Opinion
Civil Action 00-Z-1897, Criminal Action 94-CR-210-Z.
December, 2000.
ORDER AND JUDGMENT
The matter before the Court is plaintiff's Motion To Correct Sentence Pursuant To 28 U.S.C. § 2255 And Apprendi v. New Jersey, filed September 19, 2000. Plaintiff contends his Fifth and Sixth Amendment rights were violated when the government used information regarding drug type and quantity to increase his penalty above the statutory maximum, even though the jury made no specific finding as to type or quantity of drug.
Plaintiff was convicted of possession with intent to distribute more than five grams of cocaine base, pursuant to 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(iii). The original sentence in 1994 was at offense level 34, Criminal History Category VI for a total of 262 months.
On appeal, in April 1996, the case was remanded with instructions to sentence defendant within a guideline range of 360 months to life. Thereafter, defendant filed a motion for downward departure based on Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035 (1996). This Court granted defendant's motion and resentenced defendant to 175 months.
In July 2000, the case again was reversed and remanded on appeal, and again the Court was instructed to resentence defendant within a guideline range of 360 months to life imprisonment.
In the interim, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. ___, 120 S. Ct. 2348, 147 L. Ed.2d 435 (June 29, 2000). In Apprendi, the Court 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 2362-63. Although the Tenth Circuit has not directly addressed the application of Apprendi to this drug statute, a recent decision that upheld the constitutionality of the penalty section of 21 U.S.C. § 841(b)(1), United States v. Jones, 194 F.3d 1178 (10th Cir. 1999) vacated, Jones v. U.S., 120 S. Ct. 2739, 147 L. Ed.2d 1002 (June 29, 2000), was remanded by the Supreme Court for further consideration in light of Apprendi. Other circuits have applied Apprendi to this statute. See United States v. Rebmann, 226 F.3 d 521 (6th Cir. 2000); United States v. Meshack, 225 F.3d 556 (5th Cir. 2000). The Tenth Circuit and the Eighth Circuit have also mentioned the constitutional standard established by Apprendi indicta, holding that the fact of a prior conviction is within the narrow exception to that rule based on Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998) (Two year maximum sentence increased to twenty years based on prior felony convictions). See United States v. Martinez-Villalva, 2000 WL 17369 64 (10th Cir.) (November 24, 2000); United States v. Aguayo-Delgado, 220 F.3 d 926 (8th Cir. 2000).
In the case at bar, the jury did not determine beyond a reasonable doubt the quantity of drugs involved. Mr. Caldwell's original sentence was determined under 21 U.S.C. § 841(b)(1)(B) with the Judge, not the jury, deciding the amount of drugs and determining the penalty.
Applying Apprendi, the Court must resentence Mr. Caldwell in accordance with 21 U.S.C. § 841(b)(1)(C) rather than the harsher penalty mandated by the 10th Circuit. The guideline range, considering Mr. Caldwell's prior felony, is 262-327 months. Before consideration of the prior felony, the applicable sentencing range was 210-262 months.
Although the Apprendi opinion suggested that Almendarez-Torres may have been incorrectly decided, the Supreme Court declined to overrule that case, treating the fact of prior convictions as falling within a narrow exception to the general rule that any fact that increases a penalty beyond the statutory maximum must be proved beyond a reasonable doubt. Apprendi, 120 S. Ct. at 2362. In a recent decision, the Tenth Circuit held that it was bound by Almendarez-Torres. See, United States v. Martinez-Villalva, 2000 WL 1736 964 (10th Cir.) (November 24, 2000). Nevertheless, plaintiff preserved for review the issue of whether his prior felony convictions are merely a sentencing enhancement or an element of the offense that must be proved before a jury. Accordingly, it is
ORDERED that plaintiff's Motion To Correct Sentence Pursuant To 28 U.S.C. § 2255 And Apprendi v. New Jersey is granted. It is
FURTHER ORDERED and adjudged that plaintiff is sentenced to 262 months as more fully set forth in the Criminal Judgment in 44-CR-210-Z.