Opinion
Criminal Action No. 99-109-01, Civil Action No. 03-6272.
July 21, 2004
MEMORANDUM
Presently before the Court is the Motion of petitioner, Marco Burton, to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Section 2255 Motion"). For the reasons set forth below, petitioner's Section 2255 Motion will be denied.
I. BACKGROUND
On July 6, 1999, a Grand Jury sitting in the Eastern District of Pennsylvania returned a five count Superseding Indictment charging petitioner, Marco Burton, and Maurice Smith with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (Count One); possession with intent to deliver cocaine base ("crack") in violation of 21 U.S.C. § 841(a)(1) (Count Two); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count Three); and two counts of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Counts Four and Five). Petitioner was named in all counts of the Superseding Indictment.
On February 29, 2000, petitioner pled guilty to all five counts of the Superseding Indictment, reserving the right to appellate review of the denial of his motion to suppress evidence under Federal Rule of Criminal Procedure 11(a)(2). Prior to the guilty plea, the government filed both an Information pursuant to 21 U.S.C. § 851 alleging three prior drug convictions and a Notice of Defendant's Prior Convictions for Enhanced Sentencing Pursuant to 18 U.S.C. § 924(e), Armed Career Criminal Act ("ACCA"). The Section 851 Notice, which notified the defendant of the government's intention to rely on his prior felony drug offenses at sentencing, had the effect of doubling the applicable mandatory minimum sentence to 10 years and the statutory maximum sentence to life imprisonment. 21 U.S.C. § 841(b)(1)(B). The ACCA establishes enhanced penalties for a person who has violated 18 U.S.C. § 922(g)(1) (the felon in possession statute charged in Counts Four and Five) where the defendant "has three previous convictions . . . for a violent felony or other serious drug offense." Under the ACCA, petitioner was subject to a 15 year mandatory minimum sentence and a statutory maximum sentence of life imprisonment. Custis v. United States, 511 U.S. 485, 487 (1994).
18 U.S.C. § 924(e) provides:
In a 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 persons shall be fined not more than $25,000.00 and imprisoned not less than 15 years.
At sentencing on September 1, 2000, the Court determined that defendant was an armed career criminal under § 4B1.4, the applicable guideline provision for calculating the base offense level of a defendant under the ACCA. Calculated under that provision, defendant had a total offense level of 35, in Criminal History Category IV for Counts One, Two, Four and Five because, as explained below, Counts One and Two were grouped with Counts Four and Five. That offense level and criminal history category called for a Guideline Imprisonment Range of 292 to 365 months on those counts. Pursuant to § 924(e), the ACCA, there was a 15 year mandatory minimum sentence on Counts Four and Five. The conviction on Count Three-possession of a firearm in furtherance of a drug trafficking crime-required a 5 year consecutive sentence.
Section 4B1.4 provides:
(a) A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal.
(b) The offense level for an armed career criminal is the greatest of:
(1) the offense level applicable from Chapters Two and Three; or
(2) the offense level from § 4B1.1 (Career Offender) if applicable; or
(3) (A) 34, if the defendant used or possessed the firearm or ammunition in connection with either a crime of violence, as defined in § 4B1.2(a), or a controlled substance offense, as defined in § 4B1.2(b), or if the firearm possessed by the defendant was of a type described in 26 U.S.C. 5845(a); or
(B) 33, otherwise.
(c) The criminal history category for an armed career criminal is the greatest of:
(1) the criminal history category from Chapter Four, Part A (Criminal History), or § 4B1.1 (Career Offender) if applicable; or
(2) Category VI, if the defendant used or possessed the firearm or ammunition in connection with either a crime of violence, as defined in § 4B1.2(a), or a controlled substance offense, as defined in § 4B1.2(b), or if the firearm possessed by the defendant was of a type described in 26 U.S.C. 5845(a); or
(3) Category IV.
At sentencing, the Court granted defendant's Motion for Downward Departure under § 4A1.3 of the Guidelines on the ground that defendant's Criminal History Category significantly over-represented the seriousness of his criminal history and the likelihood that he would commit further crimes and reduced defendant's offense level to 28 and his criminal history category to Ill on Counts One, Two Four and Five. This produced a guideline sentencing range of 97-121 months on Counts One, Two, Four and Five. However, under § 5G1.1(B), where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence becomes the guideline sentence. Trans. of Sentencing 28:14-18 (September 19, 2000). Thus, as a result of the statutory mandatory minimum sentence of 15 years on Counts Four and Five, the grouping of those Counts with Counts One and Two required imposition of concurrent sentences of 180 months imprisonment on Counts One, Two, Four and Five. In addition, as required by statute, the Court imposed a 5 year consecutive sentence on Court Three.
On September 20, 2000, petitioner filed a Notice of Appeal in the United States Court of Appeals for the Third Circuit. The appeal raised a single issue — denial of petitioner's motion to suppress evidence. On April 29, 2002, the Third Circuit affirmed this Court's ruling denying the motion to suppress evidence.
On February 17, 2003, defendant filed the present Section 2255 Motion in which he makes the following claims: (1) the sentence on Counts One and Two violates Apprendi v. New Jersey, 530 U.S. 466 (2000) and was improper because although the Superseding Indictment alleged a violation of 21 U.S.C. § 841(a)(1), it did not allege a penalty provision; (2) the sentence imposed on Counts One and Two was in excess of the applicable statutory maximum penalties; (3) the Court lacked jurisdiction over the felon in possession charges in Counts Four and Five because those counts of the Superseding Indictment failed to allege that petitioner engaged in any interstate conduct; (4) the Superseding Indictment failed to provide adequate written notice of the government's intention to seek enhanced penalties pursuant to 18 U.S.C. § 924(e); and (5) defense counsel was ineffective for failing to raise each of these issues on direct appeal.
The government argues in its Response that all of petitioner's claims with the exception of his ineffective assistance of counsel claims are procedurally defaulted because petitioner failed to raise them on direct appeal. Petitioner in his Reply argues that his procedural default should be excused under the cause and prejudice and actual innocence doctrines.
II. DISCUSSION
A. PROCEDURAL DEFAULT
A motion under 28 U.S.C. § 2255 cannot be used as a substitute for a direct appeal. See Government of the Virgin Islands v. Nicholas, 759 F.2d 1073, 1074 (3d Cir. 1985). "The type of claim cognizable under [a § 2255] motion is extremely limited."Eisenfelder v. United States, 871 F.Supp. 793, 796 n. 8 (M.D. Pa. 1994). A petitioner is barred from collaterally attacking his sentence pursuant to § 2255 so far as that attack is based on issues that could have been, but were not, raised on direct appeal. See United States v. Frady, 456 U.S. 152, 162-63 (1982); United States v. Essig, 10 F.3d 968, 978 (3d Cir. 1993).
Petitioner concedes in his Reply that the claims asserted in his Section 2255 Motion were not raised on direct appeal. Reply at 11. The only issue the petitioner raised on direct appeal was the denial of his motion to suppress evidence. Since a Section 2255 Motion is the preferred vehicle for addressing ineffective assistance of counsel claims, the procedural default rule does not bar this court from addressing petitioner's ineffective assistance of counsel claim on the merits. United States v. Thornton, 327 F.3d 268, 271-272 (3d Cir. 2003); United States v. DeRewal, 10 F.3d 100, 104 (3d Cir. 1993). Petitioner's remaining claims are procedurally defaulted. United States v. Frady, 456 U.S. 152, 162-63 (1982); United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993).
While petitioner's claims raising Apprendi issues are procedurally defaulted, and thus cannot be addressed on the merits, the Court notes that the potential impact of Apprendi on petitioner's sentence was addressed at sentencing and was the subject of supplemental briefing by defense counsel and the government. Supplemental briefing was required because Apprendi was decided after petitioner pled guilty but before he was sentenced. In the Section 2255 Motion, petitioner essentially re-states the Apprendi arguments made by his counsel at sentencing and rejected by the Court.
1. Petitioner has not Satisfied the Cause and Prejudice Exception to the Procedural Default Bar
Petitioner argues his procedural default should be excused under the cause and prejudice doctrine. Reply at 7-9. To avoid the procedural default bar, petitioner must prove both (1) "cause" excusing his failure to raise the issues earlier, and (2) "actual prejudice" resulting from his failure to do so. See Frady, 456 U.S. at 168; Essig, 10 F.3d at 978-979. "Cause" must be objective — something external to the petitioner, something that cannot be fairly attributed to him. See Coleman v. Thompson, 501 U.S. 722, 751 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). The "actual prejudice" must be so substantial that the integrity of the entire trial is infected.Frady, 456 U.S. at 169-70. Therefore, unless petitioner can show "cause" for his procedural default and "actual prejudice" from it, the defaulted issues are waived. Id. at 167.
To satisfy his burden of showing cause petitioner makes two arguments. First, petitioner argues that his counsel was ineffective. Reply at 9. "Ineffective assistance of counsel . . . is cause for a procedural default." Murray, 477 U.S. at 488. However, because the Court concludes that petitioner's counsel was not ineffective for the reasons set forth in Section C infra, petitioner has not established cause to excuse his procedural default on this ground.
Second, petitioner attempts to show cause by arguing his claims were novel. Reply at 10, 12. The Supreme Court has held that cause may be found "where a constitutional claim is so novel that its legal basis is not reasonably available to counsel." Reed v. Ross, 468 U.S. 1, 16 (1984). However, petitioner concedes thatApprendi was decided before his sentencing and that, as a consequence, his Apprendi arguments are not novel. Reply at 10. Likewise, the law applicable to the issue raised in Claim Three — the district court lacked jurisdiction because the firearms violations failed to allege any interstate conduct — was available to his counsel prior to defendant's sentencing. Specifically, the issue of an interstate nexus in firearms cases had been addressed by the Supreme Court in United States v. Lopez, 514 U.S. 549 (1995). Because this authority was available to counsel prior to sentencing, the claim is not novel, and the Court will not excuse his procedural default on this ground.
2. Petitioner Has Not Satisfied the Actual Innocence Exception to the Procedural Default Bar
Petitioner next argues that, notwithstanding the procedural default of his claims, the Court should consider those claims on the merits on the ground that the alleged constitutional violations have "probably resulted in the conviction of one who is actually innocent." Reply at 8, 13.
To establish the probability of actual innocence referenced inMurray, "petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 327 (1995); see also Whitney v. Horn, No. 00-9003, 2002 WL 181342, at *16 (3d Cir. Feb. 5, 2002) (explaining Schlup standard); Glass v. Vaughn, 65 F.3d 13, 16 (3d Cir. 1995) (same). Petitioner must also "support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324. In evaluating petitioner's assertions of actual innocence, the Court considers all relevant evidence, regardless of whether it "was either excluded or unavailable at trial." Id. at 328. It is not, however, this Court's "independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do." Id. at 329. The Court must then ask whether "in light of the new evidence, no juror, acting reasonably, would have voted to find [petitioner] guilty beyond a reasonable doubt." Id.
The government argues that the "actual innocence doctrine" only applies when a petitioner claims to be innocent of the underlying offense and therefore may not be applied to habeas petitions raising sentencing issues. In support of its position, the government cites decisions by the Fourth Circuit, United States v. Mikalajunas, 186 F.3d 490, 494-495 (4th Cir. 1999) and the Tenth Circuit, United States v. Richards, 5 F.3d 1369 (10th Cir. 1993). Response at 12. On this issue, the government points out that the Supreme Court has only applied the actual innocence doctrine to a habeas petition raising a sentencing issue in a capital case. Sawyer v. Whitley, 505 U.S. 333 (1992).
The Court need not decide whether the actual innocence doctrine applies to sentencing issues because petitioner does not challenge the facts upon which his sentence was calculated — the type and quantity of drugs, the possession of weapons and the prior conviction on which the felon in possession charges were based.
Petitioner does not deny that he possessed the quantity of cocaine and cocaine base ("crack") charged in the Superseding Indictment. To the contrary, he admitted criminal responsibility for 2.742 kilograms of cocaine (the Superseding Indictment charged him with possessing in excess of 500 grams of cocaine), Trans. of Change of Plea Hearing 43:22, 47:12-14 (February 29, 2000), and 7.9 grams of cocaine base ("crack") (the Superseding Indictment charged him with possessing in excess of 7.9 grams of cocaine base ("crack"), id. at 49:1-5, at the change of plea hearing. In addition, petitioner admitted to having been convicted of a felony punishable by a term of imprisonment in excess of one year, Trans. of Change of Plea Hearing 46:22-25 and 47:12-14 (February 29, 2000), a fact which is relevant to both Counts Four and Five, and to possession of an Egyptian Helwin semi-automatic handgun (the charge in Count Four), id. at 49:10-14, and a Ruger semi-automatic handgun (the charge in Count Five), id. at 52:10-14.
Notwithstanding his admissions, petitioner argues that procedural default should be excused under the actual innocence doctrine because, according to petitioner, the government did not use the appropriate charging language and failed to give him adequate notice of its intention to seek enhancement of his sentence. First, this issue is irrelevant to a determination under the actual innocence doctrine. Second, as set forth in Section C(4) infra, the Court finds that the government complied with all requirements for filing an Information pursuant to 21 U.S.C. § 851 and the Notice of Defendant's Prior Convictions for Enhanced Sentencing Pursuant to 18 U.S.C. § 924(e).
The actual innocence doctrine is clearly inapplicable to the facts of this case. Thus, the Court will not excuse procedural default on this ground.
C. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Petitioner raises ineffective assistance of counsel both as cause to excuse procedural default and as a substantive claim. The appropriate method for raising an ineffective assistance of counsel claim is by motion under 28 U.S.C. § 2255. United States v. Thornton, 327 F.3d 268, 271-272 (3d Cir. 2003); United States v. DeRewal, 10 F.3d 100, 104 (3d Cir. 1993); see also Knight v. United States, 37 F.3d 769, 775 (1st Cir. 1994). Thus, the Court will address this claim on the merits.
Under Strickland v. Washington, 466 U.S. 668 (1984), it is well-settled that to establish a claim of ineffective assistance of counsel at trial, a convicted defendant must demonstrate that his counsel's performance (1) "fell below an objective standard of reasonableness," id. at 688, and (2) that counsel's deficient performance prejudiced the defendant. Id. at 692. As articulated by the Supreme Court in Strickland, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. The ultimate focus of the Strickland inquiry is always on the "fundamental fairness of the proceeding whose result is being challenged."Id. at 696.
The Court, in evaluating whether counsel's performance fell below an objective standard of reasonableness, must determine "whether counsel's assistance was reasonable considering all the circumstances." Id. at 688. In this analysis, the Court must be "highly deferential," and "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689. The Court must not use the benefit of hindsight to second-guess strategic decisions made by counsel unless they are unreasonable. Id. at 690.
As to the Strickland prejudice prong, the Court's inquiry must focus on whether defendant has demonstrated "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
For the reasons below, the Court concludes that counsel's assistance was not objectively unreasonable. Each of the issues petitioner faults his counsel for not raising on direct appeal is meritless.
1. Petitioner's Argument that his Sentence on Counts One and Two Violates Apprendi (Claim One)
Petitioner argues that his sentence on Counts One and Two of the Superseding Indictment (the drug charges) is invalid underApprendi because he was sentenced, at least in part, upon a factual finding made by the court under a preponderance of the evidence standard and not by a jury beyond a reasonable doubt.
The Court notes that since the parties' submissions in this case, the Supreme Court decided Blakely v. Washington, ___ S.Ct. ___, 2004 WL 1402697 (U.S. Wash. 2004) which appliesApprendi. Although the parties have not briefed the issue, the Court's will analyze Blakely in considering petitioner'sApprendi arguments. Blakely involved a challenge to Washington State's sentencing system, not the federal sentencing guidelines. Thus, whether the rule in Blakely applies in federal sentencing is an open question. In addition, Blakely was decided on direct appeal, not on a petition for writ of habeas corpus. The Supreme Court has not ruled whether Apprendi (and Blakely on which it was based) applies retroactively; thus this is an open question as well. However, the Court need not address either question because petitioner'sApprendi/Blakely arguments lack merit.
The government argues that under Teague v. Lane, 489 U.S. 288 (1989) and its progeny, Apprendi does not apply retroactively.
In Apprendi, the Supreme Court ruled that the Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 2354-2366. The Supreme Court in Blakely explained that the:
The defendant in Apprendi was convicted pursuant to a guilty plea of possession of a firearm for unlawful purpose and unlawful possession of a prohibited weapon. 530 U.S. 469-470. The state court sentenced petitioner to a term that exceeded the statutory maximum sentence for those crimes pursuant to New Jersey's hate crime statute. Id. at 470-471. The New Jersey hate crime statute authorized an enhanced sentence in excess of the statutory maximum sentence based on a judge's finding by a preponderance of the evidence that a defendant acted with the purpose to intimidate his victim based on the particular characteristics of the victim. Id. at 470.
`[S]tatutory maximum' for Apprendi purposes is the maximum sentence that a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts `which the law makes essential to the punishment and the judge exceeds his proper authority. Id. at *6 (emphasis in original) (citations omitted). Assuming arguendo that Blakely applies to the present case, the Court turns to the question whether it imposed a sentence on petitioner "without any additional findings" beyond those facts admitted by the petitioner.
In Blakely, the defendant pled guilty to kidnaping his estranged wife (specifically second degree kidnaping with a firearm). 2004 WL 1402697, *2. In Washington, second-degree kidnaping is a class B felony. State law provides that "[n]o person convicted of a [class B] felony shall be punished by confinement . . . exceeding . . . a term of ten years." Other provisions of state law, however, further limit the range of sentences a judge may impose. Washington's Sentencing Reform Act specifies a "standard range" of 49 to 53 months for petitioner's offense of second-degree kidnaping with a firearm. A judge may impose a sentence above the standard range if he finds "substantial and compelling reasons justifying an exceptional sentence. The Act lists aggravating factors that justify such a departure, which it recites to be illustrative rather than exhaustive. Nevertheless, `[a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense.
Pursuant to the plea agreement, the State of Washington recommended a sentence within the standard range of 49 to 53 months. Id. at *3. However, after hearing the victim's description of the kidnaping, the trial judge imposed an exceptional sentence of 90 months-37 months beyond the standard maximum. The trial judge justified the sentence on the ground that petitioner had acted with "deliberate cruelty," a statutorily enumerated ground for departure in domestic-violence cases. Id. The Washington Supreme Court affirmed the sentence.
The question the U.S. Supreme Court addressed was whether the Washington State sentencing procedure deprived defendant of his Sixth Amendment right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence. The State of Washington argued that there was no Apprendi violation because the relevant "statutory maximum" is not 53 months, but the 10-year maximum for class B felonies. The Supreme Court rejected that position in its ruling.
