Severino v. USA
Filing
14
OPINION & ORDER re: 2 MOTION to Vacate, Set Aside or Correct Sentence (28 U.S.C. 2255). For the reasons stated above, Defendant's motion for a sentence reduction is DENIED. The Court declines to issue a certificate of appealability because Severino has not made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); Krantz v. United States, 224 F.3d 125, 127 (2d Cir. 2000). Further, the Court certifies, pursuant to 28 U.S.C. § 1 915(a)(3), that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is respectfully directed to close the criminal case (No. 01-cr-302) and related civil case (No. 10-cv-05131). SO ORDERED. (Signed by Judge John F. Keenan on 10/12/2018) (anc)
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 10/12/2018
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
UNITED STATES DISTRICT COURT
------------------------------------X
SOUTHERN DISTRICT OF NEW YORK
EDDY-----------------------------------------------------------x
SEVERINO,
:
::
No. 08 Civ. 7831 (PAC)
01 Cr. 302 (JFK)
In re FANNIE MAE 2008 SECURITIES
Movant-Defendant,
::
No. 10 MD 2013 (PAC)
LITIGATION
09 Cv. 5131 (JFK)
::
-against::
OPINION & ORDER
:
OPINION & ORDER
-----------------------------------------------------------x
UNITED STATES OF AMERICA,
:
:
Respondent.
:
------------------------------------X District Judge:
HONORABLE PAUL A. CROTTY, United States
JOHN F. KEENAN, United States District Judge:
BACKGROUND1
Eddy Severino (“Severino”), currently incarcerated at
MoshannonThe early years of this decade saw a boom in homethis pro se was fueled, among
Valley Correction Center, brings financing which “Motion
other things, Reduction” based on Johnson v. New lending instruments, such as
for Sentence by low interest rates and lax credit conditions. United States,
subprime mortgages Ct. 2551, loans) (2015), which (low-documentation loans)
___U.S.___, 135 S.(high credit risk 2557 and Alt-A mortgages voided the
kept the boom going. Borrowers played a role Criminal on unmanageable risks on
residual clause of the Armed Career too; they took Act (the “ACCA”), the
assumption that the market would as unconstitutionally vague. (Mot. to
18 U.S.C. § 924(2)(B)(ii), continue to rise and that refinancing options would always be
available in the future. Lending discipline Severino, No. 01-cr-00302,
Reduce Sentence, United States v.was lacking in the system. Mortgage originators did
Aug.not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
24, 2016, ECF No. 182 [hereinafter “Mot.”].)
originators sold their loans into the secondary mortgage market, U.S.C.securitized packages
Severino cites jurisdiction under both 18 often as § 3582
known as mortgage-backed securities sentence) and 28 grew almost 2255
(modification or reduction of (“MBSs”). MBS markets U.S.C. § exponentially.
But then the housing bubble burst. In reasons stated below,
(post-conviction relief). For the 2006, the demand for housing dropped abruptly
and home claim is properly brought by way of a motion modified their
Severino’s prices began to fall. In light of the changing housing market, banksunder 28
lending practices and 18 U.S.C. § 3582. In addition, because his
U.S.C. § 2255, not became unwilling to refinance home mortgages without refinancing.
claim is wholly without merit, this Court declines to transfer
1
Unless otherwise indicated, all references cited as for certification to the Amended
the motion to the Second Circuit “(¶ _)” or to the “Complaint” areunder 18 Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.
U.S.C. § 2255(h) and 23 U.S.C. § 2244(b)(3).
1
1
I.
A.
Background
Severino’s Sentencing
On June 11, 2002, Severino pleaded guilty to one count of
conspiracy to distribute and possess with intent to distribute
heroin in violation of 21 U.S.C. § 846 and one count of
distribution and possession with intent to distribute heroin in
violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 18
U.S.C. § 2.
At Severino’s sentencing, then-District Judge Barbara S.
Jones made findings of fact based on both a hearing she held
pursuant to United States v. Fatico, 579. F.2d 707 (2d Cir.
