Opinion
02 Cr. 743 (RCC).
July 21, 2006
MEMORANDUM ORDER
John Matera, brings this pro se petition claiming that, under the United States Sentencing Guidelines ("U.S.S.G."), the Court should "modify the term of imprisonment" pursuant to 18 U.S.C. § 3582(c)(2). (Pet'r's Br. 1.) In 2004, the Court sentenced Matera to a 240-month term of imprisonment based on his plea agreement to charges of racketeering conspiracy. Matera asks the Court to reduce the sentence to reflect time served on a 97-month sentence, imposed by a different court in 1999, for an allegedly "intrinsically related" crime committed before either of his guilty pleas. (Id. 10.) For the reasons that follow, the petition to modify the term of imprisonment is DENIED.
In 1999, in the Eastern District of New York, Matera pleaded guilty to racketeering and racketeering conspiracy. The predicate offenses of the racketeering charges involved bank burglary, marijuana distribution, auto theft, and money laundering. (Resp't's Letter in Opp'n 2.) In 2004, before this Court, Matera pleaded guilty to racketeering conspiracy. The predicate offenses here involved his role in the operation of an illegal gambling business and the 1998 murder of Frank Hydell, a coconspirator in the 1999 charges who later cooperated with the Government. Matera asks the Court to modify his 2004 sentence, claiming that it was "related" to Hydell's involvement in the predicate offenses of Matera's 1999 racketeering and racketeering conspiracy guilty pleas. (Pet'r's Br. 9.) Specifically, Matera argues that he participated in Hydell's murder because he had brought Hydell into the 1999 criminal enterprise, and feared that he would be held responsible for Hydell's cooperation with the Government. (Id. 6.)
The sentencing court, on a defendant's motion, may only modify an already-imposed sentence if the "term of imprisonment [is] based on a sentencing range . . . [that] has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 944(o). . . ." 18 U.S.C. § 3582(c)(2) (2000). Here, Matera claims that Amendments 660 and 674 modify U.S.S.G. § 5.1G.3(b) and § 5K2.23, respectively, and permit the Court to exercise its discretion in issuing a § 3582(c)(2) modification. (Pet'r's Br. 3-5.) Under U.S.S.G. § 5.1G.3(b), as amended, a court "shall adjust the sentence for any period of imprisonment result[ing] from another offense that is relevant conduct to the instant offense" when the term of imprisonment for the prior offense is undischarged. U.S. Sentencing Guidelines Manual § 5.1G.3(b). Section 5K2.23, as amended, implicitly incorporates the "relevant conduct" requirement of U.S.S.G. § 5.1G.3(b). It states that a court may only allow for a downward departure when the term of imprisonment for the prior offense has been discharged, and § 5.1G.3(b) "would have provided an adjustment had that completed term of imprisonment been undischarged at the time of sentencing for the instant offense." Id. § 5K2.23 (2005).
Matera's sentence is ineligible for a § 3582(c)(2) modification because it is not governed by a retroactively applicable amendment. Before a court may consider whether an amendment to the Sentencing Guidelines should apply to a particular defendant's case, the amendments must be listed in U.S.S.G. § 1B1.10, which "governs the retroactivity of Guideline amendments and specifies which amendments a defendant may invoke pursuant to § 3582(c)(2)." United States v. Perez, 129 F.3d 255, 258-59 (2d Cir. 1997). Neither of the two amendments Matera cites, 660 and 674, are listed in U.S.S.G. § 1B1.10, so neither Amendment can be the basis of a § 3582(c)(2) modification. U.S. Sentencing Guidelines Manual § 1B1.10 (2005). Therefore, the Court does not reach the question of whether U.S.S.G. § 5.1G.3(b) or § 5K2.23, as amended, warrants a modification in Matera's particular case.
Furthermore, Matera's resort to Amendment 660 fails § 3582(c)(2)'s explicit requirement of an amendment that "subsequently lower[s]" the applicable Guideline sentence. 18 U.S.C. § 3582(c)(2). Amendment 660 went into effect in 2003 before the Court sentenced Matera. U.S. Sentencing Guidelines Manual Amend. 660 (2004).
Given Amendment 660's applicability at the time of Matera's second sentencing, Matera might actually be challenging the Court's application of the then-existing Sentencing Guidelines in 2004; such a challenge would be better styled as a direct appeal under 18 U.S.C. § 3742. The Court must consider this possibility because of the obligation to construe pro se motions liberally.See Haines v. Kerner, 404 U.S. 519, 520-521 (1972) (holding pro se pleadings to less stringent standards than those for formal pleadings drafted by practitioners); see also Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir. 2003) (per curiam) (reading pro se submissions to raise the strongest arguments they suggest).
Although Matera's petition for modification might plausibly be read as a direct appeal of the Court's application of then-existing Sentencing Guidelines, the Court simply does not have authority to hear such an appeal. District courts lack jurisdiction to review direct appeals of final sentences under § 3742. See Rivera v. United States, No. 91 Cr. 595 (KTD), 2003 WL 76988, at *1 (S.D.N.Y. Jan 9, 2003) ("[Section 3742] does not grant jurisdiction to a district court to review a final sentence"); cf. United States v. Lussier, 104 F.3d 32, 37 (2d Cir. 1997) (noting *1 (S.D.N.Y. Jan 9, 2003) ("[Section 3742] does not grant jurisdiction to a district court to review a final sentence");cf. United States v. Lussier, 104 F.3d 32, 37 (2d Cir. 1997) (noting that a district court can only correct a sentence on remand under § 3742). Compare 18 U.S.C. § 3742(d) (2000) ("If notice of appeal is [properly] filed in the district court . . . the clerk shall certify to the court of appeals [the record]"),with 18 U.S.C. § 3742(e)(2) (2000) ("Upon review of the record, the court of appeals shall determine whether the sentence was imposed as a result of an incorrect application of the sentencing guidelines").
While the Court might, in theory, convert Matera's petition for modification into a direct appeal to be heard by the Second Circuit, the Court declines to do so. Cf. Simon v. United States, 359 F.3d 139, 143-45 (2d Cir. 2004) (discussing the stringent requirements for converting a 18 U.S.C. § 3582(c)(2) motion into a petition for habeas relief). First, Matera appears to have waived his right to a direct appeal. (Plea Agreement 5-7.) When a validly-secured plea agreement contains a waiver of the right to appeal directly, that waiver is binding. United States v. Rodriguez, 416 F.3d 123, 128-129 (2d Cir. 2005). Second, Matera has already appealed his sentence to the Second Circuit Court of Appeals. Matera v. United States, No. 05-0392 (2d Cir. appeal docketed Jan. 24, 2005). These factors all weigh against converting Matera's petition for modification into one for a direct appeal. Thus, even in light of its obligation to construe pro se petitions liberally, the Court cannot consider issues beyond the instant petition for modification.
For the foregoing reasons, Matera's petition is DENIED.
So Ordered.