Opinion
Criminal Action No. 96-259 Section, "E"
February 9, 2001
ORDER AND REASONS
Petitioner Al King Jones filed a motion to vacate or correct his sentence pursuant to 28 U.S.C. § 2255. He is currently in the custody of the Federal Bureau of Prisons serving a life sentence. In his § 2255 motion, Jones raised four claims for relief, as follows:
(1) Ineffective assistance of counsel because his counsel did not object to the Government's motion to revoke his plea agreement;
(2) Ineffective assistance of counsel on appeal because his counsel did not argue that the revocation of the plea agreement violated his Sixth Amendment right to the effective assistance of counsel at all critical stages of the proceeding;
3) The absence of counsel at the debriefing violated his Sixth Amendment right to counsel at all critical stages of the proceeding; and
4) Ineffective assistance of counsel because of his failure to object at sentencing to the relevant conduct determination which increased his statutory mandatory minimum.
Summary of Facts and Prior Proceedings
In a previously entered Memorandum Opinion (Rec. Doc. No. 149), the Court reviewed in detail the facts and procedural history. Briefly, petitioner Al King Jones, with co-defendants Marcell Jackson and Richard Anderson, were charged in a two count indictment. The first count was conspiracy to distribute an unspecified quantity of cocaine hydrochloride, a violation of 21 U.S.C. § 841 (a)(1) and 846 and the second count was attempting to possess with intent to distribute two kilograms of cocaine hydrochloride, a violation of 21 U.S.C. § 846 and 18 U.S.C. § 2.Petitioner Jones initially entered into a plea agreement with the Government and plead guilty to Count 1 in accordance therewith. The plea agreement provided that in exchange for an admission that he negotiated with an undercover law enforcement officer, with the intent to purchase two kilograms of cocaine, and resell some of it to co-defendant Marcell Jackson, and for cooperation in submitting to interviews with law enforcement officers, the Government agreed that a 10 year sentence would be appropriate.
One day after the plea agreement was signed, petitioner Jones was brought to a debriefing session with two federal Special Agents. His attorney was not present, but had telephoned the Assistant United States Attorney prior to the interview to advise that he was delayed, but that the interview could proceed without him. Jones' attorney did not tell him that he would not be present. After Jones inquired where his attorney was and was advised he would not be there, he refused to speak to the agents and recanted his previous statement in the plea agreement that co-defendant Marcell Jackson was involved in the drug conspiracy.
The Government moved to revoke the plea agreement, which was granted. Petitioner Jones plead guilty without a plea agreement. The Government filed a bill of information to establish two prior drug felonies. Because Jones told an undercover officer that he had money to purchase three kilograms and wanted to purchase five kilograms, if the money became available, a mandatory life sentence was imposed on Jones under 21 U.S.C. § 841 (b)(1)(A), as the amount involved in the conspiracy was determined to be 5 kilograms or more of cocaine. However, count one of the indictment charged Jones with conspiracy to possess with intent to distribute an unspecified quantity of cocaine, and count two charged the defendant with attempt to possess with intent to distribute two kilograms of cocaine.
Jones appealed his mandatory life sentence on the grounds that the court erred in calculating his offense level based on a finding that the offense involved five kilograms of cocaine. The Fifth Circuit found that Jones presented no evidence to rebut the findings in the presentence report (PSR) that the offense involved five kilograms of cocaine. It affirmed the sentence in an unpublished opinion. United States v. Jones, 157 F.3d 903 (5th Cir. 1998). The mandate was issued on September 15, 1998. Jones did not file an application for a writ of certiorari to the United States Supreme Court.
The instant habeas motion was filed on June 7, 1999. It was timely as it was filed within one year of the Fifth Circuit affirming his sentence. 28 U.S.C. § 2255.
This Court carefully reviewed the habeas claims raised by Jones in its previous Memorandum Opinion. (Rec. Doc. No. 149); United States v. Jones, 1999 WL569536 (E.D. La. 1999). This Court concluded that Jones did not demonstrate a per se violation of his Sixth Amendment right to counsel simply by the failure of his attorney to appear with him at the debriefing session after his guilty plea, but that an evidentiary hearing was necessary to determine the reasonableness of defense counsel's actions in allowing the government agents to debrief petitioner without his presence. 1999 WL 56936 *6. The Federal Public Defender was appointed to represent the petitioner on his habeas claim and an evidentiary hearing was scheduled.
