Opinion
01 Civ. 6234 (SWK)
April 19, 2002
MEMORANDUM OPINION AND ORDER
Petitioner pro se Dario Garcia ("Garcia") moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. For the reasons set forth below, Garcia's motion is denied.
BACKGROUND
On August 7, 1997, the Government filed a nine count superseding indictment against Garcia and his co-defendant, Luis Felipe Germosa ("Germosa"). Count One charged Garcia with engaging in a conspiracy to distribute and possession with intent to distribute crack and powder cocaine, in violation of 21 U.S.C. § 846, and Count Eight charged him with maintaining a "stash house" for the purpose of storing and distributing drugs, in violation of 21 U.S.C. § 856. On October 29, 1997, the jury returned a verdict of guilty on Counts One and Eight.
Garcia was charged only in Count One and Count Eight of the superseding indictment.
The jury convicted Germosa on Counts One, Two, Three, Four, Five, Six, Seven, and Nine.
The prosecution arose out of Germosa's ownership and operation of a cocaine and crack business at 1061 St. Nicholas Avenue, New York, New York. The drug business utilized two apartments in the building, as well as a compartment located in the basement. Garcia, who was the superintendent of 1061 St. Nicholas Avenue, permitted Germosa, in exchange for money, to operate his drug business from the building. On January 5, 1998, Garcia filed a motion for a judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29, or for a new trial, pursuant to Federal Rule of Criminal Procedure 33. In an order dated April 1, 1998, the Court denied Garcia's motion. On July 6, 1998, Garcia filed a second Rule 33 motion, and the Court issued an order denying the motion on September 4, 1998.
On November 12, 1998, the Court sentenced Garcia to 120 months of custody, to be followed by five years of supervised release and a mandatory $100 special assessment. On November 23, 1998, the Court amended the judgment to correct a sentencing error, clarifying that it was reasonably foreseeable that the amount of cocaine involved exceeded 5 kilograms, not at least 3.5 kilograms. The judgment was entered on November 25, 1998. On October 28, 1999, the United States Court of Appeals for the Second Circuit judgment of conviction in an unpublished opinion. See United States v. Germosa, 199 F.3d 1324, 1999 WL 1024098 (2d Cir. Oct. 28, 1999). On July 11, 2001, Garcia filed the instant action to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255. Garcia asserts two grounds for relief: (1) that the indictment is jurisdictionally defective; and (2) that the drug statutes under which he was convicted are no longer valid after the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
DISCUSSION
I. Jurisdiction
Garcia contends that the superseding indictment should be dismissed for "lack of judicial powers; violations of constitutional rights; and exclusive jurisdiction, e.g.; territorial, geographical, and legislative jurisdiction over the exact geographical location where the alleged criminal activity(s) [sic] mentioned in the indictment was alleged to have taken place. Petitioner's Memorandum ("Pet. Memo.") at 5. Specifically, Garcia claims that the federal court lacked jurisdiction to prosecute his case "because there [is] no Act of Congress at 1061 St. Nicholas Avenue." Pet. Memo. at 13. This claim is unintelligible and meritless.
Garcia also claims that the federal court's authority "over state criminal cases, is eliminated after the Supreme Court's decision inUnited States v. Lopez, 514 U.S. 549 (1995). Pet. Memo. at 7. This claim also lacks merit. Garcia was convicted of violating 18 U.S.C. § 846, 856, two statutes that are a part of the Controlled Substances Act. The Second Circuit has rejected both specific post-Lopez challenges to the constitutionality of Section 846, and general post-Lopez challenges to the constitutionality of the Controlled Substances Act. See United States v. Walker, 142 F.3d 103, 111 (2d Cir. 1998); United States v. Goodwin, 141 F.3d 394, 397 (2d Cir. 1997) (Controlled Substances Act has survived numerous Lopez challenges because it concerns "an obviously economic activity substantially affecting interstate commerce, namely narcotics trafficking") (internal quotation omitted); United States v. Genao, 79 F.3d 1333, 1336-37 (2d Cir. 1996). Accordingly, Garcia's claim that the superseding indictment lacked jurisdiction is denied.
II. Apprendi
Garcia contends that 21 U.S.C. § 841 is unconstitutional in light of Apprendi. See Pet. Memo. at 14-18. Apprendi holds that "[o]ther than the fact of a prior conviction, any fact that increases the penalty beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Every court of appeals that has considered the validity of Section 841 has found it constitutionally enforceable notwithstanding Apprendi. See e.g., United States v. Lopez-Lopez, 282 F.3d 1, 22-23 (1st Cir. 2002) ("The statute's text does not conflict with Apprendi's rule and a sentence remains valid so long as there is no Apprendi violation in the course of its implementation"); United States v. Buckland, 277 F.3d 1173, 1177 (9th Cir. 2002) (en banc); United States v. Kelly, 272 F.3d 622, 624 (3rd Cir. 2001); United States v. McAllister, 272 F.3d 228, 232 (4th Cir. 2001); United States v. Cernobyl, 255 F.3d 1215, 1219 (10th Cir. 2001);United States v. Martinez, 253 F.3d 251, 256 n. 6 (6th Cir. 2001); United States v. Brough, 243 F.3d 1078, 1079-80 (7th Cir. 2001); United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 121 S. Ct. 2015 (2001); United States v. Candelario, 240 F.3d 1300, 1311 n. 16 (11th Cir. 2000), cert. denied, 121 S.Ct. 2535 (2001); see also Coleman v. United States, No. 00 Civ. 6671, 2001 WL 262738, at *1 (S.D.N.Y. Mar. 15, 2001) ("[N]othing in Apprendi renders either Section 841 or Section 846 of Title 21, United States Code, unconstitutional"). Garcia's sentence of 120 months does not violate Apprendi because the sentence does not exceed the prescribed statutory maximum of 40 years authorized under Section 841(b)(1)(B). Accordingly, Garcia's claim that 18 U.S.C. § 841 is unconstitutional in light of Apprendi is denied.
III. Evidentiary Hearing
Garcia also requests the scheduling of an evidentiary hearing. 28 U.S.C. § 2255 provides that a court shall hold an evidentiary hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. Pursuant to this statute, a district court may rely on its own familiarity with the case and deny the motion without a hearing if the court concludes that the claim "lack[s] . . . any truly meritorious allegation." United States v. Aiello, 900 F.2d 528, 534 (2d Cir. 1990). Because it is plain that Garcia's allegations lack any merit, a hearing is not necessary to decide the motion. Accordingly, Garcia's request for an evidentiary hearing is denied.
CONCLUSION
For the reasons set forth above, Garcia's motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence is denied.
The Court further declines to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of federal right and appellate review is, therefore, not warranted. See 28 U.S.C. § 2853; Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997);Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Should the petitioner seek to appeal in forma pauperis, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal of this Order would not be taken in good faith. See Coppege v. United States, 369 U.S. 438, 444 (1962).
SO ORDERED.