Opinion
02 Civ. 3860 (DLC)
June 10, 2002
MEMORANDUM OPINION AND ORDER
Petitioner Bruno Rumignani ("Rumignani") moves to vacate his sentence pursuant to 28 U.S.C. § 2255, on the ground that the sentence enhancement based on the Court's finding by a preponderance of the evidence that the offenses of conviction jeopardized the safety and solvency of a financial institution is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Supreme Court held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Id. at 490.
Rumignani concedes that this Court made no factual finding that increased the statutory maximum sentence to which he is subject, and he concedes that under current Second Circuit precedent, sentence enhancements that do not result in a sentence greater than the statutory maximum are constitutional and do not run afoul of Apprendi. See United States v. Blount, F.3d 2002 WL 1084018, at *10 (2d Cir. May 30, 2002) ;United States v. Beatty, F.3d 2002 WL 1041375, at *2 (2d Cir. May 24, 2002); United States v. Szur, 289 F.3d 200,219 (2d Cir. 2002); United States v. Norris, 281 F.3d 357,359 (2d Cir. 2002); Santana-Madera v. United States, 260 F.3d 133,141 (2d Cir. 2001), cert. denied, 122 S.Ct. 817 (2002). Rumignani explains that because several cases currently pending before the Supreme Court may result in a change in the law, he makes this motion to preserve his rights. Because sentencing enhancements that do not result in a sentence greater than the prescribed statutory maximum do not implicate Apprendi and because the Court made no factual finding that increased the statutory maximum sentence to which Rumignani was exposed, the petition for relief pursuant to Section 2255 is denied. The Clerk of Court shall close the case.
I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235,241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). In addition, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438,445 (1962)