Evidentiary Hearing
An evidentiary hearing was held at which petitioner Jones was represented by appointed counsel. Claude Kelly, an Assistant Federal Public Defender (AFPD), who was recognized as an expert in criminal defense, testified that he always attends his clients' first debriefing sessions, particularly when the client, the Assistant United States Attorney, and the agents are difficult to deal with, but does not always attend subsequent debriefing sessions. Kelly testified that both the AUSA and the Case Agent handling this matter could be difficult to deal with. He said that it was not uncommon for the debriefings to be tense, because the criminal defense clients often try to minimize their activity and the government agents frequently have an unrealistic idea about the clients' activities. His role, as a criminal defense attorney, in the debriefing sessions is to attempt to build a good personal rapport with the case agent, to try to slow things down if the interrogation becomes too intense, and to try to get the client to say something on which both the defendant and the case agent can agree. If the meeting is not going well with his client, he will try to end the meeting.
Petitioner Jones testified at the hearing that he did not understand the intricacies of the Federal Sentencing Guidelines and that he was not aware that he would receive a mandatory life sentence at the time he plead guilty after the revocation of his plea agreement. He believed that his guideline range called for a sentence of less than 10 years, but that by pleading guilty, he would agree to a 10 year sentence. He stated that his trial counsel, Bruce Ashley, was his third attorney and that he visited with him three times while he was incarcerated in the St. Bernard Parish Jail awaiting trial. Jones testified that was not satisfied with Ashley's services because he frequently did not communicate with him. The petitioner believed that with the multiple bill for his prior drug convictions, he thought he was probably going to be sentenced to approximately 129 months. He was unaware that he could be given a mandatory life sentence.
The petitioner maintained at the hearing that the debriefing session went awry from its inception. When he was brought to the United States Attorney's office for debriefing, his attorney was not present. He asked for his attorney and was told by the agent that he would not be present. Jones advised the agent that he would not lie and that Marcell Jackson, his co-defendant, was not involved in the conspiracy. The agent immediately terminated the interview and Jones insisted that he be returned to the St. Bernard Parish Jail where he was being held. A motion to revoke the plea agreement was filed within days of Jones' fateful meeting with the agents.
Petitioner's trial counsel, Bruce Ashley, a criminal defense lawyer with 26 years experience, testified that he was Jones' third lawyer post indictment. He visited Jones on a number of occasions. Jones resisted implicating Marcell Jackson, stating that he was willing to do his time for what he did. Ashley testified that he explained to Jones the enhancement possibility of the sentence because of the two prior drug convictions before the disastrous debriefing session. He stated that he warned Jones of the possible consequences of his failure to cooperate. Ashley testified that he discussed and emphasized the fact with Jones that if Jones' testimony was not in accordance with the plea agreement, particularly with regard to Marcell Jackson, then Jones should not sign the plea agreement. He explained that he would be given a 10 year sentence in exchange for the debriefing, but that he must be debriefed. Ashley advised Jones that the AUSA was convinced that co-defendant Marcell Jackson was involved in the conspiracy by being "counter-intelligence" because he was waiting in an automobile for Jones with a beeper and a cell phone, and that if he testified against Jackson, the government was willing to give him the 10 year deal.
Ashley concluded, after having the conversation with Jones about Jackson, that the debriefing could go well. He knew well and had previously had cases with the AUSA and the case agent. He admitted that Jones did not know he was not going to be there, but that he felt comfortable not being at the debriefing. Ashley found out within 45 minutes of the unfortunate events that had transpired.
After the motion to revoke the plea agreement was filed, Ashley told Jones that the government was going to multiple bill him, enhancing his sentence because of his two prior drug convictions. He told him that if they bump the amount from two kilograms to between 5 and 15 kilograms, a life sentence was a real possibility. He filed objections to the PSR that the amounts involved were in excess of two kilograms. Specifically, Ashley contended that the base offense should not be calculated on cocaine amounting to between five and fifteen kilograms, which results in a base offense level of 32. Instead, Ashley contended that there was no evidence available reflecting that Jones planned to purchase more than two kilograms and also no evidence available showing that he was involved in buying more than two kilograms between 1994 and 1996. The base offense level, he argued, should have been 26 for two kilograms of cocaine.
