garcia, and DeJesus with the
commission of murder for hire, in violation of 18 U.S.C. § 1958 and
2, and Count Two charged Balter and Cutler with mail fraud, in violation
of 18 U.S.C. § 1341. (Id.) On January 25, 1994, a federal grand jury
sitting in Newark, New Jersey, returned a superseding indictment,
expanding the time frame for the murder for hire charge and supplementing
the mail fraud charges against Balter and Cutler. (Superseding
Indictment, 1/25/94.) On September 29, 1994, Garcia was convicted after
a jury trial and was sentenced to life imprisonment. (Judgment, 10/4/94.)
Judgment was entered on October 4, 1994. (Id.)
Defendant filed a direct appeal of his conviction, alleging that the
district court erred by (1) impermissibly admitting evidence showing
criminal propensity that had a cumulatively prejudicial effect; and (2)
denying defendant's motion for severance. (Id.) On July 29, 1996, the
United States Court of Appeals for the Third Circuit affirmed this
Court's judgment. (United States v. Garcia, No. 94-5647 (3d Cir. July
29, 1996) (unpublished)). The convictions of the co-defendants were also
affirmed in United States v. Balter, 91 F.3d 427 (3d Cir. 1996).
Mr. Garcia filed a petition in this Court for habeas corpus relief
under 28 U.S.C. § 2255 on June 2, 1997. (Docket, Garcia v. United
States, No. 97-2861.) On July 29, 1998, this Court denied Mr. Garcia's
habeas petition. (Id.) On August 7, 1998, defendant filed an appeal
with the Third Circuit. (Id.) On September 15, 1998, this Court denied
Mr. Garcia a certificate of appealability. (Id.) On June 4, 1999, the
Third Circuit subsequently denied Mr. Garcia's application for a
certificate of appealability on grounds that he was procedurally barred
from presenting his claims. (Id.)
On August 13, 2001, defendant filed the instant motion for reduction of
Motion for Reduction of Sentence
Defendant moves for reduction of sentence, claiming that Amendment
591, effective November 1, 2000, requires that he be sentenced to 121-151
months imprisonment under a base offense level of 32 as provided by
U.S.S.G. § 2E1.4, rather than life imprisonment. The United States
argues that Garcia's application is procedurally barred because it should
be construed as a successive motion to correct or vacate a sentence under
28 U.S.C. § 2255; that Amendment 591 is not retroactive and is
therefore inapplicable to modify defendant's sentence; and that even if
the current amended guidelines were applied, their application would not
change Mr. Garcia's sentence.
This Court's jurisdiction arises under 18 U.S.C. § 3582(c), rather
than 28 U.S.C. § 2255, for the reasons now explained. The United
States argues that
Mr. Garcia's application should be construed as a
motion to correct or vacate a sentence under 28 U.S.C. § 2255, rather
than a motion for modification under 18 U.S.C. § 3582(c), because the
substance of his argument, that the sentencing court applied the wrong
base offense level, is cognizable pursuant only to § 2255. The
government argues that defendant's motion is therefore procedurally
barred as a successive § 2255 motion and should be dismissed outright
as jurisdictionally defective.
A motion seeking to vacate, correct or set aside a sentence is brought
under 28 U.S.C. § 2255.*fn1
28 U.S.C. § 2255 provides in
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States, or that the court was without
jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255. Section 2255 claims concern a prisoner's trial and
sentencing, including claims such as ineffective assistance of counsel,
misapplication of the sentencing guidelines, or the constitutionality of
trial. See Martinez Diaz v. Olsen, 110 F. Supp.2d 295, 299 (D.N.J. 2000)
(citing United States v. DeRewal, 10 F.3d 100 (3d Cir. 1993) (asserting
ineffective assistance of counsel claim under § 2255), cert. denied,
511 U.S. 1033 (1994); United States v. Marmolejos, 140 F.3d 488 (3d Cir.
1998) (attacking the misapplication of the sentencing guidelines under
Defendant moved for reduction of sentence pursuant to
18 U.S.C. § 3582(c)(2), seeking relief based upon Amendment 591.
Although courts generally may not modify a sentence imposing
imprisonment, Section 3582 makes a specific exception to this general
rule and allows for modification of a sentence based on a sentencing
range that has subsequently been reduced by the Sentencing Commission.
See 18 U.S.C. § 3582(c)(2). Section 3582 provides that
[I]n the case of a defendant who has been sentenced to
a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. § 994(o), upon
motion of the defendant or the Director of the Bureau
of Prisons, or on its own motion, the court may reduce
the term of imprisonment, after considering the
factors set forth in section 3553(a) to the extent
that they are applicable, if such a reduction is
consistent with applicable policy statements issued by
the Sentencing Commission.
18 U.S.C. § 3582(c)(2). A reduction is consistent with the policy
statements of the Sentencing Commission if the Amendment that created the
reduction is included
in the list of amendments to be applied
retroactively, enumerated in the Commission's policy statement of
U.S.S.G. § 1B1.10, which provides:
Where a defendant is serving a term of imprisonment,
and the guideline range applicable to that defendant
has subsequently been lowered as a result of an
amendment to the Guidelines Manual listed in
subsection (c) below, a reduction in the defendant's
term of imprisonment is authorized under
18 U.S.C. § 3592(c)(2). If none of the amendments
listed in subsection (c) is applicable, a reduction in
the defendant's term of imprisonment under
18 U.S.C. § 3582(c)(2) is not consistent with this
policy statement and thus is not authorized.
U.S.S.G. § 1B1.10(a). Subsection (c) of § 1B1.10 explicitly
includes Amendment 591, see id. at (c), which changed U.S.S.G. §§ 1B1.1
and 1B.2, the Application Note to § 1B1.2, and the Introduction to
the Statutory Index (Appendix A). See United States v. Diaz, 245 F.3d 294,
302 (3d Cir. 2001).
As a preliminary matter, because defendant contends that Amendment 591
requires modification of his sentence, this Court finds that defendant's
application is a motion pursuant to 18 U.S.C. § 3582(c), not
28 U.S.C. § 2255.
B. Applicability of Amendment 591
Defendant argues that Amendment 591, which became effective on November
1, 2000, see U.S.S.G. App. C., Amend. 591 (Supp. 2001), is inapplicable
to reduce Mr. Garcia's sentence issued on September 29, 1994, because the
amendment is not retroactive. Generally, a defendant should be sentenced
under the guideline in effect at the time of sentencing. See Diaz, 245
F.3d at 300-01 (citing United States v. Menon, 24 F.3d 550, 566 (3d Cir.
1994)). A post-sentencing amendment to a guideline, or to its comments,
should be given retroactive effect only if the amendment "clarifies" the
guideline or comment in place at the time of sentencing; the amendment
may not be given retroactive effect if it effects a substantive change in
the law. See Diaz, 245 F.3d at 303 (citing Marmolejos, 140 F.3d at
The Third Circuit, specifically confronting this issue, held that
Amendment 591 is not retroactively applicable. Diaz, 245 F.3d at 303.
The Third Circuit had previously held that the pre-amendment guidelines
required the sentencing court to perform a heartland analysis in making
the initial choice of the appropriate guideline to apply. See United
States v. Smith, 186 F.3d 290, 297-98 (3d Cir. 1999), superseded by rule
as stated in Diaz, 245 F.3d at 303. In Diaz, noting that Amendment 591
"plainly abrogates and overrules our prior construction of the guidelines
in Smith and its progeny," the Third Circuit stated that "it is clear
that Amendment 591 effects a substantive change to the Sentencing
Guidelines as we interpreted them in Smith." Diaz, 245 F.3d at 303.
Because Amendment 591 abrogates the substantive meaning of the
pre-amendment guidelines as interpreted by the Third Circuit, it effects a
substantive change in the law, and is therefore not retroactively
applicable. Accordingly, Amendment 591 does not apply to defendant's
sentencing in 1994, and does not support defendant's claim for
modification of sentence. Defendant's motion for reduction of sentence
will be denied on this ground.
Furthermore, as the United States correctly contends, application of
the current guidelines as modified by Amendment 591 would not change
defendant's sentence. Defendant was convicted and sentenced for murder
for hire, in violation of 18 U.S.C. § 1958. The guideline applicable
to this offense is § 2E1.4, see
U.S.S.G. App. A, which provides a
base offense level of (1) 32, or (2) the offense level applicable to the
underlying unlawful conduct. See U.S.S.G. § 2E1.4 (2001).*fn2
Application Note 1 provides that "[i]f the underlying conduct violates
state law, the offense level corresponding to the most analogous federal
offense is to be used." U.S.S.G. § 2E1.4 cmt. n. 1. Due to
defendant's conspiratorial conduct, the guidelines for the most analogous
federal offense is U.S.S.G. § 2A1.5, Conspiracy or Solicitation to
Commit Murder. See U.S.S.G. § 2A1.5. U.S.S.G. § 2A1.5 provides
for a base offense level of 28 and contains a cross reference directing
that "[i]f the offense resulted in the death of the victim, apply §
2A1.1." Id. at (c)(1). Here, because the murder for hire resulted in
the death of the victim, the provision of U.S.S.G. § 2A1.1, First
Degree Murder, is applicable, providing a base offense level of 43. See
U.S.S.G. § 2A1.1. The commentary to this guideline states that
"[t]he Commission has concluded that in the absence of capital punishment
life imprisonment is the appropriate punishment for premeditated
killing. . . . [T]his guideline also applies when death results from the
commission of certain felonies." U.S.S.G. § 2A1.1 cmt. n. 1.
Defendant claims that he should have been sentenced for "the crime he
was convicted of," the guideline for which is found at § 2E1.4,
because "Amendment 591 simply states that if Petitioner is not convicted
of the conduct do not punish him as if he was." Def.'s Reply Br. at 5.
Amendment 591, however, "does not alter the court's obligation to apply
`appropriate cross-references' contained in a particular guideline."
Anderson v. United States, 2001 WL 180140, No. 3-90-0165-H, at *2
(N.D.Tex. Feb. 16, 2001) (citing U.S.S.G. § 1B1.1(b)). Here, because
loss of life resulted from defendant's conspiracy to commit murder, all
as alleged in the indictment and as found by the jury's verdict, the
Sentencing Guidelines mandate an offense level of 43 and life
imprisonment in defendant's case. See U.S.S.G. § 2A1.1(a) & cmt. n.
1. Therefore, even if Amendment 591 were retroactively applicable,
defendant's sentence would not be reduced.
For the reasons discussed above, defendant's motion for reduction of
sentence will be denied. The accompanying Order will be entered.
THIS MATTER having come before the Court upon motion by defendant
Manuel Garcia for reduction of sentence pursuant to
18 U.S.C. § 3582(c)(2); and the Court having considered the parties'
submissions; and for good cause shown; and for reasons stated in the
Opinion of today's date;
ORDERED that defendant's motion for reduction of sentence shall be, and
hereby is, DENIED.