13-269 To Be Argued By: PETER D. MARKLE

United States Court of Appeals FOR THE SECOND CIRCUIT

Docket No. 13-269 _____

UNITED STATES OF AMERICA, Appellee,

-vs-

MARCOS PAPPAS, Defendant-Appellant,

GORDON LAURIA, CHICKY BELUCCI, ALEXANDER ROGERS,

Defendants. _____

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

BRIEF FOR THE UNITED STATES OF AMERICA

DEIRDRE M. DALY Acting United States Attorney

District of Connecticut PETER D. MARKLE SANDRA S. GLOVER (of counsel) Assistant United States Attorneys

Table of Contents

Table of Authorities ............................................. iii

Statement of Jurisdiction .................................... vi

Statement of Issues Presented for Review ........ vii

Preliminary Statement ......................................... 1

Statement of the Case ......................................... 4

Statement of Facts and Proceedings Relevant to this Appeal ........................................ 6

A. The offense conduct .......................................... 6

1. Narcotics distribution and possession ........ 6

2. Witness intimidation ................................... 7

B. The trial and verdict ........................................ 8

C. The sentencing ................................................. 8

D. The post-conviction motions ............................ 8

1. Pappas’s October 2001 Motion to Unseal...................................................... 8

2. Pappas’s July 2011 Motion to Unseal ......... 9

Summary of Argument ...................................... 12

Argument............................................................ 13

ii

I. This Court lacks jurisdiction over this appeal ...............................................................13

A. Governing law and standard of review ......................................................... 13

B. Discussion .................................................. 13

II. Alternatively, the magistrate judge properly granted the government’s motion to recon-sider the court’s order unsealing Document #231 ................................................................14 A. Governing law and standard of

review ......................................................... 14

B. Discussion ................................................. 15

III. Pappas has identified no basis for vacating his sentence at this date, and his argument is meritless in any event ............................. 17

A. Governing law and standard of review ...................................................... 17

B. Discussion ................................................ 18

Conclusion .......................................................... 23

iii

Table of Authorities Pursuant to “Blue Book” rule 10.7, the Govern-ment’s citation of cases does not include “certiorari denied” dispositions that are more than two years old.

Cases

Brady v. Maryland, 373 U.S. 83 (1963) ................................... 11, 16

Chambers v. United States, 106 F.3d 472 (2d Cir. 1997) .......................... 20

Cortorreal v. United States, 486 F.3d 742 (2d Cir. 2007) (per curiam) ................................................... 17

Giglio v. United States, 405 U.S. 150 (1972) ................................. 11, 16

Jiminian v. Nash, 245 F.3d 144 (2d Cir. 2001) .......................... 20

Johnson v. United States, 623 F.3d 41 (2d Cir. 2010) ............................ 20

Lauria v. United States, 2006 WL 3704282 (D. Conn. Dec. 13, 2006) ..................................5

iv

Pappas v. United States, 362 Fed. Appx. 175 (2d Cir. 2010), cert. denied, 131 S. Ct. 996 (2011) ............ 5, 19

Shrader v. CSX Transport, Inc., 70 F.3d 255 (2d Cir. 1995) ...................... 11, 15

United States v. Boccagna, 450 F.3d 107 (2d Cir. 2006) .................... 15, 16

United States v. Cole, 296 Fed. Appx. 195 (2d Cir. 2008) ................ 22

United States v. Harrison,

396 F.3d 1280 (2d Cir. 2005) (per curiam) ................................................... 14

United States v. Martinez,

572 F.3d 82 (2d Cir. 2009) ............................ 17

United States v. Pappas, 199 F.3d 1324, 1999 WL 980957 (2d Cir. Oct. 19, 1999) (unpublished), cert. denied, 531 U.S. 854 (2000) .............. 4, 19

United States v. Quintieri,

306 F.3d 1217 (2d Cir. 2002) ........................ 19

United States v. Schultz, 565 F.3d 1353 (11th Cir. 2009)............... 13, 14

v

Virgin Atlantic Airways, Ltd., v. National Mediation Board, 956 F.2d 1245 (2d Cir. 1995) .................. 11, 15

Wight v. BankAmerica Corp., 219 F.3d 79 (2d Cir. 2000) ............................ 17

Statutes

18 U.S.C. § 371 ......................................................4

18 U.S.C. § 1513 ....................................................4 18 U.S.C. § 3231 .................................................. vi

18 U.S.C. § 3582 ........................................... 17, 18

18 U.S.C. § 3742 ................................................. 18 21 U.S.C. § 846 ......................................................4 28 U.S.C. § 636 ................................................... 13

28 U.S.C. § 1291 ................................................. 13

28 U.S.C. § 2255 .......................................... passim

vi

Rules

Local Rule of Civil Procedure 7 ......................... 14

Local Rule of Criminal Procedure 1 .................. 14 Fed. R. App. P. 4 ................................................. vi

Fed. R. Crim. P. 35 ............................................. 18 Fed. R. Crim. P. 59 ....................................... 13, 14

vii

Statement of Jurisdiction The United States District Court for the Dis-

trict of Connecticut had subject matter jurisdic-tion over this federal criminal prosecution un-der 18 U.S.C. § 3231. In July 2012, the district court referred then-pending non-dispositive mo-tions relating to a sealed document to Magis-trate Judge Donna Martinez. Government Ap-pendix (“GA__”) 31. The Magistrate Judge en-tered a final order on the motions on December 28, 2012. GA32 (Doc. No. 475). On January 17, 2013, the defendant filed a timely notice of ap-peal pursuant to Fed. R. App. P. 4(b) and (c). GA33, GA70-71. As set forth below, this Court does not have appellate jurisdiction over this matter because there has been no final decision by the district court.

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Statement of Issues Presented for Review

I. Whether this Court has jurisdiction to re-view the Magistrate Judge’s decision when the appellant did not object to that decision in the district court.

II. Whether the magistrate judge abused her discretion in granting the government’s motion to reconsider an earlier order un-sealing a document when the court’s local rules expressly allow for the filing of a mo-tion to reconsider.

III. Whether the appellant’s challenge to his sentence is properly before this Court when he has not obtained permission to file a successive petition under 28 U.S.C. § 2255 and his claim is meritless in any event.

United States Court of Appeals FOR THE SECOND CIRCUIT

Docket No. 13-269

_____

UNITED STATES OF AMERICA, Appellee,

-vs-

MARCOS PAPPAS, Defendant-Appellant.

_____

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

BRIEF FOR THE UNITED STATES OF AMERICA

Preliminary Statement Markos Pappas,1 pro se, appeals the magis-

trate judge’s decision to seal a document contain-ing sensitive information that would jeopardize 1 The docket sheet in this case spells the appellant’s name as Marcos Pappas, but the appellant has signed his pro se brief as Markos Pappas. The gov-ernment will use the appellant’s spelling in this brief.

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the safety of a confidential informant and that was not considered by the sentencing court in the sentencing of the defendant.

After a six-day trial in 1997, Markos Pappas and Gordon Lauria were each convicted of con-spiracy to possess with intent to distribute co-caine, conspiracy to commit witness retaliation, and a substantive count of witness retaliation.

Approximately three and a half years after he was sentenced, Pappas moved to unseal a docu-ment, Document #231, that had been filed in his case. Although the district court granted that motion, the court subsequently reversed its prior order. In 2011, Pappas again moved to unseal Document #231, and the court granted that mo-tion. The government moved to reconsider, and a magistrate judge granted the government’s mo-tion thus keeping the document under seal. It is this last order that is the subject of this appeal.

As a preliminary matter, this Court does not have jurisdiction to review this matter because Pappas never objected to the magistrate judge’s ruling and thus there was no final decision by the district court.

In any event, Pappas’s appellate arguments are without merit. On appeal, Pappas first chal-lenges the magistrate judge’s ruling granting the government’s motion to reconsider, claiming that there is no “procedural mechanism” allowing for reconsideration. Pappas is incorrect. The magis-

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trate judge properly considered the government’s motion to reconsider under the court’s local rules.

Pappas also claims that his sentencing violat-ed due process because the district court consid-ered Document #231 without disclosing it to him. This challenge to his sentence is not proper-ly before this Court because Pappas has not ob-tained this Court’s permission to file a succes-sive petition under 28 U.S.C. § 2255. The claim is meritless, in any event, because the district court expressly stated that it did not consider the information in Document #231 in imposing sentence.

Accordingly, Pappas’s appeal should be dis-missed.

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Statement of the Case On April 3, 1997, a federal grand jury in New

Haven returned a superseding indictment charg-ing Markos Pappas, Gordon Lauria and Alexan-der Rogers in four counts. GA9 (Doc. No. 58). Count One charged all defendants with conspir-acy to possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. § 846. Count Two charged Lauria and Pappas with conspiring to retaliate against a witness, in violation of 18 U.S.C. § 371. Count Three charged Lauria and Pappas with retaliation against a government witness, Ronald Fassett, in violation of 18 U.S.C. §§ 1513(b)(2) and 2, while Count Four charged Lauria alone for retal-iation against Fassett. On July 29, 1997, after a six-day trial, the jury found the defendants guilty on all counts. GA14 (Doc. No. 187). On March 31, 1998, the district court (Peter C. Dorsey, J.) sentenced Pappas to 360 months on Count One, 60 months on Count Two, and 120 months on Count Three, all to run concurrently. GA18 (Doc. Nos. 243, 246).

This Court affirmed Pappas’s convictions and sentences on appeal. United States v. Pappas, 199 F.3d 1324, 1999 WL 980957 (2d Cir. Oct. 19, 1999) (unpublished), cert. denied, 531 U.S. 854 (2000). Pappas filed a motion to vacate his con-victions under 28 U.S.C. § 2255 on October 5, 2001. GA22 (Doc. No. 318). The district court denied Pappas’s motion, Lauria v. United States,

5

2006 WL 3704282 (D. Conn. Dec. 13, 2006), and this Court affirmed that decision on appeal, Pappas v. United States, 362 Fed. Appx. 175 (2d Cir. 2010), cert. denied, 131 S. Ct. 996 (2011).

On October 15, 2001, Pappas moved to unseal certain documents, including Document #231. GA22 (Doc. No. 321). On March 25, 2003, the district court (Dorsey, J.) granted Pappas’s mo-tion. GA24 (Doc. No. 358). On September 29, 2003, the district court (Dorsey, J.) vacated its previous order as to Document #231. GA25 (Doc. No. 364).

Eight years later, on July 18, 2011, Pappas filed a new motion to unseal Document #231. GA31 (Doc. No. 455). On September 2, 2011, the district court (Dorsey, J.) granted the motion to unseal. GA31 (Doc. No. 456). On February 9, 2012, Pappas moved to enforce the order unseal-ing Document #231. GA31 (Doc. No. 457). Short-ly thereafter, in light of the death of Judge Dorsey, the case was transferred to Judge Rob-ert N. Chatigny. GA31 (Doc. No. 458). On July 17, 2012, the matter was referred to Magistrate Judge Donna F. Martinez. GA31 (Doc. No. 467). On August 31, 2012, the government filed a mo-tion for reconsideration of the order to unseal. GA32 (Doc. No. 469). On December 28, 2012, Magistrate Judge Martinez granted the govern-ment’s motion to reconsider, denied Pappas’s motion for enforcement, and ordered that Docu-ment #231 remain sealed. GA32 (Doc. No. 475),

6

GA65-68. On January 7, 2013, Pappas mailed a notice of appeal of this order which was filed on January 17, 2013. GA33 (Doc No. 480), GA69.

Pappas is currently in federal custody serving his sentence.

Statement of Facts and Proceedings Relevant to this Appeal

A. The offense conduct 1. Narcotics distribution and possession From 1994 through 1996, Markos Pappas,

Gordon Lauria, and others participated in a con-spiracy to distribute cocaine in New Haven.

Pappas began working for Lauria in 1995, converting powder cocaine into crack cocaine, and exchanging the product for money. PSR ¶¶ 9, 11. Along with Ronald Fassett, Pappas re-ceived 125 grams of cocaine per week from Lau-ria. PSR ¶ 13. Fassett and Pappas would convert the cocaine at an apartment at 94 Foster Street and then sell it at Nancy’s Café on Farren Ave-nue in New Haven. PSR ¶¶ 13, 14. In 1996, Pappas began traveling to purchase cocaine for Lauria. PSR ¶ 15. When other members of the organization were arrested or developed drug problems, Pappas took over their responsibili-ties, getting closer to Lauria in the process. PSR ¶¶ 15, 18. The government’s investigation and the evidence at trial established that the con-spiracy distributed at least five kilograms of co-

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caine and 1.5 kilograms of crack cocaine, with a conservative total estimate of between 50 and 100 kilograms distributed between February 1995 and September 1996. PSR ¶¶ 48-49.

2. Witness intimidation Beginning in February of 1996, Pappas and

Lauria undertook a series of activities designed to intimidate witnesses and cooperators, includ-ing Ronald Fassett, who had decided to cooper-ate with the government. Pappas visited Fassett at his home, called him a “snitch” to mutual friends, assaulted him, and tried to drive him off the road. PSR ¶¶ 22-31. In late August of 1996, Pappas and Lauria told a man named Albert “Chicky” Bellucci that Fassett was “snitching” and that if Pappas and Lauria got arrested, they would take care of it, meaning arrange bodily harm to Fassett. PSR ¶ 39. The pair even went so far as to plan a shooting at Fassett’s condo-minium with Pappas’s guns. PSR ¶ 39. Bellucci, who had previously committed violence on Lau-ria’s enemies, was later paid $500 to “take care of the bad apples.” PSR ¶¶ 44, 47.

Pappas was arrested on September 24, 1996. PSR ¶ 32. While locked up before their court ap-pearances, Lauria and Pappas were overheard discussing how they should have a third party assault Fassett. PSR ¶ 34.

8

B. The trial and verdict At trial, both Fassett and Bellucci testified for

the prosecution as cooperating witnesses, and described both Pappas’s and Lauria’s drug traf-ficking activities and their retaliation against Fassett for cooperating with federal authorities. On July 29, 1997, the jury found Pappas and Lauria guilty of all counts in the superseding in-dictment. GA14 (Doc. No. 187).

C. The sentencing On February 10, 1998, the government filed

an ex parte sealed motion to postpone sentenc-ing. GA17 (Doc. No. 231). It is this sealed docu-ment, Document #231, that is at the center of this appeal. The government’s motion was granted, GA17, and Pappas’s sentencing was continued until March 31, 1998. On that date, as to defendant Pappas, the court imposed concur-rent sentences of 360 months on Count 1; 60 months on Count 2; and 120 months on Count 3. GA18 (Doc. Nos. 243, 246).

D. The post-conviction motions 1. Pappas’s October 2001 Motion to Un-

seal On October 15, 2001, more than three years

after he was sentenced and two years after he had lost his appeal, Pappas filed a motion to un-seal four documents, specifically docket entries 231, 237, 249, and 250. GA22 (Doc. No. 321).

9

Judge Dorsey granted Pappas’s motion on March 25, 2003. GA24 (Doc. No. 358), GA37. Three of those documents (Doc. Nos. 237, 249, and 250) were unsealed and provided to Pappas. Each of those documents related to a witness who testi-fied for the government at Pappas’ trial.

The fourth document, Document #231, did not pertain to a government trial witness. As re-flected in the document, which was provided to the district court for in camera review, it per-tained to information provided by a person who was cooperating with the government in an un-related, ongoing prosecution in another District. GA59. This cooperating witness was never called to testify as a witness at Pappas’s trial or sen-tencing hearing. GA59. On September 29, 2003, before Document #231 was provided to Pappas, Judge Dorsey vacated his previous Order and is-sued an order resealing the document for “secu-rity reasons.” GA25 (Doc. No. 364), GA41. Addi-tionally, as Judge Dorsey set forth in his Order, the “information contained in [Document] #231 was considered for no other purpose than sched-uling the date of sentencing. The motion had no impact on the actual sentence imposed.” GA41.

2. Pappas’s July 2011 Motion to Unseal On July 18, 2011, nearly one decade after he

had first sought access to Document #231, Pap-pas again moved to unseal that document. GA31 (Doc. No. 455). On September 2, 2011, the dis-

10

trict court (Dorsey, J.) granted the motion to un-seal. GA31 (Doc. No. 456). In February 2012, up-on the death of Judge Dorsey, this case was transferred to Judge Robert N. Chatigny. (GA31 (Doc. No. 458). On February 29, 2012, Pappas filed a motion to enforce the court’s order as he had not yet received the document. GA31 (Doc. No. 457).

Due to the age of the case and the difficulty of obtaining the pertinent documents, on May 3, 2012, the government requested an extension of time to file a motion to reconsider the court’s or-der unsealing Document #231. GA31 (Doc. No. 459). The government was thereafter given until September 1, 2012 to file a motion to reconsider. GA31-32 (Doc. Nos. 466, 468, 474). Before the government filed its motion, Judge Chatigny re-ferred the case to Magistrate Judge Donna Mar-tinez. GA31 (Doc. No. 467).

On August 31, 2012, the government filed a motion to reconsider the district court’s order unsealing Document #231. GA32 (Doc. No. 469). The government argued that Document #231 should remain under seal as it contained sensi-tive information and disclosure could jeopardize the safety of the confidential source. In addition, the government argued that the fact that Judge Dorsey did not use the information in determin-ing Pappas’s sentence negated any need to dis-close the information.GA60-63.

11

In partial response to the government’s mo-tion, Pappas renewed his motion for enforcement of the order granting him access to Document #231. GA32 (Doc. No. 470).

On December 28, 2012, Magistrate Judge Martinez issued her ruling on the pending mo-tions. GA32 (Doc. No. 475), GA65-68. The magis-trate judge granted the government’s motion for reconsideration and denied Pappas’s motion for enforcement. GA68. In short, Magistrate Judge Martinez ordered Document #231 to remain un-der seal. GA68.

The magistrate judge reasoned that “recon-sideration is appropriate to prevent a manifest injustice,” applying the high standards for re-consideration. See GA67-68 (citing Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); Virgin Atl. Airways, Ltd., v. Nat’l Media-tion Bd., 956 F.2d 1245, 1255 (2d Cir. 1995)). The magistrate judge reviewed Document #231 in camera and determined that disclosing the in-formation contained within would cause such manifest injustice. Specifically, “[d]isclosure of the document would reveal the informant’s iden-tity to Pappas” who was convicted of witness in-timidation in this matter. GA67. Second, the magistrate judge reasoned, the information was not required to be disclosed by Brady v. Mary-land, 373 U.S. 83 (1963) or Giglio v. United States, 405 U.S. 150 (1972). GA67-68. Third, the magistrate judge noted that nothing in Docu-

12

ment #231 “affected [Pappas’s] sentence.” GA68. In support of this conclusion, the magistrate judge pointed to Judge Dorsey’s earlier state-ments that Document #231 was used “‘for no other purpose than scheduling the date of sen-tencing’” and “‘had no impact on the actual sen-tence imposed.’” GA68. In sum, the magistrate judge concluded that Pappas was “not entitled to the document, and there is good cause for allow-ing it to remain sealed.” GA68.

Summary of Argument I. This Court lacks jurisdiction over this ap-

peal because Pappas never objected to the mag-istrate judge’s ruling and thus there was no final decision by the district court.

II. The magistrate judge exercised her broad discretion to grant the government’s motion to reconsider the court’s earlier order unsealing Document #231. The motion was properly con-sidered under the district court’s Local Rule 7(c), and thus there was a proper procedural mecha-nism for the court’s order.

II. Pappas’s argument that this Court should vacate and remand for re-sentencing should be rejected because he identifies no authority for vacating his sentence 15 years after it was im-posed and does not have this Court’s permission to file a successive petition under 28 U.S.C. § 2255. In any event, there was no error here be-cause the district court expressly stated that it

13

did not consider the information in Document #231 when it sentenced Pappas.

Argument I. This Court lacks jurisdiction over this

appeal. A. Governing law and standard of re-

view This Court has appellate jurisdiction over fi-nal judgments of the district courts. 28 U.S.C. § 1291. Under federal law, a district court may refer non-dispositive matters to a magistrate judge for decision. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Crim. P. 59(a). After the magistrate judge issues a decision on any such matter, a party may file objections to that order within 14 days. Fed. R. Crim. P. 59(a). Moreover, the “[f]ailure to object in accordance with this rule waives a party’s right to review.” Id.; see also United States v. Schultz, 565 F.3d 1353, 1359 (11th Cir. 2009) (“The law is settled that appellate courts are without jurisdiction to hear appeals directly from federal magistrates.”).

B. Discussion In this case, Magistrate Judge Martinez is-sued her order on the pending motions on De-cember 28, 2012. GA32 (Doc. No. 475). Pappas never objected to this order as required by Rule

14

59(a), and thus the district court never reviewed the magistrate judge’s decision. By failing to ob-ject to the magistrate judge’s decision, Pappas waived further judicial review of that decision. Fed. R. Crim. P. 59(a). Further, Pappas’s failure to object ensured that there was no final decision by the district court. In the absence of a final de-cision by the district court, there is no appellate jurisdiction in this Court. Schultz, 565 F.3d 1359; see also United States v. Harrison, 396 F.3d 1280, 1280-81 (2d Cir. 2005) (per curiam) (holding that a magistrate judge’s decision on detention pending judicial proceedings is not a final order because it is subject to review by the district court).

II. Alternatively, the magistrate judge properly granted the government’s mo-tion to reconsider the court’s order un-sealing Document #231. A. Governing law and standard of re-

view Under the District of Connecticut’s Local

Rules, a party may file a motion to reconsider within 14 days of the decision or order “from which relief is sought.” Local Rule of Civil Pro-cedure 7(c). This rule also applies to criminal proceedings. See Local Rule of Criminal Proce-dure 1(c).

A motion to reconsider is appropriately granted where the moving party “can point to

15

controlling decisions or data that the court over-looked—matters, in other words, that might rea-sonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). “The major grounds justifying reconsideration are an inter-vening change of controlling law, the availability of new evidence, or the need to correct a clear er-ror or prevent manifest injustice.” Virgin Atlan-tic Airways, Ltd. v. National Mediation Board, 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quo-tations omitted).

This Court reviews an order on a motion for reconsideration for abuse of discretion. Shrader, 70 F.3d at 257. This Court has held that to iden-tify an abuse of discretion, “we must conclude that a challenged ruling rests on an error of law, a clearly erroneous finding of fact, or otherwise cannot be located within the range of permissi-ble decisions.” United States v. Boccagna, 450 F.3d 107, 113 (2d Cir. 2006) (internal quotation marks omitted).

B. Discussion The magistrate judge properly exercised her

discretion to grant the government’s motion to reconsider. In particular, the magistrate judge concluded that reconsideration was appropriate here to prevent a “manifest injustice.” GA67. That conclusion was entirely appropriate. First, disclosure of Document #231 would reveal a co-

16

operating witness’s identity to Pappas—an indi-vidual convicted of witness tampering. GA67. Moreover, the information in Document #231 was not material that was required to be dis-closed by either Brady v. Maryland or Giglio v. United States. GA68. Finally, there was nothing in the document that affected Pappas’s sentence. GA68. Specifically, the magistrate judge noted that Judge Dorsey—the judge who sentenced Pappas in 1998—had specifically stated that the information in that document “had no impact on the actual sentence imposed.” GA68 (quoting Judge Dorsey). Accordingly, the magistrate judge’s decision to grant the motion to reconsider and maintain Document #231 under seal cer-tainly fell “within the range of permissible deci-sions.” Boccagna, 450 F.3d at 113.

Pappas does not challenge the substance of the decision; indeed, he notes that the magis-trate judge “applied the correct legal standard that governs motions for reconsideration gener-ally.” Appellant Br. at 9.

Instead, Pappas claims only that the magis-trate judge erred because there was no proce-dural mechanism for granting the motion to re-consider. Appellant Br. at 9. Pappas is wrong. Local Rule 7(c) specifically authorizes a party to file a motion to reconsider, and that is just what the government did here. To be sure, the gov-ernment did not file its motion within 14 days as required by that Local Rule 7(c), but it filed mul-

17

tiple motions for extension of time to file its mo-tion, along with explanations for the need for more time, see GA31-32 (Doc. Nos. 459, 466, 468), GA42-52, and the court granted those mo-tions, GA31-32 (Doc. Nos. 461, 474). And to the extent the government’s motions for extension of time were insufficient to bring its motion to re-consider into compliance with the Local Rules, the magistrate judge properly exercised her dis-cretion to excuse any non-compliance with the court’s own rules. See Wight v. BankAmerica Corp., 219 F.3d 79, 85 (2d Cir. 2000) (noting that local rules are not statutes and that district court has inherent authority to excuse compli-ance with its rules in the interests of justice).

III. Pappas has identified no basis for va-cating his sentence at this date, and his argument is meritless in any event.

A. Governing law and standard of review

“‘A district court may not generally modify a term of imprisonment once it has been im-posed.’” United States v. Martinez, 572 F.3d 82, 84 (2d Cir. 2009) (quoting Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir. 2007) (per cu-riam)). Federal law provides a few limited excep-tions to this basic principle. First, a sentence may be reduced upon motion of the Bureau of Prisons in certain situations. 18 U.S.C. § 3582(c)(1)(A). Second, a court may modify a

18

sentence pursuant to authority granted by stat-ute or Fed. R. Crim. P. 35. 18 U.S.C § 3582(c)(1)(B). Under Rule 35(a), a court may correct a sentence within fourteen days based on clear error. Under Rule 35(b), a court may re-duce a defendant’s sentence based on post-sentence substantial assistance on motion by the government. Third, a court may reduce a de-fendant’s sentence if the applicable sentencing guideline range “has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).

Further, a court may reconsider and change a sentence after an appellate court remands and directs the sentencing court to reconsider or re-calculate the sentence pursuant to 18 U.S.C. § 3742. See 18 U.S.C. § 3742(f), (g). Finally, a district court is authorized by 28 U.S.C. § 2255 to amend a sentence to correct an error that is cognizable on collateral review. See 28 U.S.C. § 2255(b). Because federal courts are courts of limited jurisdiction, and thus may not act be-yond the authority granted by Article III of the Constitution or statutes enacted by Congress, a district court lacks the authority to alter or va-cate a sentence outside of these delineated cir-cumstances.

B. Discussion Pappas asks this Court to remand his case to

the district court for de novo re-sentencing, Ap-

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pellant Br. at 10-11, but cites no authority for the granting of this relief. In particular, he makes no attempt to identify any statutory au-thority for vacating the final judgment in his criminal case. Pappas was sentenced over 15 years ago, and has already had his direct appeal and a petition for collateral relief under 28 U.S.C. § 2255. See United States v. Pappas, 199 F.3d 1324, 1999 WL 980957 (2d Cir. Oct. 19, 1999) (unpublished), cert. denied, 531 U.S. 854 (2000); Pappas v. United States, 362 Fed. Appx. 175 (2d Cir. 2010), cert. denied, 131 S. Ct. 996 (2011). This appeal, concerning the magistrate judge’s order re-sealing a document, simply pro-vides no authority for vacating a criminal sen-tence.

And even if Pappas could have located such an authority for the relief requested in this ap-peal, his argument would be barred by the law of the case doctrine. That doctrine “ordinarily fore-closes relitigation of issues expressly or implied-ly decided by the appellate court.” United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002) (internal quotations omitted). Moreover, “where an issue was ripe for review at the time of an in-itial appeal but was nonetheless foregone, it is considered waived and the law of the case doc-trine bars the district court on remand and an appellate court in a subsequent appeal from reo-pening such issues . . . .” Id. (internal quotations omitted). The alleged error that Pappas has

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identified—that he was sentenced based on in-formation that was not disclosed to him—was evident before his sentencing and thus was ripe for review at the time of his first appeal. See GA17 (docketing of Document #231 entered on February 11, 1998). Nevertheless, Pappas never raised this issue in his direct appeal or in his pe-tition under § 2255. Accordingly, he cannot raise now an argument that he could have raised on his direct appeal or during the litigation of his petition under § 2255.

More fundamentally, however, Pappas’s re-quested relief is an attack on the validity of his sentence, but as such, it is not properly before this Court. Because Pappas challenges the valid-ity of his sentence, he must raise this issue through a petition under § 2255. See Chambers v. United States, 106 F.3d 472, 474 (2d Cir. 1997); Jiminian v. Nash, 245 F.3d 144, 147 (2d Cir. 2001) (noting general rule that prisoners must use § 2255 to challenge a sentence as vio-lating the Constitution or laws of the United States). But because Pappas has already filed (and litigated) a petition under that section, he cannot file a new petition for relief without ob-taining the permission of this Court to file a sec-ond or successive petition. See 28 U.S.C. § 2255(h); Johnson v. United States, 623 F.3d 41, 43 (2d Cir. 2010). Because Pappas did not obtain this Court’s permission to file a second petition

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under § 2255, his argument is not properly be-fore this Court.

Moreover, even if this Court were to construe Pappas’s brief as a request for permission to file a successive petition under § 2255(h), such a re-quest should be denied. Under § 2255(h), a de-fendant may file a successive petition only if a panel of this Court certifies that the petition falls into one of the following two categories: (1) the petition rests on “newly discovered evidence that, if proven . . . would be sufficient to estab-lish by clear and convincing evidence that no reasonable factfinder would have found the mo-vant guilty of the offense,” or (2) the petition rests on “a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, that was previously unavaila-ble.” 28 U.S.C. § 2255(h).

Pappas makes no attempt to explain how his new claim for re-sentencing satisfies these strict gatekeeping requirements of § 2255(h). He points to no new evidence that would undermine his conviction, and he identifies no new rule of constitutional law that was previously unavaila-ble to him. To be sure, he argues that the impo-sition of his sentence violated due process, but this argument is not a “new rule” of constitu-tional law that was previously unavailable to him. Accordingly, even if this Court were to con-strue Pappas’s brief as a request for permission

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to file a successive petition, it would fail on the merits.

Finally, putting aside all of the procedural problems with Pappas’s claim, the underlying substance of his argument is meritless. Pappas claims that his sentence violated due process be-cause Judge Dorsey considered ex parte infor-mation (i.e., information in Document #231) when imposing sentence on him in 1998. Appel-lant Br. at 10.

This claim is belied by the record. In Septem-ber 2003, when Judge Dorsey vacated his previ-ous order unsealing Document #231, he express-ly stated that the “information contained in [Document] #231 was considered for no other purpose than scheduling the date of sentencing. The motion had no impact on the actual sen-tence imposed.” GA41. In other words, the doc-ument had no impact on the sentence imposed, and thus there was no due process violation. See, e.g., United States v. Cole, 296 Fed. Appx. 195, 198 (2d Cir. 2008) (upholding sentence against claim that court had failed to disclose infor-mation used in sentencing where the district judge stated that all information relevant to sen-tencing had been disclosed to the defendant).

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Conclusion For the foregoing reasons, the judgment of

the district court should be affirmed. Dated: September 3, 2013

Respectfully submitted,

DEIRDRE M. DALY ACTING U.S. ATTORNEY DISTRICT OF CONNECTICUT

PETER D. MARKLE ASSISTANT U.S. ATTORNEY

Sandra S. Glover Assistant United States Attorney (of counsel) Allison Gorsuch, Legal Intern, on the brief