The Revision to the PSR indicates that if the defendant's base offense level were 26, his total offense would be 23. With a criminal history category of III and a total offense level of 23, his normal guideline imprisonment range would have been 57 to 71 months. With the bill. of information enhancing the statutory penalties, the penalty range would be ten years to life, and Jones' guidelines would have called for imposition of the minimum sentence of 10 years. The Court overruled the objection to the base offense level calculation, which was determined by using a drug quantity amount of between 5 and 15 kilograms of cocaine. With the three level subtraction for acceptance of responsibility, Jones' total offense level was 29. With a Criminal History category of III, Jones' normal guideline range would have been 120 to 135 months. However, using the mandatory life sentence provisions of 21 U.S.C. § 841 (b)(1)(A), for a person with two prior felony drug convictions whose drug quantity is five kilograms or more, Jones was sentenced to a mandatory life sentence.
Ashley testified that Jones never wanted to go to trial, but wanted to take the consequences for his actions. He was unwilling to implicate Jackson. Jones wanted to plead guilty to the charges and be sentenced on the basis of that plea even after the plea agreement was revoked.
Jones signed the plea agreement on February 12, 1997. He entered the initial plea on February 26, 1997. The fateful debriefing session took place on February 27, 1997. The government moved to revoke the plea agreement on March 4, 1997. The government filed the bill of information to establish Jones' two prior felony drug convictions on March 19, 1997. Jones plead guilty to both counts of the indictment without a plea agreement on March 24, 1997.
The government filed a bill of information charging Marcell Jackson with misprison of a felony by having knowledge that Jones was attempting to possess with intent to distribute cocaine and by concealing Jones' crime by holding Jones' pager and cell phone and by going ahead to the place where the cocaine was to be delivered so that he could warn Jones of the presence of police. Marcell Jackson plead guilty to the superseding bill of information on March 20, 1997. On May 14, 1997, Jackson was sentenced to a 15 month term of imprisonment. From the chronology of events, it appears that the government did not need Jones' testimony to convict Jackson. He pled guilty, albeit to a lesser offense, one day after the government filed a bill of information establishing Jones' prior convictions.
co-defendant Richard Anderson had previously pled guilty pursuant to a plea agreement and also received a 15 month prison term.
Post Evidentiary Hearing Issues
Subsequent to the evidentiary hearing which was held on December 14, 1999, counsel filed post-hearing memoranda. In the petitioner's post hearing memorandum, he raised the issue whether he could be subject to enhanced penalties under 21 U.S.C. § 841 when the indictment on count two for attempt specified that two kilograms of cocaine were involved and count one charged him a cocaine conspiracy involving an unspecified amount of cocaine. In support of this argument, the petitioner citedJones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999). InJones, the Supreme Court held that any fact, other than a conviction, which increases the maximum penalty must be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. 119 S.Ct. at 1228.
Jones was decided on March 24, 1999, after the petitioner's conviction became final.
The Supreme Court followed the Jones decision with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). A In Apprendi, the Supreme Court considered the question whether the Due Process Clause of the Fourteenth Amendment requires a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 years to 20 years be made by the jury on the basis of proof beyond a reasonable doubt. In answering this question, the Supreme Court interpreted Jones as resting on constitutional principles, as follows:
Apprendi was decided on June 26, 2000.
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant. is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt." 526 U.S. at 252-253, 119 S.Ct. 1215 (opinion of STEVENS, J.); see also id., at 253, 119 S.Ct. 1215 (opinion of SCALIA, J.).120 S.Ct. at 2362-63.
Upon reviewing these decisions, this Court became concerned that, irrespective of the petitioner's ineffective assistance of counsel claims, that his fundamental due process rights, as defined in Jones andApprendi, were violated by imposing a mandatory life sentence based upon a quantity five kilograms or more of cocaine in light of the indictment, which charged him with one count of conspiracy to distribute an unspecified quantity of cocaine and one count of attempt to possess with intent to distribute two kilograms of cocaine. The Court directed the parties to file supplemental memoranda addressing the Jones and Apprendi issues inherent in the petitioner' s sentence.
In its Apprendi memorandum, the government adopts the position that even if there was a Jones/Apprendi violation in the imposition of a life sentence on Jones in these circumstances, these decisions do not apply retroactively to claims raised on collateral review.
