USA v. Busch et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
UNITED STATES OF AMERICA
Plaintiff,
DECISION AND ORDER
v. 	09-CR-331-A
TONY PEEBLES,
Defendant.
______________________________________
Before this Court are three pro se post-conviction motions filed by Defendant
Tony Peebles. 	Peebles’ first two motions seek his compassionate release. 	His first
motion is styled as a “Motion for Compassionate Release/Reduction in Sentence
Pursuant To 18 U.S.C. § 3582(a)(1)(A)1 and The First Step Act of 2018,” see, Dkt.
2395, while his second motion is a “Supplemental Motion” requesting a reduction of
sentence pursuant to “18 U.S.C. § 3582(c)(1)(A)(i), Amendment 814 and Amendment
829 (Youthful Offender).” 	Dkt. 2486. 	Peebles’ third motion seeks “to dismiss Count
27 (18 U.S.C. § 924(c)) for failure to state a crime.” Dkt. 2521.
For the reasons which follow, this Court finds that Peebles’ motions lack merit
and therefore are DENIED.
1 Since § 3582(a)(1)(A) does not exist, the Court will treat Peebles’ motion as one filed
under § 3582(c)(1)(A).
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I. 	BACKGROUND
On February 2, 2012, Peebles was charged in 29 counts (Counts 1, 2, 5-7, 21-
35, 52-54, 57-59, 62, 63, and 66) of the 74-count Fourth Superseding Indictment (Dkt.
No. 408), with RICO conspiracy (Count 1), RICO (Count 2), assault with a dangerous
weapon in aid of racketeering (Counts 5, 25, 28, 30, 31, 53, and 58), attempted murder
in aid of racketeering (Counts 6, 21, 24, 33, 52, and 57), possession and discharge of
a firearm in furtherance of a crime of violence (Counts 7, 23, 27, 29, 32, 35, 54, and
59), attempted assault with a dangerous weapon in aid of racketeering (Counts 22
and 34), assault in aid of racketeering (Count 26), narcotics conspiracy (Count 62),
possession of firearms in furtherance of a drug crime (Count 63), and possession of
cocaine base with intent to distribute (Count 66). 	The offenses with which he was
charged related to drug-dealing activities and shootings committed by Peebles and
other individuals as members of Buffalo’s 10th Street Gang. Id.
On March 27, 2014, the day before jury selection in his trial was scheduled to
commence, Peebles appearing pro se, with the assistance of standby counsel 	and
pursuant to a written plea agreement with the Government, see, Dkt. 1310, pleaded
guilty: to Count 1, which charged Peebles with RICO Conspiracy, in violation of 	18
U.S.C. § 1962(d), and to Count 27, which charged Peebles with discharging a firearm
in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). 	Count
27 expressly incorporated by reference and alleged as predicate offenses, three
VICAR offenses, i.e., Counts 24, 25, and 26, which, in turn, were each 	predicated
upon different violations of New York State Penal Law. Specifically, Count 24 charged
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Peebles with attempted murder of M.S. in aid of racketeering (in violation of New York
State Penal Law Sections 125.25(1), 110, and 20), all in violation of 18 U.S.C. §§
1959(a)(5) and 2. Count 25 charged Peebles with assault with a dangerous weapon
in aid of racketeering (in violation of New York State Penal Law Sections 120.05(2)
and 20), all in violation of 18 U.S.C. §§ 1959(a)(3) and 2. Count 26 charged Peebles
with assault in aid of racketeering (in violation of New York State Penal Law Sections
120.10(1) and 20), all in violation of 18 U.S.C. §§ 1959(a)(3) and 2. Id.
In pleading guilty to Count 27, Peebles acknowledged that he understood the
elements of the offense, including his commission of a crime of violence for which he
could be prosecuted in a Court of the United States, Dkt. 1310, p.3, and in the factual
basis of his plea agreement, Peebles explicitly agreed to committing and participating
in eight shootings, targeting at least nine victims and causing serious injuries—some
of which were life threatening. The shootings Peebles admitted committing in his plea
agreement included the August 12, 2009, shooting of M.S. that resulted in life-
threatening bodily injury, which conduct provided the basis for the predicate crimes of
violence, see Counts 24 through 26, underlying Peebles’ conviction for Count 27. See
Id. at ¶ 5(i); see also Dkt. 2109, pp. 12-22.
