Opinion
EP-98-CA-449-DB, (EP-97-CR-141-DB)
February 26, 2001
MEMORANDUM ORDER
On this day, the Court considered Movant Carmen Christina Iglesias's "Motion for Leave to Supplement" ("Motion for Leave") her 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence, filed September 25, 2000. The Government did not file a response.
The Grand Jury indicted Movant in February 1997 in a single-count Indictment for conspiring to possess with intent to distribute marijuana and cocaine in violation of 21 U.S.C. § 846 and 841. The Government also filed a Notice of Enhanced Penalty to notify Movant that the Government would seek to enhance the appropriate penalty because the evidence would show that the offense involved more than 1, 000 kilograms of marijuana and more than five kilograms of cocaine. On September 19, 1997, Movant pled guilty to the Indictment pursuant to a written plea agreement between her and the Government. Thereafter, the Court sentenced Movant on November 13, 1997, to a 151-month term of imprisonment, to be followed by a five-year term of supervised release. Movant did not appeal her conviction to the United States Court of Appeals for the Fifth Circuit. Rather, on October 30, 1998, Movant filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion to Vacate"), raising three claims for relief: ineffective assistance of counsel, prosecutorial misconduct, and violation of due process by not being allowed to participate in a particular pretrial arbitration.
Through the instant motion, Movant seeks to add a claim pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 5. Ct 2348, 147 L.Ed.2d 435 (2000), which held that, as a matter of due process, any fact that increases a sentence for a particular crime, other than the fact of a prior conviction, must be stated in the indictment, submitted to a jury and proven beyond a reasonable doubt. See Apprendi, 120 S.Ct. at 2362-63. Movant contends that her sentence violates due process because the following facts were not set forth in the indictment, yet influenced and/or increased her punishment: (1) the amount of drugs involved in the conspiracy; (2) the fact that she was a leader or organizer of the conspiracy, and (3) the purity of the drugs.
Although Movant seeks to supplement her § 2255 Motion to Vacate, it appears that she really wants to amend. A "supplemental pleading" under Rule 15(d) bears a special meaning not the same as "amended pleading." See FED. R. Civ. P. 15(d); Burns v. Exxon Corp., 158 F.3d 336, 343 (5th Cir. 1998) ("Under Rule 15(d), the court may permit a party to file a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." (Emphasis added)). Movant does not seek to add allegations and/or claims arising after this lawsuit was filed. Hence, the Court construes the instant motion as a motion to amend her present petition.
A party must obtain leave of court to amend a pleading if a responsive pleading has been served. FED. R. CIV. P. 15(a). Such leave "shall be freely given when justice requires," id., and should be denied if the opposing party will be unduly prejudiced by undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by prior amendment, or futility of amendment. See Whitmire v. Victus Ltd. T/A Master Design Furniture, 212 F.3d 885, 889 (5th Cir. 2000) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962).
Apprendi is not a wholesale savior of defendants who faced sentencing enhancements that were not set forth in an indictment. First, Apprendi does not § invalidate an indictment simply because it does not include an enhancing fact, such as drug quantity. See United States v. Keith, 230 F.3d 784, 785 (5th Cir. 2000). Rather, "to the extent that drug quantity increases a sentence beyond the statutory maximum, it must be alleged in the indictment and proved to the jury beyond a reasonable doubt." Id. at 786-87. The statutory maximum where no specific drug quantity is alleged in the indictment is the range of punishment under § 841(b) applicable without an enhancement based on drug quantity. See United States v. Garcia, No. 99-51091, 2001 WL 128341, at 6 (5th Cir. Feb. 15, 2001). So long as a defendant's sentence does not exceed the maximum allowable under the appropriate § 841(b) sentencing provision, Apprendi is of no aid to a defendant on post-conviction review. See United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000); United States v. Meshack, 225 F.3d 556, 575-76 (5th Cir. 2000), cert. denied, — U.S. — 121 S.Ct. 834, — L.Ed.2d —(2001).
Here, Movant contends that the Court improperly enhanced her sentence based on drug quantity, namely, over one-thousand kilograms of marijuana and over five kilograms of cocaine, because the drug amount was not set forth in the indictment. The Court sentenced Defendant to a 151-month term of imprisonment, just over twelve-and-one-half years. With respect to marijuana, "the default sentencing provision for a marijuana conviction is provided by § 841(b)(1)(D)." Garcia, 2001 WL 128341, at 6. "Under § 841(b)(1)(D), the maximum prison sentence for a person without a prior conviction for a felony drug offense is five years." Id. Movant had no prior conviction which would change the default sentencing provision. Hence, if Movant's sentence were based solely on the marijuana, the 151-month sentence would violate Apprendi unless limited to sixty months.
However, Movant also was indicted and pled guilty to conspiring to possess a quantity of cocaine, a schedule II controlled substance. "In the case of a controlled substance in schedule I or II, . . . such person shall be sentenced to a term of imprisonment of not more than 20 years. . . ." 21 U.S.C.A. § 841(b)(1)(C) (West 1999). Hence, Movant's under-twenty-year term of imprisonment does not offend Apprendi because that sentence does not exceed the maximum allowable for the indicted offense. By the same token, an adjustment to the sentencing guidelines for Movant's role in the offense — as a leader or organizer — does not offend Apprendi because, again, her sentence did not exceed the maximum allowable under the statute. Finally, distinctions in drug purity are not factors taken into consideration in sentencing.
Clearly, because Apprendi does nothing to Movant's sentence, adding a claim pursuant to that case, especially at this late hour, would be futile. Allowing the amendment would also prejudice Respondent the United States because it would be required to answer a futile claim. The Court finds that justice does not require allowing the amendment. Hence, after due consideration, the Court is of the opinion that the instant motion should be denied.
IT IS HEREBY ORDERED that Movant Carmen Christina Iglesias's Motion for Leave to Supplement her Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED.