Opinion
Case No. 97-40101-01-JAR, 02-3112-JAR
May 8, 2003.
MEMORANDUM AND ORDER DENYING MOTION TO VACATE SENTENCE
This case comes before the court upon Defendant/Petitioner Lesley Lee Becker's Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 96). The government filed an Answer (Doc. 98) and the Defendant filed a Traverse (Doc. 99). The Defendant also filed a supplemental pleading arguing additional authority (Doc. 100) and the government responded (Doc. 101). The Court has thoroughly reviewed the Defendant's pleadings and the record he submitted in support of this motion. For the following reasons, the Court concludes that the petitioner is not entitled to relief and the Court therefore denies the motion to vacate, and dismisses this action.
This matter has been assigned to the undersigned Judge, because the Honorable Dale E. Saffels, who sentenced this defendant, is now deceased.
I. PROCEDURAL HISTORY
On July 23, 1998, a jury returned a guilty verdict against Defendant on five counts: 1) Attempted Manufacture of Methamphetamine, 2) Managing/Controlling a Dwelling for the Purpose of Manufacturing/Storing Methamphetamine, 3) Attempted Distribution of Marijuana, 4) Possession of a Listed Chemical with Intent to Manufacture Methamphetamine and 5) Felon in Possession of a Firearm. On December 11, 1998, Defendant was sentenced to 262 months. Defendant filed a direct appeal and the conviction and sentence were upheld by the Tenth Circuit. Defendant now files this motion for relief under § 2255.
United States v. Becker, 230 F.3d 1224 (10th Cir. 2000).
II. ANALYSIS
Defendant states three grounds for relief under § 2255.
1) Ineffective assistance of counsel when "Counsel Failed to Object to Evidence Admitted at Trial That [Defendant] Fit the Profile of a Methamphetamine Cook;"
2) Ineffective assistance of counsel when "Counsel Failed to Investigate the Government's Method of Calculation of Drug Quantities and Failed to Present Evidence to Challenge the Calculations Relied Upon by the District Court;" and
3) Defendant "was sentenced in violation of the Due Process Clause of the Fifth Amendment and Jury Trial Guarantees of the Sixth Amendment."
Defendant's Motion, p. 1, 11, 22.
Defendant's first two challenges are governed by the standard announced in Strickland v. Washington, which requires a defendant to show that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different. While the government argues that these matters were addressed on direct appeal and thus cannot be reconsidered in a § 2255 motion, absent an intervening change in law, these claims are for ineffective assistance of counsel and not directly based on the evidentiary issues at trial. The appropriate avenue for an ineffective assistance claim is through collateral attack, such as a § 2255 motion. However, that does not mean the Tenth Circuit's direct appeal analysis and decisions on the evidentiary issues have no bearing on Defendant's § 2255 claims.
466 U.S. 668, 687, 690 (1984) (holding that to establish a claim for ineffective assistance of counsel, a defendant must show that his counsel's performance fell below an objective standard of reasonableness, and that but for his counsel's errors, the result of the proceeding would have been different).
United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989).
United States v. Galloway, 56 F.3d 1239 (10th Cir. 1995).
Defendant's first claim was addressed on direct appeal, though purely on evidentiary grounds. On direct appeal, Defendant challenged the admission of what he described as profile evidence about methamphetamine cooks. In addressing that challenge, the Tenth Circuit held that there is a "fine line between potentially improper profile evidence and acceptable specialized testimony explaining the significance of physical evidence." An agent testified about the skills needed, recipes involved, locations of cooking sites and the physical characteristics of methamphetamine cooks. The Tenth Circuit found that admitting the agent's testimony was not an error "so obvious and substantial that when viewed in light of the entire record it seriously affects the fairness, integrity or public reputation of the judicial process." This Court agrees. The agent's testimony went directly to explaining the evidence in Defendant's case and its significance to the crimes charged. And while the use of profiles as substantive evidence is inappropriate, it is not obvious that this testimony was profile testimony rather than expert testimony explaining the evidence to the jury.