As part of his agreement, Peebles acknowledged that at sentencing he faced
an “aggregate sentencing range…of imprisonment of 382 months to 447 months (120
months on Count 27 to run consecutive to 262 to 327 months on Count 1).” Dkt. 1310,
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¶ 21.2 	The plea agreement further contained an appeal waiver wherein, Peebles
agreed knowingly to waive the right to appeal or collaterally attack any component of
a sentence imposed by the Court “which falls within or is less than the sentencing
range for imprisonment [i.e., 382 months to 447 months] set forth in Section III, ¶21,
above, notwithstanding the manner in which the Court determines the sentence.” Id.,
¶ 29. As explained by the AUSA explained, upon prompting by the Court during the
plea colloquy in this case, if Peebles had been convicted on all counts with which he
was charged at trial, he would have faced an aggregate sentencing range of
imprisonment of “200 years mandatory minimum plus 480 . . . months to life.” Dkt.
2109, p. 36.
On December 13, 2016, Peebles was, following the filing of a government
motion to reduce his sentence pursuant to Guideline § 5K1.1, see, Dkt. 2083,
sentenced to a total term of 295 months of imprisonment (235 months on Count 1 and
60 months on Count 27 to be served consecutively to Count 1). Dkt. 2082. 	Peebles
did not appeal his conviction or sentence. 	According to the BOP website, Peebles’
scheduled release date is January 17, 2031.
A. 	Defendant’s Prior § 2255 Motion (Dkt. 2105, 2194)
On May 19, 2017, Peebles filed a motion to vacate under 28 U.S.C. § 2255,
Dkt. 2105, which he subsequently successfully amended and corrected. Dkt. 2194.
2 The plea agreement also contained a cooperation section which provided that if the
Court were to grant a Government motion filed pursuant to Guideline Section 5K1.1,
Peebles’ aggregate sentencing range of imprisonment would be reduced to 292 to 365
months. Dkt. 1310, ¶ 32.
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See, Dkt. 2307. In it, Peebles raised a variety of arguments in support of his primary
claim that he received ineffective of counsel; he also argued that his § 924(c)
conviction under Count 27 should be vacated based upon the Supreme Court decision
in Dean v. United States, 581 U.S. 62, 71 (2017), which held that a sentencing court
may “consider a mandatory minimum under § 924(c) when calculating an appropriate
sentence for the predicate offense.”
On January 31, 2022, this Court issued a written decision which denied
Peebles’ § 2255 motion and rejected all the claims he raised therein. 	Dkt. 2387. In
doing so, the Court declined to issue certificate of appealability because the Peebles
did not make a substantial showing of the denial of a constitutional right, and certified,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal taken from its decision would not
be taken in good faith. Id. at 26-27.
B. 	Defendant’s Pending Motions For Compassionate Release (Dkt.
2395, 2486)
After his § 2255 motion was denied, Peebles, on July 27, 2022, filed a motion
for compassionate release pursuant to 18 U.S.C. § 3582. 	Dkt. 2395. 	In it, Peebles
sets forth a variety of arguments by which he seeks to have his sentence reduced.
Primarily, Peebles argues that his sentence should be reduced because he has a
heart murmur, because of dangers associated with the COVID-19 virus, and because
he received a long sentence. Id., pp. 3-19, 21-32. 	Peebles also argues that his
sentence should be reduced based of the Supreme Court decision in United States v.
Davis, 588 U.S. 445 (2019), since his Ҥ 924(c) conviction can no longer be predicated
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on the RICO charge because it is no longer a crime of violence.” Dkt. 2395, pp. 19-
21, 32-33.