1978), and the trial of Severino’s co-defendant, Manuel Vargas.
(Sentencing Tr. at 27-28, Severino, No. 01-cr-00302, Jan. 8,
2004, ECF No. 122.)
Judge Jones found that Severino was the
leader of the heroin conspiracy and that the conspiracy involved
at least five other people. (Id. at 24-25.)
She also found that
guns were present at the apartment where the heroin conspiracy
operated, that Severino distributed guns to his customers, and
that at least one of the drug customers to whom Severino
supplied a gun was likely to use that gun in subsequent drug
deals. (Id. at 26)
Judge Jones concluded that it was “beyond
any doubt that the guns were a part of the heroin trafficking
that [Severino] did . . . .” (Id.)
2
After applying (1) a two-level enhancement pursuant to
section 2D1.1(b)(1) of the United States Sentencing Guidelines
(“U.S.S.G.” or the “Guidelines”) because Severino possessed a
firearm in connection with his offense of conviction, (2) a
four-level enhancement pursuant to U.S.S.G. § 3B1.1(a) because
Severino was the leader or organizer of a criminal activity
involving five or more participants, and (3) a three-level
reduction for acceptancy of responsibility, Judge Jones found
Severino’s total offense level to be 41, his Criminal History
Category to be I, and his applicable Guidelines range to be 324
to 405 months’ imprisonment.
She sentenced him to a term of 360
months’ imprisonment on each of Counts One and Two of the
Indictment, to run concurrently. (Judgment, Severino, No. 01-cr00302, Dec. 9, 2003, ECF No. 117.)
Severino appealed his sentence and argued that Judge Jones
erroneously applied sentencing enhancements based on his role in
the offense and his possession of a dangerous weapon during the
course of the offense conduct.
United States v. Severino, 114
F. App’x 428, 429 (2d Cir. 2004).
The Second Circuit affirmed
the district court judgment and held that Judge Jones’s
findings, including those forming the basis of the firearm
enhancement, were “supported by the record and [were] not
clearly erroneous.” Id.
B.
Severino’s First § 2255 Petition
3
On July 6, 2010, Severino filed his first 28 U.S.C. § 2255
motion to vacate, set aside or correct his sentence (the “First
§ 2255 Petition”).
He argued that (1) he received ineffective
assistance of counsel, (2) his sentence deprived him of due
process of law in violation of the Fifth Amendment because he
did not allocute to the statutorily prescribed drug quantity,
and (3) the district court did not have the authority to impose
sentencing enhancements without a grand jury indictment and fact
finding by a jury.
Judge Jones denied Severino’s petition on
all grounds on August 15, 2011. (Order at 17, Severino, No. 01cr-00302, Aug. 15, 2011, ECF No. 169.)
C.
Severino’s First Motion to Reduce Sentence
On August 3, 2015, Severino filed a pro se motion for a
reduction in his sentence pursuant to 18 U.S.C. § 3582(c) and
Amendment 782 to the Guidelines, which reduced by two levels
some, but not all, of the base levels in section 2D1.1’s Drug
Quantity Table. (Mot. To Reduce Sentence, Severino, No. 01-cr00302, Aug. 10, 2015, ECF No. 171.)
This Court granted the
motion and found that Severino’s amended guidelines range was
262 to 327 months’ imprisonment.
Accordingly, this Court issued
an order reducing Severino’s term of imprisonment to 300 months.
(Order, Severino, No. 01-cr-00302, Dec. 22, 2015, ECF No. 174.)
This Court, however, concluded that a reduction to the bottom of
the amended Guidelines range was “inappropriate” in part because
4
Severino’s “conduct in connection with his present arrest
involved the use of a weapon.” (Id. at 3.)
Severino appealed this Court’s decision to reduce his
sentence to 300 months’ imprisonment, instead of 262 months, the
bottom of the amended Guidelines range.
