Opinion
01-CV-0027E(Sc); 96-CR-6E, 97-CR-12E
January 9, 2002
MEMORANDUM and ORDER
On October 17, 1997 petitioner pled guilty to Count VIII of Indictment 96-CR-6E and Count I of Indictment 97-CR-12E. The October 17, 1997 Plea Agreement, pursuant to which the pleas were given and accepted, contains the following relevant provisions.
"Between on or about the 27th day of July, 1995, and on or about the 11th day of January, 1996, in the Western District of New York and elsewhere, the defendants, LUIS DeLEON and JOSE S. DeLEON, did knowingly, willfully and unlawfully combine, conspire and agree together and with others, known and unknown, to commit offenses against the United States, that is, to possess with intent to distribute, and to distribute, five (5) grams or more of a mixture or substance containing cocaine base, a Schedule II controlled substance, a quantity of a mixture or substance containing heroin, a Schedule I controlled substance, and a quantity of a mixture or substance containing cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B), and to possess in excess of five (5) grams of a mixture or substance containing cocaine base, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 844(a); all in violation of Title 21, United States Code, Section 846." Indictment 96-CR-6E Count VIII.
"On or about the 12th day of January, 1997, at Dunkirk, New York, in the Western District of New York, the defendants, JOSE S. DeLEON a/k/a SAULO and DAVID A. NUNEZ, a/k/a JOSE, did knowingly, intentionally and unlawfully possess with intent to distribute and distribute a quantity of a mixture or substance containing cocaine, a Schedule II controlled substance; all in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2." Indictment 97-CR-12E Count I.
"5. The defendant and the [prosecution] agree to the following facts, which form the basis for the entry of the plea of guilty:
"a. On or about December 22, 1995, the defendant JOSE DeLEON, together with Luis DeLeon, at 305 North Street, Buffalo, New York, sold 13.7 grams of cocaine base (crack) to an individual cooperating with the DEA in exchange for $360 in official agency funds, and also provided such cooperating individual with .68 grams of cocaine;
"b. on or about January 11, 1996, the defendant JOSE DeLEON, together with Luis DeLeon, at 305 North Street, Buffalo, New York, sold 27.7 grams of cocaine base (crack) to an individual cooperating with the DEA in exchange for $800 in official agency funds;
"c. on or about January 11, 1996, a search warrant was executed at an apartment which the defendant JOSE DeLEON, together with Luis DeLeon, maintained at 305 North Street, Buffalo, New York. During the course of the execution of that warrant agents discovered an additional 4.7 grams of cocaine base (crack);
"d. on or about January 11, 1996, Luis DeLeon, while at 305 North Street, Buffalo, New York, and in the presence of defendant JOSE DeLEON, possessed a .9 millimeter semi-automatic handgun;
"e. on or about January 12, 1997, the defendant JOSE DeLEON, together with Alexander Sanchez Gonzalez, a/k/a David Nunez, at Dunkirk, New York, knowingly and unlawfully sold approximately two (2) ounces of cocaine to an individual cooperating with agents of the Southern Tier Regional Drug Task Force in exchange for $1,400 in United States Currency;
"f. the equivalent of approximately 922 kilograms of marijuana (46.1 grams of cocaine base [crack] and 0.68 grams of cocaine) is the amount involved in the defendant's relevant conduct encompassed in Court VIII of Indictment 96-CR-6E which could be readily proven by the [prosecution] at trial against the defendant; and
"g. the equivalent of approximately 11 kilograms of marijuana (56 grams cocaine) is the amount involved in the defendant's relevant conduct encompassed in Count I of Indictment 97-CR-12-E which could be readily proven by the [prosecution] at trial against the defendant." October 17, 1997 Plea Agreement at ¶¶ 5(a)-(g).
"The [prosecution] and the defendant agree that the following specific offense characteristic does apply:
"(a) the three (3) level increase pursuant to Guidelines § 2J1.7 (for commission of an offense while on release)." Id. at ¶ 7.
"The [prosecution] maintains that the following specific offense characteristic does apply:
"(a) the two (2) level increase pursuant to Guidelines § 2D1.1(b)(1) (possession of a dangerous weapon)." Id. at ¶ 8.
"It is the understanding of the [prosecution] and the defendant that, with a total offense level of 29 and criminal history category of I, the defendant's sentencing range would be a term of imprisonment of 87 to 108 months, a fine of $15,000 to $2,000,000, and a period of supervised release of 4 to 5 years. Notwithstanding this, the defendant understands that, at sentencing, the defendant is subject to the minimum and maximum penalties set forth in paragraph 1 of this agreement." Id. at ¶ 14.
"The defendant understands that Title 18, United States Code, Section 3742 affords a defendant a limited right to appeal the sentence imposed. The defendant, however, knowingly waives the right to appeal or collaterally attack any sentence imposed by the Court which falls within or is less than the sentencing range set forth in Section II, paragraph 14 above, notwithstanding the fact that the Court may reach that range by a Guidelines analysis different from that set forth in this agreement." Id. at ¶ 19.
On February 5, 1999 — in conformity with the October 17, 1997 Plea Agreement — the undersigned sentenced petitioner to 82 months of imprisonment on each count to be served concurrently.
Petitioner never appealed his conviction or sentence; however, relying on the Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), he filed a petition pursuant to 28 U.S.C. § 2255 January 18, 2001 seeking to vacate his sentence on the basis that this Court had violated his Fifth Amendment and Sixth Amendment rights by treating the type and quantity of illegal drugs at issue as a sentencing factor and in increasing his sentence for having possessed a dangerous weapon and for having committed the acts charged in Count I of Indictment 97-CR-12E while he was released on bail pending adjudication of the charges contained in Indictment 96-CR-6E because such issues had not been determined beyond a reasonable doubt by a jury. The prosecution filed an answer to the petition February 9, 2001 contending that (1) petitioner had waived his right to collaterally attack his sentence pursuant to the plea agreement, (2) that the petition is untimely because it was filed more than one year after petitioner's conviction and (3) that Apprendi is inapplicable because petitioner was not sentenced to a term of imprisonment in excess of the statutory maximum for the crimes for which he was convicted. The petition was submitted on the papers July 7, 2001 and has thereafter been before this Court for disposition.
Petitioner had, however, stipulated to the type and amount of drugs at issue and to the fact that he had committed the crimes charged in Count I of Indictment 97-CR-12E while on bail from Indictment 96-CR-6E. October 17, 1997 Plea Agreement at ¶¶ 5(f)-(g).
The Supreme Court held in Apprendi that, "[o]ther than the fact of a prior conviction, any fact [such as the type and quantity of drugs possessed or distributed by a defendant] 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. However, even where the type and quantity of drug at issue is not found beyond a reasonable doubt by a jury, such may still be determined by the court for use in determining the appropriate sentence, provided that "the sentence imposed is not greater than the maximum penalty authorized by statute for the offense charged in the indictment and found by the jury." United States v. Thomas, No. 98-1051, 2001 WL 1579993, at *13 (2d Cir. Dec. 12, 2001) (en banc). The maximum sentence authorized by statute for violations of 21 U.S.C. § 841(b)(1)(B), 844(a) and 846 as charged in Count VIII of Indictment 96-CR-6E is forty years' imprisonment — 21 U.S.C. § 841(b)(1)(B)(iii) — and the maximum sentence authorized by statute for violation of 21 U.S.C. § 841(a)(1) as charged in Count I of Indictment 97-CR-12E is twenty years' imprisonment. 21 U.S.C. § 841(b)(1)(C). Petitioner was sentenced to only 82 months of imprisonment — i.e., less than seven years.
Accordingly, petitioner's argument that, pursuant to Apprendi, a jury was required to determine the type and quantity of drug at issue beyond a reasonable doubt is meritless because he was not sentenced to a term of imprisonment in excess of the maximum provided by statute for the crimes for which he was convicted.
Assuming arguendo that petitioner had been sentenced to a term of imprisonment in excess of the statutory maximum for the crimes for which he was convicted, his petition would still have to be denied both because petitioner, pursuant to the plea agreement, waived his right to collaterally attack his sentence and because it is untimely. A defendant may knowingly and voluntarily waive his right to appeal or collaterally attack a sentence of imprisonment falling within an agreed Guidelines range pursuant to a plea agreement. United States v. Djelevic, 161 F.3d 104, 106-107 (2d Cir. 1997); United States v. Salcido-Contreras, 990 F.2d 51 (2d Cir. 1993); Caesar v. United States, No. 00-CV-1017E(), 2001 WL 1388327, at *2 (W.D.N.Y. Oct. 30, 2001). "In no circumstance * * * may a defendant, who has secured the benefits of a plea agreement and knowingly waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining process and the resulting agreement meaningless." Salcido-Contreras at 53. Pursuant to the October 17, 1997 Plea Agreement, petitioner waived his right to collaterally attack any sentence of imprisonment of 108 months or less and, because he was sentenced to only 82 months' imprisonment, he may not collaterally attack such sentence.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), there is a one-year statutory period of limitations on petitions for habeas corpus brought pursuant to 28 U.S.C. § 2255 running from the "latest of — (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255.
Even though the judgment of conviction was entered against petitioner March 16, 1999 and he never filed an appeal, he contends that his petition is nonetheless timely under AEDPA because it was brought within one year of the Supreme Court's decision in Apprendi. New rules of criminal procedure are generally not retroactively applicable to convictions which became final before the new rules' announcement when challenged pursuant to a petition for habeas corpus. Teague v. Lane, 489 U.S. 288, (1989). Neither the Supreme Court nor the Second Circuit Court of Appeals has held Apprendi to be retroactive for purposes of a petition for habeas corpus — Forbes v. United States, 262 F.3d 143, 144-146 (2d Cir. 2001) — and this Court has previously held that Apprendi does not apply retroactively to petitions for habeas corpus. Johnson v. United States, No. 00-CV-0374E(F), 96-CR-171E, 2001 WL 877399, at *3 (W.D.N.Y. July 11, 2001). Therefore, the petition is untimely because it was filed more than one year after petitioner's conviction became final and because Apprendi is not retroactively applicable to petitions for habeas corpus.
Accordingly, it is hereby ORDERED that the petition is denied, that no certificate of appealability shall issue because petitioner has not made a substantial showing the deprivation of a constitutional right and that this case shall be closed in this Court.