United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
P. MAZZONE UNITED STATES MAGISTRATE JUDGE.
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.
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).
Factual and Procedural History 
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
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).
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).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'
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.
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).
Motion to Vacate
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” to his petition on September 30, 2013.
ECF No. 904.
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.
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.
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.