Opinion
No. 01-CV-7450 (ILG)
April 30, 2002
Bruce Deming (pro se), Estill, SC, for Petitioner.
AUSA Andrew Hinton, United States Attorney's Office, Brooklyn, NY, for Respondent.
MEMORANDUM AND ORDER
BACKGROUND
Bruce Deming ("Deming" or "petitioner"), proceeding pro Se, has filed a motion pursuant to 28 U.S.C. § 2255 seeking to vacate his judgment of conviction and sentence. On September 21, 2000, Deming pled guilty before this Court to two counts of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371. On February 12, 2001, this Court sentenced Deming to 37 months' imprisonment, to be followed by six years of supervised release, and ordered him to pay restitution in the amount of $6,300,000.00. Deming appealed his sentence, based on this Court's application of a two point enhancement to his base offense level, pursuant to U.S.S.G. § 2F1.1(b)(3), for having committed the crime through mass-marketing. On October 11, 2001, the Second Circuit affirmed the judgment of this Court. United States v. Deming, 269 F.3d 107, 109 (2d Cir. 2001).
Deming now seeks to vacate his sentence by way of a Section 2255 motion, arguing that: (1) the "amount of loss" calculation, which was used to enhance his sentence, was not charged in the indictment or submitted to a jury and determined beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); (2) the restitution order, which requires Deming to pay for acts committed prior to April 24, 1996, the effective date of the Mandatory Victims Restitution Act ("MYRA"), violates the Ex Post Facto Clause of the U.S. Constitution; and (3) the restitution order, which requires Deming to pay for acts committed after April 24, 1996, violates 18 U.S.C. § 3663A(c)(1)(B)(3), because the number of identifiable victims of his crimes is so large as to make restitution impracticable. The government opposes the motion on the grounds that these claims are meritless. For the reasons that follow, Deming's motion is denied.
DISCUSSION
I. Deming's Apprendi Claim is Meritless
The Supreme Court has not yet decided whether the new rule announced in Apprendi may be applied retroactively to cases on collateral review. See Forbes v. United States, 262 F.3d 143, 146 (2d Cir. 2001) (denying second or successive application because Supreme Court has not yet stated that Apprendi may be applied retroactively to habeas cases; however, making no intimation as to retroactive effect in context of a first habeas petition). Courts which have addressed the issue have taken various approaches to the retroactive application of Apprendi. Because Deming's Apprendi claim is patently frivolous, this Court need not determine the retroactive effect of Apprendi in this case.
Deming argues that his sentence is invalid under Apprendi because the loss amount calculation which was used to enhance his sentence was not presented to a jury to be determined beyond a reasonable doubt. The Supreme Court in Apprendi specifically held, however, that only those facts which increase the penalty beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490 (emphasis added). Deming's sentence of 37 months is less than the statutory maximum of twenty years which he could have received for each of his mail fraud conspiracy convictions. See 18 U.S.C. § 371. Thus, Deming was not sentenced beyond the statutory maximum, and his challenge to his sentence based on Apprendi must be rejected. See United States v. Thomas, 274 F.3d 655, 664 (2d Cir. 2001) ("The constitutional rule of Apprendi does not apply where the sentence imposed is not greater than the prescribed statutory maximum for the offense of conviction."); United States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001) (Apprendi does not alter a sentencing judge's traditional authority to determine those facts relevant to selection of an appropriate sentence within the statutory maximum. . . .").
The fact that Deming pled guilty and did not go to trial is inconsequential to his claim as the Apprendi defendant also pled guilty.
II. The Restitution Order Does Not Violate the Ex Post Facto Clause
Deming argues that this Court's restitution order violates the Ex Post Facto Clause of the U.S. Constitution, because it requires Deming to pay for acts committed prior to April 24, 1996, the effective date of the MVRA. Deming's claim must be rejected in light of United States v. Boyd, 239 F.3d 471 (2d Cir. 2001), which held that a "sentencing court may constitutionally apply the MVRA to orders of restitution for defendants whose conspiracies began before, but ended after, the MVRA's effective date." Id. at 472 (affirming district court's rejection of defendant's claim that district court's application of MVRA violated Ex Post Facto Clause). Deming was convicted and sentenced for his involvement in a conspiracy, which began in February 1993 and ended in November 1996, approximately seven months after the effective date of the MVRA. Thus, this Court's application of the MVRA to determine the appropriate amount of restitution did not violate the Ex Post Facto Clause. Accordingly, Deming's claim is dismissed.
III. Restitution is Not Impracticable
Lastly, Deming argues that the restitution order violates the constitution, because the number of identifiable victims is so large as to make restitution impracticable. 18 U.S.C. § 3663A(c)(1)(B)(3). As the government has already identified every victim of the conspiracy by name and the specific amount lost to each, the payment of restitution as funds become available is not impracticable. Deming's claim is therefore dismissed.
CONCLUSION
For the foregoing reasons, the motion is denied.