Opinion
Civil No. 00-1504-HA, Crim. No. 98-CR-532-HA.
January 23, 2002
OPINION AND ORDER
Pursuant to 28 U.S.C. § 2255, the petitioner has filed a motion to vacate, set aside or correct his sentence. For the reasons stated below, the petitioner's motion is denied.
DISCUSSION
The petitioner's first three grounds for relief are based on the contention that the government lacks jurisdiction to prosecute an intrastate drug trafficking offense as a federal crime. The petitioner is simply mistaken. See e.g. United States v. Tisor, 96 F.3d 370 (9th Cir. 1996).
This argument supports the petitioner's grounds for relief designated as A, B and C.
The petitioner also cites the recent Supreme Court case of Apprendi v. New Jersey, 530 U.S. 466 (2000), to argue that his sentencing enhancement for the quantity of drugs required a finding based on the "beyond a reasonable doubt" standard. Although the district courts disagree as to whether Apprendi applies retroactively on collateral review when the enhancement increases a sentence beyond the unenhanced statutory maximum, there is no dispute that Apprendi does not apply when, as in this case, the enhanced sentence is less than the unenhanced statutory maximum sentence. See United States v. Ellis, 241 F.3d 1096 (9th Cir. 2001); United States v. Scheele, 231 F.3d 492 (9th Cir. 2000); United States v. Hernandez-Guardado, 228 F.3d 1017 (9th Cir. 2000). The petitioner's Apprendi argument is without merit.
This argument supports the petitioner's grounds for relief designated as D, F, I and J.
The petitioner also attacks his sentence based on insufficient evidence and that evidence was discovered as a result of an unconstitutional stop. Neither of these grounds for relief are cognizable on collateral review. See e.g. Mabry v. Johnson, 467 U.S. 504, 508 (1984);United States v. Mathews, 833 F.2d 161 (9th Cir. 1987).
This argument supports the petitioner's grounds for relief designated as E and G.
Finally, the petitioner argues that his plea was not knowing and voluntary because he was advised by counsel that he would be eligible for early release pursuant to the Bureau of Prisons drug and alcohol treatment program in spite of the fact that he received a firearms enhancement to his sentence. It should be noted that at the time of the petitioner's sentencing, that eligibility issue had not been decided by the Ninth Circuit, and the most recent cases in this district did offer some hope to the petitioner. However, the record establishes that the petitioner's counsel only informed him that the firearm enhancement would probably make him ineligible for the BAP sentence reduction, but that the current case law might provide a means for ultimately obtaining a favorable result on the issue of the 12 month sentence reduction. Therefore, the petitioner was fully informed of the terms and conditions of his plea, and there is no evidence that his plea was not knowingly and voluntarily made.
This argument supports the petitioner's ground for relief designated as H.
CONCLUSION
The petitioner's motion to vacate, set aside or correcthis sentence is denied. The petition (#33) for habeas corpus relief is denied, and this case is dismissed.
IT IS SO ORDERED.