Opinion
CRIMINAL ACTION NO. 01-052, SECTION "R" (4)
November 4, 2002
ORDER AND REASONS
Before the Court is petitioner Kendrick Cooper's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies petitioner's motion.
I. BACKGROUND
On April 25, 2001, defendant Kendrick Cooper, pursuant to a written plea agreement, pleaded guilty to a two-count indictment, including one count of knowingly and intentionally distributing more than five (5) but less than fifty (50) grams of crack cocaine, and one count of knowingly and intentionally distributing more than fifty (50) grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). As part of his plea agreement, Cooper agreed not to appeal or contest his sentence in any post-conviction proceeding, including a proceeding under 28 U.S.C. § 2255, except under limited circumstances. See Plea Agreement, Doc. No. 17. Specifically, Cooper reserved the right to challenge (1) any punishment imposed in excess of the statutory maximum, and (2) any punishment to the extent it constitutes an upward departure from the Guideline range deemed most applicable by the sentencing court. Id.
The plea agreement was submitted in the form of a Bryan letter. See Bryan v. United States, 492 F.2d 775 (5th Cir. 1974).
At sentencing, the Court enhanced the defendant's base offense level by two points pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a firearm during a drug trafficking crime. Cooper's attorney had originally filed two written objections to this enhancement, but withdrew them on the day of sentencing. The result was a total offense level of 31 and a criminal history category of I, which resulted in a Guideline sentencing range of 108 to 135 months. The offenses involved a statutory minimum sentence of five years for Count 1 and ten years for Count 2, and a statutory maximum sentence of forty years for Count 1 and life for Count 2. Therefore, Cooper's minimum sentence under the Guideline range was increased to 120 months, or ten years, while the upper end of the Guideline range remained at 135 months. On September 7, 2001, the Court entered judgment against Cooper, sentencing him to a term of 120 months imprisonment and a term of supervised release of five years.
Cooper filed a direct appeal of his sentence on July 29, 2002. On September 4, 2002, the Fifth Circuit dismissed his appeal as untimely. Also on July 29, 2002, Cooper filed this Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255. The motion is difficult to understand, but the Court has gleaned that Cooper asserts on Apprendi grounds that the indictment failed to specify the quantity of drugs involved and that the Court was incorrect in enhancing his sentence based on possessing a firearm because no firearm was charged in the indictment.
Cooper did not cite 28 U.S.C. § 2255, but the Court has determined this to be the statute under which petitioner intended to proceed.
II. DISCUSSION
A. Waiver
As noted, petitioner waived his right to challenge his sentence in a post-conviction proceeding if his sentence was below the statutory maximum and within the statutory Guideline range. The Fifth Circuit has held that a waiver of postconviction relief such as 28 U.S.C. § 2255 is valid if the waiver is informed and voluntary. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). The defendant must know that he had "a right to appeal his sentence and that he was giving up that right." United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (internal quotation marks and citation omitted). It is the responsibility of the district court "to insure that the defendant fully understands [his] right to appeal and the consequences of waiving that right." United States v. Gonzalez, 259 F.3d 355, 357 (5th Cir. 2001) (quoting United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992)
Here, the evidence indicates that Cooper's waiver was both knowing and voluntary. His signed plea agreement contained an express waiver of his right to appeal or seek relief under section 2255 if his sentence was within the applicable sentencing guideline range and below the statutory maximum. (See Plea Agreement, Doc. No. 17.) During Cooper's rearraignment, the Court summarized the indictment, reviewed the provisions of the plea agreement, and noted the mandatory minimums and maximums under the statutes. (See Transcript of Rear.) The Court also advised defendant that the government would have to prove the drug quantity charged beyond a reasonable doubt if he chose to go to trial. (See id. at 8.) Cooper indicated that he understood the ramifications of pleading guilty. The Court asked the lawyers to review the terms of the plea agreement, and Cooper confirmed that he understood the terms of the plea agreement and had reviewed it with his lawyer. The Court specifically questioned Cooper about his waiver of the right to appeal, and he confirmed that he knowingly waived his right to challenge his sentence. The Court determined on the record that he understood the nature of the rights that he was forfeiting. (Id. at 6.) See Frank v. United States, 501 F.2d 173, 175 (5th Cir. 1973) Thus, Cooper affirmed that he fully understood and voluntarily approved of his plea. "Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Indeed, Cooper does not even assert that he did not understand the appeal waiver or that the waiver was involuntary.
