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Benjamin v. Saad

United States District Court, N.D. West Virginia

February 7, 2019

NEAL BENJAMIN, Petitioner,
v.
JENNIFER SAAD, Respondent.

          REPORT AND RECOMMENDATION

          JAMES P. MAZZONE UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         On October 25, 2017, the pro se Petitioner, Neal Benjamin, an inmate incarcerated at FCI Gilmer in Glenville, West Virginia, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his sentence imposed in the Western District of New York. The Petitioner paid the $5 filing fee on October 26, 2017.

         The matter is assigned to the Honorable Frederick P. Stamp, Jr., United States District Judge, and is referred to the undersigned United States Magistrate Judge for initial screening and to make proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).

         II. Factual and Procedural History [1]

         Petitioner and his brother, Donald Benjamin, were convicted of various drug crimes stemming from a drug distribution ring that they ran in and around Olean, New York, along with dozens of co-conspirators. The ring dealt in marijuana, cocaine and crack and employed numerous individuals, including several who were under the age of eighteen. Following a jury trial, the Petitioner was convicted of one count of conspiracy to possess with intent to distribute and conspiracy to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) and one count of possession with intent to distribute and distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Petitioner was originally sentenced by the late Judge John T. Elvin to ten years' imprisonment on each count to be served consecutively. ECF No. 543.

         Petitioner and his brother brought appeals challenging their convictions and sentences, and the government brought cross-appeals challenging the sentences. The Second Circuit Court of Appeals affirmed the brothers' convictions but vacated the sentences and remanded for resentencing on the ground that the District Court had failed to give the government adequate notice of its intention to vary from the United States Sentencing Guidelines. In a summary order filed that same day, the Second Circuit denied each of the brothers' challenges to their sentences, “find[ing] no violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), and no erroneous sentencing calculation except to the extent discussed in our accompanying opinion. United States v. Evans, 82 Fed.Appx. 726, 728 (2nd Cir. 2003).

         On remand, Judge Elfvin imposed the same sentences he had imposed in the initial sentencing proceedings. The government appealed, and the Second Circuit again vacated the sentences. United States v. Hirliman, 503 F.3d 212, 217 (2d Cir. 2007).[2]The case was remanded “with instruction that it be assigned to a new judge for resentencing.” Id. at 217. On the second remand, the case was reassigned to Judge Richard J. Arcara, who sentenced Petitioner principally to thirty years' imprisonment.

         The Petitioner appealed asserting various challenges only to his sentence. His appeal was consolidated with that of his brother, Donald Benjamin. The Petitioner alleged that his sentence on Count One of the Indictment (conspiracy to distribute cocaine, cocaine base and marijuana) should be vacated claiming the jury made an insufficient finding as to the type of drugs involved in the conspiracy. The Petitioner claimed that because of the insufficiency of the jury's finding, the Court's imposition of a sentence under 21 U.S.C. § 841(b)(1)(C) violated Apprendi. The Court of Appeals noted that it had denied this claim in its previous order. See Evans, 82 Fed. App'x. at 728 (remanding for resentencing but concluding that there had been “no violation of Apprendi . . . and no erroneous sentencing calculation”). The Court of Appeals continued that in any event, the claim was meritless because this was not a case where considering ambiguity resulting from a general verdict, the Court was required to assume that the conviction was for conspiracy to possess the controlled substance that carries the most lenient statutorily prescribed sentence. Rather, because the jury returned a special verdict with respect to Count One and that its verdict was based on all three drugs alleged: cocaine (powder), cocaine base (crack) and marijuana, the verdict sheet unambiguously showed that the jury found the Petitioner guilty of a drug conspiracy involving not just marijuana, but also cocaine powder and crack cocaine. Therefore, the Petitioner should not have been punished under 21 U.S.C. § 841(b)(1)(D), because that statute applies only in the case of less than 50 kilograms of marijuana. Instead, the Petitioner should have been punished, as he was in fact punished, under 21 U.S.C. § 841(b)(1)(c), the default statute for drug conspiracy involving a controlled substance in schedule I or II.

         In addition, the Court of Appeals noted that the Petitioner and his brother made various other claims that the District Court violated Booker in applying certain sentencing enhancements in calculating their advisory sentencing range under the United States Guidelines. The Court of Appeals concluded that “[e]ach of defendants' claims is meritless; the District Court did not violate Booker. U.S. v. Benjamin, 391 Fed.Appx. 942, *3 (2nd Cir. 2010).

         C. Motion to Vacate

         On June 22, 2011, the Petitioner filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. ECF No. 888. The Petitioner argued that (1) his sentence exceeded the maximum permissible sentence for his crimes of conviction and (2) his trial counsel provided ineffective assistance. The Government filed opposing papers on August 18, 2011 [ECF No. 890], and the Petitioner filed reply papers on September 30, 2013. ECF No. 895. The Petitioner filed a “supplement”[3] to his petition on September 30, 2013. ECF No. 904.

         With respect to his claim that his sentence of 360 months exceeded the total maximum punishment by 98 months, the Petitioner maintained that the court should have calculated his offense level at 32, resulting in a Sentencing Guideline range of 210-262 months. By way of explanation, the Petitioner noted that his offense level should have been 32 because his counts of conviction were “related” pursuant to § 3D1.2(d) of the Sentencing Guidelines. However, the district court found his argument to be without merit.

         The Presentence Investigation Report (“PSR”) prepared by the United States Probation Office recommended an offense level of 46 for each defendant and a criminal history category of VI, the highest possible category. In making its calculation, the Probation Office grouped both Petitioner's counts of conviction pursuant to §§ 3D1.2(b) and (d). Moreover, at the time of sentencing, the court expressly noted that “[p]ursuant to 3D1.2(b) and (d), both counts of conviction are grouped.” ECF No. 876 at 16.

         To the extent that the Petitioner was attempting to argue that Apprendi was violated in some other fashion, the district court was unable to discern the basis for any such argument. Moreover, the district court noted that the Second Circuit expressly found on direct appeal that “the District Court did not violate Apprendi when it sentenced defendants for Count One under 21 U.S.C. § 841(b)(1)(C). “Any doubt on this issue is eliminated by the jury's verdict of guilty on the substantive counts involving cocaine base, as to which no issue is raised on appeal.” Benjamin, 391 Fed.Appx. at 946. Accordingly, the district court found that the record conclusively demonstrated that the Petitioner's sentence of 360 months did not exceed the statutory maximum for his crimes of conviction and was not in violation of Apprendi. After finding that the Petitioner's claim of ineffective assistance of counsel was likewise without merit, the district court denied and dismissed the Petitioner's 2255 motion and declined to issue a certificate of appealability.

         D. Instant ...


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