U.S. v. Enigwe

• Citation: 212 F.Supp.2d 420
• Decision Date: 30 July 2002
• Docket Number: Criminal Action No. 92-257.
• Parties: UNITED STATES of America, v. Ifedoo Noble ENIGWE.
• Court: U.S. District Court — Eastern District of Pennsylvania

212 F.Supp.2d 420

UNITED STATES of America, v. Ifedoo Noble ENIGWE.

Criminal Action No. 92-257.

United States District Court, E.D. Pennsylvania.

July 30, 2002.

Robert R. Calo, Assist. U.S. Atty., Philadelphia, PA, for government.

Ifedoo Noble Enigwe, White Deer, PA, pro se.

MEMORANDUM

DuBOIS, District Judge.

On May 6, 1992, Defendant Ifedoo Noble Enigwe was charged in a four-count indictment with importing and trafficking in heroin. He was convicted by a jury on all four counts on August 12, 1992, and, on August 13, 1993, was sentenced by this Court to, inter alia, 235 months in prison and five years of supervised release. Defendant is currently serving his sentence at FCI-Allenwood. Presently before the Court are a number of defendant's motions attacking either the validity of defendant's conviction and sentence or the Court's dismissal of various habeas corpus petitions under 28 U.S.C. § 2255.

I. BACKGROUND

The Court sets forth only an abbreviated procedural history as pertinent to the pending motions. Some procedural history relevant to the pending motions is also set forth in the Court's discussion of each motion. A detailed factual and procedural history is included in the Court's previously reported opinions in this case. See United States v. Enigwe, No. 92-257, 2001 WL 708903, at *1-3 (E.D.Pa. June 21, 2001) (post-conviction procedural history); United States v. Enigwe, No. 92-257, 1992 WL 382325, at *2-3 (E.D.Pa. Dec. 9, 1992) (factual history).

Defendant's first habeas petition, which was filed on August 24, 1994, was finally denied (after a remand from the Third Circuit) on July 16, 1997. United States v. Enigwe, No. 92-257, 1997 WL 430993 (E.D.Pa. July 16, 1997), aff'd, 141 F.3d 1155 (3d Cir.1998), cert. denied, 523 U.S. 1102, 118 S.Ct. 1573, 140 L.Ed.2d 806 (1998). After that denial, defendant filed a number of motions which amounted to four separate successive habeas petitions.¹ In 1999 and 2000, while defendant's third and fourth habeas petitions were pending at various stages of litigation, defendant filed a number of motions raising claims with respect to his conviction, sentence, and the Court's denials of his earlier motions. By Order dated May 31, 2001, the Court granted Defendant's Motion to Dismiss Without Prejudice (Doc. No. 297, filed Jan. 16, 2001), and dismissed a number of those motions without prejudice. The motions dismissed without prejudice pursuant to that Order were as follows:

(1) Defendant's Motion to Modify Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (Doc. No. 272, filed Jan. 6, 1999);

(2) Defendant's Rule 60(b)(6) Motion to Vacate This Court's Decision on Section 2255 Motion Entered Against Petitioner on July 16, 1997 (Doc. No. 274, filed Feb. 10, 1999);

(3) Defendant's Second or Successive Petition for Vacation of Conviction Pursuant to § 2255 (Doc. No. 278, filed Jan. 20, 2000);

(4) Defendant's Supplemental Motion to § 2255 Motion Pending Before This Court (Doc. No. 279, filed March 23, 2000);

(5) Defendant's Motion to Dismiss the Indictment Pursuant to Rule 12(b)(2) Fed.R.Crim.P. (Doc. No. 282, filed June 30, 2000);

(6) Defendant's Addendum to the Motions Sub Judice (Doc. No. 283, filed July 11, 2000); and

(7) Defendant's Emergency Motion for Bail (Doc. No. 285, filed July 31, 2000).

After this Court's dismissal of defendant's fifth habeas petition on June 21, 2001, see United States v. Enigwe, No. 92-257, 2001 WL 708903 (E.D.Pa. June 21, 2001), defendant filed a Motion to Reinstate Motions Which Were Dismissed Without Prejudice (Doc. No. 313, filed Aug. 10, 2001). The Motion to Reinstate seeks reinstatement of all of the above motions, with the exception of Defendant's Emergency Motion for Bail (No. 7 above), which Motion defendant agrees the Court should dismiss with prejudice. Because the government does not oppose reinstatement of the six other motions addressed in defendant's Motion to Reinstate, the Court reinstates the six motions and considers them in this Memorandum.

After defendant filed his Motion to Reinstate, he filed three additional motions:

(1) Defendant's Rule 60(b)(6) Motion for Reconsideration of This Court's Order of June 21, 2001 (Doc. No. 323, filed Nov. 5, 2001) and Addendum to Motion Under Rule 60(b) Pending Before This Court (Doc. No. 325, filed Dec. 5, 2001);

(2) Defendant's Motion to Renew Bail (Doc. No. 332, filed March 7, 2002); and

(3) Defendant's Motion for Evidentiary Hearing (Doc. No. 342, filed May 22, 2002).

