U.S. v. Levine

• Decision Date: 08 February 2002
• Docket Number: No. HCR 91-3.,HCR 91-3.
• Citation: 188 F.Supp.2d 1089
• Parties: UNITED STATES of America, Plaintiff, v. Robert M. LEVINE, Defendant.
• Court: U.S. District Court — Northern District of Indiana

188 F.Supp.2d 1089

UNITED STATES of America, Plaintiff, v. Robert M. LEVINE, Defendant.

No. HCR 91-3.

United States District Court, N.D. Indiana, Hammond Division.

February 8, 2002.

ORDER

LOZANO, District Judge.

This matter is before the Court on the Motion to Correct a Sentence of Imprisonment Pursuant to 18 USC § 3582 and/or 28 USC § 1651 and the Motion for the Court to Take Judicial Notice Pursuant to Rule 201, F.R.E., filed by Defendant on July 2, 2001 and October 17, 2001, respectively. For the reasons set forth below, the motions are DENIED.

BACKGROUND

On January 11, 1991, the grand jury returned a 5-count indictment against Defendant, charging him with one count of conspiracy to use interstate commerce to effect murder-for-hire and four counts of using interstate commerce to effect murder-for-hire in violation of 18 U.S.C. sections 371 and 1958. The indictment alleged that Defendant traveled in interstate commerce, specifically from Arizona to Indiana, with intent that the murders of his brother, sister-in-law, and nephew be committed as consideration for a promise or agreement to pay a thing of pecuniary value to Bruce William McKinney for the murders. A jury found Defendant guilty of all five counts. This Court sentenced Defendant to life imprisonment terms for each of the four counts of using interstate commerce to effect murder-for-hire and 60 months for the conspiracy count, with the sentences to run concurrently. The Seventh Circuit affirmed Defendant's conviction and this Court's subsequent denial of Defendant's motion pursuant to 28 U.S.C. section 2255 and motion for new trial based on newly discovered evidence.

On April 6, 2001, Defendant filed a motion for appointment of counsel. Defendant contended he needed legal assistance in preparing a motion for reduction in his sentence pursuant to 18 U.S.C. section 3582(c)(2). Defendant maintained that a recent amendment to the United States Sentencing Guidelines reduced the sentencing range under which he was previously sentenced. In its April 12, 2001, order, this Court declined to exercise its discretion to appoint counsel in a section 3582(c)(2) proceeding based on this Court's finding that Defendant's argument lacked merit. This Court further denied Defendant's motion for reconsideration of the April 12, 2001, order.

In the instant motion to correct sentence, Defendant requests this Court reduce his sentence based on Amendment 591 to the Sentencing Guidelines pursuant to 18 U.S.C. section 3582(c)(2) and/or pursuant to the writ of coram nobis, 28 U.S.C. section 1651. In the instant motion for judicial notice, Defendant requests this Court give due consideration to Ashley v. United States, 266 F.3d 671 (7th Cir.2001), in which the Seventh Circuit held a district court may determine if a right newly recognized by the Supreme Court has been made retroactively applicable on an initial collateral review. In particular, Defendant requests this Court consider Ashley in conjunction with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

DISCUSSION

Motion to Correct Sentence

Defendant contends that Congress made clear through Amendment 591 to the Sentencing Guidelines that courts are only to sentence defendants for the offense conduct charged in the count of which the defendant was convicted. Based on this premise, Defendant asserts he can only be sentenced to 10 years imprisonment because that is the maximum punishment under 18 U.S.C. section 1958(a) when the indictment does not charge that personal injury or death resulted from the use of interstate commerce in the commission of murder-for-hire. Section 1958 provides in pertinent part that:

Whoever travels in or causes another ... to travel in interstate ... commerce ... with intent that a murder be committed in violation of laws of any State or the United States as consideration for the receipt of, or as consideration for a promise ... to pay, anything of pecuniary value, or who conspires to do so, shall be ... imprisoned for not more than ten years ... and if personal injury results, shall be ... imprisoned for not more than twenty years ... and if death results, shall be punished by death or life imprisonment ....

