Opinion
02 CIV. 6891 (DLC), 97 CR. 714
September 4, 2002
MEMORANDUM OPINION AND ORDER
In this untimely habeas petition, Etienne Gabriel Zimmerman ("Zimmerman") seeks a reduction of his sentence based on Amendment 599 to the Sentencing Guidelines, an amendment which took effect November 1, 2000. Zimmerman contends that Amendment 599 clarifies that a seveh-level enhancement for the discharge of a firearm during a robbery should not have been applied in calculating his sentence since he was also given a five year consecutive term of imprisonment under 18 U.S.C. § 924 (c). Zimmerman's petition is denied.
Zimmerman pleaded guilty to three of four counts in the indictment: filed against him. Counts one and three related to a September 2, 1996 robbery. Count two related to a September 3, 1996 robbery. Since Count three — a Section 924(c) count — required a five year consecutive sentence for use of a gun during the commission of the robbery charged in Count one, there was no enhancement imposed for the gun in calculating the offense level for Count one. Because Count two concerned a different robbery, and there was no Section 924(c) conviction related to it, a seven level enhancement was applied to the offense level for Count two. Amendment 599 is entirely consistent with this computation of the defendant's sentence, and in its final sentence describes a scenario identical to that at issue here and approves a "weapon enhancement" for a "robbery which was not the basis for the 18 U.S.C. § 924 (c) conviction." U.S. Sentencing Guidelines Manual app. C, amendment 599 (2001).
In his reply, the defendant raises a new argument. He objects to the gun enhancement for Count two because, when entering his plea of guilty, he denied knowledge that a gun would be used in that robbery. What the defendant admitted at his plea was that he understood his friends would use force to rob the victim but that he did not know "which kind of force." As described in the Presentence Report, the intended victim of the September 3 robbery struggled with the robbers, the robbers' gun discharged, and a bullet ricocheted off a door. At that point the robbers fled.
The defendant's plea allocution was sufficient to hold him responsible for this conduct and to apply the enhancement. This new argument is in any event inconsistent with the calculations in the plea agreement and the Presentence Report, to which he made no objection although he had read them both and had executed the plea agreement. This argument is also barred by the statute of limitations, in violation of the plea agreement's waiver of the right to litigate a sentence imposed within a stipulated guidelines range, and an inappropriate substitute for a direct appeal.
Etienne Gabriel Zimmerman's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 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)
SO ORDERED: