Opinion
No. 3:00-CR-311-P(05), (3:02-CV-615-P)
January 8, 2003
MEMORANDUM OPINION AND ORDER
Before the Court for consideration are Jesus Mar Garcia's motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255, filed on March 25, 2002, the government's response, filed on August 8, 2002, and Movant's reply, filed on September 4, 2002.
STATEMENT OF THE CASE
On August 1, 2000, Movant was charged in a one-count indictment with conspiracy to possess with intent to distribute cocaine, cocaine base, and marijuana in violation of 21 U.S.C. § 846 and 841(a)(1). On November 2, 2000, Movant pled guilty pursuant to a plea agreement. On March 21, 2001, the District Court sentenced Movant to 112 months imprisonment and a five-year term of supervised release. Movant appealed. On May 23, 2001, the Fifth Circuit Court of Appeals dismissed the appeal for want of prosecution
In this § 2255 motion, Movant raises the following grounds for relief:
(1) counsel rendered ineffective assistance during plea negotiations and at sentencing because he failed to argue that Petitioner never possessed the alleged drugs, thus rendering him not guilty of conspiracy to possess with intent to distribute a controlled substance;
(2) counsel was ineffective during plea negotiations and at sentencing for failing to argue that drug quantity was an element of the offense which had to be charged in the indictment under Apprendi v. New Jersey, 530 U.S. 466 (2000);
(3) the indictment was fatally flawed pursuant to the ruling in Apprendi and
(4) The statute under which Movant was convicted, 21 U.S.C. § 841(a) and (b), is unconstitutional in light of Apprendi.
ANALYSIS
A. Waiver of Post-Conviction RemediesMovant knowingly and voluntarily waived his right to appeal and to seek post-conviction relief under § 2255 as part of the plea agreement.See United States v. White, 307 F.3d 336 (5th Cir. 2002) (recognizing that a defendant can voluntarily waive his right to file a § 2255 motion). However, that waiver does not apply to an ineffective assistance of counsel claim "when the claimed assistance directly affected the validity of that waiver or the plea itself." Id. at 343. Consequently, the Court will consider only Movant's claims that defense counsel provided ineffective assistance during plea negotiations. All remaining claims, including defense counsel's alleged ineffectiveness at sentencing, the fatally flawed indictment, and the unconstitutionality of § 841(a) and (b), are denied on the basis of the knowing and voluntary waiver.
The plea agreement in this case contains a waiver of post-conviction remedies. (Plea Agreement ¶ 7, Gov't Exh. D). This provision was pointed out to Movant at the rearraignment hearing. (Rearraignment Tr. at 21, Gov't Exh. A). The Magistrate Judge asked Movant whether he was entering into the plea agreement knowingly and voluntarily. Movant testified that he was. (Id. at 10-11).
Even if not waived, Movant's remaining grounds are meritless. As more fully set out below, Movant's attempt to rely on Apprendi as a basis for ineffective assistance of counsel at sentencing is meritless. See infra pp. 4-6. Movant's 112-month sentence does not exceed the statutory maximum of life imprisonment. See 21 U.S.C. § 841(b)(1)(A). Likewise his argument that the indictment was fatally flawed under Apprendi, thus depriving the Court of jurisdiction, lacks any merit. In United States v. Cotton, 535 U.S. 625, ___, 122 S.Ct. 1781, 1784-85 (2002), the Supreme Court held that defects in an indictment are not jurisdictional. See Wesson v. U.S. Penitentiary, 305 F.3d 343, 346 (5th Cir. 2002) (denying relief under § 2255 because alleged defects in indictment underApprendi and Richardson did not deprive the court of jurisdiction).
Movant next argues that 21 U.S.C. § 841, the statute under which he was convicted, is unconstitutional in light of the Supreme Court's ruling in Apprendi. The Fifth Circuit, however, has rejected this argument.United States v. Fort, 248 F.3d 475, 483 (5th Cir.), cert. denied, 122 S.Ct. 405 (2001) (Apprendi does not render 21 U.S.C. § 841(a) (b) facially unconstitutional); United States v. Slaughter. 238 F.3d 580, 582 (5th Cir. 2000), cert. denied 532 U.S. 1045 (2001).
B. Ineffective Assistance of Counsel During Plea Negotiations
To establish ineffective assistance of counsel in the context of a guilty plea, a defendant must demonstrate (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's errors, defendant would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 57-59 (1985); Strickland v. Washington, 466 U.S. 668, 687-694 (1984); United States v. Payne, 99 F.3d 1273, 1282 (5th Cir. 1996). The court need not address both components of this inquiry if the defendant makes an insufficient showing on one. Strickland, 466 U.S. at 697.