18 U.S.C. § 1958(a). Defendant maintains section 1958 establishes separate offenses with separate elements that must be charged in the indictment and found by a jury beyond a reasonable doubt. According to Defendant, since his indictment failed to charge that "death resulted," nor was the jury so instructed, his maximum sentence is ten years. In addition to Amendment 591, Defendant relies upon Sentencing Guideline section 5G1.1 and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) to establish his claim.

Section 3582(c)(2) provides that

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 ... the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). Sentencing Guideline section 1B1.10 provides that "[w]here 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)." U.S. Sentencing Guidelines Manual § 1B1.10(a) (2001). Amendment 591, upon which Defendant relies, is listed in subsection (c) of section 1B1.10. U.S.S.G. section 1B1.10(c). The authorization of a discretionary reduction, however, does not entitle a defendant to a reduced term of imprisonment as a matter of right. U.S.S.G. section 1B1.10, cmt. background.

The Government contends Amendment 591 is not listed in section 1B1.10(c). The Government is clearly wrong and this Court suggests the Government consult the most current Sentencing Guidelines rather than rely upon old case law. The Government further cites case law for the proposition that Amendment 591 is not retroactive. See United States v. Martinez, 263 F.3d 436, 440 n. 2 (5th Cir.2001); United States v. Diaz, 245 F.3d 294 (3d Cir.2001). This Court will not decide the issue because even if Amendment 591 is retroactive, it does not justify the relief Defendant requests.

Defendant notes that Amendment 591 made changes to Sentencing Guideline sections 1B1.1, 1B1.2, and the Statutory Index, inserting language that the Court must use the Guideline most appropriate for the "offense conduct charged in the count of which defendant was convicted." Defendant also notes the Commission struck Application Note 3 of section 1B1.2 which provided that in many instances it would be appropriate for the court to consider the actual conduct of the offender, even if such conduct did not constitute an element of the offense. See U.S.S.G.App. C Supp., Amend. 591; U.S.S.G. §§ 1B1.1, 1B1.2, App. A.

The Court must point out that both the former version and the current version of section 1B1.2 contain the language with which Defendant refers. Unamended section 1B1.2 provided that courts "[d]etermine the offense guideline section in Chapter Two (Offense Conduct) most applicable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted)." U.S.S.G. § 1B1.2(a)(1998). The amended version of section 1B1.2 merely strikes the word "most." See U.S.S.G. § 1B1.2(a) (2001); see also U.S.S.G.App. C Supp., Amend. 591. The current version also directs courts to the Statutory Index (Appendix A) to determine the Chapter Two Guideline for the offense of conviction. Id.

The current version of the Statutory Index directs courts to use the Guideline most appropriate for the offense conduct charged in the count of which the defendant was convicted whereas the former version directed the court to use the guideline most appropriate for the "nature" of the offense conduct so charged. See U.S.S.G.App. A, intro. cmt. (2001); U.S.S.G.App. A, intro. cmt. (1998). The current version deletes the former direction of how a court could deviate from the referenced Guideline section in the "atypical" case. Id.

Amended section 1B1.1 merely directs the Court to "[d]etermine, pursuant to § 1B1.2 (Applicable Guidelines), the offense guideline section from Chapter Two (Offense Conduct) applicable to the offense of conviction." U.S.S.G. § 1B1.1(a) (2001).

The effect of these changes becomes clear in light of the reason for Amendment 591 as explained by the Commission. The Commission noted that Amendment 591 addresses a conflict among the circuits as to whether courts could assess the enhanced penalties under section 2D1.2 (drug offenses occurring near locations or involving underage or pregnant individuals) only in a case in which the defendant was convicted of an offense referenced to that guideline or, alternatively, in any case in which the defendant's relevant conduct included drug sales in a protected location or involving a protected individual. U.S.S.G.App. C Supp., Amend. 591 (2000).

The Commission also created Amendment 591 because of courts selecting guidelines different from those referenced in the Statutory Index. The Commission noted the modifications to section 1B1.1(a), 1B1.2(a), and the Statutory Index introductory commentary clarify the interrelationship among these provisions and emphasize that "the sentencing court must apply the offense guideline referenced in the Statutory Index for the statute of conviction unless the case falls within the limited `stipulation' exception set forth in § 1B1.2(a)." Id. (emphasis added). As the Commission concluded, in order to assess the enhanced penalties in section 2D1.2, the...