Alli-Balogun v. United States

Decision Date15 July 2015
Docket NumberNo. 92–CR–1108.,No. 13–CV–07423.,92–CR–1108.,13–CV–07423.
Citation114 F.Supp.3d 4
Parties Hakeem ALLI–BALOGUN, Defendant, v. UNITED STATES of America, Plaintiff. Hakeem Alli–Balogun, Petitioner, v. United States of America, Respondent.
CourtU.S. District Court — Eastern District of New York

John F. Kaley, Doar Rieck & Mack, New York, NY, for Hakeem Alli–Balogun.

Peter Alfred Norling, Stephen E. Frank, Margaret Elizabeth Lee, U.S. Attorney's Office, Brooklyn, NY, for United States of America.

MEMORANDUM & ORDER

JACK B. WEINSTEIN, Senior District Judge:

Table of Contents
I. Introduction 10
A. Motion for Reduction of Sentence, 18 U.S.C. § 3582(c)(2) 10
B. Motion to Vacate Conviction, 28 U.S.C. § 2255 12
II. Facts and Procedural History 12
A. Crime of Conviction 12
B. Sentencing 12
1. Appeal 13
2. Collateral Attacks 13
C. Resentencing 14
1. Appeal and Crosby Remand 14
2. Reinstatement of Appeal 15
D. Instant Motions 17
1. Motion for Reduction of Sentence, 18 U.S.C. § 3582(c)(2) 17
2. Motion to Vacate Conviction, 28 U.S.C. § 2255 19
III. Motion for Reduction of Sentence, 18 U.S.C. § 3582(c)(2) 20
A. Underlying Statutes, Background Principles and Precedent 20
1. Statutory Authority 20
2. Role of Sentencing Commission and Powers Delegated To It 21
3. Brief History of Section 1B1.10 of the Sentencing Guidelines 25
a. Inception 25
b. Substantive Amendments 26
c. 2014 Amendments 27
i. Reason for Amendment 788 28
ii. Public Hearing and Vote 28
4. Binding Nature of Section 1B1.10(b) of the Sentencing Guidelines 31
a. Supreme Court 31
b. Court of Appeals for the Second Circuit 32
5. Binding Nature of Section 1B1.10(e) of the Sentencing Guidelines 32
a. Appellate Courts 32
b. District Courts 33
B. Law 34
1. Rule of Lenity 34
a. Generally 34
b. As Applied to the Sentencing Context 36
2. Due Process 37
a. Generally 37
b. As Implicated in Sentence Administration Decisions 38
i. Supreme Court 38
ii. Court of Appeals for the Second Circuit 40
iii. District Courts in the Second Circuit 41
iv. 28 U.S.C. § 2241 42
3. Ex Post Facto Clause 42
a. Generally 42
b. As Implicated in Sentence Administration Decisions 43
4. Eighth Amendment 46
C. Application of Law to Facts 47
1. Rule of Lenity 47
2. Due Process 48
3. Ex Post Facto Clause 49
4. Eighth Amendment 50
IV. Motion to Vacate Conviction, 28 U.S.C. § 2255 50
A. Law 50
B. Application of Law to Facts 52
V. Conclusion 52

I. Introduction

This memorandum covers two independent applications for Hakeem Alli–Balogun. The first, his motion for a reduction of sentence, is dealt with in infra Parts I.A, II & III. The second, challenging his conviction, is covered in infra Parts I.B, II & IV.

The case is a remarkable one. Though the drug case was nasty, the long-term imprisonment, by today's standards, was excessive. Defendant has served 273 months in prison while his wife and children established high status employment in banking and medicine. See Hr'g Tr., July 15, 2015. Throughout his incarceration, he has maintained close contact with his family. Id. This resentence provides an opportunity to rectify, in modest degree, an unnecessarily harsh sentence imposed in crueler times.

A. Motion for Reduction of Sentence, 18 U.S.C. § 3582(c)(2)

It is held that the trial court is not bound by the Sentencing Commission's "special instruction" appended to section 1B1.10 of the Sentencing Guidelines ("guidelines"). See United States Sentencing Guidelines ("U.S.S.G.") § 1B1.10(e). The "special instruction" dictates that, in retroactively applying amendment 782, which reduces offense levels in the drug quantity tables of the guidelines by two, the earliest date a resentenced prisoner can be released from custody is November 1, 2015.See infra Part III.

The special instruction was effective on November 1, 2014. Neither the United States Supreme Court nor the Court of Appeals for the Second Circuit has decided whether this special instruction is binding. See infra Part III.A.5. Decisions by other courts of appeals and district courts enforce the November 1, 2015 release date as mandatory without questioning its validity. Id. Courts that have found the instruction binding have done so based on an analysis of the powers ascribed to the Sentencing Commission by statute and a questionable application of the Supreme Court's decision in Dillon v. United States, 560 U.S. 817, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Id. Dillon is inapplicable. See Dillon, 560 U.S. 817, 130 S.Ct. 2683. It dealt with section 1B1.10(b) ("Determination of Reduction in Term of Imprisonment") of the guidelines. Id. at 819, 130 S.Ct. 2683. This memorandum and order deals with section 1B1.10(e) ("Special Instruction"). See U.S.S.G. § 1B1.10(e).