On December 1, 2022, the Government responded in opposition to Peebles’
motion for compassionate release. Dkt. 2402 at 13-14. On January 3, 2023, Peebles
filed a reply, in which he once again argued, among other things, that his § 924(c)
conviction should be vacated based upon his assertion that the predicate crime for
such conviction was—impermissibly—RICO Conspiracy. See, Dkt. 2406, p. 12.
Almost a year later, on December 18, 2024, Peebles filed a motion seeking
further to supplement his compassionate release motion, in which he repeated his
prior arguments that his sentence should be reduced because it was “unusually long”
and because he was young when he committed his crimes. Dkt. 2486.
C. 	Defendant’s Pending Motion to Dismiss (Dkt. 2521)
On August 6, 2025, Peebles filed a “motion to dismiss,” see, Dkt. 2521,
claiming, as he had at least in part in his compassionate release motions, that his
conviction and sentence on the § 924(c) count (Count 27) should be vacated because
it was predicated upon a RICO Conspiracy. Specifically, Peebles claims such § 924(c)
conviction “is predicated solely on his participation in the RICO conspiracy.” Id., p. 5.
In Peebles’ view, his conviction and sentence under that Count should be vacated
because the Supreme Court, in Davis, 588 U.S. 445, determined that § 924(c)(3)(B)’s
"’residual clause’ is void for vagueness, and [] RICO conspiracy does not categorically
qualify as a ‘crime of violence’ under the elements clause” of the statute. Id., pp. 5-6.
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The Government filed a response to the motion to dismiss, see, Dkt. 2526, and
Peebles replied. Dkt. 2534.
II. 	DISCUSSION
Because Peebles is proceeding pro se, the Court will construe his motions
liberally, interpreting them “to raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam)
(citation omitted); Donaldson v. United States, No. 09-CR-321A, 2018 WL 703102, at
*2 (W.D.N.Y. Feb. 5, 2018). 	But, as the moving party, Peebles still bears the burden
of demonstrating his entitlement to the relief he seeks. United States v. Butler, 970
F.2d 1017, 1026 (2d Cir. 1992) (“If the defendant seeks decreased punishment, he or
she has the burden of showing that the circumstances warrant that decrease.”
(citations omitted)); accord United States v. Earlsey, 568 F. Supp. 3d 298, 301
(W.D.N.Y. 2021).
A. Defendant’s Motions for Compassionate Release
1. The Law
“A court may not modify a term of imprisonment once it has been imposed
except pursuant to statute.” United States v. Gotti, 433 F. Supp. 3d 613, 614
(S.D.N.Y. 2020)). The First Step Act, which modified 18 U.S.C. § 3582(c), allows the
Court to modify a sentence upon a motion of either: (i) the Director of the Bureau of
Prisons [BOP], or (ii) the defendant “after the defendant has fully exhausted all
administrative rights to appeal a failure of the [BOP] to bring a motion on the
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defendant's behalf or the lapse of 30 days from the receipt of such a request by the
warden of the defendant's facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A).
Once exhaustion is established, courts have discretion under the First Step
Act to grant compassionate release when (1) there are “extraordinary and
compelling reasons” that warrant a sentence reduction, (2) the sentence reduction is
“consistent with applicable policy statements issued by the Sentencing
Commission,” and (3) the sentence reduction “is supported by the factors set forth in
18 U.S.C. § 3553(a).” United States v. Canales, No. 16-CR-0212, 2020 WL
2319294, at *2 (S.D.N.Y. May 9, 2020) (quoting 18 U.S.C. § 3582(c)(1)(A)(i)). “If any
one requirement is not satisfied, the district court may deny the motion without
considering the remaining requirements. United States v. Hunter, No. 21-1773, 2022
WL 2288688, at *1 (2d Cir. June 24, 2022) (citing United States v. Keitt, 21 F.4th 67,
72-73 (2d Cir. 2021) (per curiam)). Peebles bears the burden of proving that he is
entitled to compassionate release. See United States v. Earlsey, 568 F. Supp. 3d at
301.
District Courts can consider “the full slate of extraordinary and compelling
reasons that an imprisoned person might bring before them in motions for
compassionate release.” United States v. Brooker, 976 F.3d 228, 237 (2d Cir. 2020);
see id. at 236 (finding that “[b]ecause Guideline § 1B1.13 is not ‘applicable’ to
compassionate release motions brought by defendants [as compared to those
brought by the BOP], Application Note 1(D) cannot constrain district courts’
discretion to consider whether any reasons are extraordinary and compelling”). “The
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only statutory limit on what a court may consider to be extraordinary and compelling
is that ‘[r]ehabilitation ... alone shall not be considered an extraordinary and
compelling reason.’” Id. at 237-38 (emphasis and alteration in original) (quoting 28
U.S.C. § 994(t)).
If a defendant establishes both exhaustion and the existence of extraordinary
and compelling circumstances, then the Court must also “consider all the Section
3553(a) factors to the extent they are applicable, and may deny such a motion if, in
its discretion, compassionate release is not warranted because Section 3553(a)
factors override, in any particular case, what would otherwise be extraordinary and
compelling circumstances.” United States v. Davies, No. 17-CR-0057, 2020 WL
2307650, at *2 (E.D.N.Y. May 8, 2020) (citation omitted). (“Even if extraordinary and
compelling reasons exist, they must outweigh the [Section] 3553(a) [F]actors to
warrant sentence reduction.” (citing 18 U.S.C. § 3582(c)(1)(A))).
Court’s analyzing a compassionate release request need not consider the
factors in any particular order. As the Second Circuit has recognized: “A motion
under § 3582(c)(1)(A) must demonstrate both extraordinary and compelling reasons
justifying release and that a sentence reduction is consistent with the sentencing
factors set forth in § 3553(a), so a district court may deny a motion based solely on
the latter without reaching the former.” United States v. McLean, No. 22-1176(CON),
2023 WL 8253680, at *1 (2d Cir. Nov. 29, 2023), cert. denied, 144 S. Ct. 1376
(2024).
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2. Analysis
For purposes of its decision, this Court will presume that Peebles has carried
his burden of establishing his exhaustion of administrative remedies as Peebles
included, as part of his original compassionate release motion, an email requesting
compassionate release, see, Dkt. 2395, p. 38, which he sent to the warden of the
facility at which he was housed more than 30-days prior to his filing of such motion.
See United States v. Loyd, No. 16-CR-13-A, 2025 WL 1111564, at *2 (W.D.N.Y. Apr.
15, 2025) (considering the merits of the defendant's compassionate release motion
where defendant “include[d] a copy of an email request to the warden at the BOP
facility where [he was] housed” and “had ... not received a response from the [w]arden
regarding his request” more than thirty days later).
In seeking to establish “extraordinary and compelling reasons,” Peebles’ initial
motion for compassionate release was focused almost exclusively on arguments
pertaining to the COVID-19 outbreak and focused specifically on the impact that such
outbreak has had on him based upon his health condition and the fact that the
outbreak made his incarceration more punitive than anticipated. Dkt. 2395, pp. 3-32.
At the outset, the Court notes that while in Bureau of Prisons custody, Peebles has
received two (2) doses of the Pfizer vaccine, refused a third Pfizer booster vaccine
shot, and recovered from COVID-19. See, Dkt. 2402, P. 10. In view of the foregoing,
and for reasons this Court has previously expressed, Peebles’ arguments regarding
COVID-19 and its impact on his own health fail at this time to constitute extraordinary
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and compelling reasons. 	Loyd, 2025 WL 1111564, at *4.3 Additionally, Peebles has
failed to establish that any of the additional hardships he may have suffered as a result
of being incarcerated during COVID-19 set him apart from the rest of the BOP inmate
population such that they may be considered extraordinary and compelling. See,
United States v. Baker, No. 97-CR-0877 (JS), 2025 WL 2733358, at *7 (E.D.N.Y. Sept.
25, 2025)(citing cases). In short, the Court rejects Peebles’ argument that the COVID-
19 outbreak created “extraordinary and compelling” reasons sufficient to entitle him to
a reduction of his sentence.
