Opinion
CV 02-2054 (RR)
June 27, 2002
HIQMET KANANI, Petitioner, pro se, FCI Beaumont — Medium/KA Beaumont, TX
THE HONORABLE ALAN VINEGRAD, UNITED STATES ATTORNEY FOR THE EASTERN DISTRICT OF NEW YORK, One Pierrepont Plaza, Brooklyn, New York, attorney for Respondent
Memorandum and ORDER
Hiqmet Kanani, proceeding pro se, moves pursuant to 28 U.S.C. § 2255 for an order vacating his 2001 conviction after a guilty plea to conspiring to import methylenedioxymethamphetamine ("MDMA"), commonly referred to as "ecstasy." Kanani is presently incarcerated, having been sentenced by this court to a 63-month term of imprisonment, which represented the low end of his 63-78 month guideline range. Pursuant to a plea agreement with the prosecution, Kanani voluntarily waived his right to appeal or collaterally challenge his conviction or sentence. Nevertheless, he now sues for relief on the grounds that he is actually innocent of the charged crime because the scheduling of MDMA as a controlled substance was done by the Attorney General rather than Congress, thereby violating the Constitution's separation of powers. In a related claim, Kanani submits that his guilty plea was neither knowing nor voluntary because he did not then understand the aforementioned legal defect in his case. He insists that retained counsel was constitutionally ineffective for failing to challenge the lawfulness of his MDMA prosecution. He further faults counsel for not raising a due process challenge to his sentence in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
The government opposes Kanani's petition, submitting that it is procedurally barred by his plea agreement and. in any event, without merit. This court need not consider Kanani's reply to the government's procedural argument. Even assuming that his claims fell outside his plea agreement, he would not be entitled to the relief demanded as his arguments are all without merit.
Although MDMA is not included among the five categories of prohibited controlled substances listed by Congress in 21 U.S.C. § 812, this dangerous "designer drug" has been identified as a controlled substance by the Attorney General in 21 C.F.R. § 1308.11(d)(10) pursuant to authority conferred by Congress in 21 U.S.C. § 811 (a). From the Constitution's separation of powers among the three branches of government, the Supreme Court has derived the principle "that Congress may not constitutionally delegate its legislative power to another branch of Government." Touby v. United States, 500 U.S. 160, 165 (1991). But, as the Court has also recognized, the non-delegation doctrine does not prevent Congress from seeking the assistance of other branches of government. "So long as Congress `lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'" Id. (quoting J.W. Hampton Jr. Co. v. United States, 276 U.S. 394, 409 (1928)). 21 U.S.C. § 211, 212 establish detailed procedural requirements to both direct and constrain the Attorney General's discretion in designating controlled substances. These suffice to defeat Kanani's claim of unconstitutional delegation. See id. at 166 (rejecting constitutionality challenge to temporary scheduling provision of 21 U.S.C. § 211 even though it contains fewer procedural requirements than the statute's permanent scheduling provision).
Because Kanani's constitutionality challenge to his MDMA prosecution is the basis for his related claims that his guilty plea was not knowing and voluntary and that his attorney's failure to pursue a constitutional challenge to his prosecution constituted ineffective assistance of counsel, these claims must also be rejected on the merits.
As for Kanani's Apprendi challenge to his sentence, little discussion is necessary. Kanani's guilty plea was entered pursuant to 21 U.S.C. § 963, 960(b)(3), prohibiting conspiracies to import any quantity of a controlled substance. As such, his statutory sentencing range was zero-to-twenty years. The quantity of MDMA attributed to petitioner, approximately 7600 grams, and his leadership role in the offense, did not affect this statutory range. These factors were relevant only to the calculation of' a sentencing guideline range well below the twenty-year statutory maximum. Although Kanani asserts that guideline factors that enhance sentences come within the due process pleading and proof holding in Apprendi, the Second Circuit has ruled otherwise. Recently, in United States v. Norris, 281 F.3d 357 (2d Cir. 2002), the Court of Appeals expressly held that guideline ranges are not "statutory maximums for purposes of applying the constitutional requirements announced by the Supreme Court in Apprendi." Id. at 361: see also Harris v. United States, ___U.S. ___, ___ S.Ct. ___, No. 00-10666, 2002 WL 1357277, at *8 (June 24, 2002) ("Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable doubt components of the Fifth and Sixth Amendments"). Thus, in Kanani's case, the government was not obliged to plead drug quantity or role in the indictment nor to prove these guideline factors beyond a reasonable doubt. Moreover, counsel was not constitutionally ineffective for failing to raise this meritless Apprendi-based claim.
Conclusion
For the reasons stated, this court finds that Kanani's myriad challenges to his conviction and sentence are all without merit. His § 2255 motion is denied as is a certificate of appealability.