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Zagorski v. United States

United States District Court, District of Columbia

November 18, 2016




         Nearly four years after he was sentenced, the defendant Peter Zagorski, proceeding pro se, filed a Motion for Sentence Modification due to his status as a deportable alien, relying upon United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994). See generally Def.'s Mot. Sentence Modification (“Def.'s Mot.”), ECF No. 53.[1] The government opposes this motion on the grounds that any consideration of whether the defendant should have received a downward departure pursuant to Smith “has already been fully adjudicated before the Court, and there is no new information or legal authority presented by the defendant not already before the Court at the time of sentencing to warrant a modification of the sentence imposed by the Court.” Gov't's Resp. Def.'s Mot. at 1 (“Gov't's Opp'n”), ECF No. 56. Upon consideration of the parties' written submissions, the underlying record, and relevant case law, the defendant's motion is denied for the reasons explained below.

         I. BACKGROUND

         On October 9, 2012, the defendant was sentenced, on his plea of guilty, to one count of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2), to 99 months' imprisonment, followed by 10 years of supervised release-a sentence well below the applicable Guidelines range. See Judgment at 2-3, ECF No. 39; Minute Entry (Oct. 9, 2012). At the sentencing hearing, the Court determined that the advisory sentencing range applicable to the defendant was 262 to 327 months' imprisonment, see Sentencing Trans. at 10, ECF No. 46, which exceeded the statutory maximum sentence of 240 months' imprisonment, see 18 U.S.C.§ 2252(b).[2]

         In arriving at the below-Guidelines sentence, the Court considered a number of factors, including that the offense conduct involved the “distribution of child pornography, ” not merely “possession of child pornography, ” Sentencing Trans. at 39; that “[t]his was not a case where [the defendant] needed any arm twisting or convincing at all to engage in distribution of child pornography, ” but rather “was willing to speak directly to [a] child . . . to make her comfortable and willing to either [use] [a] web cam [for sexual activity] or to allow him to come there and engage in sex with her or both, ” id. at 40; that the pornographic videos and photographs that the defendant admitted to watching were “very violent, ” “disturbing, ” and “horrific, ” id. at 41; the immigration consequences of the defendant's sentence, id. at 42; sentences in comparable cases, id. at 42-43; the defendant's positive characteristics, id. at 44; and the fact that he was “not someone who [wa]s setting out to distribute pornography for . . . a commercial purpose;” and that, “to some degree, ” the defendant did not “completely comprehend[] the seriousness of what [he] w[as] doing, ” id. at 44.


         The Supreme Court has instructed that “[f]ederal courts are forbidden, as a general matter, to ‘modify a term of imprisonment once it has been imposed, ' 18 U.S.C. § 3582(c); but the rule of finality is subject to a few narrow exceptions.” Freeman v. United States, 564 U.S. 522, 526 (2011); see also Dillon v. United States, 560 U.S. 817, 819 (2010) (“A federal court generally ‘may not modify a term of imprisonment once it has been imposed.'” (quoting 18 U.S.C. § 3582(c))). In other words, absent clear statutory authorization, or authorization by the Federal Rules of Criminal Procedure, a court lacks jurisdiction to modify a final sentence. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-94 (1998) (“The requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception.” (internal quotation marks and alteration omitted)); accord United States v. Arrington, 763 F.3d 17, 22 (D.C. Cir. 2014) (construing a pro se defendant's motion as seeking review of his sentence under 28 U.S.C. § 2255, but finding a lack of jurisdiction to consider the appeal for failure to comply with statutory limitations on post-conviction relief).

         The “narrow exceptions” authorizing modification of an otherwise final federal sentence include those set out in two statutes, 18 U.S.C. § 3582(c) and 28 U.S.C. § 2255. Specifically, § 3582(c) permits modification of an ongoing prison sentence under three enumerated limited circumstances, including when the Director of the Bureau of Prisons has so moved, when the U.S. Sentencing Commission has lowered the Guidelines applicable to the challenged sentence and authorized the modification in a policy statement, or when a statute or Federal Rule of Criminal Procedure 35 “expressly permit[s]” a modification. 18 U.S.C. § 3582(c)(1)-(2). Rule 35, in turn, permits, within 14 days after sentencing, correction of a sentence “that resulted from arithmetical, technical, or other clear error, ” or reduction of a sentence on the government's motion that the defendant has provided substantial assistance.

         Likewise, § 2255 authorizes consideration of a federal prisoner's motion to vacate, set aside, or correct his sentence if the sentence was imposed “in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . 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. This motion must be filed within one year of the “date on which the judgment of conviction becomes final, ” or the date on which another specified trigger event occurs, id., § 2255(f)(1)-(4). Since the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, places stringent restrictions on second or successive motions under 28 U.S.C. § 2255, see 28 U.S.C. § 2255(h), before a pro se defendant's sentence modification motion is construed as one for relief under § 2255, the defendant should be given the opportunity to withdraw the motion or to amend it to include all grounds he wishes to raise. See Castro v. United States, 540 U.S. 375, 377 (2003).


         The defendant “request[s] a downward departure and sentencing modification . . . under [] Smith v. United States, 27 F.3d 649, 655 . . . (D.C. Cir. 1994)” and “a further reduction in his sentence for a violation against him under 18 U.S.C. [§] 3624(a) by delaying the release of all deportable aliens at the end of their legal sentence.” Def.'s Mot. at 1. The defendant fails to identify any express statutory authorization for consideration of his motion for a reduction in sentence.[3] Even construing the pending pro se motion liberally, see Arrington, 763 F.3d at 22 (noting a court's “obligation to construe pro se filings liberally”), neither § 3582(c) nor § 2255 permits consideration of the motion, which, in any event, would fail on the merits.

         A. The Defendant's Motion Must be Denied for Lack of Subject Matter Jurisdiction

         None of the enumerated exceptions for modification of a sentence under 18 U.S.C. 3582(c) applies here. Not only has the Director of the Bureau of Prisons made no motion, as required by § 3582(c)(1)(A), but also Federal Rule of Criminal Procedure 35 provides no basis for relief, under § 3582(c)(1)(B). Here, the defendant waited nearly four years to file his motion to reduce sentence, falling far outside Rule 35's fourteen-day limitation period to correct an “arithmetical, technical, or other clear error, ” none of which the defendant has even alleged or is apparent from the record. Fed. R. Crim. P. 35(a). Moreover, the government has not moved for a reduction based on the defendant's substantial assistance, and thus Rule 35(b) is inapplicable. Finally, § 3582(c)(2) does not authorize consideration of the defendant's motion because the Sentencing Commission has not amended the Sentencing Guideline applicable to the defendant, nor authorized modification of his advisory sentencing range. Accordingly, no provision of § 3582(c) empowers the Court to review the defendant's instant motion.

         The defendant's motion would fare no better under 28 U.S.C. § 2255, since he argues merely that the sentencing judge should have imposed a lower sentence in light of the defendant's status as a deportable alien, and this alleged defect is not the type cognizable under § 2255. To be clear, however, the Court declines to construe the defendant's motion as brought pursuant to 28 U.S.C. § 2255, since he makes no allegation that his sentence is unconstitutional, was imposed without jurisdiction, or exceeded the maximum lawful sentence.[4] Indeed, “the defendant does not even seek the full amount of relief contemplated by [§] 2255, which is the right to be released from prison, ” which further militates against construing the defendant's motion as a motion pursuant to § 2255. United States v. Pletnyov, 47 F.Supp.3d 76, 80 (D.D.C. 2014) (declining to construe a pro se motion as one under § 2255, noting that the defendant sought only a six-month sentence reduction); see also United States v. Smith, 136 F.Supp.3d 4, 7-8 (D.D.C. 2015) (“Where a prisoner files a habeas petition that raises a claim that is ‘neither jurisdictional nor constitutional' and involves neither a ‘fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure, ' such a case ‘does not present exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'” (quoting Hill v. ...

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