In 	his 	supplemental 	compassionate 	release 	motion, 	Peebles 	also 	cites
Sentencing Guidelines Amendment 814 (Unusually Long Sentence) and Amendment
829 (Youthful Offender) as providing a basis for this Court to find extraordinary and
compelling circumstances that justify early release. Dkt. 2486.
With regard to his claim that his sentence is “unusually long,” the Court notes
that Amendment 814 states: “If a defendant received an unusually long sentence and
3 As this Court stated in Loyd, 2025 WL 1111564, at *4:
“As an initial matter, COVID-19 is no longer considered a federal ongoing public
health emergency.” United States v. Jimenez Cruz, 19-CR-326 (KMW), 2024 WL
3936031, at *2 (S.D.N.Y. Aug. 26, 2024), citing COVID-19 Public Health
Emergency, U.S. Dep't Health & Human Servs. (last reviewed Dec. 15, 2023),
https://www.hhs.gov/coronavirus/covid-19-public-health-emergency/index.html
(“The federal Public Health Emergency for COVID-19 expired on May 11, 2023.”).
Indeed, “the ubiquitous availability of the COVID-19 vaccination and treatment
options for those who do become infected, has eliminated COVID-19 as a basis
for granting compassionate release; even for those persons whom the CDC has
in the past said were at risk of suffering a severe outcome if they were to become
infected—a category into which [Defendant] might arguably fall.” United States v.
Douglas, 04-CR-1065 (CM), 2024 WL 3293765, at *2 (S.D.N.Y. July 2, 2024).
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has served at least 10 years of the term of imprisonment, a change in the law ... may
be considered in determining whether the defendant presents an extraordinary and
compelling reason, but only where such change would produce a gross disparity
between the sentence being served and the sentence likely to be imposed at the time
the motion is filed.” U.S.S.G. Amend. 814 (eff. Nov. 1, 2023); U.S.S.G. § 1B1.13(b)(6).
Peebles’ motion asserts that he is serving an unusually long sentence, but fails to
identify a change in law, as the Guideline requires. See United States v. Romero, No.
22-CR-3213, 2025 WL 1732987, at *2 (2d Cir. Jun. 23, 2025) (rejecting similar claim
for relief pursuant to § 1B1.13(b)(6), as amended by Amendment 814). 	Instead,
Peebles asserts that based upon subsequent amendments to the crack guidelines,
his offense level for his RICO Conspiracy conviction under Count 1, would have been
reduced by two levels. Dkt. 2486, p. 2. 	However, even if the reduction in the crack
guidelines would have reduced Peebles’ base offense level for the crack conspiracy
charged as a racketeering act under Count 1, his total offense level under Count 1
would remain unchanged, since such offense level was driven predominately by the
eight attempted murders for which Peebles was also charged and convicted as
racketeering 	acts 	under 	that 	Count. 	Dkt. 	2085, 	¶¶39-96. 	Stated 	simply, 	the
subsequent change in the crack Guidelines relied upon by Peebles does not have the
effect of lowering his applicable Guideline range calculated by the Court under Count
1. Id. “It would therefore be inconsistent with U.S.S.G. § 1B1.10(a) to permit reduction
of [Defendant]'s sentence on the basis of the amendments to the crack cocaine
guidelines.” United States v. Martinez, 572 F.3d 82, 86 (2d Cir. 2009).
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Regarding Peebles’ reliance on Amendment 829, the Court finds that such
Amendment does not amount to an extraordinary and compelling reason to reduce
his sentence. See United States v. Price, No. 05-CR-492, 2025 WL 2085357, at *4
(E.D.N.Y. July 24, 2025) (declining to consider Amendment 829 in adjudicating
defendant's motion because “Amendment 829 is not retroactive” and finding that the
court “may not consider it for purposes of determining whether an extraordinary and
compelling reason exists”).
Finally, 	Peebles’ 	first 	compassionate 	release 	motion 	also 	cites 	as 	an
extraordinary and compelling reason, his assertion that his Ҥ 924(c) conviction can
no longer be predicated on the RICO charge because it is no longer a crime of
violence.” Dkt. 2395, pp. 19-21, 32-33. The claim fails for several reasons. First, as
explained in further detail below, Peebles is simply wrong in his argument that his
conviction for discharging a firearm in furtherance of a crime of violence under Count
27 was predicated upon the crime of RICO Conspiracy. Rather, the predicate crimes
underlying the Peebles’ discharge of a firearm conviction under Count 27 were all
substantive crimes of violence.
Specifically, Count 27 expressly listed as the predicate § 924(c) offenses
thereunder, the crimes charged in Counts 24 through 26 of the Fourth Superseding
Indictment. 	Count 24 charged Peebles with attempted murder of M.S. in aid of
racketeering (in violation of New York State Penal Law Sections 125.25(1), 110, and
20), all in violation of 18 U.S.C. §§ 1959(a)(5) and 2. Count 25 charged Peebles with
assault with a dangerous weapon in aid of racketeering (in violation of New York State
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Penal Law Sections 120.05(2) and 20), all in violation of 18 U.S.C. §§ 1959(a)(3) and
2. 	Count 26 charged Peebles with assault in aid of racketeering (in violation of New
York State Penal Law Sections 120.10(1) and 20), all in violation of 18 U.S.C. §§
1959(a)(3) and 2. 	Contrary to Peebles’ argument, however, the Second Circuit has
expressly held that each of the foregoing crimes listed as predicate offenses under
Count 27 may properly serve as predicate crimes of violence for purposes of § 924(c).
See, 	United States v. Pastore, 83 F.4th 113, 121–22 (2d Cir. 2023) (“Because
[Defendant]'s conviction for attempted murder in aid of racketeering under 18 U.S.C.
§ 1959(a)(5) is premised on the predicate crime of attempted murder under New York
law, which constitutes a crime of violence as defined in the elements clause of section
924(c), we conclude that [Defendant]'s conviction for attempted murder in aid of
racketeering under section 1959(a)(5) is necessarily a crime of violence.”), aff'd sub
nom. Delligatti v. United States, 604 U.S. 423, 145 S. Ct. 797, 221 L. Ed. 2d 303
(2025); United States v. Morris, 61 F.4th 311, 319-320 (2d Cir. 2023)(VICAR Assault
premised on a violation of either N.Y. Penal Law § 120.05(2) or N.Y. Penal Law §
120.10(1) is a “crime of violence” under § 924(c)’s elements clause.”). 	Accordingly,
since Peebles’ arguments in this regard are incorrect, they are neither extraordinary
nor compelling.
Aside from lacking merit, Peebles’ argument in this regard is improperly raised
in his motion for compassionate release. As the Second Circuit has stated:
If Congress had intended to permit defendants to circumvent the
strictures of 28 U.S.C. § 2255 by making challenges to the validity of a
conviction cognizable on a compassionate-release motion, it would
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surely have said so. Absent such a clear declaration of intent, we
conclude that since challenges to the validity of a conviction must be
made under section 2255, they cannot qualify as “extraordinary and
compelling 	reasons” 	under 	section 	3582(c)(1)(A). 	Compassionate
release is not a channel to habeas relief or an end run around the
limitations of section 2255.
United States v. Fernandez, 104 F.4th 420, 430 (2d Cir. 2024). At least with regard to
his arguments attacking the validity of his conviction and sentence under Count 27,
Peebles’ contentions do not qualify as “extraordinary and compelling reasons” under
the compassionate release statute. Id. 	Recognizing Peebles’ pro se status and
concluding that his arguments challenging his conviction under Count 27 do not
provide 	any 	support 	for 	his 	compassionate 	release 	motions, 	this 	Court 	will
nevertheless consider such claim in the other context in which he raises it—in his
motion to dismiss. See, Dkt. 2521.
Before doing that, however, the Court observes that even if it determined—
which it does not—that there exists some factor or combination of factors in Peebles’
motions that amount to extraordinary and compelling reasons it would nevertheless
decline to reduce Peebles’ sentence, since the applicable 18 U.S.C. § 3553(a)
sentencing 	factors 	compel 	the 	conclusion 	that 	Peebles 	is 	not 	entitled 	to
compassionate release. See, Keitt, 21 F.4th at 73 (“[W]hen a district court denies a
defendant's motion under § 3582(c)(1)(A) in sole reliance on the applicable § 3553(a)
sentencing factors, it need not also determine whether the defendant has shown
extraordinary and compelling reasons that might (in other circumstances) justify a
sentence reduction.”).