He argued that the
Court abused its discretion by concluding that Severino’s
offense involved the “use” of a weapon.
The Second Circuit
concluded that Severino’s arguments were without merit and
affirmed this Court’s decision in a summary order. (See Mandate
of USCA, Severino, No. 01-cr-00302, Jan. 30, 2017, ECF No. 185.)
D.
The Instant Motion
On August 24, 2016, Severino filed a new motion to reduce
his sentence based on the Supreme Court’s decision in Johnson.
The Government responded on December 12, 2016.
filed two additional documents.
Severino then
On January 20, 2017, he filed a
“Memorandum in Support” of his new motion. (See Mem. of Law in
Supp. and a Request to Transfer Def.’s Pet. to Second Circuit,
Severino, No. 01-cr-00302, Jan. 30, 2017, ECF No. 184
[hereinafter “Mem.”].)
On February 16, 2017, he filed a
“Supplemental Memorandum.” (See Suppl. Mem. of Law of Eddy
Severino in Supp. for his Appl. to File a Second or Successive
Section 2255, Severino, No. 01-cr-00302, Jan. 30, 2017, ECF No.
186 [hereinafter “Suppl. Mem.”].)
II.
Legal Standards
5
A.
Motions Filed Pro Se
This Court notes that Severino is a pro se litigant.
As
such, his submissions must be held to “less stringent standards
than formal pleadings drafted by lawyers.” Ferran v. Town of
Nassau, 11 F.3d 21, 22 (2d Cir. 1993) (internal quotations
omitted).
This Court is required to construe Severino’s
submissions “liberally and interpret them to raise the strongest
arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276,
280 (2d Cir. 1999) (internal quotations omitted).
B.
Successive § 2255 Motions
Pursuant to 28 U.S.C. § 2255, a prisoner sentenced in
federal court “may move the court which imposed the sentence to
vacate, set aside or correct the sentence” if the prisoner
claims 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.” 28 U.S.C. § 2255(a).
A request for permission to file a successive petition must
be made to the Second Circuit, which will only allow a
successive petition if the application makes a prima facie
showing that (1) “the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable”;
6
or (2) “the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence,”
and “the facts underlying the claim, if proven and viewed in the
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.” 28 U.S.C. §
2244(a), (b)(1)-(2).
III.
A.
Discussion
Characterization as Second § 2255 Motion
In its response to Severino’s motion, the Government argues
that the motion should be construed as a second or successive 28
U.S.C. § 2255 petition, not as a motion brought under 18 U.S.C.
§ 3582.
In reply, Severino argues that his motion should be
construed as a new motion under 18 U.S.C. § 3582 and, even if
his motion is construed as a successive § 2255 petition, it
should be transferred to the Second Circuit for certification.
This Court will construe Severino’s motion as a second
petition brought under 28 U.S.C. § 2255.
This motion cannot be
construed as one brought under 18 U.S.C. § 3582 because that
statute would apply only had the Sentencing Commission reduced
the sentencing range under which Severino was sentenced, which
is not what Severino is claiming. See 18 U.S.C. § 3582(c)(2);
see also United States v. Perez, 129 F.3d 255, 258–59 (2d Cir.
7
1997) (affirming a district court’s decision to construe a
motion brought under 18 U.S.C. § 3582 as one brought under 28
U.S.C. § 2255).
Severino appears to recognize as much as he
filed a “Supplemental Memorandum of Law” in support of his
“Application to File a Second or Successive § 2255,” in which he
stated that he was “seeking permission to file a successive 28
U.S.C. § 2255 petition.” (See Suppl. Mem. at 2-3.)
B.
Johnson Claim
In his “Motion for Sentence Reduction,” which this Court
construes as a successive petition brought under 28 U.S.C. §
2255, Severino argues that Johnson should be extended to section
2D1.1(b)(1) of the Guidelines, thereby reducing the two level
enhancement he received at sentencing for possession of a
dangerous weapon.