a. The Sentence the Court Imposed on Counts One and Two
At the change of plea hearing, petitioner admitted to possessing with intent to distribute, Trans. of Change of Plea Hearing 47:1-5 and 47:12-14 (February 29, 2000) 7.9 grams of cocaine base ("crack"), id. at 49:1-5 and 742 grams of cocaine,id. 43:22, 47:12-14. Petitioner also admitted to selling "several kilograms" of cocaine at 2851 North Darien Street in Philadelphia. Id. at 41:16 and 47:15-19. In the presentence report petitioner was found criminally responsible for 2 kilograms of cocaine at the Darien street address, PSR ¶ 31, and this paragraph was adopted by the Court at the sentencing hearing, Trans. of Sentencing 38:9-14 (September 19, 2000). Thus, the total quantity of drugs for sentencing purposes was 2.742 kilograms of cocaine and 7.9 grams of cocaine base ("crack").Section 1B1.1(d) of the sentencing guidelines provide that if there are multiple counts, the Court should group the various counts and adjust the offense level accordingly. Counts One and Two, the drug counts, were thus grouped together pursuant to U.S.S.G. § 3D1.2(d) because the offense level in both Counts is based largely on the quantity of controlled substance involved. These counts constituted Group I. Counts Four and Five, the felon in possession counts, were grouped together pursuant to U.S.S.G. § 3D1.2(b) because those counts involved the same victims (the public) and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan. Those counts constituted Group II. Group II was then grouped with Group I pursuant to U.S.S.G. § 3D1.2(c) because the crimes charged in Group II-felon in possession crimes-served as a specific offense characteristics to the crimes charged in Group I.
Count Three was excluded from grouping and sentencing calculations under the guidelines pursuant to § 5G1.2(a) because the crime charged, a violation of 18 U.S.C. § 924(c), requires a five year consecutive sentence.
Where counts are grouped as they were in this case, § 3D1.3(a) instructs that the offense level applicable to the group is the offense level, determined in accordance with Chapter II and parts (A), (B) and (C) of Chapter III, for the most serious of the counts comprising the group, i.e., the highest offense level of the counts in the group. The counts in this case which carried the highest offense level excluding enhancements under Chapter IV were Counts One and Two; the base offense level for those counts was 30. The base offense level for Counts Four and Five was 26. Calculated under the Guidelines, a base offense level of 30, in Criminal History Category III, produced an imprisonment range of 121-151 months. Because Counts One, Two, Four and Five were grouped, this guideline imprisonment range would have applied to those counts. However, that guideline imprisonment range played absolutely no role in the sentence imposed because of the 15 year statutory mandatory minimum sentences on Counts Four and Five.
Under of the ACCA, conviction on Counts Four and Five subjected petitioner to a 15 year mandatory minimum sentence. Section 5G1.1(b) provides that where a statutorily required mandatory minimum is greater than the guideline range, the statutory mandatory minimum sentence shall be the guideline sentence. The mandatory minimum sentence on Counts Four and Five applies to Counts One and Two because all four counts were grouped together pursuant to § 3D1.2. Thus, the sentence on the grouped counts, One, Two, Four and Five, was the mandatory minimum sentence on Counts Four and Five, 15 years. That was the lowest sentence the Court could have imposed on Counts One, Two, Four and Five, and is based entirely on the mandatory minimum sentence required on Counts Four and Five.
b. The Impact of Blakely on the Sentence for Counts One and Two
The Court next turns to the impact on Blakely on the sentence imposed on defendant. In doing so, the Court assumes arguendo that Blakely applies to the Federal Sentencing Guidelines and applies retroactively in habeas corpus proceedings. Because Counts Four and Five, the gun counts, produced the sentence for Counts One, Two, Four and Five, the analysis of anyApprendi/Blakely issues must focus on Counts Four and Five of the Superceding Indictment.
As stated above, prior to petitioner entering a guilty plea in this case, the government filed an Information pursuant to 21 U.S.C. § 851 alleging three prior drug convictions and a Notice of Defendant's Prior Convictions for Enhanced Sentencing Pursuant to the ACCA, 18 U.S.C. § 924(e). The ACCA mandates a 15 year minimum sentence for a person who has violated 18 U.S.C. § 922(g)(1) (the felon in possession statute — in this case Counts Four and Five) and who "has three previous convictions . . . for a violent felony or other serious drug offense."
In order to trigger this 15 statutory mandatory minimum sentence petitioner need only admit to sufficient facts for a plea of guilty to a charge of violating 18 U.S.C. § 922(g)(1) (the felon in possession statute — in this case Counts Four and Five) and have three previous convictions for a "violent felony or serious drug offense." 18 U.S.C. § 924(e). Defendants need not, and petitioner did not, admit to the three prior convictions because they are expressly excluded from the rule in Apprendi. 530 U.S. at 2354-2366.
