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U.S. v. Aybar

United States District Court, S.D. New York
May 28, 2002
S1 92 Cr. 718 (TPG), 98 Civ. 6394 (TPG) (S.D.N.Y. May. 28, 2002)

Opinion

S1 92 Cr. 718 (TPG), 98 Civ. 6394 (TPG)

May 28, 2002


OPINION


This is a petition by Nelson Aybar under 28 U.S.C. § 2255. The original petition was filed in June 1998. The Government answered that petition. In January 2001 Aybar filed a Supplemental Motion. In March 2001 Aybar filed a Second Supplemental Motion. The Government answered the Supplemental Motion and the Second Supplemental Motion. On April 15, 2002 Aybar filed a Third Supplemental Motion. The Government has not answered the latter, nor does the court require such an answer. The allegations in the Third Supplemental Motion are entirely without merit and are dismissed summarily.

Having examined the petition as a whole, the court has determined that it provides no basis for relief, and the petition and all claims therein are dismissed.

Aybar was indicted, along with Felix Hernandez, on a charge of conspiracy to distribute and possess with intent to distribute 5 kilograms and more of cocaine. Both these defendants were tried in November 1993 and convicted.

In accordance with the practice at the time, the jury was only asked if they found defendants guilty of conspiracy with respect to a "controlled substance." Although the indictment had charged a specific quantity, the jury was not asked to make any finding with respect to what the quantity was. Again, in accordance with the practice at the time, the court made the findings as to quantity in connection with the sentencing. The court found that Aybar was accountable for a conspiracy with respect to 250 kilograms of cocaine. Aybar was sentenced to a prison term of 235 months.

Aybar appealed. The conviction and sentence were affirmed on May 21, 1996 in a summary order.

In his original § 2255 petition, Aybar alleges the following nine grounds for vacating the conviction and sentence:

(1) The affidavit filed in support of the Government's application to search Aybar's home in connection with his arrest failed to state probable cause, and therefore Aybar's trial counsel should have filed a pretrial motion to suppress evidence seized during the search.
(2) Aybar's rights under the Speedy Trial Act were violated.
(3) The wiretap evidence was improperly admitted at trial because Aybar never consented to the stipulation pursuant to which the evidence was received.
(4) The wiretap evidence was not properly sealed; the wiretap evidence was improperly disclosed in the complaint and during the bail hearings; and copies of the wiretap tapes were improperly used at trial.
(5) The introduction at trial of Martinez's drug records violated Aybar's rights under the confrontation clause of the Six Amendment.
(6) Aybar was in effect convicted of a conspiracy to import cocaine, in violation of 21 U.S.C. § 963. Thus, the charges against Aybar were impermissibly broadened, and the indictment was therefore constructively amended, in violation of Aybar's Fifth Amendment rights.
(7) Aybar's sentence was incorrectly based on participation in a conspiracy to distribute over 250 kilograms of cocaine.
(8) Aybar's sentence should be reconsidered in light of Amendment 518 to the Sentencing Guidelines, which was enacted on November 1, 1995.
(9) The Government improperly withheld information about Martinez's unavailability as a witness at trial, and Aybar's trial counsel should have requested a missing witness charge in connection with Martinez's unavailability.

The Supplemental Motion and the Second Supplemental Motion are based onApprendi v. New Jersey, 530 U.S. 466 (2000). Aybar claimed that underApprendi the sentence of 235 months in prison was invalid because the Court rather than the jury had made the finding of drug quantity upon which the sentence was based. In the Third Supplemental Motion Aybar challenged the constitutionality of § 2D1.1, Application Note 12. as it is applied in this case. This provision reads in pertinent part:

In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense. . . . If, however, the defendant establishes that he or she did not intend to provide, or was not reasonably capable of providing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that he or she did not intend to provide or was not reasonably capable of providing.

In the Third Supplemental Motion Aybar alleges that there is no showing that any of the cocaine which was the subject of the conspiracy was located in the United States. Thus, Aybar alleges that his sentence, and the guideline upon which it was based, was a violation of the Commerce Clause of the United States Constitution. He also alleges that his sentence and the relevant guideline are violations of the Fifth Amendment.

Discussion

The court will first take up the alleged grounds for relief presented in the original petition.

The first, third and fifth grounds were raised in Aybar's direct appeal. The briefs on appeal show this clearly. The Court of Appeals found these arguments to be without merit. Although these three points were not expressly dealt with in the Court of Appeals' decision, the Court stated that it had considered Aybar's "remaining contentions" and had found them all to be without merit. United States v. Martinez, 101 F.3d 684 (2d Cir. 1996) (summary order).