The transcript of the rearraignment states in pertinent part:
THE COURT: IN COUNT ONE OF THE INDICTMENT, YOU ARE CHARGED WITH KNOWINGLY AND INTENTIONALLY DISTRIBUTING MORE THAN FIVE (5) GRAMS BUT LESS THAN FIFTY (50) GRAMS OF COCAINE BASE, AND IN COUNT TWO, YOU ARE CHARGED WITH KNOWINGLY AND INTENTIONALLY DISTRIBUTING MORE THAN FIFTY (50) GRAMS OF COCAINE BASE. YOUR MAXIMUM POSSIBLE SENTENCE THAT COULD BE IMPOSED ON YOU IN THE EVENT OF CONVICTION ON THESE CHARGES, EITHER BY PLEADING GUILTY OR AFTER A TRIAL AT WHICH YOU ARE FOUND GUILTY, IS:
AS TO COUNT ONE, IMPRISONMENT FOR A MANDATORY MINIMUM TERM OF FIVE YEARS AND A MAXIMUM TERM OF FORTY YEARS TOGETHER WITH A FINE OF NOT MORE THAN THE GREATEST OF TWO MILLION DOLLARS OR THE GREATER OF TWICE THE GROSS GAIN TO YOU OR TWICE THE GROSS LOSS TO THE VICTIM. THE MAXIMUM SENTENCE WOULD ALSO PROVIDE FOR A TERM OF SUPERVISED RELEASE AFTER IMPRISONMENT FOR A PERIOD OF AT LEAST FOUR YEARS.
ON COUNT TWO, THERE IS A MANDATORY MINIMUM SENTENCE OF TEN YEARS AND A MAXIMUM TERM OF LIFE IMPRISONMENT WITH ALSO A FINE OF NOT MORE THAN THE GREATEST OF FOUR MILLION DOLLARS OR THE GREATER OF TWICE THE GROSS GAIN TO YOU OR TWICE THE GROSS LOSS TO THE VICTIM. THE MAXIMUM SENTENCE ON COUNT TWO WOULD ALSO PROVIDE FOR A TERM OF SUPERVISED RELEASE AFTER IMPRISONMENT OF AT LEAST FIVE YEARS.
The transcript states in pertinent part:
THE COURT: DO YOU UNDERSTAND THAT IF I ACCEPT YOUR PLEA OF GUILTY, YOU WILL NOT BE ENTITLED TO A TRIAL AND THE GOVERNMENT WILL NOT BE REQUIRED —THE DEFENDANT: YES, YOUR HONOR —
THE COURT: — TO PROVE YOU GUILTY. . . . DO YOU UNDERSTAND THAT IF YOU PLEAD NOT GUILTY, YOU WOULD BE ENTITLED TO A SPEEDY AND PUBLIC TRIAL BY A JURY OF TWELVE PERSONS OR A TRIAL BY THE JUDGE IF YOU WAIVE A JURY TRIAL.THE DEFENDANT: YES, YOUR HONOR.
THE COURT: DO YOU UNDERSTAND THAT IF YOU WENT TO TRIAL BEFORE YOU COULD BE FOUND GUILTY OF COUNT 1, THE GOVERNMENT WOULD BE REQUIRED TO PROVE BY COMPETENT EVIDENCE AND BEYOND A REASONABLE DOUBT THE FOLLOWING FACTS. FIRST, THAT YOU KNOWINGLY DISTRIBUTED MORE THAN FIVE (5) GRAMS BUT LESS THAN FIFTY (50) GRAMS OF A CONTROLLED SUBSTANCE AS CHARGED IN COUNT 2 OF THE INDICTMENT. AND SECOND, THAT THAT SUBSTANCE WAS IN FACT COCAINE BASE.
