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United States v. Lauria

United States District Court, D. Connecticut

December 3, 2018

UNITED STATES OF AMERICA
v.
GORDON LAURIA

          RULING AND ORDER

          ROBERT N. CHATIGNY UNITED STATES DISTRICT JUDGE

         Gordon Lauria has moved under Federal Rule of Civil Procedure 60(b) to reopen this habeas case, which seeks relief from a 35-year sentence imposed by Judge Dorsey in 1998. The government opposes the motion on the grounds that it constitutes a second or successive motion for which authorization has not been obtained from the Court of Appeals, as required by 28 U.S.C. § 2255(h), and fails to satisfy the requirements for obtaining relief under Rule 60(b). For reasons set forth below, the motion is denied and no certificate of appealability will be issued.

         I. Background

         Following a lengthy jury trial before Judge Dorsey in 1997, Lauria was convicted of conspiracy to possess cocaine with intent to distribute, 21 U.S.C. § 846, as charged in count one of the indictment; conspiracy to retaliate against a witness, 18 U.S.C. §§ 371, 1512(b), as charged in count two; and retaliation against a witness, 18 U.S.C. § 1513(b)(2), as charged in counts three and four. As was customary at the time, there were no allegations in the indictment or findings by the jury regarding the quantities of drugs involved in the conspiracy. Rather, drug quantity was treated as a sentencing factor to be determined by the judge. As the judge entrusted with this responsibility in Lauria's case, Judge Dorsey found that the conspiracy involved 610.5 grams of cocaine base and 56.25 kilograms of powder cocaine. Under the then-current version of the Sentencing Guidelines, these quantities resulted in a base offense level of 36. After a 4-level increase for Lauria's role in the drug conspiracy and a 2-level increase for his obstruction of justice, the total offense level was 42. Because Lauria had previously been convicted of state and federal drug felonies, he was found to be a career offender, which increased his criminal history category from V to VI. The resulting guideline range was 30 years to life. The government argued that under the enhanced penalty provisions of 21 U.S.C. § 841(b)(1)(A), Lauria's conviction on count one exposed him to a mandatory minimum sentence of 20 years and a maximum possible sentence of as much as life, the enhanced penalties applicable to a repeat drug offender in a case involving 5 kilograms or more of cocaine powder and 50 grams or more of cocaine base. Without an enhancement for drug quantity, the maximum sentence that could be imposed on count one was 30 years. Lauria was sentenced to 35 years on count one with shorter terms on the other counts, all to run concurrently. The Second Circuit affirmed the judgment. See United States v. Lauria, 199 F.3d 1324 (2d Cir. 1999) (unpublished) [ECF No. 290].

         In October 2001, Lauria filed a § 2255 petition seeking to vacate his convictions and sentence on numerous grounds. As construed by Judge Dorsey, the petition included a claim that the sentence on count one violated Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), which held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Judge Dorsey understood Lauria to be arguing that enhancing his sentence in the absence of a jury finding of the requisite drug quantity constituted plain error that should be corrected by resentencing him on count one to a term of imprisonment not exceeding 30 years. The government argued that Lauria was not entitled to resentencing, relying principally on United States v. Cotton, 535 U.S. 625, 633 (2002), which held that a violation of Apprendi does not constitute reversible plain error when the evidence of the drug quantity used to enhance the defendant's sentence was “overwhelming” and “essentially uncontroverted.” The government also argued that even if the sentence on count one should not have exceeded 30 years, any error was harmless because the sentences on all the counts could be stacked pursuant to U.S.S.G. § 5G1.2(d) to achieve the same sentence of 35 years.

