Opinion
Case No. 98-40041-01, 01-3106-RDR
April 25, 2001
MEMORANDUM AND ORDER
This matter is presently before the court upon the petitioner's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Having carefully reviewed the petitioner's motion, the court is now prepared to rule.
Petitioner has also filed an application to proceed in forma pauperis. This motion shall be granted.
The petitioner was convicted by a jury on August 7, 1998 of possession of firearm by a felon in violation of 18 U.S.C. § 922 (g). On November 6, 1998, the court sentenced the petitioner to 180 months pursuant to the Armed Career Criminal enhancement under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4. His conviction and sentence were affirmed on appeal. United States v. Adkins, 196 F.3d 1112 (10th Cir. 1999), cert. denied, 529 U.S. 1030 (2000).
The facts underlying his conviction were set forth in the appellate opinion as follows:
On March 2, 1998 in Onaga, Kansas, Tony Glen Adkins was driving a blue compact Chevrolet, with Sheila Tork riding in the passenger seat. Adkins collided with a parked trailer owned by Ernest May, who then called 911. Immediately after the collision, Adkins and Tork fled the scene. When Pottawatomie County Deputy Sheriff Cory Gilmore arrived, May was the only person remaining. Deputy Gilmore ran a license check on the Chevrolet and determined an Elsie Bluma of Onaga was the owner.
Upon searching the abandoned Chevrolet, Sheriff's officers discovered six to seven lose (sic) 7.62 x 39 mm rifle rounds. Several minutes later, Bluma arrived at the scene. Bluma told officers she had loaned the car earlier that day to a Glen or a Glen Scott. Attempting to find Adkins and Tork, the officers went to Bluma's residence, where they located Tork but not Adkins. While at Bluma's house, the officers also discovered two or three more 7.62 x 39 mm rifle rounds.
On April 15, 1998, an agent of the Bureau of Alcohol, Tobacco, and Firearms ("ATF") interviewed Jeff Comer at his business, J and J True Value Hardware. A federally licensed firearms dealer, Comer stated that on February 15, 1998, he sold an SKS Paratrooper, 7.62 x 39 mm rifle to Bluma, also providing her a complimentary box of ammunition. Comer further stated a white male, whom Comer identified as Adkins, was with Bluma when she bought the rifle. At trial, Comer could not recall who carried the rifle from the store; Bluma testified Adkins must have done so.
On April 17, 1998, ATF agents and Sheriff's officers searched Bluma's residence, finding thirty-seven more 7.62 x 39 mm rifle rounds and three photographs of Adkins. Three weeks later, Adkins was arrested in Topeka, Kansas, though no rifle was ever found.196 F.3d at 1114.
In the instant motion, the petitioner contends that his constitutional rights were violated when he was sentenced under the provisions of the Armed Criminal Career Act, 18 U.S.C. § 924 (e), because it was not charged in the indictment. The petitioner argues that the court had only the power to sentence him to ten years because the indictment contained a reference only to 18 U.S.C. § 924(a)(2). He further argues that the Supreme Court's recent decision in Jones v. United States, 526 U.S. 227 (1999) renders his sentence invalid. Finally, he asserts that his counsel was ineffective for failing to raise these issues.
An evidentiary hearing must be held on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; United States v. Galloway, 56 F.3d 1239, 1240 n. 1 (10th Cir. 1995). The court believes that the materials already in the record conclusively show that no hearing is necessary in this case.
The petitioner was charged in this case as follows:
On or about the 15th day of February, 1998, in the District of Kansas, the defendant, TONY GLEN ADKINS, having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess in and affecting commerce a firearm, to wit: a Norinco, Model SKS Paratrooper, 7.62 x 39 millimeter rifle, bearing serial number 07354, which had been shipped or transported in interstate or foreign commerce, in violation of Title 18, United States Code, Sections 922(g) and 924(a)(2).
Prior to trial, the government filed an information indicating that the petitioner was subject to the increased enhancement contained in 18 U.S.C. § 924(e) because he had previously been convicted of three violent felonies.
Section 924(e)(1) provides as follows:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
Each element of a crime must be charged in the indictment, submitted to a jury, and proved beyond a reasonable doubt. Jones v. United States, 526 U.S. 227, 232 (1999). A sentencing factor, however, need not be set forth in the indictment and may be decided by the judge, usually only by a preponderance of the evidence. Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998). The Supreme Court held in Jones that subsections of the federal carjacking statute, 18 U.S.C. § 2119, that allow steeper penalties if the crime resulted in serious bodily injury or death, must be treated as distinct elements of the crime rather than as sentencing factors. 526 U.S. at 251-52. However, in Almendarez-Torres, the Supreme Court held that the statutory provisions that increased the penalty for unlawful re-entry to the United States for aliens who had been deported subsequent to conviction of a felony, 8 U.S.C. § 1326, were sentencing enhancements and not elements of the crime. 523 U.S. at 226-27. In distinguishing Almendarez-Torres, the Jones Court observed that the enhancement provision in Almendarez-Torres revolved around the defendant's recidivism, a factor traditionally considered by courts at sentencing. 526 U.S. at 248-49.
The court finds that Almendarez-Torres rather than Jones controls this case. Based upon the court's review of § 924(e), we believe that it is a sentencing factor rather than an element of the offense. See United States v. Baldwin, 186 F.3d 99, 101 (2nd Cir. 1999), cert. denied, 528 U.S. 1033 (1999). As a sentencing enhancement, the government was not required to plead this section specifically in the indictment or offer proof at trial. The application of the enhancement provision was strictly for the court's determination at sentencing. Accordingly, the court finds no merit to the claims raised by the petitioner.
IT IS THEREFORE ORDERED that petitioner's application to proceed in forma pauperis (Doc. # 55) be hereby granted.
IT IS FURTHER ORDERED that petitioner's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. # 54) be hereby denied.
IT IS SO ORDERED.