Ventura-Nieves v. United States of America

Filing 6

OPINION re: 1 MOTION to Vacate, Set Aside or Correct Sentence; 4 MOTION for Reconsideration re; 2 Order on Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Pablo Ventura-Nieves: For the foregoing reasons, Defendant's m otion for reconsideration is granted, and his motion for a reduction of his sentence is denied. The Clerk of the Court is requested to close the civil docket number and to docket any subsequent filings under the criminal docket number. (Signed by Judge Robert W. Sweet on 5/11/2017) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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PABLO VENTURA-NIEVES,

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Petitioner,
12 Cr. 844 (RWS)
16 Civ. 8802 (RWS)

- against -

OPINION
UNITED STATES,
Defendant.

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A P P E A R A N C E S:

Attorney for Petitioner
Petitioner, pro se
Pablo Ventura-Nieves
Reg. No. 41286-069
FPC Butner - United CW
Post Office Box 1000
Butner, NC 27509

Attorney for Defendant
JOON H. KIM
Acting United States Attorney
Southern District of New York
One Saint Andrew's Plaza
New York, NY 10007
By:
Russell Capone, Esq.
Jessica Lonergan, Esq.

!. :

Sweet, D.J.

Petitioner Pablo Ventura-Nieves ("Ventura-Nieves" or the
"Petitioner") has moved for reconsideration of the Court's
November 4, 2016 , opinion denying Petitioner's motion, as
construed by the Court, for a reduction of his sentence pursuant
to 18 U.S.C.

§

3582(c) (2).

(Cr. Dkt. 368.) For the reasons set

forth below, Petitioner's motion for reconsideration is granted,
and his motion for a reduction of his sentence is denied.

Facts

The facts underlying this action were previously set forth
in the sentencing opinion of this Court dated December 4, 2014,
(see Cr. Dkt. 206), knowledge of which is assumed. Certain facts
are repeated in part as relevant to the instant motion.

On February 26, 2014, Ventura-Nieves pled guilty to
conspiracy to distribute five kilograms and more of cocaine in
violation of 21 U.S.C.

§§

84l(b) (1) (A) and 846. The Court issued

a sentencing opinion on December 4, 2016, adopting the November
2013 Guidelines calculations of the plea agreement and

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indicating the Court's intent to impose a below-Guidelines
sentence of 120 months' imprisonment.

(Cr. Dkt. 206.)

At Ventura-Nieves' sentencing, based on both parties'
subsequent sentencing submissions that recommended the Court
calculate using the newly amended 2014 Sentencing Guidelines,
the Court imposed the bottom of the newly-calculated Guidelines
range, 135 months' imprisonment.

(Cr. Dkt. 271 at 11:6.) The

Court found Ventura-Nieves's "guidelines sentence
appropriate because of the role played by the defendant" in the
conspiracy, which the Court stated was "integral." (Id. at
10:21-25.)

Prior Proceedings

On October 31, 2016, Petitioner filed a writ of habeas
corpus pursuant to 28 U.S.C.

§

2255.

(Cr. Dkt. 367; Civ. Dkt.

1.) On November 15, 2016, the Court, construing Petitioner's
petition as a motion for a sentence reduction due to Amendment
782 to the Sentencing Guidelines and pursuant to 18
U.S.C.

§

3582(c) (2), denied it because Ventura-Nieves was

properly sentenced under the amended Guidelines range.

(Cr. Dkt.

368; Civ. Dkt. 2.) On November 21, 2016, the Court received
Petitioner's Memorandum of Law in support of his habeas
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petition, although Petitioner had certified the document was
physically mailed to the Clerk of Court nine days earlier.

(Cr.

Dkt. 374; Civ. Dkt. 3.)

On December 1, 2016, Petitioner moved for reconsideration
of his habeas petition.

(Civ. Dkt. 4.) The instant motion was

taken on submission and marked fully submitted on January 19,
2017.