         On December 13, 2006, Lauria's petition was granted in part and denied in part (“the 2006 Ruling”). See Lauria v. United States, 3:96-CR-185/3:01-CV-1894(PCD), 2006 WL 3704282 (D. Conn. Dec. 13, 2006) [ECF No. 411]. Judge Dorsey ruled that, in the absence of a jury finding regarding drug quantity, the sentence of 35 years on count one constituted plain error requiring resentencing. Lauria, 2006 WL 3704282, at *20. Judge Dorsey stated that the government's reliance on Cotton was unavailing for two reasons: it was up to the Court of Appeals, not the District Court, to determine whether the Apprendi error should be noticed; and the Second Circuit had granted relief to correct a similar error in United States v. Thomas, 274 F.3d 655 (2d Cir. 2001). Judge Dorsey concluded that Lauria was entitled to be resentenced on count one to not more than 30 years. Judge Dorsey did not mention the government's argument about stacking.

         Lauria appealed and filed a motion for reconsideration arguing that his convictions should be vacated. The government moved for reconsideration of the decision granting resentencing. In its motion, the government argued that the Court had erred in failing to follow Cotton because the evidence of drug quantity was overwhelming and essentially uncontroverted. The government also argued that the Court had erred in failing to consider that any error in the sentence on count one was harmless in view of the availability of stacking. Lauria did not respond to the government's arguments.

         In April 2007, the government's motion for reconsideration was granted and Lauria's motion was denied (“the 2007 Ruling”). Lauria v. United States, 3:96-CR-185/3:01-CV-1894(PCD), 2007 WL 1064319 (D. Conn. Apr. 5, 2007) [ECF No. 423]. In granting the government's motion, Judge Dorsey agreed that Cotton applied because “the evidence of drug quantity adduced at trial was ‘overwhelming' and ‘uncontroverted.'” Id. at *6. Judge Dorsey also agreed with the government that any error was harmless because the sentences on all the counts could be stacked to achieve a sentence of 35 years, the sentence he had found to be “appropriate” for Lauria. Id. Judge Dorsey granted Lauria's request for a certificate of appealability, which did not limit the potential claims on appeal. Id. at *7.

         The Second Circuit affirmed the 2006 Ruling “except to the extent that it was rendered moot” by the 2007 Ruling. Pappas v. United States, 362 Fed.Appx. 175, 177 (2d Cir. 2010). The Second Circuit did not address any challenge by Lauria to the 2007 Ruling because he had failed to file a notice of appeal from that ruling. Id. at 176-77.

         In January 2013, Lauria moved for reconsideration of the 2006 Ruling based on an alleged error related to the closing of the courtroom to the public during jury selection. Judge Martinez recommended that the motion be denied and her recommendation was adopted. Lauria appealed. In November 2014, the Second Circuit dismissed the appeal, noting that “[t]he motions before the district court were, in effect, second or successive 28 U.S.C. § 2255 motions filed without the required authorization.” ECF No. 533 (citing 28 U.S.C. § 2255(h); Gonzalez v. Crosby, 545 U.S. 524, 531 (2005)).

         Lauria subsequently moved for relief from the 2007 Ruling under Federal Rule of Civil Procedure 60(b), arguing that he did not have an adequate opportunity to oppose the government's motion for reconsideration. The motion was denied and Lauria appealed requesting leave to file a successive § 2255 petition. In September 2016, the Second Circuit denied the motion because Lauria had not satisfied the criteria set forth in 28 U.S.C. § 2255(h). ECF No. 572.

         In November 2016, Lauria moved to reduce his sentence under 18 U.S.C. § 3582(c)(2) pursuant to an amendment to the Sentencing Guidelines. The Probation Office and the government each responded that because the amendment did not lower Lauria's guideline range, he was not eligible for a reduction. Both the Probation Office and the government cited Judge Dorsey's finding that the conspiracy charged in count one involved 56.25 kilograms of powder cocaine. Lauria's motion was denied and he appealed. In October 2017, the Second Circuit dismissed the appeal as “lack[ing] an arguable basis either in law or in fact.” ECF No. 615 at 1 (citations omitted).

         Lauria now moves again for relief from the 2007 Ruling under Rule 60(b)(4) and (6).

         II.Standard of ...


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