Severino’s argument fails because the Supreme Court has
since determined that the Fifth Amendment due process concerns
at issue in Johnson do not apply to enhancements imposed
pursuant to the Guidelines.
In Beckles v. United States, the
Supreme Court held that “that the advisory Sentencing Guidelines
are not subject to a vagueness challenge under the Due Process
Clause” because they “merely guide the court’s discretion,” as
opposed to the ACCA, which “fixed—in an impermissibly vague way—
a higher range of sentences for certain defendants.”
__, 137 S. Ct. 886, 892, 895 (2017).
8
__ U.S.
Therefore, a sentencing
enhancement imposed pursuant to section 2D1.1(b)(1) of the
Guidelines cannot be challenged as void for vagueness, and,
accordingly, Severino’s motion must be denied.
C.
Application of Firearm Enhancement
In his motion, Severino again claims that his sentence is
incorrect because the firearm enhancement was incorrectly
applied because “it was clear that Severino had no gun when he
was arrested” and “[n]one was found on him or around him at the
place of arrest.” (Mot. at 3.)
Judge Jones, this Court, and the
Second Circuit have all previously determined that this argument
lacks merit.
The Second Circuit pointedly stated that Judge
Jones’s factual findings that (1) guns were present in the
apartment where the conspiracy operated, (2) Severino supplied
guns to his customers, and (3) at least one of the drug
customers to whom Severino supplied guns was a narcotics dealer,
were “supported by the record and . . . not clearly erroneous.”
Severino, 114 F. App’x at 430.
Severino has provided no new
evidence indicating that this Court should revisit this
conclusion, and thus his argument is meritless.
D.
Transfer to Second Circuit
Because Severino did not make a petition to the Second
Circuit, this Court does not have jurisdiction to address a
second § 2255 motion and is required to transfer such a motion
to the Second Circuit if doing so is in the interest of justice.
9
See 28 U.S.C. §§ 2255(h) and 2244(b)(3); see also Liriano v.
United States, 95 F.3d 119, 123 (2d Cir. 1996).
However, a
district court “need not transfer the second or successive
motion if it is wholly without merit.” Avendano v. United
States, No. 02CR1059-LTS, 2014 WL 7236036, at *2 (S.D.N.Y. Dec.
19, 2014).
Instead, the court should “dismiss the motion if it
is clear that the narrow set of factual predicates for relief on
a second or successive section 2255 petition have not been made
out.”
Id.; accord Acosta v. United States, 197 F. Supp. 3d 553,
556-57 (S.D.N.Y. 2016); Carrasco v. United States, 190 F. Supp.
3d 351, 354 (S.D.N.Y. 2016); Terrence v. Artus, No. 05 CIV.
5994DC, 2005 WL 1705299, at *2 (S.D.N.Y. July 20, 2005).
Severino has failed to demonstrate that his motion contains
“newly discovered evidence that, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense,” or that his
motion relies on “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable.”
28 U.S.C. § 2255(h).
Severino’s failure to satisfy either standard renders his motion
ineligible for certification under 28 U.S.C. §§ 2255(h) and
2244(b)(3).
Thus, this Court declines to transfer the motion to
10
the Second Circuit for certification in accordance with 28
u.s.c.
§
1631.
IV.
Order
For the reasons stated above, Defendant's motion for a
sentence reduction is DENIED.
The Court declines to issue a certificate of appealability
because Severino has not made a "substantial showing of the
denial of a constitutional right." 28 U.S.C.
Krantz v. United States, 224 F.3d 125, 127
§
2253 (c) (2);
(2d Cir. 2000).
Further, the Court certifies, pursuant to 28 U.S.C.
§
1915(a) (3), that any appeal from this Order would not be taken
in good faith. See Coppedge v. United States, 369 U.S. 438, 44445 (1962).
The Clerk of the Court is respectfully directed to close
the criminal case (No. 01-cr-302) and related civil case (No.
10-cv-05131).
SO ORDERED.
Dated:
New York, New York
October /1._, 2018
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?