U.S. v. Restrepo-Suares

• Decision Date: 15 October 2007
• Docket Number: Civil Action No. 07-0450 (JDB).,Criminal Action No. 04-034-06 (JDB).
• Citation: 516 F.Supp.2d 112
• Parties: UNITED STATES of America v. Juan Carlos RESTREPO-SUARES, aka Juan Carlos Restrepo-Suarez aka Barbas, Defendant.
• Court: U.S. District Court — District of Columbia

516 F.Supp.2d 112

UNITED STATES of America v. Juan Carlos RESTREPO-SUARES, aka Juan Carlos Restrepo-Suarez aka Barbas, Defendant.

Criminal Action No. 04-034-06 (JDB).

Civil Action No. 07-0450 (JDB).

United States District Court, District of Columbia.

October 15, 2007.

Sarah Weyler, Steven N. Siegel, United States Department of Justice, Washington, DC,. for United States of America.

Paul R. Nalven, Nalven & Schacht, New York, NY, for Juan Carlos Restrepo-Suares, aka Juan Carlos Restrepo-Suarez aka Barbas.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

This case is before the Court on defendant's motion to vacate and correct his sentence pursuant to 28 U.S.C. § 2255. Defendant pled guilty to a conspiracy, continuing from January 1994 to January 2004, to import, manufacture, and distribute cocaine in violation of 21 U.S.C. §§ 952(a), 959, 963 and 960(b)(1)(B)(ii), as charged in Count One of the indictment. He was sentenced on January 31, 2007 to 72 months imprisonment — at the low end of the advisory range of 70 to 87 months recommended by the United States Sentencing Guidelines ("Guidelines"). At that time, the government and defendant accepted the conclusion in the Presentence Investigation Report, prepared by the U.S. Probation Office, that the 2006 version of the Guidelines applied. See Order at 2-3 (filed Feb. 21, 2007). In the weeks thereafter, in preparation for the sentencing of co-defendant Hernando Rendon Rivera, the Court concluded that application of the current 2006 Guidelines "conceivably raise[d] an ex post facto issue by establishing an `advisory'.... sentencing range" that exceeded the range under the 2003 Guidelines — the version in effect at the time of the offense conduct. Id. at 2-3. Lacking jurisdiction to modify the sentence. under Fed.R.Crim.P. 35, the Court then sua sponte extended the time within which defendant was authorized to file a notice of appeal to preserve defendant's ability to pursue the issue. Id. at 6. Defendant filed a notice of appeal and, simultaneously, sought relief under 28 U.S.C. § 2255 on the ground that the "correct range" for sentencing is the lower range recommended by the 2003 Guidelines — 46 to 57 months. The government has represented that it consents to a resentencing hearing, but does not consent to a new sentence, and has not taken a position on whether retroactive application of the 2006 Guidelines violates the ex post facto clause. In considering defendant's contention that application of the 2003 Guidelines is required, the Court also has received memoranda from co-defendants Rendon Rivera and Wilson de Jesus Villegas-Jaramillo, who are awaiting sentencing on the same count of the indictment and are similarly situated in terms of their offense level calculations.

STANDARD OF REVIEW

Section 2255 authorizes the sentencing court to discharge or repentance a prisoner if the court concludes that it was without jurisdiction to impose the sentence, the sentence was in excess of the maximum authorized by law, or the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Addonizio 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). A "constitutional error" or other "objectively ascertainable error" resulting in a "complete miscarriage of justice" are grounds for collateral attack. See Addonizio, 442 U.S. at 185-87, 99 S.Ct. 2235; Winchester v. United States, 477 F.Supp.2d 81, 83 (D.D.C.2007). The movant hears the burden of proving his contentions by a preponderance of the evidence. United States v. Simpson, 475 F.2d 934, 935 (D.C.Cir.1973); Winchester, 477 F.Supp.2d at 83.

ANALYSIS

I. Jurisdiction

The Court first considers whether it has the authority to resolve defendant's motion for resentencing while his direct appeal of the sentence is pending. Ordinarily, the filing of a notice of appeal "confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam); see also Johnson v. Bechtel Associates Professional Corp., 801 F.2d 412, 415 (D.C.Cir.1986) (per curiam) (holding that the district court does not regain jurisdiction over those issues until the court of appeals issues its mandate). However, this Circuit has held that "there is no jurisdictional bar to the District Court's entertaining a Section 2255 motion during the pendency of a direct appeal, but that the orderly administration of criminal law precludes considering such a motion absent extraordinary circumstances." Womack v. United States, 395 F.2d 630, 631 (D.C.Cir.1968); United States v. Edmonds, 870 F.Supp. 1140, 1143 n. 3 (D.D.C.1994), aff'd, 84 F.3d 1453, 1996 WL 244696 (D.C.Cir.1996). The D.C. Circuit has further noted that the requirement of "extraordinary circumstances" is not immutable, stating that. "Womack is a rule of administrative convenience which should not be uncompromisingly applied to effect an unfair result." United States v. Tindle, 522 F.2d 689, 693 n. 10 (D.C.Cir.1975).