Applicable Standard

A party moving for reconsideration "must demonstrate that
the Court overlooked controlling decisions or factual matters
that were put before it on the underlying motion." Eisenmann v.
Greene, 204 F.3d 393, 395 n.2

(2d Cir. 2000)

(quotation marks

and citation omitted). "The major grounds justifying
reconsideration are an intervening change of controlling law,
the available of new evidence, or the need to correct a clear
error or prevent manifest injustice." Virgin Atl. Airways, Ltd.
v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)
(quotation marks and citation omitted). A motion for
reconsideration should be granted where "the moving party can
point to controlling decisions or data that the court
overlooked-matters, in other words, that might reasonably be
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expected to alter the conclusion reached by the court." Shrader
v. CSX Transp., Inc., 70 F.3d 255, 257

(2d Cir. 1995).

The Court Will Reconsider Petitioner's Habeas Motion

Petitioner argues his instant habeas motion should be
reconsidered because the Court's denial was based on arguments
substantively different than those presented in Petitioner's
motion and supporting memorandum of law. Specifically, the Court
denied Petitioner's motion on the grounds that he sought a
sentence reduction based on of Amendment 782 to the Sentencing
Guidelines, which modified many drug offense penalties, while
Petitioner argued his sentence reduction was merited due to
Amendment 794, which provided guidance with regard to mitigating
role adjustments.

(Compare Cr. Dkt. 367, and 374, with Cr. Dkt.

368.) Given that resentencing can turn on which amendment to the
Sentencing Guidelines is applied, this difference could have
"alter[ed] the conclusion reached by the court." Shrader, 70
F.3d at 257. Because the question of Amendment 794 was
_overlooked by the Court in its initial opinion, Petitioner's
motion warrants reconsideration. See Janes v. Triborough Bridge
& Tunnel Auth., 889 F. Supp. 2d 462, 465 (S.D.N.Y. 2012).

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Petitioner's Motion For A Sentence Reduction Is Denied

In his reconsideration motion, Petitioner requests that his
motion for relief under Section 2255 be "liberally construe[d]"
as a motion to reduce his sentence pursuant to 18
U.S.C. § 3582(c) (2). Harris v. Miller, 818 F.3d 49, 56 (2d Cir.
2016);

(Civ. Dkt. 2, 4). The Court interpreted the motion as

such in its initial opinion and, as Petitioner is a pro se
litigant warranting "the strongest arguments" his briefs
suggest, the Court will do so again. Harris, 848 F.3d at 59.

Petitioner argues that he is entitled to a sentence
reduction because of the passage of Amendment 794 to the
Sentencing Guidelines subsequent to his sentencing. Amendment
794 revised the commentary to U.S.S.G. § 3Bl.2 and addressed
divergent court applications of the Guidelines' mitigating role
adjustments. Petitioner contends that his role in the drug
smuggling conspiracy for which he pled guilty was minor relative
to other, more culpable coconspirators. Were the Court to
consider Petitioner's role in light of Amendment 794's new
commentary, Petitioner argues, he would be entitled to a twopoint minor role reduction, l owering his guideline sentence
range.

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Section 3582 (c) (2) permits a court to reduce an otherwise
final sentence only "in circumstances specified by the
[Sentencing] Commission." Dillon v. United States, 560 U.S. 817,
825 (2010). Those specified circumstances are "(1) upon the
motion of the Director of the Bureau of Prisons if certain
requirements are met,

(2) when expressly permitted by statute or

Rule 35 of the Federal Rules of Criminal Procedure, or (3) when
a defendant 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(0)

. if

such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission." United States v. MoralesPerez, No. 11 Cr. 881 (DLC), 2016 WL 6426394, at *l (S.D.N.Y.
Oct. 27, 2016)

(citing 18 U.S.C.

§

3582(c) (2)).

Only the third avenue is implicated here, and it is
unavailable to Petitioner. The Sentencing Commission has
promulgated "applicable policy statements" through its
Guidelines Manual and, specifically, Section lBl.10, which lists
the amendments that courts may apply retroactively to sentenced
defendants. Dillon, 560 U.S. at 826. Amendment 794 is not
included amongst the amendments. U.S.S.G.

§

lBl.lO(d). The Court

therefore lacks the authority to consider the relief sought by
Petitioner. See Morales-Perez, 2016 WL 6426394, at *2.
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Conclusion

For the foregoing reasons,

Defendant's motion for

reconsideration is granted, and his motion for a reduction of
his sentence is denied.

The Clerk of the Court is requested to close the civil
docket number and to docket any subsequent filings under the
criminal docket number.

It is so ordered.

New York, NY
May

1),

2011

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