Opinion
CV 00-6293 (RR)
April 25, 2001
ELIZABETH ADU, Petitioner Pro Se.
Jo Ann M. Navickas, Assistant U.S. Attorney Attorney for Respondent HONORABLE LORETTA E. LYNCH UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK.
Memorandum and ORDER
Elizabeth Adu, proceeding pro se, moves pursuant to 28 U.S.C. § 2255 (1994 Supp. IV 1998) for an order vacating her March 31, 2000 conviction for heroin importation, entered as a result of her December 7, 1999 guilty plea before this court. See United States v. Adu, CR 99-1051(RR). Ms. Adu is presently incarcerated, serving a 46-month term of incarceration. She did not file a direct appeal challenging her conviction or sentence. Instead, she now asserts before this court that her conviction runs afoul of the Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466(2000), because the drug quantity used in calculating her guideline base offense level was not proved beyond a reasonable doubt. She further asks this court to reconsider its sentencing denial of a downward departure for extraordinary family circumstances. Having carefully reviewed the submissions of the parties, this court finds that Ms. Adu's motion must be denied as without merit.
First, the court finds that Apprendi v. New Jersey has no bearing on Ms. Adu's case. In Apprendi, the Supreme Court ruled that "any fact," other than a prior conviction, "that increases the penalty of a crime beyond the prescribed statutory maximum," must be treated as an element of the crime and "proved beyond a reasonable doubt." 430 U.S. at 490. Ms. Adu was prosecuted pursuant to 21 U.S.C. § 952(a), 960(b)(3) (1994 Supp. IV 1998), the latter of which provides for a sentence of zero to twenty years for the importation of any quantity of heroin into the United States. Ms. Adu's 46-month sentence was well below this statutory maximum. The calculation of drug quantity in her case did not trigger an otherwise inapplicable statutory minimum or higher maximum. It simply determined the guideline to be used in deciding where within the zero-to twenty-year statutory range Ms. Adu should be sentenced.
Many federal prisoners have misread Apprendi to apply to Sentencing Guidelines calculations. Presumably, the Second Circuit's recent decision in United States v. Garcia, 240 F.3d 180 (2d Cir. 2001), has now clarified any misunderstanding on this point. In that case, the court joined nine of its sister circuits in holding that Apprendi does not require "a guideline factor, unrelated to a sentence above a statutory maximum or to a mandatory minimum" to be submitted to a jury or proved beyond a reasonable doubt. Id. at 184. Such matters are still appropriately resolved by a sentencing judge applying a preponderance of the evidence standard to the proof. Id. at 183. Since Ms. Adu's case falls squarely within the Garcia ruling, her Apprendi claim is rejected as without merit.
Ms. Adu's second claim seeks a downward departure for family circumstances. Assuming that petitioner could clear the various procedural hurdles the government raises to this claim, she would still not be entitled to a sentence reduction. The issue of family circumstances was carefully considered by the court at the time of the original sentence. It concluded that the circumstances were not so extraordinary as to warrant a departure, but that they did support a sentence at the low end of the applicable 46-to-57-month guideline range. Nothing in petitioner's recent submission supports a different factual conclusion, much less a legal ruling that her sentence was imposed in violation of the Constitution or laws of the United States.
To the extent Ms. Adu thinks the deterioration of her own health in prison presents the sort of "extraordinary and compelling" reason to warrant a reduction in her sentence, such an application must be made to the court by the Director of the Bureau of Prisons. See 18 U.S.C. § 3582(c)(1)(A)(i). In sum, Ms. Adu must first persuade the Director to file such a motion on her behalf.
Conclusion
For the reasons stated, Ms. Adu's § 2255 motion is denied as is a certificate of appealability.SO ORDERED