United States v. Delima
| Decision Date | 07 August 2020 |
| Docket Number | No. 3:15-cr-120-9 (VAB),3:15-cr-120-9 (VAB) |
| Parties | UNITED STATES, Plaintiff, v. ELIO DELIMA, Defendant. |
| Court | U.S. District Court — District of Connecticut |
Elio Delima ("Defendant") twice has moved for a modification or reduction of his sentence. Mot., ECF No. 782 (Dec. 18, 2017) ("First Mot."); Mot., ECF No. 788 (Oct. 1, 2018) ("Second Mot.")
For the following reasons, the motions for a sentence reduction are DENIED.
On September 19, 2016, Mr. Delima pled guilty to Count One, conspiracy to possess with intent to distribute 100 grams or more of a mixture and substance containing a detectable amount of heroin, in violation of §§ 841(a)(1), 841(b)(1)(B)(i), and 846. Plea Agreement, ECF No. 489 at 1 (Sept. 19, 2016).
On December 22, 2016, the Court sentenced Mr. Delima to a term of imprisonment of 105 months, a four-year term of supervised release, and a special assessment of $100.00. J., ECF No. 628 (Dec. 22, 2016).
On December 18, 2017, Mr. Delima moved for a reduction of sentence under 18 U.S.C. § 3582. First Mot. at 1.
On October 1, 2018, Mr. Delima again moved for a reduction of sentence under 28 U.S.C. § 2255 and a decision issued by the United States Court of Appeals for the Ninth Circuit interpreting Amendment 794 of the United States Sentencing Guidelines. Second Mot. at 1.
The applicable policy statement, U.S.S.G. § 1B1.10, permits a court to reduce a defendant's sentence if "the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (d)" only if "any such reduction in the defendant's term of imprisonment [is] consistent with this policy statement." U.S.S.G. § 1B1.10(a)(1). Subsection (d) includes Amendment 782, which is therefore consistent with the policy statement of section 1B1.10. See U.S.S.G. § 1B1.10(a)(2) (). Amendment 782 is subject to an additional requirement, which does not permit thecourt to reduce a sentence "unless the effective date of the court's order is November 1, 2015, or later." U.S.S.G. § 1B1.10(e).
The Supreme Court established a two-step inquiry for motions for a sentence reduction under Section 3582: "(1) whether the defendant is eligible for a reduction pursuant to 18 U.S.C. § 3582(c)(2) and (2) whether a reduction is warranted in light of the factors listed in 18 U.S.C. § 3553(a)." United States v. Leonard, 844 F.3d 102, 106 (2d Cir. 2016) (citing Dillon v. United States, 560 U.S. 817, 826 (2010)).
A prisoner may petition a federal court to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255. A prisoner may challenge the legality of his or her sentence under section 2255 if the sentence was: (1) imposed in violation of the Constitution or laws of the United States; (2) imposed by a court that lacked jurisdiction to sentence the prisoner; (3) in excess of the maximum detention authorized by law; or (4) otherwise subject to collateral attack. 28 U.S.C. § 2255(a). "[C]ollateral attack on a final judgment in a criminal case is generally available under [section] 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in complete miscarriage of justice." Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir.1996) (citation and internal quotation marks omitted).
Courts shall grant petitioners leave to amend their section 2255 petitions when "justice so requires." Fed. R. Civ. P.15(a)(2); Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001) ( ).
The bar for a section 2255 petition is high, and "even constitutional errors will not be redressed through a section 2255 petition unless they have had a 'substantial and injurious effect' that results in 'actual prejudice' to the petitioner." Wilson v. United States, No. 3:16-cv-1791 (SRU), 2017 WL 3044652, at *1 (D. Conn. July 18, 2017) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
A "federal prisoner may not use a section 2255 petition to relitigate questions that were expressly or impliedly resolved during a direct appeal, absent 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Id. (quoting United States v. Becker, 502 F.3d 122, 127 (2d Cir. 2013)).
Challenges under section 2255 also must be timely. They must be filed within one year of:
(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f).
Even a timely filed challenge may be barred if a petitioner "knowingly, voluntarily, and competently" waived his or her appeal rights before or at sentencing. United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000). The Second Circuit has generally recognized the enforceability of appeal waivers, but will grant exceptions in narrow circumstances. See id. at 318-19 ( ).
Section 2255 also requires that the district court hold a hearing on the petitioner's motion unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001). "[A]lthough a hearing may be warranted, 'that conclusion does not imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim[.]'" Id. (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)); see also Gomez-Rodriguez v. United States, No. 3:18-cv-00807 (VLB), 2020 WL 1430011, at *7 (D. Conn. Mar. 24, 2020) () (quoting 28 U.S.C. § 2255(b) (2014)).
Under section 3582(c)(2), a convicted defendant is eligible for a sentence reduction if "(1) he has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered, and (2) such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). "[A] district court has the discretion to deny relief where, upon review of the factors detailed in 18 U.S.C. § 3553(a), it determines that a reduction is unwarranted." United States v. Arbaje-Diaz, 699 F. App'x 42, 43 (2d Cir. 2017) (summary order) (citing Dillon, 560 U.S. at 826).
Mr. Delima argues that he is entitled to a two-level reduction of his current sentence under 18 U.S.C. § 3582(c)(2) and Amendment 782. First Mot.
The Court disagrees.
Mr. Delima is not eligible for a sentence reduction under the amended sentencing guidelines. Section 2D1.1(c)(5) was "amended by striking 'Level 32' and inserting 'Level 30.'" U.S.S.G. Guidelines Manual: Supplement to Appendix C (2018). Mr. Delima's base offense level was 30, "based on the parties' agreement that the Guidelines equivalent of at least 1 kilogram but less than 3 kilograms of heroin is properly attributable to the defendant." Plea Agreement at 4. Mr. Delima's base level was reduced to a total offense level of 27 for acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a sentencing range of 100 to 125 months. Plea Agreement at 4. And Mr. Delima received a sentence of 105 months, which falls within the sentencing range. Id.
Even if Mr. Delima was eligible for a...
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