Fox v. United States of America

Filing 4

MEMORANDUM OPINION AND ORDER: Raymond Fox moves for a modification of his sentence under 18 U.S.C. 3582(c). For the reasons that follow, that motion is denied. Accordingly, Foxs motion for modification of his sentence is denied. SO ORDERED. (Signed by Judge Miriam Goldman Cedarbaum on 7/10/2013) (rsh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------X
RAYMOND FOX,
Petitioner,

MEMORANDUM OPINION
AND ORDER

-againstS2 03 Cr. 1375 (MGC)
12 Civ. 8611 (MGC)
UNITED STATES OF AMERICA,
Respondent.
----------------------------------X
APPEARANCES:
RAYMOND FOX
Petitioner pro se
18174-050
P.O. Box 27002
Brooklyn, NY 11232
PREET BHARARA
United States Attorney for the
Southern District of New York
One Saint Andrew's Plaza
New York, New York 10007
By: Brendan F. Quigley
Assistant United States Attorney

Cedarbaum, J.
Raymond Fox moves for a modification of his sentence under
18 U.S.C. § 3582(c). For the reasons that follow, that motion is
denied.
On June 29, 2004, Fox pleaded guilty to conspiring to
distribute and possess with intent to distribute cocaine and
cocaine base, under 21 U.S.C. §§ 846 and 851, and to
distributing and possessing with intent to distribute cocaine
and cocaine base under 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A)
and 851.
Section 841(b)(1)(A) then and now provided that “[i]f any
person commits such a violation after a prior conviction for a
felony drug offense has become final, such person shall be
sentenced to a term of imprisonment which may not be less than
20 years.”

On June 25, 2004, the government had filed the prior

felony information required by § 851 in order to charge Fox as a
career offender.

The information contained two convictions: (1)

a March 8, 1995, federal criminal conviction for intent to
facilitate a conspiracy to possess with intent to distribute 300
grams of cocaine base; and (2) a June 22, 1992 conviction,
following a plea of nolo contendere, in Pennsylvania state
court, for possessing cocaine with intent to distribute it and
conspiracy to possess cocaine with intent to distribute it.

2

At sentencing, I departed from the guideline range and
sentenced Fox to the statutory mandatory minimum of 20 years.
On appeal, Fox challenged the constitutionality of the
prior felony information based on separation of powers arguments
and an alleged violation of the Due Process Clause.
States v. Sanchez, 517 F.3d 651, 656 (2d Cir. 2008).

United
The Second

Circuit rejected the challenges and affirmed the conviction,
noting in its reasoning that Fox had “offered no basis for
suspecting that the government had any improper motive” for
filing a prior felony information only against him.

Id. at 671.

Fox now moves for modification of his sentence under 18
U.S.C. § 3582, claiming that he is eligible based on the
reduction in the base offense for crack cocaine under the
sentencing guidelines.

However, “this Court does not have the

authority to reduce [a defendant’s] sentence to a term that is
less than the statutory mandatory minimum that applied at the
time he was originally sentenced.”

United States v. Royal, No.

08 Cr. 698 (DC), 2012 WL 527429, at *2 (S.D.N.Y. Feb. 17, 2012).
Fox’s sentence cannot be reduced, regardless of any change in
the guidelines, because it was already at the mandatory minimum.
Perhaps anticipating this argument, Fox argues that his
counsel was ineffective for failing to argue that the government
filed a career offender enhancement against him as punishment
for his initial refusal to accept a plea of guilty.
3

He also

argues that his Pennsylvania conviction was improperly used in
enhancing his sentence.
Neither of these claims can be raised on a motion for a
sentencing reduction under § 3582: “Congress intended to
authorize only a limited adjustment to an otherwise final
sentence and not a plenary resentencing proceeding.”

Dillon v.

United States, 130 S. Ct. 2683, 2691, 177 L. Ed. 2d 271 (2010).
Even if these claims could be raised here, they are
meritless.

The Second Circuit rejected on the merits Fox’s

allegation that the government’s decision to file a prior felony
information against only him was based on an improper motive.
Sanchez, 517 F.3d at 671-72.

Any alleged failure by counsel to

raise that claim at an earlier stage could not have prejudiced
him.

As for the Pennsylvania conviction, the twenty year

mandatory minimum is applied whenever a defendant has “a prior
conviction for a felony drug offense.” 21 U.S.C. § 841(b)(1)(A)
(emphasis added).

The government’s prior felony information was

based on two different offenses.
of the federal offense.

Fox does not challenge the use

Therefore, even if he is right in his

contentions about the Pennsylvania conviction, I was required to
sentence him to a minimum of twenty years in prison.

4

Accordingly, Fox’s motion for modification of his sentence
is denied.

SO ORDERED.

Dated:

New York, New York
July 10, 2013

S/___________________________
MIRIAM GOLDMAN CEDARBAUM
United States District Judge

5