Here, the court of appeals has granted defendant's motion to hold his appeal in abeyance "pending resolution" of his motion for relief under 28 U.S.C. § 2255 "in light of the district court's order ... indicating that [Restrepo-Suares] may be entitled to a recalculation of his advisory guideline range." See Order (D.C.Cir. Aug. 13, 2007). That Order thus indicates that the court of appeals intends to have this Court resolve the § 2255 motion while the appeal is pending. In light of Tindle and the stay of appellate proceedings, then, the Court concludes that the orderly administration of law not only authorizes, but necessitates, resolving defendant's motion, notwithstanding the general requirement that extraordinary circumstances must first be demonstrated before such a motion is considered. See Edmonds, 870 F.Supp. at 1143 n. 3 (resolving § 2255 motion during pendency of appeal in light of similar stay of appellate proceedings). Any actual resentencing, of course, must await a remand from the court of appeals. See Womack, 395 F.2d at 631 n. 1; Smith v. Pollin, 194 F.2d 349, 350 (D.C.Cir.1952) (observing that a § 2255 movant must make a motion for remand in the appellate court before the district court may grant full relief under § 2255 where relief would encompass a new trial).

II. Determination of the Correct Guidelines Range

A. Defendant's Total Offense Level Under the 2006 Guidelines and the 2003 Guidelines

In its February 21, 2007 Order, the Court described the Guidelines provisions giving rise to its concern that retroactive application of the 2006 Guidelines to defendant implicates the ex post facto clause. At the time of sentencing, defendant's "base offense level" was determined to be 34 pursuant to USSG § 2D1.1(a)(3) and (c)(1) — that is, an initial base offense level of 38 and a four-level downward adjustment based on defendant's mitigating role. The application of the 2006 Guidelines was recommended by the Presentence Investigation Report and stipulated to by the parties. See Def.'s Presentence Mem. [ECF # 74] at 1 ("Our primary application is for the Court to sentence the defendant to no more than 70 months in prison, which is at the bottom of the stipulated advisory Guidelines range."); Government's Receipt and Acknowledgment of Presentence Investigation Report [ECF # 75] at 1 ("There are no material/factual inaccuracies therein."). After adjustments based on the "safety valve" provision (USSG § 5C1.2), role in the offense, and acceptance of responsibility, the Court concluded that defendant's total offense level was 27, and that with a criminal history category of I, the advisory Guidelines range was 70 to 87 months.¹ The Court relied on this advisory range and other factors under 18 U.S.C. § 3553(a) in imposing the sentence of 72 months.

Under the 2003 Guidelines, however, the base offense level for the same offense under the same Guidelines section is 30.² See USSG § 2D1.1(a)(3) ("the base offense level under this subsection shall be not more than level 30" where the defendant is determined to have a "mitigating role"). In other words, for defendant Restrepo-Suares — and his similarly situated co-defendants Rendon Rivera and Villegas-Jaramillo — the version of the Guidelines that is applied makes a significant difference in the advisory sentencing range because, under the 2003 Guidelines, his base offense level would be four levels lower (30 rather than 34). Put another way, the advisory sentencing range under the 2003 Guidelines would be 46 to 57 months (based on a total offense level of 23), in contrast to 70 to 87 months (based on a total offense level of 27) under the 2006 Guidelines.

B. Impact of the Ex Post Facto Clause on the Guidelines Range

Section 1B1.11(a) of the 2006 Guidelines, like prior versions, specifies. that: "[t]he court shall use the Guidelines Manual in effect on the date that the defendant is sentenced." But § 1B1.11(b)(1) then states that if use of the current manual "would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed." The import of this provision under a mandatory Guidelines regime, before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), was relatively clear: an amendment to the Guidelines that occurred after the commission of an offense could not be applied to a defendant if it worked to the detriment of the defendant. See United States v. Gonzalez, 281 F.3d 38, 45-46 (2d Cir.2002); see also Miller v. Florida, 482 U.S. 423, 429-32, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). After Booker, however, there have been divergent views on whether the Guidelines, now "advisory," present the same problem, as this Court observed in the Order initially describing this issue:

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