Becker, 230 F.3d at 1231.
Id.
Id.
United States v. McDonald, 933 F.2d 1519, 1521 (10th Cir. 1991).
Defendant's claim in this motion is that his counsel failed to object to the admission of the agent's above described testimony. Based on the decision that it was not necessarily error to admit the agent's testimony, it cannot be said that counsel not objecting fell below an objective standards of reasonableness. Additionally, based on the Tenth Circuit's ruling, and this Court's concurrence, defense counsel not objecting to the agent's testimony did not create a reasonable probability that the trial's outcome would have been different. In fact, the Tenth Circuit found that "the circumstantial evidence is more than sufficient for a jury to draw reasonable inferences that Becker took substantial steps towards the commission of the substantive offense." Defense counsel's performance, as to this ground, did not fall below the standard of Strickland.
Id. at 1234.
Defendant's second ground for relief was also argued in his direct appeal, though as direct claim rather than one for ineffective assistance of counsel. When reviewing this claim on direct appeal, the Tenth Circuit found that the district court's method of calculation was not in error. To calculate the quantity determination for sentencing, the district court used an estimate based on the amount of muriatic acid and the methamphetamine recipes Defendant possessed, ultimately determining how much methamphetamine could be produced using those items. An expert from the Kansas Bureau of Investigation, Dwaine Worley, testified that based on the amount of muriatic acid and the recipes seized from Defendant, he could have produced 691 grams of methamphetamine. The theoretical yield determination was 23 pounds. However, the presentence report relied on the most conservative estimate of 6 pounds of actual methamphetamine. The Tenth Circuit approved of the method of estimation used by the KBI chemist and found that estimations such as this are appropriate where the amount of seized drugs does not accurately reflect the offense.
Id. at 1236.
Id. at 1234 (citing U.S.S.G. § 2d1.1, comment n. 12).
Now, as on direct appeal, Defendant argues that this method is inaccurate and that the determination should have been made based on the amount of pseudoephedrine seized from Defendant, rather than muriatic acid. Because Defendant's claim is now one for ineffective assistance, he argues that counsel should have more fully investigated the government's calculation method and challenged it at the sentencing, through opposing expert testimony.
This Court agrees with the Tenth Circuit that the method of calculation was appropriate. Additionally, as noted by the Tenth Circuit in Defendant's direct appeal, he is not entitled to a quantity determination based on the least abundant precursor present.
Id. at 1235 n. 4 (citing United States v. Lillard, 929 F.2d 500, 504 (9th Cir. 1991).
As to Defendant's allegation that counsel should have challenged the government's expert determination at sentencing, the Tenth Circuit also held that this was not error. In doing so, it cited United States v. Short. In Short, the quantity determination was also based on estimations of produceable methamphetamine. Counsel in Short also did not produce an opposing expert to challenge the calculation from the presentence report. In fact, counsel in Short concluded the determination was "supported by expert testimony." The Short court found that the determination was still reliable. Defendant is in nearly the same position. His counsel did not offer an expert, yet the quantity determination in the presentence report is sufficiently reliable. In fact, the quantity used was the most conservative off all possible estimates based on the amount of muriatic acid present.
947 F.2d 1445, 1445-58 (10th Cir. 1991).
Id. at 1456-57.
Id. at 1457.
Id.
Becker, 230 F.3d at 1235.
Because the determination was not in error, we cannot say that Defendant was prejudiced by his counsel's failure to put on an expert or further investigate the government's calculation method. It cannot be said that a reasonable probability exists that if another expert had testified, the outcome would have been different. This is Defendant's burden when bringing this claim as one for ineffective assistance of counsel, and he has not met that burden.
Defendant's final claim also challenges the drug quantity determination, but also brings that challenge under Apprendi v. New Jersey. Defendant's claim is couched as a Due Process violation under the Fifth Amendment and a Sixth Amendment violation of his jury trial right. Defendant argues that because he was sentenced under 21 U.S.C. § 841(b)(1)(A), the section applicable when a drug quantity is determined by a jury, his sentence is invalid. Section 841(b)(1)(A) contains a mandatory minimum sentence of 20 years for someone with Defendant's criminal history. The maximum is life.
530 U.S. 466 (2000).
Defendant argues that he should not have been subject to a mandatory minimum sentence under § 841(b)(1)(A) because a jury did not make the quantity determination. Instead, Defendant argues that he should have been sentenced under § 841(b)(1)(C), which applies to a drug sentencing where a jury does not make a quantity determination. Section 841(b)(1)(C) does not set a mandatory minimum sentence; however, it does contain a maximum mandatory sentence. Generally, that maximum is 20 years; however, Defendant has a prior felony drug offense, raising the mandatory maximum to 30 years. Defendant was sentenced to 262 months, or 21.83 years. Obviously, this falls well below the mandatory maximum allowed under § 841(b)(1)(C). Defendant argues that even if it does, he is entitled to a resentencing because Apprendi also applies to cases where no mandatory minimum sentence exists, such as under § 841(b)(1)(C), but because a jury does not make the determination, the minimum is increased, or in this case created, by sentencing Defendant under § 841(b)(1)(A). Thus, Defendant should receive a jury determination of the quantity, according to Apprendi, allowing him to be sentenced under § 841(b)(1)(A) if a jury finds the quantity to be 50 grams or more and under § 841(b)(1)(B) if a jury makes a determination of 5 grams or more. However, if a jury makes a determination that not enough exists to trigger either of those sections, then he would be entitled to a sentence under § 841(b)(1)(C).
The first flaw in Defendant's argument is assuming that Apprendi applies when the maximum minimum penalty is increased. Defendant cites to United States v. Ramirez, which held that Apprendi did apply when a mandatory minimum was increased. However, this decision has since been overruled. In doing so, the Sixth Circuit said that its prior decision in Ramirez made it a "minority of one" and thus overruled Ramirez to bring its holding in line with other circuits that hold that Apprendi protections are not triggered when a mandatory minimum is enhanced by a determination not made by a jury. This Court agrees. Apprendi is triggered when a factor, not determined by a jury using a standard of beyond a reasonable doubt, increases the statutory maximum allowable sentence, or if no statutory maximum is found, then beyond the prescribed guideline range. Neither of those scenarios exist here.
242 F.3d 348 (6th Cir. 2001), overruled by United States v. Leachman, 309 F.3d 377 (6th Cir. 2002))
See Leachman, 309 F.3d at 381-383.
Every other circuit that had addressed the issue held that Apprendi extends only to enhancements above the statutory maximum sentence. See, e.g., U.S. v. Robinson, 241 F.3d 115, 122 (1st Cir. 2001), cert. denied, ___ U.S. ___ (2001); U.S. v. Harris, 243 F.3d 806, 809 (4th Cir. 2001); U.S. v. Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert. denied, 531 U.S. 1182 (2001); U.S. v. Rodgers, 245 F.3d 961, 965-68 (7th Cir. 2001); U.S. v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir. 2000), cert. denied, 531 U.S. 1026 (2000); U.S. v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir. 2001); U.S. v. Sanchez, 269 F.3d 1250, 1269 (11th Cir. 2001), cert. denied, ___ U.S. ___ (2002);
Defendant was sentenced to 262 months. The guideline range for his crime was 262-327 months. Even using the section which Defendant argues he should have been sentenced under, the maximum mandatory sentence is 30 years, beyond even the maximum guideline sentence of 327 months (27.25 years). The fact that no minimum mandatory exists under that section is of no consequence, because that alone does not trigger Apprendi protections. Because of the Defendant's prior felony conviction, his sentence of 262 months is a valid sentence, within the range and not exceeding the statutory or guideline maximum, regardless of whether Defendant was sentenced under § 841(b)(1)(A), (B) or (C). Thus, Defendant was in no way prejudiced by either a violation of the Fifth or Sixth Amendment.
IT IS THEREFORE ORDERED that the Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 96) is DENIED.