At the change of plea hearing, petitioner admitted sufficient facts for a plea of guilty on Counts Four and Five. Petitioner admitted to having been convicted of a felony punishable by a term of imprisonment in excess of one year. Trans. of Change of Plea Hearing 46:22-25 and 47:12-14 (February 29, 2000). This fact is an element of both Counts Four and Five. As to Count Four, petitioner admitted possession of an Egyptian Helwin semi-automatic handgun. Id. at 49:10-14. In Count Five, petitioner was charged with having been a felon-in-possession of a Ruger semi-automatic handgun. At the change of plea hearing petitioner denied ownership of the Ruger but admitted that the gun was in the trunk of the car he was driving when he was arrested. Id. at 52:10-14. Under these facts, the Court ruled that the government had established a sufficient factual basis for the guilty plea to Count Five — the possession of the Ruger — but nevertheless gave petitioner the right to contest the factual basis for the guilty plea as to that count at sentencing — an option petitioner did not exercise.Id. at 54:10-17 and 55:15-18. The Court also notes that petitioner's total sentence would have been identical had the Court not accepted the guilty plea to Count Five because of petitioner's guilty plea to Count Four which carries the same statutory mandatory minimum sentence.
Thus, the Court concludes that because petitioner's guideline range for Counts Four and Five, which by the operation of the guidelines determined the guideline range for Counts One and Two, was based solely on facts admitted to by defendant at the change of plea hearing, his sentence does not violate the rule inApprendi/Blakely. 2. Petitioner's Argument that the Superseding Indictment was Deficient (Claims One and Two)
In both claims one and two of the Section 2255 Motion, petitioner argues that, because the Superseding Indictment did not specifically cite 21 U.S.C. § 841(b)(1)(B), the sub-section of § 841 that provides for a statutory maximum penalty of 40 years, the Court could not impose a sentence that exceeded the statutory maximum sentence provided in § 841(b)(1)(C), 20 years for certain drugs, not cocaine or cocaine base ("crack"). In claim one of his Section 2255 Motion, petitioner argues that his sentence on Counts One and Two violates Apprendi because the Court relied on § 841(b)(1)(B); in claim two of the Section 2255 Motion petitioner argues his sentence on Counts One and Two violates the Constitution for the same reason. Petitioner evidently believes that Apprendi and the Constitution required the Court to sentence him under the sub-section of § 841 with the lowest statutory maximum sentence, (b)(1)(C), because the Superseding Indictment did not specifically cite sub-section (b)(1)(B). The Court will address these claims but first notes that the argument makes no sense because the sentence imposed on Counts One, Two, Four and Five was less than the 20 year maximum sentence that is provided in § 841(b)(1)(C).
Counts One and Two of the Superseding Indictment charged petitioner with possession with intent to distribute in excess of 500 grams of cocaine (Count One) and 5 grams of cocaine base ("crack") (Count Two) in violation of 21 U.S.C. § 841(a). At the change of plea hearing, petitioner admitted to possessing these drugs in quantities exceeding these amounts — 2.742 kilograms of cocaine, Trans. of Change of Plea Hearing 43:22, 47:12-14 (February 29, 2000), and 7.9 grams of cocaine base ("crack"), id. at 49:1-5. The Court applied § 841 (b)(1)(B) because the plain language of the statute directs courts to apply § 841(b)(1)(B) when a defendant is convicted of possession with intent to distribute in excess of 500 grams of cocaine or 5 grams of cocaine base ("crack"). In contrast, § 841(b)(1)(C) provides penalties for violations of
Title 21 United State Code Section 841(a)(1) provides:
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally —
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance.
(emphasis added).
21 U.S.C. § 841(b)(1)(B) provides:
(B) In the case of a violation of subsection (a) of this section involving —
(I) 100 grams or more of a mixture or substance containing a detectable amount of heroin;
(ii) 500 grams or more of a mixture or substance containing a detectable amount of —
(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;
(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;
(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or
(IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (I) through (III);
(iii) 5 grams or more of a mixture or substance described in clause (ii) which contains cocaine base;
* * *
such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years (emphasis added).
Section 841 (a) involving gamma hydroxybutyric acid and flunitrazepam. Neither of those substances is involved in this case and thus this section is clearly inapplicable.
21 U.S.C. § 841(b)(1)(C) provides for the following:
In the case of a controlled substance in schedule I or II, gamma hydroxybutyric acid (including when scheduled as an approved drug product for purposes of section 3(a)(1)(B) of the Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000), or 1 gram of flunitrazepam, except as provided in subparagraphs (A), (B), and (D), such person shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not less than twenty years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, or $1,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individual, or both . . .
3. Petitioner's Argument re Lack of Interstate Nexus for Felon in Possession Counts (Claim Three)
In his third claim, petitioner challenges Congress' power to regulate firearms under the Commerce Clause. These arguments relate to Counts Four and Five (the felon in possession counts) of the Superseding Indictment. 21 U.S.C. § 922(g)(1). Specifically, petitioner poses two questions: "(1) does Congress have the authority under the Constitution to regulate mere gun possession, without more, by any specific classes of citizens" and "(2) does the Commerce Clause to the United States Constitution grant Congress the power(s) to regulate the commerce that occurs, solely, within any sovereign state." Reply at 23. Petitioner asserts no court has addressed these issues. Specifically, petitioner claims that the Supreme Court in United States v. Bass, 404 U.S. 336 (1971) reserved the constitutional question whether congress could regulate, without more, the "mere possession" of firearms.
