U.S. v. Triestman

• Decision Date: 02 June 1999
• Docket Number: Docket Nos. 98-1021
• Citation: 178 F.3d 624
• Parties: UNITED STATES of America, Appellee-Cross-Appellant, v. Benjamin Gary TRIESTMAN, Defendant-Appellant-Cross-Appellee. (L), 98-1221(XAP).
• Court: U.S. Court of Appeals — Second Circuit

Page 624

178 F.3d 624

UNITED STATES of America, Appellee-Cross-Appellant, v. Benjamin Gary TRIESTMAN, Defendant-Appellant-Cross-Appellee.

Docket Nos. 98-1021(L), 98-1221(XAP).

United States Court of Appeals, Second Circuit.

Argued Jan. 11, 1999.

Decided June 2, 1999.

Paul D. Silver, Assistant United States Attorney, Albany, New York (Thomas J. Maroney, United States Attorney for the Northern District of New York, on the brief), for Appellee-Cross-Appellant.

David A. Lewis, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, New York, for Defendant-Appellant-Cross-Appellee.

Before: JACOBS and SOTOMAYOR, Circuit Judges, and SAND, ^* District Judge.

SOTOMAYOR, Circuit Judge:

In a recent decision, this court resolved the "important issue" of "whether a district court has jurisdiction to resentence a defendant on an underlying, unchallenged drug trafficking conviction where, pursuant to Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the defendant has successfully challenged a related firearm conviction in a 28 U.S.C. § 2255 petition." United States v. Gordils, 117 F.3d 99, 100 (2d Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 430, 139 L.Ed.2d 330 (1997). In this case, we address the related issue of whether such a resentencing is permissible where the defendant has made an identical successful challenge, but in a 28 U.S.C. § 2241 petition. We conclude here, as in Gordils, that this resentencing is permissible both under 18 U.S.C. § 3582(c)--which limits the circumstances under which courts can modify terms of imprisonment once imposed--and under the Double Jeopardy Clause of the United States Constitution. We also find that the district court acted within its discretion by resentencing defendant-appellant Triestman without an updated presentence investigation report, and that Triestman has waived his present request for a new hearing as to whether his original guilty plea was coerced. We therefore affirm the district court's judgment.

BACKGROUND

On October 5, 1992, pursuant to an agreement entered into with the government, Triestman pled guilty to the following three counts of an eleven-count indictment: (1) conspiring to manufacture and distribute thirty-five pounds of 4-methylenedioxymethamphetamine ("MDMA" or "Ecstacy"), in violation of 21 U.S.C. § 846; (2) employing a minor, Anya Sheckley, in the manufacture and distribution of MDMA, in violation of 21 U.S.C. § 861; and (3) using or carrying a firearm in connection with these drug-related convictions, in violation of 18 U.S.C. § 924(c).

At sentencing, the district court (Gagliardi, J.) grouped Triestman's two drug conspiracy counts and calculated his combined offense level to be 29 under §§ 2D1.1, 2D1.2(a)(2) of the Guidelines. The court adjusted this level downward by 3 points based on Triestman's acceptance of responsibility, under U.S.S.G. § 3E1.1. Ordinarily, the court would have been required to increase Treistman's offense level by 2 points for his possession of a firearm. See U.S.S.G. § 2D1.1(b)(1). Because Triestman was also being sentenced for a § 924(c) violation, however, the court was precluded from doing so. See U.S.S.G. § 2K2.4, Application Note 2 (prohibiting the ordinary 2-level enhancement for possession of a firearm when defendant is separately convicted of using or carrying firearm in violation of § 924(c)). The court thus assigned Triestman a total offense level of 26 for his drug convictions, which resulted in a Guideline range of 63 to 78 months, and sentenced him to consecutive terms of 63 months, for his drug convictions, and 60 months, for violating § 924(c).

Triestman appealed his conviction, and this court summarily affirmed in United States v. Triestman, 996 F.2d 302 (2d Cir.1993) (Table). On May 9, 1994, Triestman filed a pro se petition seeking collateral relief pursuant to 28 U.S.C. § 2255. The district court denied the motion, and this court summarily affirmed. See Triestman v. United States, 60 F.3d 812 (2d Cir.1995) (Table). In both proceedings, Triestman claimed that his possession of a pistol to protect himself in connection with his drug manufacturing did not constitute "use" under § 924(c).

Soon thereafter, the Supreme Court decided Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and held that a defendant cannot be convicted of "using" a firearm under § 924(c) unless he "active[ly] employ[s]" the weapon, such as by "brandishing, displaying, bartering, striking with [or] most obviously, firing or attempting to fire [it]." Id. at 143, 148, 116 S.Ct. 501. The Court thereby overruled the broader test for "use" that this court had relied on in rejecting both Triestman's direct appeal and his § 2255 petition. See, e.g., United States v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir.1988) (holding, pre-Bailey, that defendants could be found guilty of "using" a firearm under § 924(c) whenever "the circumstances surrounding the presence of a firearm in a place where drug transactions take place suggest that it was strategically located so as to be quickly and easily available for use during such a transaction").

On May 3, 1996, Triestman filed another § 2255 petition in the district court challenging his § 924(c) conviction in light of Bailey. Triestman subsequently moved this Court to certify that this successive § 2255 petition was permissible. We denied the motion, however, because Triestman's argument relied neither on newly discovered evidence nor on a new rule of constitutional law, as is required for certification of a successive § 2255 petition. ¹ See Triestman v. United States, 124 F.3d 361 (2d Cir.1997).

In our decision, we nevertheless noted that before the procedural bars against successive § 2255 petitions were codified by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a petitioner was entitled to bring a successive § 2255 petition in light of an intervening change in substantive non-constitutional law, so long as the change applied retroactively and the petition alleged actual innocence in light of this change. See Triestman, 124 F.3d at 367-71. We also noted that serious due process and Eighth Amendment questions might arise if § 2255 were the only means available for Triestman to attack his sentence. We therefore held that Triestman could pursue his Bailey challenge pursuant to a § 2241 petition in these highly unusual circumstances. Id. at 380.

Triestman subsequently brought a § 2241 petition in the district court (Scullin, J.) to challenge his § 924(c) conviction. The district court held that under Bailey, the facts elicited at Triestman's plea allocution were indeed insufficient to sustain a conviction for using a firearm in violation of § 924(c), and the court vacated Triestman's § 924(c) conviction. See Triestman v. Keller, No. 97-CV-1460 (FJS), 1998 WL 52026, at * 3 (N.D.N.Y. Feb. 2, 1998). The court also determined, however, that it had the authority to resentence Triestman on his unchallenged drug convictions. In reaching this conclusion, the court reasoned that "the Court's power to fashion appropriate relief is no narrower under § 2241 than it is under § 2255," and that "federal courts have broad discretion under the original habeas corpus statute to fashion appropriate relief 'as law and justice require.' " Id. at * 2. The court also rejected Triestman's argument that the court would place him in double jeopardy by resentencing him on these convictions. The court reasoned that Triestman's sentences were part of an interdependent "sentencing package," and that when "a petitioner is challenging one charge of an interrelated sentencing package, he or she can have no expectation of finality in only a portion of [that] package." Id. at * 6.

On February 26, 1998, the district court held a hearing to resentence Triestman on his drug convictions. At the hearing, the court relied in part on Triestman's original presentence investigation report ("PSR"), which was then approximately five years old, and in part on testimony and evidence elicited at the hearing concerning Triestman's prison activities and intentions upon release. In recalculating Triestman's total offense level for his drug offenses, the court used the same reasoning that was used in the original calculation, with one deviation: the court added 2 points to account for Triestman's possession of a firearm. With a new total offense level of 28, and a sentencing range of 78 to 97 months of incarceration, the court resentenced Triestman to 85 months of imprisonment, to be followed by six years of supervised release. Triestman's overall prison term was thus reduced by 38 months, although his sentence on his drug-related convictions was extended by 22.

On appeal, Triestman argues that (1) 18 U.S.C. § 3582(c) prohibited the district court from resentencing him on his unchallenged drug convictions; (2) the resentencing placed him in double jeopardy in violation of the Fifth Amendment to the United States Constitution; (3) the district court violated Rule 32(b) of the Federal Rules of Criminal Procedure by relying on a five-year-old PSR at his resentencing; and (4) newly discovered evidence entitles him to a new hearing on his claim that the government coerced his guilty plea by making false representations.

DISCUSSION

I. Resentencing Authority

Triestman argues that the district court lacked the power to resentence him on his unchallenged drug convictions in connection with his successful § 2241 motion. In support of this argument, he invokes 18 U.S.C. § 3582(c)(1)(B), which authorizes courts to resentence defendants when, inter alia, "expressly permitted by statute." ² He contends that neither § 2241 nor any related provision includes such an express authorization.

In support of his argument, Triestman relies heavily on a contrast between the statutory language governing remedies in § 2255 and § 2241 mo...