In support of this position, the government relies on Sustache-Rivera v. United States, 221 F.3d 8 (1st Cir. 2000). The court inSustache-Rivera held that under the AEDPA, the Antiterrorism and Effective Death Penalty Act of 1996, Pub. Law. No. 104-132, 110 Stat. 1214, habeas petitioners are limited in their efforts to raise claims in second or successive petitions and must necessarily obtain permission from courts of appeal before such petitions can be considered. See, 28 U.S.C. § 2255, 2244(b)(3). If the habeas petition is based upon a legal ground, as opposed to a factual one, leave from the appellate courts may be granted only when:
the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2244 (b)(2)(A). The Sustache-Rivera court observes that a habeas petitioner's efforts to apply the Jones/Apprendi rule would be thwarted unless: "(1) this petition is considered to be a first petition; or (2) he meets the gatekeeping requirements for second or successive petitions; or (3) his claim fits within § 2255's savings clause for cases in which § 2255 provides an "inadequate or ineffective" remedy." 221 F.3d at 15. The First Circuit then held that the Supreme Court had not made the rule retroactive to cases on collateral review. Id.
Similarly, the Fifth Circuit in In re Billy Ray Tatum, 233 F.3d 857 (5th Cir. 2000), when presented with a second or successive habeas petitioner's application to raise a Jones/Apprendi claim on the grounds that the claims are based on a new rule of constitutional law that the Supreme Court has made retroactive on collateral review, held that the Supreme Court has not stated that the holdings in any of those cases are to be applied retroactively to cases on collateral review. 233 F.3d at 859.
The Fifth Circuit in Tatum construed Jones to rely on statutory, not constitutional grounds. 233 F.3d at 858. The First circuit inSustache-Rivera recognized that while the language in Jones suggested that it was decided on the. basis of the language of the statute, the Supreme Court in Apprendi, referring to Jones, stated that [w]e there noted that under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. The Fourteenth Amendment commands the same answer in. this case involving a state statute. 221 F.3d at 15, quoting Apprendi, 120 S.Ct. at 2355-56 (emphasis added and internal quotation marks and citation omitted). This suggests that the Supreme Court is signaling that Jones was decided on constitutional grounds. For purposes of the instant habeas motion, it is irrelevant whether Jones announced a new constitutional rule because this is petitioner's first habeas and he need not meet the requirements of the AEDPA for filing a second or successive habeas.
This is not a second or successive § 2255 petition of Jones, but his first. While Jones may not, at the present time, be able to demonstrate that under the AEDPA he could raise this claim in a second or successive petition, he can raise this claim in his first petition. See, Sustache-Rivera, 221. F.3d at 11-12.
Standard of Review in 28 U.S.C. § 2255 Motions
The Fifth Circuit summarized the standard of review on a petition for relief under 28 U.S.C. § 2255 in United States v. Shaid, 937 F.2d 228 (5th Cir. 1991), citing to the-seminal § 2255 decision in United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584 (1982):
The Supreme Court has emphasized repeatedly that a "collateral challenge may not do service for an appeal. After conviction and exhaustion or waiver of. any right to appeal, "we are entitled to presume that (the defendant] stands fairly and finally convicted." A defendant can challenge his conviction after it is presumed final only on issues of constitutional or jurisdictional magnitude, Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471 (1962), and may not raise an issue for the first time on collateral review without showing both "cause" for his, procedural default, and "actual prejudice" resulting from the error. This cause and actual prejudice standard presents "a significantly higher hurdle" than the "plain error" standard that we apply on direct appeal. We apply this rigorous standard in order to ensure that final judgments command respect and that their binding effect does not last only until "the next in a serious of endless postconviction collateral attacks."Shaid, 937 F.2d at 231-32, quoting Frady, 456 U.S. at 164-166, 168, 120 S.Ct. 1592-1594. If the error raised is not of constitutional or jurisdictional dimension, the defendant must demonstrate that the error could not have been raised on direct appeal, and if condoned, would result in a complete miscarriage of justice. Shaid, 947 F.3d at 232;United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981).
Even in instances of a fundamental constitutional error, the defendant must meet this cause and prejudice test. Shaid, Id; Murray v. Carrier, 477 U.S. 478, 493, 106 S.Ct. 2639, 2648 (1986). Only in the extraordinary case where a constitutional Violation has likely resulted in the conviction of a person who is actually innocent will the petitioner be excused from proving cause and prejudice for his procedural default.Shaid, Id; Carrier, 477 U.S. at 496, 106 S.Ct. at 2649. Actual innocence, in this context, means factual innocence, not mere legal insufficiency. To prove that he is actually innocent, the petitioner must establish that, considering all of the evidence, it is more likely than not that no reasonable juror would have convicted him Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611 (1998).
