Opinion
Case No. 8:96CR149
February 15, 2002
MEMORANDUM AND ORDER
Before the Court are: (1) Filing No. 208, the "Motion to Vacate Sentence and Conviction Pursuant to Title 28 U.S.C. § 2255" ("§ 2255 motion") filed by the Defendant, Apolonio Moreno; (2) Filing No. 221, the "Motion to Reconsider" filed by Moreno; and (3) Filing No. 222, the "United States' Objection to Defendant's Motion to Reconsider" filed by the Plaintiff, the United States of America.
MOTION TO RECONSIDER
This Court will first address Filing No. 221. This is the third "motion to reconsider" filed by Moreno. In filing nos. 215 and 217, Moreno asked the court to reconsider the Memorandum and Order filed by Chief Judge Richard G. Kopf on October 10, 2001 (Filing No. 214) upon initial review of Moreno's § 2255 motion. As part of initial review, Judge Kopf denied two claims of ineffective assistance of counsel asserted in Moreno's § 2255 motion, i.e., that Moreno's trial attorney failed to call known and available exculpatory fact witnesses for trial and failed to call a retained expert witness. Judge Kopf dismissed those claims as wholly without support, factual detail or citation to the record. See generally United States v. Craycraft, 167 F.3d 451, 454-55 (8th Cir. 1999):
When a convicted criminal defendant makes an ineffective assistance of counsel claim, he or she is ordinarily required to make a two-part showing of both deficiency and prejudice. Strickland v. Washington, 466 U.S. 668, 687 . . . (1984). First, the defendant must show that counsel's performance was deficient; that errors were committed which were "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. . . . To satisfy this requirement, the defendant must demonstrate that counsel's performance "fell below an objective standard of reasonableness." Id. at 688. . . . Second, the defendant must establish actual prejudice resulting from the deficient performance. That is, the defendant must demonstrate "a reasonable probability that, but for counsel's errors," the result would have been different. Id. at 694. . . .
In Filing No. 219, the undersigned District Judge, to whom this case has been reassigned, denied Filing Nos. 215 and 217, Moreno's previous motions for reconsideration. As recounted in Filing No. 219, Moreno, in his § 2255 motion and in filing nos. 215 and 217, failed to substantiate or explain his claims regarding deficient representation by trial counsel. Because Moreno's § 2255 motion lacked even a colorable showing of inadequate representation by his trial attorney or of prejudice as the result of alleged errors by trial counsel, this court denied Moreno's first and second motions for reconsideration.
Moreno for the third time requests reconsideration of Judge Kopf's decision to dismiss Moreno's claims of ineffective assistance of trial counsel. Together with Filing No. 221, Moreno submits a brief, accompanied by supporting exhibits, which disclose for the first time the theories underlying Moreno's claims of ineffective assistance of trial counsel.
ALLEGED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
The evidence at trial indicates that Moreno owned a single family dwelling at 5831 Miami Street, Omaha, Nebraska, which he used as rental property (tr. 766, 1122,1179). Moreno also owned a building at 3811 "Q" Street where he conducted an upholstery business (tr. 818-819, 838, 1116), and he resided with his family in a house at 3923 "S" Street (tr. 808, 1118).
References to the trial transcript are abbreviated as "tr."
I.
When law enforcement officers executed a search warrant at 5831 Miami Street on September 12, 1996, they found large quantities of marijuana, much of which had been buried in coolers in a basement crawl space (tr. 702-803). The officers also found weapons, ammunition, 21 grams of cocaine, and other items related to drugs on the premises (id.). According to Moreno's Motion to Reconsider, his attorney failed to call as trial witnesses four residents of Miami Street who lived near 5831 Miami and who would have testified that they never saw Moreno at that address. At trial, two witnesses who lived next door to 5831 Miami Street during the relevant period testified that 5831 Miami appeared uninhabited, although the witnesses sometimes saw lights on in the basement at night. The witnesses recognized Moreno as an individual occasionally present at 5831 Miami, although not more than once a month (tr. 880-898). Presumably, the testimony of the four witnesses who did not see Moreno at 5831 Miami Street might have been used to cast doubt on the testimony of the two neighbors who did occasionally see Moreno on the premises.
II.
On September 12, 1996, law enforcement officers arrested Moreno as he left the house at 5831 Miami Street by the front door. In searching Moreno upon his arrest, police found seventy-two $100 bills and $536 in other bills, as well as keys to 5831 Miami Street, 3923 "S" Street, and 3811 "Q" Street on Moreno's person (tr. 743). Later on the same day, police seized $14,600, a weapon and an additional $900 from Moreno's residence at 3923 "S" Street (tr. 811-813).
