UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PETER ZAGORSKI
v.
Criminal Case No. 11-cr-351 (BAH)
UNITED STATES OF AMERICA.
Chief Judge Beryl A. Howell
MEMORANDUM OPINION
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’
1
After the instant motion was filed, this case was reassigned to the undersigned Chief Judge because the
sentencing judge in this case, Judge Robert L. Wilkins, has been appointed to the D.C. Circuit.
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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.
2
The Court adopted the recommended Guidelines offense level set out in the Presentence Report (“PSR”).
Sentencing Trans. at 8, 10. The PSR determined that the defendant was in criminal history category I and had a total
offense level of 39, under U.S.S.G. § 2G2.1(a), derived from a base offense level of 32, which was increased by 2
levels because the material involved a minor between the ages of 12 and 16; plus 2 levels because the offense
involved the distribution of child pornography; plus 4 levels because the offense involved depictions of violence;
plus 2 levels because the offense involved the use of a computer to solicit a minor to engage in sexually explicit
conduct; and reduced by 3 levels for the defendant’s acceptance of responsibility. PSR ¶¶ 31–47.
2
II. LEGAL STANDARD
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
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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).
III. DISCUSSION
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
3
The government, addressing only the merits of the defendant’s argument, has evidently assumed that the
defendant’s motion is properly before the Court.
4
(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
4
If the Court were to recharacterize this motion as a first § 2255 motion, the Supreme Court has instructed
that “the district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant
that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on ‘second or
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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. United
States, 368 U.S. 424, 428 (1962))); Douglas v. United States, 306 F. Supp. 2d 16, 18 (D.D.C.
2004) (declining to “consider the petitioner’s . . . motion for relief under 28 U.S.C. § 2255
because he d[id] not invoke that statute in challenging the court’s imposed sentence”). For these
reasons, the defendant’s motion is not considered as seeking relief under § 2255. 5
B. The Defendant’s Motion Is Otherwise Without Merit
Even if the defendant’s motion were properly before the Court, however, it would fail on
the merits. Contrary to the gravamen of the defendant’s motion that he is entitled to a sentence
reduction because his “status as a deportable alien is likely to cause a fortuitous increase in the
successive’ motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains
all the § 2255 claims he believes he has.” Castro, 540 U.S. at 383. Having declined to construe the defendant’s
motion as a first § 2255 motion, such warnings are not necessary.
5
In any event, a § 2255 motion is subject to a one-year time limit, see 28 U.S.C. § 2255(f), and, as
previously noted, the defendant’s motion came almost four years after his sentence was imposed. Although
“equitable tolling applies to motions filed pursuant to § 2255,” United States v. McDade, 699 F.3d 499, 504 (D.C.
Cir. 2012), the defendant has shown no “diligence in pursuing his claims” nor “extraordinary circumstances,” id. at
505.
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severity of his sentence,” Smith, 27 F.3d at 655, this factor was considered at the time of
sentencing.
The PSR and the parties’ sentencing memoranda thoroughly addressed the defendant’s
status, and they explicitly cited Smith. See, e.g., PSR ¶ 85 (“The parties agreed that a downward
departure of up to six months may be warranted, based upon [the defendant’s] status as a
removable alien, pursuant to [United States] v. Smith, . . . 27 F.3d 649 (1994).”); id. ¶¶ 109–11
(listing “factors that may warrant departure,” including that “[t]he defendant’s present status
precludes him from eligibility for participation in certain programs” and that, under Smith, “a
downward departure may be appropriate if the defendant’s status as a deportable alien is likely to
cause fortuitous increase in the severity of confinement”); Gov’t’s Sentencing Mem. at 28–30
(“The Court should lower [the defendant’s] sentence based upon the increased severity in his
conditions of confinement because of his pending deportation to Poland.”); Def.’s Sentencing
Mem. at 2 n.3.
The Court also heard argument about the defendant’s status during the sentencing
hearing. See, e.g., Sentencing Trans. at 20 (defense counsel arguing that “there’s [no] question
that [the defendant] is going to be deported at the conclusion of his sentence to Poland, a place
he has not been since he was 15 years old”); id. at 34–35 (defense counsel asserting that “prison
is twice as hard for deportable aliens” because they “don’t get to participate in any programs,
. . . to go to a halfway house, [or] . . . to do any of the things that make prison life move by at a
decent pace”); id. at 35 (defense counsel underscoring that “60 months here is really I think
much more punitive than 60 months for a citizen would be, than for an American citizen, and we
ask the Court to consider that”). In addressing the factors set forth at 18 U.S.C. § 3553(a), the
sentencing judge expressly considered the defendant’s status as a deportable alien. See, e.g., id.
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at 42 (noting “the potential, and . . . near certainty, of [the defendant’s] eventual deportation after
serving a sentence, and the fact that as a deportable alien, he will not be able to participate in the
programming and will not have various options available to him that would otherwise be the
case” and that “it’s certainly going to be a hardship on [the defendant] and his family to be in
that position . . . while incarcerated, and then to have to leave the country”). Thus, to the extent
that the defendant’s motion contends that the sentencing judge failed to account for the
defendant’s status as a deportable alien, he is patently wrong. The defendant’s status as a
deportable alien was fully considered during sentencing, and the sentence imposed was well
below both the statutory maximum and the applicable sentencing range.
IV. CONCLUSION
Accordingly, the Court lacks subject matter jurisdiction to consider the defendant’s
Motion for Sentence Modification. An Order consistent with this Memorandum Opinion will be
contemporaneously entered on the docket.
Digitally signed by Hon. Beryl A.
Howell
DN: cn=Hon. Beryl A. Howell, o,
Date: November 18, 2016 ou=Chief Judge, U.S. District Court
for the District of Columbia,
email=Howell_Chambers@dcd.usco
urts.gov, c=US
Date: 2016.11.18 11:38:43 -05'00'
__________________________
BERYL A. HOWELL
Chief Judge
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