The parties have submitted extensive briefing on all of the pending motions. The Court now issues this Memorandum opinion to resolve all of the pending motions. For the reasons discussed below, the Court denies all of defendant's motions.

II. DISCUSSION

The Court addresses all of the pending motions in six different subsections, as follows:

A. Defendant's Motion to Modify Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (Doc. No. 272, filed Jan. 6, 1999);

B. Defendant's Rule 60(b)(6) Motion to Vacate This Court's Decision on Section 2255 Motion Entered Against Petitioner on July 16, 1997 (Doc. No. 274, filed Feb. 10, 1999);

C. Defendant's Fourth Habeas Petition (including Defendant's Second or Successive Petition for Vacation of Conviction Pursuant to § 2255 (Doc. No. 278, filed Jan. 20, 2000); Supplemental Motion to § 2255 Motion Pending Before This Court (Doc. No. 279, filed March 23, 2000); and Addendum to the Motions Sub Judice (Doc. No. 283, filed July 11, 2000));

D. Defendant's Motion to Dismiss the Indictment Pursuant to Rule 12(b)(2) Fed.R.Crim.P. (Doc. No. 282, filed June 30, 2000);

E. Defendant's Rule 60(b)(6) Motion for Reconsideration of This Court's Order of June 21, 2001 (Doc. No. 323, filed Nov. 5, 2001); and

F. Remaining Pending Motions (including Defendant's Motion to Renew Bail Motion (Doc. No. 332, filed March 7, 2002); Defendant's Motion for Evidentiary Hearing (Doc. No. 342, filed May 22, 2002)).

A. DEFENDANT'S MOTION TO MODIFY SENTENCE PURSUANT TO 18 U.S.C. § 3582(c)(2)

In Defendant's Motion to Modify Sentence Pursuant to 18 U.S.C. § 3582(c)(2) (Doc. No. 272, filed Jan. 6, 1999), defendant argues that the Court should, under the authority granted to it in 18 U.S.C. § 3582(c)(2), reduce defendant's sentence based on Amendment 585 to the United States Sentencing Guidelines. See U.S.S.G. § 5K2.0, app. C supp., amend. 585 (1998) ("Amendment 585"). That Amendment, which conformed U.S.S.G. § 5K2.0 to the United States Supreme Court's decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), has been interpreted to allow downward departures in sentencing ranges based on a defendant's post-conviction rehabilitation. Given his significant rehabilitation while incarcerated, defendant argues, such a departure is appropriate in this case.

The government responds to defendant's argument by asserting that Amendment 585 cannot be applied retroactively to defendant under U.S.S.G. § 1B1.10. That provision provides, in relevant part:

Where a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, a reduction in the defendant's term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2). If none of the amendments listed in subsection (c) is applicable, a reduction in the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) is not consistent with this policy statement and thus is not authorized.

U.S.S.G. § 1B1.10(a)

The government correctly argues that Amendment 585 is not listed in U.S.S.G. § 1B1.10(c), and, accordingly, should not be given retroactive effect. That, however, does not end the inquiry. An amendment to the Sentencing Guidelines may be applied retroactively even if not listed in § 1B1.10(c) if the amendment embodies a non-substantive, but clarifying, change to the Guideline sentencing range. See United States v. Marmolejos, 140 F.3d 488, 490-91 (3d Cir.1998). Defendant argues that Amendment 585 is such a non-substantive, clarifying amendment in light of language in the Amendment providing that it "makes minor, non-substantive changes that improve the precision of the language of § 5K2.0."²

The Court concludes, however, that it need not resolve the question whether Amendment 585 constitutes a clarifying amendment. The Court reaches this determination because defendant's argument that he is entitled to a departure under the amended Guideline omits a threshold analysis of § 3582(c)(2) — the statute defendant cites as allowing him to seek a modification of his sentence.

Section 3582(c)(2) provides an exception to the general rule that a Court may not modify a term of imprisonment once imposed; it allows for modification "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). By its terms, the provision applies only to Guideline amendments that affect a sentencing range. Thus, the essential question in analyzing defendant's Motion for a departure is whether Amendment 585 affects defendant's sentencing range. The Court concludes that it does not. Rather, § 5K2.0 is a policy statement providing guidance as to when a sentencing court may, in its discretion, "impose a sentence outside the range established by the applicable guidelines." U.S.S.G. § 5K2.0 (emphasis added). Because § 5K2.0 does not provide a sentencing range, an amendment affecting that section, like Amendment 585, is not within the ambit of § 3582(c)(2). Accordingly, defendant cannot use § 3582(c)(2) to seek a reduction in his sentence based on Amendment 585. See United States v. Caldwell, 155 F.Supp.2d 292, 294 (E.D.Pa.2001) (conducting similar analysis); United States v. Santiago, 2000 WL 760743, at *1 (D.Me. March 21, 2000) (same).

B. DEFENDANT'S RULE 60(b)(6) MOTION TO VACATE THE COURT...