Opinion
Civil No. 01-702 ADM, Criminal No. 99-351(03) ADM/AJB
August 14, 2001.
Jesus Ibarra-Torres, pro se.
Susan J. Nolting, Esq., Assistant U.S. Attorney, on behalf of the United States.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Petitioner Jesus Ibarra-Torres' motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Doc. No. 454]. For the reasons set forth below, Petitioner's motion is denied.
II. BACKGROUND
On March 30, 2000, Petitioner pled guilty to Count 1, conspiring to distribute and to possess with intent to distribute controlled substances, both in violation of 21 U.S.C. § 841 (a)(1), 841(b)(1)(A), 846. In the Plea Agreement, the parties agreed that Count 1 carried a maximum potential penalty of life imprisonment. Plea Agreement § 3; accord 21 U.S.C. § 841(b)(1)(A).
The Plea Agreement reflects that Petitioner and the government disagreed on the amount of drugs that were distributed, or possessed with intent to distribute, for sentencing purposes. While the government believed that Petitioner was responsible for 55 pounds of methamphetamine and thus a base offense level of 38, Petitioner averred that a base level of 36 was appropriate because he was responsible for only 23 pounds. Plea Agreement § 8(A). On September 29, 2000, this Court sentenced Petitioner to 188 months for Count 1. [Doc. Nos. 400, 402]. The sentence was based upon the Court's finding after an evidentiary hearing that the amount of drugs involved in the offense was 55 pounds, setting the base offense level at 38.
III. DISCUSSION
A. Section 2255
A prisoner may bring a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence if the sentence was imposed in violation of the Constitution or federal statutory laws. A movant must show that the error, if left uncorrected, would result in a "fundamental miscarriage of justice." See McCleskey v. Zant, 499 U.S. 467, 494 (1991). A petitioner may also bring a § 2255 claim to correct errors, such as ineffective assistance of counsel, that could have been raised at trial or on direct appeal only if the petitioner shows cause for the default and resulting prejudice. Id. at 494.
1. Apprendi
Petitioner claims that his sentence was imposed in violation of the Sixth Amendment right to trial by a jury as interpreted by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). Petitioner argues that United States drug laws, including 21 U.S.C. § 841, are "facially unconstitutional" because the amount of drugs involved in an offense need not be proven to the jury beyond a reasonable doubt for sentencing purposes. Pet'r Mem. Supp. at 5. The United States responds that United States v. Moss, 252 F.3d 993 (8th Cir. 2001), holds that Apprendi issues may not be raised in § 2255 collateral review and thus requires dismissal. Actually, Moss holds only that Apprendi cannot be used in a § 2255 petition to retroactively attack a sentencing that occurred prior to the Apprendi ruling. See id. at 997-1001. While Apprendi was decided by the Supreme Court on June 26, 2000, Petitioner's sentencing occurred months later on September 29, 2000. [Doc. Nos. 400, 402]. In Moss, the retroactive application of Apprendi was an issue because the § 2255 petitioner was sentenced in 1997. 252 F.2d at 995. The Moss holding is factually inapposite to the present case because the retroactive application of Apprendi to Petitioner's sentence is not at issue.
Petitioner's Motion is denied. Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. Thus, Apprendi only applies where the non-jury factual determination increases the maximum sentence beyond the statutory range authorized by the offense involved. United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000).
Here, the statutory maximum for the offense to which Petitioner pled guilty was life imprisonment. 21 U.S.C. § 841(b)(1)(A). The Plea Agreement signed by Petitioner explicitly states this maximum penalty. Plea Agreement § 3. Because Petitioner pled guilty to a charge with a maximum penalty of life imprisonment and was sentenced to 188 months, Petitioner may not assert a valid Apprendi challenge to his sentence. See United States v. Hopwood, 122 F. Supp.2d 1077, 1080 (D.Neb. 2000) (citing Aguayo-Delgado, 220 F.3d at 934); see also United States v. De Dios-Samaniego, 2001 WL 649522, at *1 (8th Cir. June 6, 2001) (citing 220 F.3d at 933-34); cf. Apprendi, 530 U.S. at 490.
2. Ineffective Assistance of Counsel
While Petitioner's Memorandum recites the legal standards for ineffective assistance of counsel, it does not make specific allegations of how the assistance was ineffective. To prevail on an ineffective assistance of counsel claim, petitioner must show that (1) his counsel's representation fell below an objective standard of reasonableness (performance prong); and (2) the ineffectiveness prejudiced him, depriving him of a fair trial, leaving the results of the trial unreliable (prejudice prong). Garrett v. United States, 78 F.3d 1296, 1301 (8th Cir. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). When hearing ineffective assistance of counsel claims, a court need not address both components of the inquiry if the defendant fails to make a showing on either one of them. Strickland, 466 U.S. at 697. To show prejudice, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 57, 59 (1985).
In the present case, Petitioner failed to state facts which would support his claim. Petitioner's memorandum argues only the issue of the applicability of the Apprendi holding to his sentence. There is no showing that, but for the errors of his counsel, Petitioner would have proceeded to trial. In fact, Petitioner's Memorandum states that "Petitioner does not here challenge his plea, only the sentence and the factors and issues raised by Apprendi." Pet'r Mem. Supp. at 4. As a result, Petitioner's ineffective assistance of counsel claim fails.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. No. 454] is DENIED.
BY THE COURT: