The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
DENYING THE PETITIONER'S MOTION FOR RELIEF
This case comes before the court on the petitioner's motion for relief from his drug-trafficking conviction pursuant to Federal Rule of Criminal Procedure 35 or, in the alternative, 28 U.S.C. § 2255. The petitioner claims that his conviction was unconstitutional because the question of drug quantity was not submitted to the jury for determination beyond a reasonable doubt. He also asserts that the sentencing judge incorrectly sentenced him by taking into account acquittal conduct in determining the sentencing guideline ranges. Because the petitioner has neither met the jurisdictional requirement of Rule 35, nor timely filed his section 2255 challenge under the applicable statute of limitations, the court denies the petitioner's motion for relief.
On November 1, 1994, a jury found the petitioner guilty of conspiracy to distribute 50 grams or more of cocaine base, unlawful distribution of five grams or more of cocaine base, and unlawful distribution of five grams or more of cocaine base within 1000 feet of a school. Pet'r's Mot. for Relief ("Pet'r's Mot.") at 1-2. Specifically, the evidence showed that the petitioner supplied 21.431 grams of cocaine base to a dealer who sold the narcotics to an undercover police officer. Id. at 5. Over the defense's objection, when the case was submitted to the jury, the Judge Gasch instructed the jurors that the actual amount of drugs involved was not an issue for their consideration. Id. at 6.
Judge Gasch determined that the relevant amount of cocaine base for purposes of sentencing was 110 grams. Id. at 8. This amount included quantities involved in charges for which the jury acquitted the petitioner. Id. Based on the sentencing guideline range, Judge Gasch imposed a term of imprisonment of 240 months on each count to run concurrently. Id. at 2.
The petitioner then appealed his conviction to the D.C. Circuit. The circuit affirmed his convictions on the conspiracy and distribution counts but remanded the case for resentencing in light of the district court's "merger of the distribution counts with the schoolyard statute drug possession counts." United States v. Baylor, 97 F.3d 542, 543 (D.C. Cir. 1996). Upon remand, the case was reassigned to Judge Harris, who issued an amended judgment on October 1, 1997, again sentencing the defendant to 240 months on each count to run concurrently. Id. at 10. The petitioner's counsel, however, did not receive a copy of the amended judgment and failed to take further steps to check the record. Id. Two years later, the petitioner's counsel contacted the court and learned of the amended judgment. Id. The petitioner's counsel conveyed this information to the petitioner in a letter dated August 22, 2000. Id. at 11. Almost a year later, the petitioner filed the instant motion.
A. Legal Standard for Relief Under Rule 35 and 28 U.S.C. § 2255
Federal Rule of Criminal Procedure 35*fn1 authorizes a court to correct or reduce a sentence in three circumstances. Subsection (a) authorizes a district court to correct a sentence that the court of appeals has determined "to have been imposed in violation of law, to have been imposed as a result of an incorrect application of the sentencing guidelines, or to be unreasonable, upon remand of the case to the court." United States v. Stiefel, 207 F.3d 256, 259 (5th Cir. 2000) (quoting FED. R. CRIM. P. 35(a) (1998) (repealed 2002)). Under subsection (b), upon "a motion by the Government made within one year after imposition of the sentence," a court may "'reduce a sentence to reflect a defendant's subsequent, substantial assistance.'" United States v. Blackwell, 81 F.3d 945, 948 (10th Cir. 1996) (quoting FED. R. CRIM. P. 35(b)). Finally, subsection (c) allows a court to act within seven days of imposing a sentence to correct an arithmetical or technical mistake, or other clear error. Id. "Outside of these three circumstances, the Court lacks the authority to review and/or correct lawfully imposed sentences." United States v. Tolbert, 893 F. Supp. 1, 2 (D.D.C. 1995).
While Rule 35 serves the narrow function of allowing correction of technical errors in a sentence, 28 U.S.C. § 2255 addresses claims of illegal sentences and is used as "a means of collateral attack upon the proceedings that precede the sentence." 3 FED. PRAC. & PROC. CRIM.3d § 582. A petitioner may challenge the validity of his imposed sentence under 28 U.S.C. § 2255. 28 U.S.C. § 2255; see also United States v. Marshall, 440 F.2d 195, 200 (D.C. Cir. 1970) (MacKinnon, J., concurring in part and dissenting in part) (noting that a petitioner may question the validity of his sentence by filing a section 2255 motion before the trial court); Gomori v. Arnold, 533 F.2d 871, 875 (3d Cir. 1976) (stating that a challenge to an imposed federal sentence falls under section 2255, while a challenge to a sentence executed by federal prison and parole authorities comes under section 2241). Section 2255 authorizes the sentencing court to discharge or resentence a prisoner if the court concludes that it was without jurisdiction to impose the sentence, the sentence was in excess of the maximum authorized by law, or the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Addonizio, 442 U.S. 178, 185 (1979) (citing United States v. Hayman, 342 U.S. 205, 216-17 (1952)). A petitioner can collaterally attack his sentence under section 2255 where the sentencing judge made an "objectively ascertainable error." King v. Hoke, 825 F.2d 720, 724-25 (2d Cir. 1987) (citing Addonizio, 442 U.S. at 187). Nevertheless, the petitioner seeking to vacate his sentence shoulders the burden of sustaining his contentions by a preponderance of the evidence. United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973); ...