United States v. Eddie Argitakos and Christos Potamitis, 862 F.2d 423, 2d Cir. (1988)

862 F.
2d 423
UNITED STATES of America, Appellee,

v.
Eddie ARGITAKOS and Christos Potamitis, DefendantsAppellants.
No. 283, Docket 88-1274.
United States Court of Appeals,

Second Circuit.
Submitted Nov. 28, 1988.
Decided Nov. 30, 1988.
Eddie Argitakos, Montgomery, Pa., defendant-appellant pro se.

Christos Potamitis, Montgomery, Pa., defendant-appellant pro se.
Vincent L. Briccetti, Asst. U.S. Atty. for the Southern District of New
York, New York City (Rudolph W. Giuliani, U.S. Atty. for the Southern
District of New York, Kerri L. Martin, Asst. U.S. Atty., Southern District
of New York, New York City, of counsel), for appellee.
Before VAN GRAAFEILAND, WINTER and MAHONEY, Circuit
Judges.
PER CURIAM:
Section 212(a)(2) of the Sentencing Reform Act of 1984 ("SRA"), 18 U.S.C.

Sec. 3582 (Supp. IV 1986), provides for a reduction of sentence for defendants
whose original sentence was based on a sentencing range that has subsequently
been lowered by the Sentencing Commission. This appeal presents the question
of whether that Section authorizes the reduction of a sentence imposed on a
defendant for offenses committed before the pertinent provisions of the SRA
took effect. Because the Sentencing Act of 1987, Pub.L. No. 100-182 (Dec. 7,
1987), 101 Stat. 1266, provides that the SRA applies only to offenses
committed after November 1, 1987, and the offenses in the instant case were
committed before that date, defendants' claim is without merit.
On December 12, 1982, an armoured courier company in the Bronx, New York
was robbed of $11 million in currency and other valuables. In September 1983,
defendants were indicted for various offenses in connection with the robbery.
After a guilty verdict, the district court sentenced each of the defendants to a
total of fifteen years' imprisonment and $35,000 in fines. Defendants'
convictions were affirmed on appeal. United States v. Potamitis, 739 F.2d 784
(2d Cir.) certs. denied, 469 U.S. 918, 105 S.Ct. 297, 83 L.Ed.2d 232, 469 U.S.
934, 105 S.Ct. 332, 83 L.Ed.2d 269 (1984).
Two years after their convictions, defendants entered into cooperation

agreements with the government concerning co-conspirators not yet brought to
trial. Subsequently, defendants, under Fed.R.Crim.P. 35(b), moved for and
were granted in part a reduction of their sentences to twelve years each. See
United States v. Potamitis, 609 F.Supp. 881 (S.D.N.Y.1985).
In late November 1987, both defendants moved for a further reduction of their
sentences under 18 U.S.C. Sec. 3582(c). The motion was denied. On appeal,
defendants argue that they are eligible under 18 U.S.C. Sec. 3582(c) for
reduced sentences equalling what they would have received had they been
sentenced under the Sentencing Guidelines, enacted as part of the SRA. Section
212(a)(2) of the SRA, 18 U.S.C. Sec. 3582(c)(2) states:
5 the case of a defendant who has been sentenced to a term of imprisonment based
[I]n
on a sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. 994(n), upon motion of the defendant or the
Director of the Bureau of Prisons, or on its own motion, the court may reduce the
term of imprisonment, after considering the factors set forth in section 3553(a) to the
extent that they are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.
6
Section 3582(c) thus applies only where a defendant has been sentenced to a
term of imprisonment based on a sentencing range under the Sentencing
Guidelines that the Commission has subsequently lowered. The Sentencing
Guidelines apply, however, only to offenses committed on or after November 1,
1987, see Pub.L. No. 100-182, Sec. 2 (Dec. 7, 1987), 101 Stat. 1266, and
defendants were sentenced for offenses committed in 1982 and 1983. Since
Section 2 of the Sentencing Act of 1987 provides that the SRA "shall apply
only to offenses committed after the taking effect of this chapter," id., Section
3582(c)(2) clearly does not apply to defendants' sentences.
The goal of the SRA is to bring about greater uniformity in sentences and to
dispense with the parole system. Without parole, the way to ensure uniformity
in sentences when sentence ranges are subsequently altered is to reduce the
sentences of offenders who received the earlier, longer sentences. For prisoners
sentenced before the Guidelines came into effect, such as the defendants here,
however, uniformity is to be achieved through the parole system. See, e.g.,
United States v. Abbenante, 681 F.Supp. 126 (D.R.I.1988).
8
Defendants' claim that the SRA is an ex post facto law as applied to them is
frivolous. The SRA does not apply to defendants, and, if it did, it would benefit
rather than prejudice them.
AFFIRMED.

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862 F.

UNITED STATES of America, Appellee,

United States Court of Appeals,

Eddie Argitakos, Montgomery, Pa., defendant-appellant pro se.

Section 212(a)(2) of the Sentencing Reform Act of 1984 ("SRA"), 18 U.S.C.

Two years after their convictions, defendants entered into cooperation

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