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Peebles, acting with other members of his gang, was convicted of participating
in at least eight different shootings involving nine (9) different victims. Dkt. 2085, ¶¶24-
33. It is difficult to envision more serious or dangerous conduct. The level of violence
that Peebles and his fellow gang members inflicted on the community cannot be
overstated. His wanton and brazen acts of violence put many citizens, beyond just
rival gang members, in danger. Peebles’ repeated and persistent willingness to shoot
and attempt to kill other individuals demonstrate his proclivity for violence. His gang
activities spanned nearly a decade, and his personal participation in numerous
shootings, which did not begin until he had reached the age of 21, spanned a period
of years. Moreover, this Court finds that the Government was extremely generous in
permitting Peebles to enter into the plea agreement he entered in this case. As noted,
but/for such plea offer, Peebles, if convicted of all the charges set forth in the relevant
indictment, was facing combined mandatory minimum terms of imprisonment of well-
over 200 years at sentencing. Dkt. 2109, p. 36. Having received the benefit of that
plea bargain—along with the benefit of the § 5K1.1 reduction in sentence earned by
the Defendant, requested by the Government, and granted by this Court—this Court
determines that any further sentencing reduction is unwarranted. In the Court’s view,
Peebles presents a danger to society. A lesser sentence would not sufficiently protect
the public, nor account for the seriousness of his offense and would undermine
respect for the law. 	Hence, even if Peebles were able to show extraordinary and
compelling 	circumstances 	warranting 	a 	reduced 	sentence, 	which 	he 	has 	not,
consideration 	of 	the 	relevant 	Section 	3553(a) 	factors 	would 	override 	those
circumstances and warrant the denial of Peebles’ requested sentence reduction.
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B. Defendant’s Motion to Dismiss
After filing his compassionate release motion, Peebles, on August 6, 2025, filed
a motion seeking dismissal of his § 924(c) conviction under Count 27 on the ground
that it was improperly predicated on the crime of Racketeering Conspiracy. Dkt. 2521.
As already discussed, 	Peebles’ claim is factually incorrect, as such conviction was
not predicated on the crime of racketeering conspiracy. Instead, the predicate “crimes
of violence” for such offense were three different substantive crimes—that is, Count
24, which charged Peebles with attempted murder of M.S. in aid of racketeering;
Count 25, which charged Peebles with assault with a dangerous weapon in aid of
racketeering; 	and 	Count 	26, 	which 	charged 	Peebles 	with 	assault 	in 	aid 	of
racketeering. 	While Peebles does not identify the procedural mechanism through
which he claims he is entitled to dismissal, since Peebles’ motion to dismiss seeks to
attack the same judgment of conviction as his prior § 2255 motion, this Court
determines that it represents a “second or successive” petition under § 2255. See,
e.g., Martinez v. United States, 2019 WL 1569813, at *3 (S.D.N.Y. Apr. 11, 2019); but
see Stewart v. United States, 646 F.3d 856 (11th Cir. 2011) (concluding second § 2255
motion did not qualify as “second or successive” where it raised legal claims not
previously available).
Where, as here, an individual has not received permission to file a “second or
successive” § 2255 motion from the court of appeals, this Court is ordinarily supposed
to transfer the motion to the Second Circuit in the interest of justice to give the movant
a chance to obtain such authorization. § 2244(b)(3); see also 28 U.S.C. § 1631.
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“However, transfer is unnecessary where the second or successive habeas corpus
application is wholly without merit.” Minaya v. United States, 41 F. Supp. 3d 343, 345
(S.D.N.Y. 2014).