Moreno contends in his Motion to Reconsider that trial counsel, in order to explain the source of Moreno's funds, should have called the tax preparer of Moreno's 1995 and 1996 income tax returns as a witness. The preparer would have testified that Moreno reported gambling winnings of $163,467 in 1995 and $190,000 in 1996. In addition, Moreno maintains that trial counsel should have called the records custodian of Bluffs Run Casino, Council Bluffs, Iowa, because the casino's records show that Moreno had gambling winnings of $154,390 in 1995 and $160,700 in 1996.
On the other hand, Moreno's trial attorney successfully elicited testimony that the officers who searched Moreno's residence at 3923 "S" Street found gambling receipts, i.e., Forms W-2G reflecting taxes withheld from gambling winnings by Moreno at Bluffs Run Casino (tr. 862-864). In addition, Moreno testified at trial that he had derived most of his income from gambling (tr. 1199-1225), although he also operated upholstery and auto repair businesses (tr. 1117). Moreno estimated that he had accumulated substantial gambling winnings from 1993 on, including perhaps as much as $300,000 after the casinos opened in Council Bluffs, Iowa during 1995 (id.). In addition, Moreno's 1993 and 1994 tax returns as well as documents from the Internal Revenue Service were entered into evidence, showing that Moreno had reported proceeds from his businesses and gambling for that period (tr. 1204-1225).
III.
In connection with Moreno's expenditures, the Motion to Reconsider asserts that Moreno's attorney should have called the records custodians of two mortgage companies who would have testified that Moreno purchased the properties at 5831 Miami Street and 3923 "S" Street with funds borrowed from mortgage lenders. According to Moreno, such evidence would have tended to rebut the government's theory that Moreno used proceeds from drug trafficking to acquire property. However, Moreno's trial attorney established that Moreno assumed the mortgage on the 5831 Miami Street property and thereafter made the mortgage payments (tr. 1123).
IV.
Next, Moreno asserts that trial counsel failed to call as a witness the records custodian of US West, when the records would have shown that an individual named Alberto Martinez subscribed to telephone service at 5831 Miami Street. According to Moreno, that evidence would have tended to establish that Martinez rented the house at 5831 Miami. However, Moreno's trial counsel established, on cross-examination of one of the officers who searched 5831 Miami, that "venue items" seized in the search included an MUD utility bill and MCI long-distance statements addressed to Alberto Martinez at that address (tr. 768-777). The officer admitted on cross-examination by Moreno's attorney that "a venue item . . . is something that connects the residence or the property with who's living there. . . ." (tr. 768). In addition, Moreno and his sister, Mercedes, testified that Mercedes had rented the house at 5831 Miami Street to Alberto Martinez and Rudolfo Marquez before their sister, Maria, transferred the property to Moreno, and Moreno then assumed the mortgage on the real estate (tr. 1033-1048; 1123-1124). Moreno testified that after he acquired the premises, he charged Martinez rent and, in fact, increased the rent (tr. 1124-1128). Moreno stated that he did not socialize with Martinez, but simply operated the premises as rental property, and Martinez paid rent in cash (tr. 1128-1130). Moreno's attorney offered rent receipts as exhibits (tr. 1125-1126).
V.
A witness for the government, Donald Brown, testified that as partial payment for drugs, he signed the title to a 1985 Honda Gold Wing motorcycle and gave the title and motorcycle to Moreno (tr. 573). In his Motion to Reconsider, Moreno criticizes trial counsel for failing to impeach Brown through the testimony of records custodians for the Douglas County Treasurer and the Iowa Department of Transportation. Had they been called, those witnesses would have testified that their records showed no change in title or registration for the motorcycle which remained in Brown's name throughout the relevant period.
However, Moreno's trial counsel conducted a vigorous and detailed cross-examination of Brown (tr. 526-648, 670-678) in which he placed Brown's credibility at issue. Counsel impeached Brown's testimony regarding the severity of offenses for which Brown had been arrested and the amount of prison time Brown could have faced if he had not agreed to cooperate with authorities and testify against Moreno. Counsel elicited testimony from Brown regarding a Conditional Non-Prosecution Agreement which required Brown to provide substantial assistance to the government and which could have motivated Brown to present testimony damaging to Moreno. Moreno's trial attorney demonstrated discrepancies between Brown's testimony on direct examination and previous statements Brown had made to police. Trial counsel also placed Brown's veracity at issue by pointing out many inconsistencies in Brown's testimony on direct examination. Furthermore, counsel elicited testimony from Moreno (tr. 1148-1150) that Brown had never transferred a motorcycle to Moreno and that Moreno had never owned a motorcycle of any kind and did not know how to drive a motorcycle.