The Court will first consider the petitioner's Jones/Apprendi claim, because it is dispositive of the petition.
Jones/Apprendi Claim
Petitioner Jones contends that his due process rights were violated because he was convicted of conspiring to distribute an unspecified quantity of cocaine under 21 U.S.C. § 841 (a)(1), which provides for increasingly severe penalties on the basis of drug quantity, and of attempting to possess with intent to distribute two kilograms of cocaine, but was sentenced under 21 U.S.C. § 841 (b)(1)(A) based upon a drug quantity of five kilograms or more. Two recent decisions of the Supreme Court, Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), have held that a fact that increases the penalty of a crime beyond the prescribed statutory maximum must be alleged in the indictment and proved to the jury beyond a reasonable doubt. The Fifth Circuit, relying onJones and Apprendi, has determined that when drug quantity is used to obtain an enhanced sentence, the quantity of drugs is an element of the offense. Burton v. United States, 2000 WL 1873831 (5th Cir. Dec. 22, 2000).
On appeal, Jones contended that the district court erred in calculating his offense level based on a finding that his offense involved five kilograms of cocaine. This argument was grounded in the Sentencing Guidelines, not in constitutional principles such as that which guidedApprendi and apparently Jones. Regardless whether Jones raised this issue on appeal, he must meet the cause and prejudice requirements ofShaid/Frady in order to prove his entitlement to habeas relief. 837 F.2d at 228, 102 S.Ct. at 1593. The Court finds that Jones has shown adequate cause for his failure to raise this precise constitutional issue on appeal because neither Jones nor Apprendi had been rendered at the time of his guilty plea trial or his appeal. As recognized by the court in United States v. Logan, 135 F.3d 353, 355 (5th Cir. 1998), quoting Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901 (1984), "(a] petitioner seeking collateral relief may be excused from failing to make an objection in the original proceeding if the basis for the objection was not known until after petitioner's conviction become final."
To obtain relief, Jones must also demonstrate prejudice, i.e., he must show that his substantial rights were affected. In analyzing an Apprendi challenge, the Fifth Circuit has noted that "Apprendi allows for only a sentencing challenge, not a challenge to the underlying conviction, and in sentencing cases we have generally determined prejudice by considering whether the alleged error resulted in an increased sentence for the defendant." United States v. Meshack, 225 F.3d 556, 576 (5th Cir. 2000). The Meshack court, after studying Apprendi, determined that a violation of its principle occurs only when the defendant's sentence exceeds the statutory maximum with which he was charged and which was tried to the jury. Id.
The Meshack court was persuaded by the reasoning of United States v. Aquavo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000), which held that so long as the factual determination of the quantity of drugs which was made by the court in sentencing falls within the range allowed by the statute and does not exceed the statutory maximum, Apprendi's concerns are satisfied.
The Fifth Circuit provided additional guidance — on the questions posed by Jones and Apprendi in United States v. Doggett, 230 F.3d 160 (5th Cir. 2000). In Doggett, the court provided the following analysis to be used in determining if the defendant's due process rights were violated in a conviction under 21 U.S.C. § 841:
This case presented the question recently left unanswered in United States v. Meshack, 225 F.3d 556 (5th Cir. 2000), whether drug quantities under § 841(b) are sentencing factors or elements of the offense. We conclude that there is no reasonable construction of § 841 that would allow us to avoid the broad constitutional rule of Apprendi. Notwithstanding prior precedent of this circuit and the Supreme Court that Congress did not intend drug quantity to be an element of the crime under 21 U.S.C. § 841 and 846, we are constrained to find the opposite. . . . The relevant inquiry is now whether a factual determination is involved, and whether that determination increases the sentence beyond the maximum statutory penalty.
Section 841 clearly calls for a factual determination regarding the quantity of the controlled substance, and that factual determination significantly increases the maximum penalty from 20 years under § 841(b) (1)(C) to life imprisonment under § 841(b)(1)) (A). Therefore, we hold that if the government seeks enhanced penalties based on the amount of drugs under 21 U.S.C. § 841 (b)(1)(A) or (B), the quantity must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable doubt. To the extent our prior precedent is inconsistent with this holding and Apprendi, it is overruled.230 F.3d at 164-65.