Title 21 of the United State Code Section 922(g)(1) provides:
It shall be unlawful for any person —
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
* * * to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Without addressing petitioner's characterization of the Supreme Court's holding in Bass, it is clear that the Third Circuit inUnited States v. Singletary addressed the petitioner's questions and its ruling is controlling. 268 F.3d 196 (3d Cir. 2001); see also, United States v. Torres, No. 00-302 (E.D. Pa. July 13, 2001). The defendant in Singletary argued that the felon-in-possession statute, 21 U.S.C. § 921(g)(1), is facially unconstitutional because the conduct it proscribes — the intrastate possession of a firearm — does not have a substantial affect upon interstate commerce, and thus, does not constitute a valid exercise of Congress' authority under the Commerce Clause.Singletary, 268 F.3d at 200. The Third Circuit construed the "precise question" raised by Singletary to be whether the proposition established in Scarborough v. United States, 431 U.S. 563 (1977) — the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce — survived as a viable statutory construct in the wake of United States v. Morrison, 529 U.S. 598 (2000); Jones v. United States, 529 U.S. 848 (2000); United States v. Lopez, 514 U.S. 549 (1995). The Singletary court answered that question in the affirmative. In Morrison, Jones and Lopez the Supreme Court invalidated three federal criminal statutes on the ground that the conduct they proscribed did not have a substantial effect upon interstate commerce and thus their adoption did not constitute a valid exercise of Congress' authority under the Commerce Clause.
The Third Circuit in Singletary summarized the Supreme Court's decisions in Morrison, Jones and Lopez as follows:
In Lopez, the Supreme Court addressed the constitutionality of the Gun Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A), which made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." The Court concluded that Congress had exceeded its authority under the Commerce Clause in enacting this statute because the statute neither regulated a commercial activity (possession of a gun near a school) nor contained a requirement that the possession of a firearm in a school zone be connected in any way to interstate commerce. See 514 U.S. at 551, 567-68.
* * *
In United States v. Morrison, the Supreme Court invalidated 42 U.S.C. § 13981, a statute that federalized "a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." See 529 U.S. at 607-27 . . . Analogizing to the statute at issue in Lopez, the Court recognized that "§ 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce." Id.
* * *
Seven days after the Supreme Court announced Morrison, it rendered its decision in Jones v. United States, construing a criminal statute drafted with an explicit interstate commerce jurisdictional element. Specifically, that statute, 18 U.S.C. § 844(I), makes it a federal crime to damage or destroy, "by means of fire or an explosive, any . . . property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce. Jones had "tossed a Molotov cocktail through a window into a home in Fort Wayne, Indiana, owned and occupied by his cousin." 529 U.S. at 851. He was thereafter indicted and convicted of this federal arson charge, and the Seventh Circuit affirmed his conviction.
The Supreme Court granted certiorari, framing the question presented as:
Whether, in light of United States v. Lopez, and the interpretive rule that constitutionally doubtful constructions should be avoided, 18 U.S.C. § 844(I) applies to the arson of a private residence; and if so, whether its application to the private residence in the present case is constitutional.Id. at 852 (internal citations omitted). In the Supreme Court, the government argued that the Fort Wayne residence was indeed "used" in at least three activities "affecting commerce" because: (1) the house was "collateral to obtain and secure a mortgage from an Oklahoma lender"; (2) the homeowner insured the residence with "a casualty insurance policy from a Wisconsin insurer"; and (3) the dwelling received "natural gas from sources outside Indiana." Id. at 855. However, the Court (in an opinion authored by Justice Ginsburg) rejected these arguments, reasoning that, "[w]ere we to adopt the Government's expansive interpretation of § 844(I), hardly a building in the land would fall outside the federal statute's domain." Id. at 857.
Importantly for our analysis (and particularly striking because Justice Ginsburg was a Lopez dissenter), the Court wrote: "Given the concerns brought to the fore in Lopez, it is appropriate to avoid the constitutional question that would arise were we to read § 844(I) to render the `traditionally local criminal conduct' in which petitioner Jones engaged `a matter for federal enforcement.'" Id. at 858 (quoting Bass, 404 U.S. at 350.
In an attempt to distinguish himself from the defendant inSingletary, petitioner vehemently denies he is challenging the constitutionality of Section 922(g)(1). Reply at 21-22. However, the plain meaning of the questions he poses goes to the constitutionality of Section 922(g)(1) and the Court will treat his challenge as such.
The Third Circuit concluded in Singletary that the rule inScarborough — the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce — places the felon in possession law, 21 U.S.C. § 921(g)(1), "well inside the fringes of the Commerce Clause" as articulated by the Supreme Court in Morrison, Jones and Lopez. Singletary, 268 F.3d at 201 (citing United States v. Gateward, 84 F.3d 670, 671 (3d Cir. 1996)). Contrary to petitioner's argument, there is no constitutional requirement that a defendant be involved in the interstate commerce. Thus, petitioner's argument is meritless and counsel was not ineffective for failing to pursue it on appeal.
4. Petitioner's Argument re Notice of Government's Intent to Use Prior Convictions to Enhance Sentence (Claim Four)
In his fourth claim, petitioner argues that his sentence was improper because the Superseding Indictment did not provide notice that the government intended to seek penalty enhancements based upon his prior convictions. As already stated, prior to the guilty plea, the government filed an Information pursuant to 21 U.S.C. § 851 alleging three prior drug convictions and a Notice of Defendant's Prior Convictions for Enhanced Sentencing Pursuant to 18 U.S.C. § 924(e).
Section 851 requires that the government give notice to a defendant of its intention to seek sentencing enhancements based on a prior conviction before trial or before a guilty plea. 21 U.S.C. § 851(a). The government complied with this requirement. Thus, petitioner's argument is meritless.
21 U.S.C. § 851(a) provides:
(a) Information filed by United States Attorney
(1) No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. Upon a showing by the United States attorney that facts regarding prior convictions could not with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of obtaining such facts. Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.
(2) An information may not be filed under this section if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.
In addition, in his Reply petitioner asserts that his sentence violates Apprendi because the Superseding Indictment did not provide notice that the government intended to seek penalty enhancements based upon his prior convictions. This argument presents the question whether after Apprendi a Court can sentence a defendant petitioner to enhanced penalties that arise from his prior convictions when those prior convictions are not charged in the Superseding Indictment and were not included as elements of the offense in the plea colloquy.
Sentencing enhancements resulting from prior convictions are specifically excluded from the rule in Apprendi. 530 U.S. at 490. In Almendarez-Torres v. United States, 523 U.S. 224 (1989), the Supreme Court ruled that the defendant's previous conviction for an aggravated felony may be used by the district court to enhance a defendant's sentence and need not be alleged in the indictment or established as an element of the offense. That practice was followed by this Court where it, in adopting the findings of the Presentence Report, found the existence of the relevant prior convictions.
Petitioner correctly points out that in Apprendi, Justice Thomas, writing in a concurring opinion, stated that he erred in providing the decisive vote in the 5-4 decision inAlmendarez-Torres. Reply at 19. Nonetheless, the Apprendi majority explicitly declined to overrule Almendarez-Torres. Accordingly, the decision in Almendarez-Torres remains binding precedent on this Court. Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions"). Thus, the allegations of prior convictions in this case need not be included in the indictment or admitted to by the defendant during the plea colloquy.
Because both arguments are meritless, petitioner's counsel was not ineffective for failing to pursue them on appeal.
D. CERTIFICATE OF APPEALABILITY
Upon the denial of a 28 U.S.C. § 2255 motion by the district court, an appeal to the Court of Appeals is not permitted unless the petitioner obtains a certificate of appealability. 28 U.S.C. § 2253. "At the time a final order denying a petition under 28 U.S.C. § 2255 is issued, the district judge shall make a determination as to whether a certificate of appealability should issue." Third Circuit Local Appellate Rule 22.2. The application for such a certificate should first be made to the district court. United States v. Williams, 158 F.3d 736, 742 n. 4 (3d Cir. 1998) (stating that "as a matter of practice . . . an unsuccessful movant in a § 2255 case should in the first instance seek a certificate of appealability from the district court").
The law permits the issuance of a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order to establish the denial of a constitutional right, the mere allegation of a constitutional wrong, such as deprivation of the rights to effective counsel, is insufficient; the petitioner must make a substantial showing of such an error in order to present an appeal. Santana v. United States, 98 F.3d 752, 757 (3d Cir. 1996). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
For the reasons set forth in this Memorandum, petitioner has not made the requisite showing of a denial of a constitutional right. Therefore, the Court declines to issue a certificate of appealability.
IV. CONCLUSION
For the aforementioned reasons, petitioner's Section 2255 Motion is denied. Because petitioner has not made the requisite showing of a denial of a constitutional right, the Court declines to issue a certificate of appealability.
An appropriate order follows.
ORDER
AND NOW, this 21st day of July, 2004, upon consideration of Marco Burton's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Docket No. 107, November 17, 2003), Government's Response to Defendant's Pro Se Habeas Corpus Motion Under 28 U.S.C. § 2255 (Docket No. 111, filed January 20, 2004), and Pro Se Reply Brief and Memorandum of Law(s) in Support Thereof to the Government's Response Brief and Memorandum of Law(s) in Support Thereof in Opposition to Petitioner's Pro Se Motion Seeking Habeas Corpus Relief(s) Pursuant to and in Accordance with Title 28 United States Code Section 2255 (Docket No. 114, filed March 31, 2004), IT IS ORDERED that:1. Petitioner Marco Burton's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 is DENIED; and
2. A certificate of appealability will not issue on the ground that petitioner has not made a substantial showing of a denial of a constitutional right as required under 28 U.S.C. § 2253(c).