Taboada v. United States of America
MEMORANDUM & ORDER denying 8 Motion for Reconsideration re 8 MOTION for Reconsideration re; 7 Memorandum & Opinion,,. filed by Ricardo Taboada Accordingly, Taboada's motion for reconsideration is DENIED. The Clerk of Court is respectfully directed to close Dkt. No. 8 in Case No. 22 Civ. 8141 and Dkt. No. 159 in Case No. 19 Crim. 117. (Signed by Judge Lewis J. Liman on 5/22/2023) (rro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
United States of America,
LEWIS J. LIMAN, United States District Judge:
Movant Ricardo Taboada (“Taboada”) moves for reconsideration of this Court’s opinion
and order dated February 13, 2023, construing his petition as a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255, and denying it without issuing a certificate of
appealability. Dkt. No. 7.1 In that motion, Taboada argued that the sentencing court
miscalculated his Sentencing Guidelines range by using his “intended loss” for the crime of fraud
instead of the actual loss. The Court denied the motion for two reasons. First, Taboada waived
his right to challenge his sentence through a Section 2255 motion. Dkt. No. 7 at 5 (citing
Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir. 2001)). Second, the Court found that
binding Second Circuit law requires it to “‘apply the greater of the actual or intended loss
amount’ in calculating a defendant’s sentencing guidelines.” Id. (quoting United States v. Lacey,
699 F.3d 710, 718 (2d Cir. 2012)). The Court rejected Taboada’s argument that, under Kisor v.
Wilkie, 139 S. Ct. 2400 (2019), “loss” as referred to in Section 2B1.1 of the Sentencing
Guidelines, must be limited to the actual loss caused by the defendant’s offense. Id. at 5–6. For
the reasons set forth below, Taboada motion for reconsideration is denied.
“A motion for reconsideration should be granted only if the movant identifies ‘an
intervening change of controlling law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.’” Spin Master Ltd. v. 158, 2020 WL 5350541, at *1
(S.D.N.Y. Sept. 4, 2020) (quoting Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable
Tr., 729 F.3d 99, 104 (2d Cir. 2013)). “The standard for granting a motion for reconsideration
‘is strict, and reconsideration will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked—matters, in other words, that might
reasonably be expected to alter the conclusion reached by the Court.’” Justice v. City of New
York, 2015 WL 4523154, at *1 (E.D.N.Y. July 27, 2015) (quoting Shrader v. CSX Transp., Inc.,
70 F.3d 255, 257 (2d Cir. 1995)).
Unless otherwise stated, all docket references are to Case No. 22 Civ. 8141.
Taboada relies upon the decision by the United States Court of Appeals for the Third
Circuit in United States v. Banks, 55 F.4th 246 (3d Cir. 2022). There, the Third Circuit accepted
Taboada’s argument and held that “the ordinary meaning of the word ‘loss’ is the loss the victim
actually suffered.” Id. at 257–58. Thus, the Third Circuit held that the Sentencing Guidelines
should be based on actual loss rather than intended loss and remanded the case for resentencing.
Id. This Court, however, need not address whether the Third Circuit’s reasoning should govern
this case, because Taboada has not argued that the Court erred in holding that he had waived his
right to challenge his sentence through a Section 2255 motion.
This Court cannot sua sponte relieve Petitioner from his agreement not to challenge his
sentence in a Section 2255 motion. See Garcia-Santos, 273 F.3d at 509; Perez v. United States,
2015 WL 3413596, at *3 (S.D.N.Y. May 28, 2015) (“A defendant’s knowing and voluntary
waiver of his right to bring a petition pursuant to section 2255 is generally enforceable.” (citation
omitted)); cf. United States v. Arevalo, 628 F.3d 93, 97 (2d Cir. 2010) (holding that waiver of
right to appeal a sentence includes “a waiver of the right to appeal alleged Rule 32 errors”). As
the Second Circuit has emphasized, agreements such as the one Taboada entered serve
“important interests of both parties.” Garcia-Santos, 273 F.3d at 509. The Government avoids
“both the expense and uncertainty of further litigation” while the defendant “receive[s]
significant assurance, although no guarantee, that the sentence w[ill] not exceed a predicted
maximum severity.” Id. Thus, regardless whether Banks was correctly decided and whether the
Court might agree that loss is properly limited to actual loss, Taboada has waived his right to
make that argument and to challenge his sentence in this case where judgment has become final.
For the reasons stated in the Court’s February 13, 2023 opinion and order, the Court finds
that there is no merit to Taboada’s argument that the Court improperly construed his petition for
a writ of audita querela as a Section 2255 motion. Dkt. No. 7 at 3–4.
Accordingly, Taboada’s motion for reconsideration is DENIED. The Clerk of Court is
respectfully directed to close Dkt. No. 8 in Case No. 22 Civ. 8141 and Dkt. No. 159 in Case
No. 19 Crim. 117.
Dated: May 22, 2023
New York, New York
LEWIS J. LIMAN
United States District Judge
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