BEFORE YOU COULD BE FOUND GUILTY OF COUNT 2, THE GOVERNMENT WOULD BE REQUIRED TO PROVE BY COMPETENT EVIDENCE AND BEYOND A REASONABLE DOUBT THAT YOU KNOWINGLY DISTRIBUTED MORE THAN FIFTY (50) GRAMS OF A CONTROLLED SUBSTANCE AS CHARGED IN COUNT 2 OF THE INDICTMENT; AND THAT THE SUBSTANCE WAS COCAINE BASE.
DO YOU UNDERSTAND THAT'S WHAT THE GOVERNMENT WOULD HAVE HAD TO HAVE PROVED?THE DEFENDANT: YES, YOUR HONOR.
The transcript states in pertinent part:
THE COURT: IN THE PLEA AGREEMENT, DO YOU AGREE TO WAIVE YOUR RIGHT TO APPEAL YOUR SENTENCE, INCLUDING IN ANY POST-CONVICTION PROCEEDING, EXCEPT TO RESERVE YOUR RIGHT TO APPEAL ANY PUNISHMENT IMPOSED IN EXCESS OF THE STATUTORY MAXIMUM, OR THAT AMOUNTS TO AN UPWARD DEPARTURE FROM THE GUIDELINE RANGE?THE DEFENDANT: YES, YOUR HONOR.
THE COURT: DO YOU UNDERSTAND THAT YOU HAVE IN FACT AGREED TO RELINQUISH YOUR APPEAL RIGHT IN THAT WAY?THE DEFENDANT: YES.
B. Quantity of Drugs Involved
Courts have held that the quantity of the drugs charged must be included in the indictment. See Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Doggett, 230 F.3d 160, 164-165 (5th Cir. 2000). The Fifth Circuit, however, has held that a specific amount is not required; rather, "Apprendi is satisfied when an indictment alleges a range of drug quantity rather than a specific amount." United States v. Moreci, 283 F.3d 293, 297 (5th Cir. 2002) (citing United States v. DeLeon, 247 F.3d 593, 597 (5th Cir. 2001)). The indictment in this case did exactly that. Therefore, the Court finds Cooper's Apprendi argument without merit.
C. Enhancement Based on Firearm
Even if Cooper had not validly waived his right to appeal his sentence, his challenge to the firearm enhancement would fail. Cooper is correct in arguing that a firearm was not charged in the indictment but was used to enhance his sentence. The Sentencing Guidelines, however, expressly provide for this type of enhancement. See U.S.S.G. § 2D1.1(b)(1). Moreover, the Supreme Court and the Fifth Circuit have held that a fact used in sentencing that does not increase the defendant's penalty beyond the statutory maximum need not be alleged in the indictment and proved to a jury beyond a reasonable doubt. See Harris v. United States, 122 S.Ct. 2406, 2420, 153 L.Ed.2d 524, 545 (2002) (holding that "brandishing" a gun is not an element of the crime because it only increased the mandatory minimum sentence); United States v. Keith, 230 F.3d 784, 786-87 (5th Cir. 2000) (holding that, in light of Apprendi, a drug quantity must be alleged in the indictment only if it increases a sentence beyond the statutory maximum). This two-point enhancement based on possession of a firearm did not increase Cooper's sentence beyond the statutory maximum of forty years for Count 1 or life for Count 2. Rather, his sentence of 120 months is the minimum sentence that he could have received based on his crimes.
III. Conclusion
For the foregoing reasons, the Court DENIES defendant's section 2255 motion to vacate, set aside, or correct the sentence.