Hakeem Alli–Balogun, a Nigerian citizen legally resident in the United States, is currently serving a 327–month sentence based in part on the sentencing court's conclusion in 2002 that movant was a leader in "one of the worst" international drug smuggling conspiracies. See Resentencing Hr'g Tr. 17, No. 92–CR–1108, Mar. 11, 2002 ("Resentencing Hr'g"). Alli–Balogun has been in custody for almost twenty-three years, 273 months in total. His present release date is July 5, 2016.

Defendant moves:

First, to resentence him to "time-served" in accordance with section 3582(c)(2) of title 18 of the United States Code and amendments 782 and 788 to the guidelines. See 18 U.S.C. § 3582(c)(2) ; U.S.S.G. supplement to app. C. amends. 782 and 788. The amendments, colloquially referred to as the "drugs minus two" amendments, reduce and make retroactive a two-level reduction of the offense levels present in the drug quantity tables of section 2D1.1(c) of the guidelines. See U.S.S.G. supplement to app. C. amends. 782 and 788. Claimed is that Alli–Balogun has served more than the maximum sentence applicable under the reduced guidelines range, which falls between 210 and 262 months.

Second, to ignore the delayed release date of November 1, 2015 promulgated by the Sentencing Commission. See U.S.S.G. § 1B1.10(e).

Granted are movant's first and second motions. His current sentence is an unjust artifact of a crueler period.

Although movant might benefit from placement in a community correctional facility, because he is going to be deported—consistent with this court's sentencing policy with respect to non-citizens—he is being sentenced to time-served. See United States v. Chin Chong, No. 13–CR–570, 2014 WL 4773978, at *1 (E.D.N.Y. Sept. 24, 2014) (extensive discussion regarding court's policy of sentencing non-citizens to time-served). Alli–Balogun is ordered to be released forthwith. See Hr'g Tr., July 15, 2015. A three-year term of supervised release is imposed. Id. This decision is stayed for ten days to permit Immigration and Customs Enforcement to take custody of defendant. Id. At the July 15, 2015 resentencing hearing, the court was informed that a detainer had already been lodged by immigration authorities. Id. No comment, direction, or suggestion is being made about whether Alli–Balogun should be deported, or the parties' rights of appeal should he be deported. Id.

The Sentencing Commission's "special instruction," dictating the earliest release date of prisoners regardless of whether the terms of their sentence have been fulfilled, conflicts with the mandate of section 3553(a) of title 18 of the United States Code (" section 3553(a)"), which requires that a court impose a sentence "sufficient but not greater than necessary. " 18 U.S.C. § 3553(a). The rule of lenity requires reading the "special instruction" favorably to defendanti.e., permitting release before November 1, 2015.

Alternatively, the court finds that arbitrarily keeping an inmate in prison beyond the period of an appropriate sentence violates his liberty interest and right to procedural due process. The "special instruction," as applied to prisoners who have already fulfilled the term the court intends to impose under the revised guidelines, violates the ex post facto clause of the United States Constitution. The clause forbids the enhancement of punishment through the alteration of the substantive formula used to calculate a prisoner's sentence. If there is a lack of penological justification for incarceration, as is the case here, the instruction may amount to ordering cruel and unusual punishment.

Movant's motion for a reduction of his sentence is granted. See infra Part III.C.

B. Motion to Vacate Conviction, 28 U.S.C. § 2255

Alli–Balogun moves to vacate his sentence under section 2255 of title 28 of the United States Code ("2255 petition"), the first motion on that ground since his resentencing. See 28 U.S.C. § 2255. He argues ineffective assistance of counsel on multiple grounds and a series of constitutional violations at his trial. See 28 U.S.C. § 2255.

This motion is denied. See infra Part IV.B.

II. Facts and Procedural History
A. Crime of Conviction

Alli–Balogun, a Nigerian citizen lawfully residing in the United States, was arrested on October 8, 1992 on charges that he was involved in an international drug smuggling conspiracy. See Alli–Balogun v. United States, 281 F.3d 362, 364 (2d Cir.2002).

The following facts were elicited at a jury trial started on March 29, 1994 and ended on April 5, 1994 in the Eastern District of New York:

Between April 1991 and May 1992, Alli–Balogun engaged in a conspiracy to import multi-kilogram quantities of heroin into the United States from Thailand. See United States v. Alli–Balogun, 72 F.3d 9, 10 (2d Cir.1995). Some of the conspirators, including defendant, had sources for the drug in Thailand. Id. at 11. Other conspirators had contacts through whom they smuggled and distributed heroin into the United States. Id. Defendant and his principal coconspirators pooled their money to purchase heroin. Id. The heroin was resold in the United States. Id. Their couriers included both men and women. Id. Some were prostitutes whose pimps were paid. Id. Others were narcotics abusers, or they had sold narcotics on a comparatively small scale. Id.

Evidence introduced at trial—procured with the help of cooperating witnesses, including two...

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