Twine v. Four Unknown Federal Agents et al, No. 1:2009cv07631 - Document 62 (S.D.N.Y. 2012)
Court Description: OPINION: re: 55 MOTION for Reconsideration. filed by Sylvester Twine. For the reasons set forth within, the motion to reconsider is denied. (Signed by Judge Robert W. Sweet on 3/7/2012) (jfe)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---- ----X SYLVESTER TWINE, 09 Civ. 7631 Plaintiff, OPINION -againstMICHAEL POWERS, FBI, JEFF VALENZANO, U.S. MARSHAL, ROGELIO TORRES, U.S. MARSHAL, GERARD PAPPAS, U.S. MARSHAL, ONE K-9 UNIT OFFICER, ONE K-9, GERMAN SHEPARD, AND NEW YORK CITY, AMTRAK PENN STATION, Defendants. - -------------------- - - - - - ---------X A P PEA RAN C E S: Pro Se SYLVESTER TWINE Reg. # 15561-056 United States Penitentiary McCreary P.O. Box 3000 Unit 4A Pine Knot, KY 42635 Attorney for Defendant Amtrak LANDMAN, CORSI, BLLAINE & FORD, P.C. One Gateway Center Newark, NJ 07102 By: Gerald T. Ford, Esq. . .' Sweet, D.J. The plaintiff, pro se, Sylvester Twine (IITwine,1l or the "Plaintifflt) has moved for reconsideration the July 26, 2011 order denying the Plaintiff's motion, filed pursuant to Fed. R. Civ. P. 60(b) (3) and (b) (6), to vacate his voluntary dismissal Order" ) I action (the "July 26 the above-captioned c reasons set forth Reconsideration is denied for below. Twine initially brought suit on September 2, 2009 against "Four Unknown Federal Agents ll and "one NYPD officer.1t On September 7, 2010, Twine, while represented by counsel, ent into a voluntary plea agreement in which he agreed to dismiss the above-captioned civil lawsuit. agreement, the Government agreed to " where within the Guidelines sentence should fall lt As part of the plea no position concerning determined by the Court the and "make no motion for an upward departure under the Sentencing Guidel The July 26 Order S.II concluded that the Government's opposition to the Plaintiff's request for a sentence outside the applicable was not prohibited by the plea agreement. moved for reconsideration of the July 26 delines range The PI iff has now , alleging that the Government "violated the plea agreement by taking a position where within the guidelines determined by the court the sentence shall fall. n Defendant Amtrak contends that the Plaintiff's motion for reconsideration is t 6.3. Local Rule 6.3 barred pursuant to Local C s that " [ulnless otherwise provided a notice of motion for by the Court or by statute or rule within fourteen (14) days after the entry motion shall be of the Court's det (14) days after decision denying ng a of a court order reconsideration or case of a court 1 Rule ion of the original motion, or in the resulting in a judgment, within fourteen entry of the judgment." The Court's aintiff's motion to vacate was entered on July 26, 2011, but the Plaintiff's motion for reconsideration was not filed until August 30, 2011, outside window. fourteen day Twine contends that he received the July 26 Order on August 18, 2011 and that he filed his motion reconsideration on August 27. Court need not decide whether the Plaintiff's motion is time-barred because, even if it is assumed that Twine filed his motion within the allott time, the motion fails to raise any points of law or fact that A motion for reconsiderat 6.3 "will generally be denied Court overlooked. under Local Civil Rule s the moving party can po 2 to controlling decisions or data that the court overlooked matters, in other words, that might reasonably be expected to alter the conclusion reach by the court. II Davidson v. Scully, 172 F. Supp. 2d 458, 461 (S.D.N.Y. 2001). Local Rule 6.3 is IInarrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court," and may not be used to advance new fact, or arguments not previously presented to the court. 62. issues, Id. at 461 A court should deny a motion for reconsideration when the movant "seeks solely to relitigate an issue already decided." Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995). Here, the Plaintiff's motion has failed to identify any matters that the Court overlooked in the July 26 Order. The Plaintiff alleges, for the first time, that his sentence violates United States v. Barnes, 158 F.3d 662 (2d Cir. 1998) which held that when a defendant has been found guilty on a single count of conspiracy involving multiple controlled substances, the district court must sentence the defendant as if he were convicted of conspiracy involving only the drug that triggers the lowest statutory sentencing range. Notwithstanding the Plaintiff's contentions, Twine was sentenced using the lowest included offense listed in Count One. The plea agreement explicitly identified that Plaintiff's statutory penalty is 3 scribed by 21 U.S.C. § 841 (b) (1) (B) (ii) (II), which provides possession of five hundred grams or more s coca a statutory sentence between five years and not more than forty The other offense listed in Count One, conspiracy to distribute fifty grams or more of cocaine , at t Twine's indictment carried a maximum penal of Ii in son. time of imprisonment and a minimum of ten 841 (b) (1) (A) (iii).l The Plaintiff rece months' incarceration. As such, the sentence based on the substance that 21 U.S.C. § a sentence of 105 iff received a the lowest statutory range. 1 In the version of the statute effective at the time of Twine's indictment, 21 U.S.C. § 841 (b) (1) (A) (iii) provided a minimum sentence of ten years and a maximum sentence of life for a violation involving 50 grams or more of a mixture or substance containing cocaine base. Under the current version of 21 U.S.C. § 841(b) (l) (A) (iii), which became effective on August 3, 2010, the threshold amount a or substance containing cocaine base has changed from 50 grams to 280 grams. For a violation involving 50 of a mixture or substance containing cocaine current version of the statute provides a penalty of sonment for not less than five years and not more than , see 21 U.S.C. § 841 (b) (1) (B) (iii) , same range for an offense involving 500 grams or more of a or substance containing a detectable amount of cocaine, see 21 U.S.C. § 841 (b) (1) (B) (ii) (II) . previous or present version of the Regardless of whether statute is applied, was sentenced within the lowest applicable range. 4 Finally, it should be noted that the July 26 Order deni the Plaintiff!s motion to vacate with leave to renew pending the results of the Plaintiff!s criminal appeal of his sentence. As noted in the July 26 Order, "the ongoing validity of the Plea Agreement, the very issue presented here, is likely to be addressed by the Second Circuit.!! Should the Second Circuit conclude that the Government's actions were inconsistent with the plea agreement, the Plaintiff will be able to renew this matter. For the reasons set forth above, the motion to reconsider is denied. It is so ordered. New York, NY March Y, 2012 U.S.D.J. 5
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