Here, this Court determines that Peebles’ § 2255 motion can be denied without
a transfer because it is entirely without merit. Diaz v. Artus, No. 1:12-CV-0075(MAT),
2018 WL 3429276, at *4 (W.D.N.Y. July 16, 2018). First, Peebles, as part of his plea
agreement with the government agreed to waive his right to appeal or collaterally
attack his conviction and sentence so long as the Court imposed an aggregate
sentence within (or less than) the sentencing range of 382 months to 447 months.
Dkt. 1310, ¶21, 29; Dkt. 2109, pp. 29, 33. 	With Peebles being sentenced to an
aggregate term of imprisonment of 295 months, the waiver provisions apply. “A waiver
of the right to collaterally attack a conviction is presumptively enforceable.” Cook v.
United States, 84 F.4th 118, 122 (2d Cir. 2023). Courts “will not enforce” a “plea
agreement's collateral-attack waiver” in “only five circumstances”: “(1) where the
waiver was not made knowingly, voluntarily, and competently; (2) where the sentence
was based on constitutionally impermissible factors, such as ethnic, racial, or other
prohibited biases; (3) where the government breached the agreement containing the
waiver; (4) where the district court failed to enunciate any rationale for the defendant's
sentence; and (5) where the waiver was unsupported by consideration.” Id. at 121-22
(citation modified). The Court finds that here the waiver is enforceable.
Yet, even were the Court to determine that the waiver is not enforceable,
Peebles’ second petition is untimely. Under § 2255(f), there is a one-year limitations
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period that runs from the latest of (1) the date on which petitioner's judgment of
conviction became final; (2) the date on which certain impediments were removed; (3)
the date on which the right asserted was first recognized by the Supreme Court; or (4)
the date on which facts supporting the habeas claim could have been discovered.
The only possible argument to be made in support of Peebles’ current motion is that
§ 2255(f)(3)—the “initial recognition clause”—applies because his § 2255 motion
relies on the Supreme Court's “initial recognition” that the “residual clause” of §
924(c)(3)(B) is unconstitutionally vague. But as noted, that conclusion stems from
United States v. Davis, which was decided on June 24, 2019. Even though Davis is a
new rule of constitutional law that has since been recognized as being retroactive to
cases on collateral review, see Hall v. United States, 58 F.4th 55, 60 (2d Cir. 2023),
Peebles’ motion, which purports to rely upon such case, was not filed until August of
2025, a date well outside of § 2255(f)(3)’s one-year limitations period.
Finally, even if it had not been waived and even if it had been timely filed,
Peebles’ motion to dismiss remains frivolous. As previously noted, Davis has no
applicability to his § 924(c) conviction. Peebles is simply factually wrong in asserting
that the predicate crime for his § 924(c) conviction was RICO conspiracy. Rather, the
predicate 	crimes 	set 	forth 	under 	Count 	27 	were: 	attempted 	murder 	in 	aid 	of
racketeering (as charged in Count 24); assault with a deadly weapon in aid of
racketeering (as charged in Count 25), and assault in aid of racketeering (as charged
in Count 26). Moreover, relying on the elements clause of §924(c), the Second Circuit
has specifically held that each crime charged under each of those Counts may
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properly serve as a predicate “crime of violence” under the statute. See, Pastore, 83
F.4th at 22; Morris, 61 F.4th at 319-320.
Because Peebles’ “motion to dismiss” was waived as part of his plea, is
untimely, and utterly without merit, this Court denies it.
III. 	CONCLUSION
For these reasons, both Pebbles’ Motions for Compassionate Release (Dkt.
2395 and 2486) as well as his Motion to Dismiss Count 27 (Dkt. 2521), are DENIED.
Furthermore, and with respect to such motions, no certificate of appealability shall
issue because Peebles has not shown “that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see 28 U.S.C. § 2253(c)(2) (“A certificate of
appealability may issue ... only if the applicant has made a substantial showing of the
denial of a constitutional right.”). Moreover, the Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this order would not be taken in good faith, and
therefore in forma pauperis status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444–45 (1962);
IT IS SO ORDERED.
Dated: January 21, 2026
Buffalo, New York
s/Richard J. Arcara
HONORABLE RICHARD J. ARCARA
SENIOR U.S. DISTRICT JUDGE
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