VI.
The government presented evidence that when police searched a Chevrolet Suburban parked behind Moreno's business at 3811 "Q" Street, the officers found large quantities of illegal drugs in a false gas tank and inside a spare tire of the vehicle (tr. 820-832). Moreno contends that his trial attorney rendered ineffective assistance by failing to call the records custodians of the Douglas County Treasurer, Nebraska Department of Motor Vehicles and an insurance company to establish that the Chevrolet Suburban was titled, registered and insured in the name of Rodolfo Marquez. However, one of the officers who searched the Chevrolet Suburban testified that papers found inside the vehicle during the search included ownership and insurance documents for the Suburban, all in the name of Rodolfo Marquez. The officer testified on direct and cross-examination (tr. 829-830, 842-848) to much of the same information as would have been elicited from the records custodians, i.e., that the vehicle was registered to, and insured by, Rodolfo Marquez.
VII.
Finally, Moreno's Motion to Reconsider includes the report of a research chemist who tested drug samples provided on behalf of Moreno. The report indicates that certain samples identified as methamphetamine instead showed the chemical composition of amphetamine. Also, test results indicating that three marijuana samples contained different levels of THC suggested to the chemist that the samples may have derived from three different sources.
STRICKLAND STANDARD
Regarding allegations of ineffective assistance of counsel, the Supreme Court has instructed that there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland v. Washington, 466 U.S. 668, 689-90 (1984).
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."466 U.S. at 689.
A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.466 U.S. at 690.
A defendant bears the burden of proving both that counsel's performance was deficient and that the defendant suffered prejudice as the result of counsel's ineffective assistance. To establish prejudice, a defendant must demonstrate that absent counsel's errors, there exists a reasonable probability that the result of the proceeding would have been different. See, e.g., Evans v. United States, 200 F.3d 549, 550 (8th Cir. 2000), citing Strickland. Accord Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000): "The Strickland test has two parts: whether counsel's performance was in fact deficient and, if so, whether the defendant was prejudiced by the inadequate representation. If we can answer `no' to either question, then we need not address the other part of the test. . . . Under the first part of the Strickland test, we consider counsel's performance objectively and gauge whether it was reasonable `under prevailing professional norms' and `considering all the circumstances.' . . . We look at counsel's challenged conduct at the time of his representation of the defendant and we avoid making judgments based on hindsight."
Evaluating the performance of Moreno's trial attorney, as revealed by the trial transcript, the court finds no deficiencies and no reasonable probability that the outcome of Moreno's trial would have been different if the omitted evidence had been presented. The alleged exculpatory fact witnesses would have provided testimony which was merely cumulative of evidence already presented at Moreno's trial. A trial attorney's failure to offer evidence which the trial transcript reveals would have been largely cumulative does not constitute constitutionally ineffective assistance or prejudice and does not warrant an evidentiary hearing in a § 2255 proceeding. Koskela v. United States, 235 F.3d 1148, 1149-50 (8th Cir. 2001); Delgado v. United States, 162 F.3d 981, 982-83 (8th Cir. 1998). Regarding the alleged exculpatory expert witness, Moreno's motion and supporting brief offer no explanation whatsoever regarding why trial counsel's decision not to call the chemist constituted deficient performance or prejudiced Moreno. Consequently, Moreno still has made no showing of ineffective assistance of trial counsel or of a reasonable probability that absent the alleged errors by counsel, the result of Moreno's trial would have been different. Moreno's current, and final, Motion to Reconsider will be overruled.
APPRENDI CLAIM ON COLLATERAL REVIEW
The Supreme Court's decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), requires that any fact, other than a previous conviction, which increases the penalty for a crime beyond the lowest statutory maximum must be alleged in the indictment or other charging document, submitted to a jury, and proved beyond a reasonable doubt. Id., 120 S.Ct. at 2363. Unlike the prior commission of a crime, drug quantity is not a sentencing factor which may be determined by a sentencing judge by a preponderance of the evidence and subject a defendant to a higher statutory maximum penalty. United States v. Carter, 270 F.3d 731, 736 (8th Cir. 2001).
The sentence for an unspecified amount of marijuana when quantity is not charged in the indictment or submitted to a jury may not exceed the 60-month maximum specified in 21 U.S.C. § 841(b)(1)(D). See, e.g.,United States v. Ray, 250 F.3d 596, 603 (8th Cir. 2001). Thus, on direct appeal from a conviction, the Eighth Circuit has held that when a defendant did not stipulate to drug quantity and neither the indictment nor a jury verdict specified the amount of marijuana involved in the offense, a sentence above the 60-month lowest maximum penalty for marijuana trafficking constituted plain error. United States v. Butler, 238 F.3d 1001, 1005 (8th Cir. 2001).
However, the Eighth Circuit has ruled repeatedly that Apprendi does not afford relief retroactively to proceedings on collateral review. See, e.g., Dukes v. United States, 255 F.3d 912, 913-14 (8th Cir. 2001):
Although we retroactively apply Apprendi in cases on direct appeal, United States v. Anderson, 236 F.3d 427, 429 (8th Cir. 2001), this court has recently concluded that Apprendi presents a new rule of constitutional law that is not of "watershed" magnitude and, consequently, petitioners may not raise Apprendi claims on collateral review. [United States v.] Moss, 252 F.3d 993, 995 [(8th Cir. 2001)] (relying upon Teague v. Lane, 489 U.S. 288 . . . (1989) (plurality)) . . . .
While the Supreme Court has not spoken on the issues decided in Moss, we are bound by that decision. United States v. Reynolds, 116 F.3d 328, 329 (8th Cir. 1997) ("One panel may not overrule another."). . . . [W]e find no way around Moss' prohibition on retroactive application.
Accord Jarrett v. United States, 266 F.3d 789, 791 (8th Cir. 2001). Therefore, Chief Judge Kopf, on initial review of Moreno's § 2255 motion, appropriately overruled Moreno's collateral attack on his sentence and conviction based on Apprendi.
Moreno also alleges that the Comprehensive Drug Abuse Prevention and Control Act of 1970 is unconstitutional. The Eighth Circuit has rejected similar arguments. See, e.g., United States v. Woods, 270 F.3d 728, 729-30 (8th Cir. 2001), rejecting the contention that 21 U.S.C. § 841 and 846 are facially unconstitutional because they do not state that drug quantity must be proved as an element of the offense. The district courts within this Circuit are bound by the Eighth Circuit's decisions.
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
In Filing No. 214, Chief Judge Kopf concluded that the sole issue remaining in Moreno's § 2255 proceeding after initial review concerns whether Moreno may challenge his conviction or sentence because of the alleged failure of his appellate counsel to raise Apprendi on direct appeal, in motions for rehearing addressed to the Eighth Circuit, or in a petition for writ of certiorari to the United States Supreme Court. Pursuant to Chief Judge Kopf's Memorandum and Order, the parties have discussed that issue in their respective submissions.Judge Thomas M. Shanahan, who had presided at Moreno's trial, held a sentencing hearing on April 28-29, 1999 (tr. at 1370-1476). As set forth in the sentencing transcript, Judge Shanahan converted the controlled substances in Counts I, II, III and V of the Superseding Indictment to their marijuana equivalents and grouped them in accordance with the Sentencing Guidelines for sentencing on multiple counts of conviction. See U.S.S.G. §§ 2D1.1 n. 6, 3D1.1(a) and 3D1.2(d) (Nov. 1995 ed.). Based on a Total Offense Level of 36 and a Criminal History Category of I, Moreno had a guidelines range of 188-235 months for the grouped counts. As reflected in Filing No. 203, the "Judgment in a Criminal Case" filed on May 3, 1999, Judge Shanahan imposed an aggregate prison sentence of 216 months for all counts, to be followed by 5 years of supervised release.
Moreno's direct appeal to the Eighth Circuit and Apprendi's consideration by the United States Supreme Court occurred during virtually the same period. The Supreme Court granted certiorari inApprendi on November 29, 1999 ( 528 U.S. 1018). Final submission of Moreno' direct appeal to the Eighth Circuit occurred on December 16, 1999. The Supreme Court held oral argument in Apprendi on March 28, 2000 (2000 WL 349724, 68 USLW 3654). The Supreme Court then decided Apprendi on June 26, 2000. One day later on June 27, 2000, the Eighth Circuit issued its decision in United States v. Moreno, 217 F.3d 592 (8th Cir. 2000), denying Moreno's appeal.