1. Counsel Failed to Argue that Movant Never Possessed the Alleged Drugs
Movant asserts he received ineffective assistance of counsel when counsel failed to argue during plea negotiations that he never actually possessed the illegal drugs, thus causing him to enter an unknowing and involuntary plea. Movant fails to meet his burden of proof under the first prong of the Strickland/Hill analysis. In a drug conspiracy under 21 U.S.C. § 846, the government must prove that "(1) there was an agreement between two or more persons to possess controlled substances with intent to distribute; (2) the defendant knew of the conspiracy and intended to join it; and (3) the defendant voluntarily participated in the conspiracy. United States v. Hass, 150 F.3d 443, 447 (5th Cir. 1998). The crime of the conspiracy is complete upon the formation of the illegal agreement. Even assuming Movant was never in actual possession of the drugs, the factual resume reflects that he was clearly part of a drug-distribution conspiracy. (Factual Resume at 1-2, Gov't Exh. E). In June 2000, he agreed to purchase ten kilograms of cocaine, for which he subsequently delivered approximately $150,000 (of which he personally contributed $50,000) to the seller in order to obtain the drugs. (Id. at 2). Consequently counsel was not deficient in advising Movant to plead guilty to the one-count indictment. See United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (counsel is not required to file meritless motions or raise frivolous argument). Movant's first ground is denied.
The cases on which Movant relies are inapposite in that none analyzed a conspiracy count. See United States v. Kitchen, 57 F.3d 516 (7th Cir. 1995) (challenging conviction for possession with intent to distribute cocaine on ground of sufficiency of evidence); United States v. Toro, 840 F.2d 1221, 1238 (5th Cir. 1998) (same); United States v. Posner, 868 F.2d 720, 722-23 (5th Cir. 1989) (same). Moreover, his contention that his copy of the indictment is different from the one attached to the government's response is patently frivolous. (Movant's Reply at 2).
2. Counsel Failed to Argue that Drug Quantity was an Element of the Offense
Relying on Apprendi, Movant asserts counsel failed to argue during plea negotiations that drug quantity was an element of the offense and had to be charged in the indictment. Movant again fails to meet his burden of proof under the first prong of the Strickland/Hill analysis — i.e., that his attorney's performance fell below an objective standard of reasonableness.The indictment in this case specifically charged that Movant and his co-defendants conspired to possess with intent to distribute in excess of five kilograms of cocaine, in excess of fifty grams of "crack cocaine," and in excess of one hundred kilograms of marijuana, (see Indictment at 4, Gov't Exh. C). Courts have held that the quantity of the substance charged must be included in the indictment. United States v. Doggett, 230 F.3d 160, 164-165 (5th Cir. 2000), cert. denied 531 U.S. 1177 (2001); see Apprendi, 530 U.S. 466 (2000). The Fifth Circuit, however, has held that a specific amount is not required; "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. De Leon, 247 F.3d 593, 597 (5th Cir. 2001)). The indictment in the instant case did exactly that. See United States v. Anderson, 2002 WL 1610964, *4 (E.D. La. 2002) (holding thatApprendi was satisfied because indictment alleged defendant knowingly and intentionally possessed with intent to distribute" a quantity of greater than fifty (50) grams of cocaine base ("crack")").
Insofar as Movant alleges the indictment lacks a statement of the penalty involved, such a statement is not required by Fed.R.Crim.P. 7(c).See United States v. Anderson, 2002 WL 1610964, *4 n. 5 (E.D. La. 2002);James v. United States, 2002 WL 1023146, *20 n. 7 (S.D.N.Y. 2002).
Moreover, the record reflects Movant waived his right to a jury trial and pled guilty to the one-count indictment. During the plea hearing, he entered a written factual stipulation in which he agreed that he conspired to distribute and possess with the intent to distribute "at least five kilograms or more of a mixture and substance containing a detectable amount of cocaine." (Factual Resume at 1-2, Gov't Exh. B). The truth or accuracy of this stipulation has not been and cannot be challenged.
The penalty for conspiring to possess with intent to distribute at least five kilograms of cocaine is not less than ten years or more than life imprisonment and a term of at least five years of supervised release. 21 U.S.C. § 841(b)(1)(A). Movant was sentenced to 112 months imprisonment to be followed by a five-year term of supervised release. Because Movant was sentenced within the permissible guidelines for distribution of at least five kilograms of cocaine, Apprendi simply does not apply. U.S. v. Deville 278 F.3d 500, 510 (5th Cir. 2002) (when defendant stipulated to the amount of drugs at the time of his plea and the sentence was enhanced within the statutory range based on stipulation, Apprendi does not apply); United States v. Fort, 248 F.3d 475, 483 (5th Cir.), cert denied ___U.S.___, 122 S.Ct. 405 (2001) (same).
Since Apprendi is inapplicable to the instant case, counsel was not deficient in failing to raise an Apprendi claim during plea negotiations. See United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (counsel is not required to file meritless motions or raise frivolous arguments). Accordingly, Movant's second ground is denied.
Movant was indicted and sentenced after the Supreme Court issued its opinion in Apprendi. Therefore, the government's assertion thatApprendi is not retroactively applicable to Movant's initial § 2255 motion is inapplicable.