Aybar's other contentions in the original petition — the second, fourth, sixth and ninth — were matters which could have been raised on the direct appeal. These claims are based solely on the record developed before and during the trial. With respect to Aybar's default in failing to raise these issues in the direct appeal, Aybar makes no attempt to show any justifying cause or any prejudice within the meaning of the law dealing with the subject of procedural default.

With respect to the Supplemental Motion and the Second Supplemental Motion, it is correct that, in accordance with the then existing practice, the Court did not request any finding of the jury with respect to drug quantity. These findings were made by the Court in connection with the sentencing, and the court determined that Aybar was responsible for 250 kilograms of cocaine for purposes of determining the sentence. The Court applied 21 U.S.C. § 841 (b)(1)(A)(ii)(II). Under this provision, a defendant who is convicted of conspiring to distribute or possess with intent to distribute 5 kilograms or more of cocaine is to be sentenced to a term of imprisonment of not less than 10 years and not more than life, with exceptions not here relevant. Obviously, the 250 kilograms was more than the 5 kilograms referred to in the statute, so that if this statutory provision was applicable, Aybar was subject to a sentence of between 10 years and life. The actual sentence in this case was arrived at pursuant to the Sentencing Guidelines. Under § 2D1.1 (c)(1) the offense Level was 38 because the crime involved more than 150 kilograms of cocaine. The Criminal History Category was I. The result was a range of 235-293 months. Aybar was sentenced to 235 months.

Aybar claims that the sentence violated the rule laid down by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). The first issue to be dealt with is whether the Apprendi rule can be applied retroactively when the issue is brought up in a collateral attack on a sentence. The Supreme Court and the Second Circuit have not ruled on this issue. The cases where the question has been decided, including cases in this district, have generally held that there can be no such retroactive application. See United States v. Moss, 252 F.3d 993 (8th Cir. 2001);Raulston v. Menifee, No. 01 Civ. 406, 2002 WL 826810, at *4-5 (S.D.N.Y. April 30, 2002). But for the contrary view, see Rosario v. United States, No. 00 Civ. 9295, 2001 WL 1006641, at *2 (S.D.N.Y.) Aug. 30, 2001. The reasoning of the majority of decisions would appear correct. The court therefore holds that Aybar is precluded from raising the Apprendi problem.

However, it is also true that on the merits Aybar's claim fails. The reasoning is as follows. In the indictment Aybar was charged with conspiring to violate 21 U.S.C. § 841 (a)(1) and 841(b)(1)(A). In order to be convicted under these provisions, there would need to be an appropriate finding that the conspiracy involved 5 kilograms or more of cocaine. The indictment did indeed charge that the conspiracy related to "five kilograms and more" of cocaine. As already described, in accordance with the practice in use at the time, the jury was not asked to make any finding about drug quantity. Such finding was made by the court in connection with the sentence. But, as far as the jury verdict was concerned, conviction was for conspiracy with regard to the controlled substance (cocaine) without a finding as to quantity. Thus, the jury verdict did not involve a finding which permitted the application of the statutory provisions referred to in the indictment. The statute which provides for sentencing without regard to drug quantity is 21 U.S.C. § 841 (b)(1)(C). Except for certain situations not relevant here, this statute provides that a convicted person shall be sentenced to a term of imprisonment of not more than 20 years. It is appropriate to apply this statutory provision in the present case.

The cases decided since Apprendi have held that the sentencing judge can make findings regarding drug quantity for the purpose of determining how the Sentencing Guidelines are to apply, and that this procedure does not create a problem under Apprendi so long as the statutory maximum is not exceeded. United States v. Thomas, 274 F.3d 655, 663-4 (2d Cir. 2001). In the present case the 235-month sentence does not exceed the 20-year maximum in § 841(b)(1)(C). Therefore, there is no violation of the stricture announced in Apprendi.

For the above reasons the court finds that Aybar's petition, including all its supplements, present no valid claim. The petition is dismissed.

SO ORDERED.


Summaries of

U.S. v. Aybar

United States District Court, S.D. New York
May 28, 2002
S1 92 Cr. 718 (TPG), 98 Civ. 6394 (TPG) (S.D.N.Y. May. 28, 2002)
Case details for

U.S. v. Aybar

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff v. NELSON AYBAR, Defendant

Court:United States District Court, S.D. New York

Date published: May 28, 2002

Citations

S1 92 Cr. 718 (TPG), 98 Civ. 6394 (TPG) (S.D.N.Y. May. 28, 2002)