On direct appeal, Moreno's appellate counsel did not address any of the issues subsequently determined by the Supreme Court in Apprendi. The Eighth Circuit has held that the arguments addressed in Apprendi were foreshadowed by prior litigation, and those matters could have been anticipated and raised by appellate attorneys before the Supreme Court rendered its decision in Apprendi. See, e.g., United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001), cert. denied, 122 S.Ct. 848 (2002):
[FN9]. Moss's counsel conceded during oral argument that no Apprendi-type argument was raised on direct appeal.
Moss contends that cause exists to excuse his default because an Apprendi claim falls within the category of those "novel" claims which justifiably may be raised for the first time in a collateral proceeding. The Supreme Court recognized in Bousley that "a claim that `is so novel that its legal basis is not reasonably available to counsel' may constitute cause for a procedural default." Id. at 622. . . . We recognize the Apprendi decision caused an about-face in our understanding of what constitutes an element of an offense, but the argument that drug quantity is an offense element under § 841(b), not a sentencing factor, was certainly available to Moss's counsel at the time of Moss's direct appeal. Our conclusion is consistent with other circuits which have spoken on the issue. See Sanders, 247 F.3d at 145-46; United States v. Smith, 241 F.3d 546, 548 (7th Cir. 2001); Garrott v. United States, 238 F.3d 903, 905-06 (7th Cir. 2001).
(Emphasis added.) See also Dukes v. United States, 255 F.3d 912, 913 (8th Cir. 2001), citing United States v. Nordby, 225 F.3d 1053, 1057 (9th Cir. 2000): " Apprendi v. New Jersey is the latest in a series of cases in which the Supreme Court has expressed a heightened concern that the determination of `sentencing factors' by a judge using a preponderance-of-the-evidence standard implicates the accused's right to due process under the Fifth Amendment and right to a jury trial under the Sixth."
Nevertheless, the court finds and concludes that the failure by Moreno's appellate attorney to anticipate the Apprendi decision while preparing and arguing Moreno's direct appeal did not constitute constitutionally ineffective assistance of counsel. However, given forewarning of the Supreme Court's pending consideration of the issues, once the Supreme Court in fact decided Apprendi before Moreno's sentence and conviction became final, counsel should have raised Apprendi in a motion for rehearing before the Eighth Circuit or in a petition for certiorari to the Supreme Court. Because appellate courts apply the principles of Apprendi to cases pending on direct review, e.g., United States v. Butler, 238 F.3d 1001 (8th Cir. 2001), Moreno's sentence would very likely have been altered. Moreno was therefore denied effective assistance of appellate counsel. However, as previously stated,Strickland also requires a defendant to establish prejudice.
PREJUDICE
Even if an indictment and verdict omit drug quantity, no prejudice occurs if the defendant receives a prison sentence below the statutory maximum applicable to the offense without reference to drug quantity.United States v. Smith, 240 F.3d 732, 737 (8th Cir. 2001). As to Counts II, III and V, Moreno received a sentence below the applicable statutory maximum. However, as to Count I, Moreno received a sentence in excess of the lowest prescribed statutory maximum. The problem is further compounded in Moreno's circumstances by the grouping of counts as required by the Sentencing Guidelines and the imposition of one aggregate sentence of imprisonment covering all counts. In this context, the court considers whether counsel's failure to raise Apprendi before Moreno's sentence and conviction became final caused Moreno prejudice.
The Supreme Court in Glover v. United States, 531 U.S. 198 (2001), held that a possible 6- to 21-month increase in sentence, allegedly resulting from attorney error, constituted sufficient prejudice under theStrickland standard for a finding of ineffective assistance of counsel. On appeal from a denial of relief under 28 U.S.C. § 2255, Glover argued that his attorney had failed to advance vigorous support for grouping certain counts together at sentencing, and had failed on appeal to raise the grouping issue at all. The district and appellate courts found that the resulting possible increase of 6 to 21 months in the length of Glover's sentence lacked sufficient significance to constitute prejudice under Strickland. However, the Supreme Court ruled that any additional period of imprisonment prejudices a defendant. The Court rejected the view that an increased sentence must meet a standard of significance in order to constitute prejudice, holding that "any amount of actual jail time has Sixth Amendment significance." See Glover, 121 S.Ct. at 699-701:
Glover filed a pro se motion to correct his sentence under 28 U.S.C. § 2255. . . . The failure of his counsel to press the grouping issue, he argued, was ineffective assistance. . . . The performance of counsel, he contended, fell below a reasonable standard both at sentencing, when his attorneys did not with any clarity or force contest the Government's argument, and on appeal, when they did not present the issue. . . . He further argued that absent the ineffective assistance, his offense level would have been two levels lower, yielding a Guidelines sentencing range of 63 to 78 months. Under this theory, the 84-month sentence he received was an unlawful increase of anywhere between 6 and 21 months.
. . . .
On appeal to the Seventh Circuit, the Government argued only that Glover had not suffered prejudice within the meaning of Strickland. . . . [T]he Government contended that even were the performance of Glover's counsel ineffective, the resulting additional 6 to 21 months, under the law as established in the Seventh Circuit, would not constitute prejudice.
. . . .
Authority does not suggest that a minimal amount of additional time in jail cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance.
. . . .
We express no opinion on the ultimate merits of Glover's claim because the question of deficient performance is not before us, but it is clear that prejudice flowed from the asserted error in sentencing.
This court cannot conclude on the basis of the record that counsel's failure to raise Apprendi before Moreno's sentence and conviction became final resulted in no additional jail time and thus no prejudice. See, e.g., United States v. Nicholson, 231 F.3d 445 (8th Cir. 2000), cert. denied, 121 S.Ct. 1244 (2001), a case which the Eighth Circuit reviewed during the same time frame as Moreno's appeal:
Apprendi was decided after the District Court imposed the sentences in this case. Indeed, Apprendi was decided after [the defendant's] appellate brief had been filed. The case, however, does apply to the present appeal. The government has raised no procedural impediments to our considering the issue, and, in any event, a new rule of constitutional criminal procedure is normally applied retroactively to all cases pending on direct review. . . .
We have no doubt that Apprendi does require resentencing on the conspiracy count and on one of the distribution counts. As we have noted, the statutory maximum for conspiracy, where the jury makes no finding of quantity, is 20 years, and the statutory maximum for distributing 15 pounds of marijuana is five years. The sentences on those two counts, then, need to be modified accordingly.Id. at 453 (citations omitted).
THEREFORE, IT IS ORDERED:
(1) That Filing No. 221, the "Motion to Reconsider" filed by the Defendant, Apolonio Moreno, is denied;
(2) That Filing No. 222, the "United States' Objection to Defendant's Motion to Reconsider" filed by the Plaintiff, the United States of America, is sustained;
(3) That Filing No. 208, the "Motion to Vacate Sentence and Conviction Pursuant to Title 28 U.S.C. § 2255" filed by the Defendant, Apolonio Moreno, is granted in part and denied in part, as follows:
a. That the Defendant's sentence as reflected in Filing No. 203, the Judgment in a Criminal Case filed on May 3, 1999, on Counts I, II, III, and V is set aside and vacated so that the Defendant may be resentenced on those counts; the sentence on Count IV, the forfeiture count, shall remain in effect unchanged;
b. That a hearing for the resentencing of the Defendant will be scheduled by further order of the court; the defendant shall be present at the resentencing hearing, and the U.S. Marshal shall bring the defendant from his current place of incarceration to this court on the date of the hearing;
(4) That by no later than March 18, 2002, the United States Probation Office shall prepare a revised presentence investigation report in which:
a. The maximum sentence allowable on Count I of the Superseding Indictment shall not exceed 60 months;
b. The amounts of marijuana for purposes of Counts I and V shall not exceed the statutory maximum quantity pursuant to 21 U.S.C. § 841(b)(1)(D) as applied to U.S.S.G. § 2D1.1;
c. The applicable grouping provisions of the appropriate edition of the U.S. Sentencing Guidelines are used; and
d. A new and supplemental section of the revised presentence investigation report includes, for purposes of comparison with the guidelines grouping provisions, separate calculations for each of Counts I, II, III and V and the applicable sentencing ranges for each of those counts, calculated without reference to conversion of all drugs to their marijuana equivalents and without applying the grouping provisions of the Sentencing Guidelines;
(5) That upon resentencing, an Amended Judgment in a Criminal Case will be entered by the court; and
(6) That the Clerk of Court shall provide a copy of this Memorandum and Order to the U.S. Marshal, the U.S. Probation Office, counsel of record, and the defendant, Apolonio Moreno, at the address of record for his current place of incarceration.