67 F.3d 34 (2nd Cir. 1995), 1637, United States v. Pipitone

Docket Nº:1637, Docket 94-1690.
Citation:67 F.3d 34
Party Name:UNITED STATES of America, Appellant, v. Anthony PIPITONE, Defendant, Filippo Gallina, also known as
Case Date:October 03, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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67 F.3d 34 (2nd Cir. 1995)

UNITED STATES of America, Appellant,


Anthony PIPITONE, Defendant,

Filippo Gallina, also known as "Philip," Defendant-Appellee.

No. 1637, Docket 94-1690.

United States Court of Appeals, Second Circuit

October 3, 1995

        Argued June 12, 1995.

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        Allen D. Applbaum, Assistant United States Attorney for the Southern District of New York, New York City (Mary Jo White, United States Attorney, Paul G. Gardephe, Assistant United States Attorney, New York City, of counsel), for Appellant.

        Jeffrey Lichtman, New York City (Gerald L. Shargel, Michael S. Pollok, New York City, of counsel), for Defendant-Appellee.

        Before: OAKES, WINTER and MAHONEY, Circuit Judges.

        MAHONEY, Circuit Judge:

        The United States of America appeals from a second amended judgment entered November 10, 1994 in the United States District Court for the Southern District of New York, Whitman Knapp, Judge, that granted the petition of defendant-appellee Filippo Gallina pursuant to 28 U.S.C. Sec. 2255 to reduce a previously imposed sentence of sixty-three months by three months so that Gallina would be eligible for the Bureau of Prison's Shock Incarceration Program, also referred to as the Intensive Confinement Center Program

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(the "ICC Program"), which is authorized by 18 U.S.C. Sec. 4046. 1 In a plea agreement that preceded his original sentence, Gallina agreed to plead guilty to conspiring to possess heroin with the intent to distribute it in violation of 21 U.S.C. Sec. 846. Gallina also agreed not to appeal his sentence if it fell within the sentencing range of 63-78 months calculated in the plea agreement.

        We vacate the district court's second amended judgment and reinstate Gallina's initial sentence of sixty-three months imprisonment on the basis that Gallina's Sec. 2255 petition is procedurally barred.


        Gallina was arrested in connection with the investigation of a large heroin distribution organization headed by Wilfredo Bermudez that operated in upper Manhattan and the Bronx. On June 3, 1993, Gallina entered into a plea agreement with the United States (the "Agreement") in which he agreed to plead guilty to conspiring to possess heroin with the intent to distribute it in violation of 21 U.S.C. Sec. 846. The Agreement calculated Gallina's sentencing range as 63-78 months, and the probation department agreed with that range in its presentence report. The Agreement stated that: "[I]t is specifically understood and agreed that neither party will appeal a sentence by the Court that falls within the sentencing range calculated in [the Agreement]."

        At the sentencing hearing, the district court expressed its displeasure over the severity of the applicable sentencing range, stating that "the sentence that I have to impose is way out of bounds of what would be reasonable for a first [time] defendant, but there is nothing I can do about that." Indeed, the district court made further observations to this effect "so that they may be on the record and in the future, who knows, there may be legislation which will authorize reduction of sentence."

        Although the district court believed that it could not mitigate Gallina's sentence, Gallina's attorney requested that the district court recommend Gallina for the ICC Program. Designed to help reduce prison overcrowding, this program subjects inmates to physical training, drill, and tight discipline, much like basic training camps in the military. In exchange, an inmate may be considered for home confinement rather than incarceration after completing the ICC Program. See Sec. 4046(b) and (c), supra note 1; Federal Bureau of Prisons Operations Memorandum ("Op.Mem.") 249-93 (Oct. 15, 1993), at 1-2. Consequently, the ICC Program may enable an inmate to serve a shorter sentence. See H.R.Rep. No. 681(I), 101st Cong., 2d Sess. 151 (1990) (the "House Report"), reprinted in 1990 U.S.C.C.A.N. 6472, 6557. The government took no position as to whether Gallina should be recommended for the ICC Program.

        At sentencing, however, both the parties and the court were unaware of the ICC Program's eligibility requirements. Gallina's counsel interpreted Bureau of Prison policy as permitting an inmate to enter the program after completing all but thirty months of his sentence. The government informed the court that Gallina "is not eligible for [the ICC Program] unless he is sentenced to ... not more than 30 months." Indeed, section 4046 itself limits participation in the program

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to those serving thirty months or less. See Sec. 4046(a), supra note 1. However, due to the lack of eligible inmates, the Bureau of Prisons has expanded eligibility to include inmates serving up to sixty months. See Op.Mem. 285-91 (Dec. 13, 1991), at 1; Op.Mem. 249-93, at 4. 2 At the initial sentencing, neither party informed Judge Knapp about, or apparently was aware of, the Bureau's position.

        Based upon the available information, the district court recommended that Gallina be admitted into the ICC Program when he had thirty months left on his sentence. Then, at the request of the government, Gallina was informed of his right to appeal his sentence, even though the district court saw no basis for such an appeal. Gallina made no direct appeal.

        On May 26, 1994, Gallina filed the instant Sec. 2255 petition, 3 which requested a three-month downward departure from his 63-month sentence because both the district court and the parties had misapprehended the applicable Bureau of Prisons guidelines at the time of sentencing. Gallina's counsel argued that had the court been properly informed, it would have been able to depart downward sua sponte to make Gallina eligible for the ICC Program. Therefore, she contended, "based on the misunderstanding that we had at the time of sentencing that you [the district court] had no basis for a downward departure, it is appropriate now for this court sua sponte to relook at its sentencing in order to decide that a three month downward departure is not inappropriate." Gallina's...

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