The Doggrett court held that, when no quantity of drugs is specified in the indictment, there is no violation if the defendant is sentenced using the statutory range contained in § 841(b)(1)(C) and his sentence does not exceed the maximum possible penalty of that subsection. Under these circumstances, the court found that the sentence was not enhanced beyond the statutory maximum by a factor not contained in the indictment or submitted to the jury. 230 F.3d at 165. Doggett specifically rejected the argument that Apprendi prohibits the trial court from determining the amount of drugs for relevant purposes under the Sentencing Guidelines, noting:
The decision in Apprendi was specifically limited to the facts which increase the penalty beyond the statutory maximum, and does not invalidate a court's factual finding for the purposes of determining the applicable Sentencing Guidelines. Apprendi, 120 S.Ct. at 2363-64. Apprendi did not affect the Supreme Court's prior holding in Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475 (1998), that the judge determines the kinds and amounts of the controlled substances when imposing sentences within the statutory range.230 F.3d at 166.
Armed with these guiding principles, the Court must determine whether there was an Apprendi violation in the sentence imposed on Jones for his convictions of 21 U.S.C. § 841 and § 846. Each count will be considered separately.
The first count of the indictment charges Jones with conspiracy to distribute an unspecific quantity of cocaine, a violation of 21 U.S.C. § 841 (a)(1) and § 846. Because the quantity of cocaine is not specified in the indictment, the relevant maximum possible sentence is contained in 21 U.S.C. § 841 (b)(1)(C). The maximum possible sentence for a violation of this subsection is a "term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance", not less than twenty years or more than life. This same subpart, § 841(b)(1)(C), also provides that "[i]f any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years and if death or serious bodily injury results from the use of such substance shall be sentenced tolife imprisonment." 21 U.S.C. § 841 (b)(1) (C).
Since there was no evidence that death or serious bodily resulted from the use of the cocaine, the maximum possible penalty that could have been incurred by Jones under 21 U.S.C. § 841 (b)(1)(C) was 30 years. Jones was given a life sentence. His life sentence as to count one violates the principles of Jones and Apprendi and must be vacated.
Count two charged Jones with attempt to possess with intent to distribute approximately two kilograms of cocaine in violation of 21 U.S.C. § 841 (a)(1) and § 846. Because the quantity of drugs specified in the indictment was 500 grams or more of cocaine, but less than 5 kilograms, the maximum possible penalty is contained in 21 U.S.C. § 841 (b)(1)(B). The penalty provisions of that section provides that in the event of a violation of this particular section, the defendant "shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life. . . . If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment." 21 U.S.C. § 841 (b)(1) (B).
It is plain that under this section, petitioner's mandatory minimum sentence was 10 years, but that life was the maximum possible sentence. While it might be appropriate to find that a defendant's sentence does not violate the dictates of Jones/Apprendi when it does not exceed the maximum possible sentence in situations where the indictment contains an unspecified drug quantity, in circumstances where the drug quantity is specified and there are mandatory minimums, the mandatory minimum sentence applicable is the one contained in the particular part of § 841(b) (1) the defendant is being charged with.
In context of the Jones/Apprendi framework, on count two of the indictment which specifies that the drug quantity involved in two kilograms, the defendant should have been sentenced under 21 U.S.C. § 841 (b)(1)(B). Due to Jones' prior felony drug convictions, the mandatory minimum sentence required by § 841(b)(1) (B) was 10 years, and the statutory sentencing range was not less than 10 years, nor more than life, based upon a cocaine quantity of 500 grams or more, but less than 5 kilograms. Had the drug quantity on this charge been fixed at two kilograms, the PSR reflects that his total offense level would have been 23, his normal guideline range 57 to 71 months, but that he would have been subject to the mandatory minimum sentence of 10 years.
Because the drug, quantity was determined to be five kilograms or more, despite the two kilograms stated in the indictment for count two, the defendant was sentenced on count two under 21 U.S.C. § 841 (b) (1)(A). This requires the imposition of a mandatory life sentence since Jones had two prior felony drug convictions. Had it not been Jones' third drug conviction, his guideline range, even computing the quantity to be 5 to 15 kilograms, would have been 120 to 135 months, i.e., 10 years to 11 years and three months.
Under the circumstances of this case, because the indictment specified two kilograms in count two, the Court finds that the imposition of a mandatory life sentence as a mandatory minimum sentence specified in 21 U.S.C. § 841 (b)(1)(A) violates those principles addressed inJones and Apprendi. Had Jones been sentenced under 21 U.S.C. § 841 (b)(1)(B) for count two, as was required by the indictment which specified the quantity as two kilograms, the mandatory minimum sentence would have been 10 years, not life. Pursuant to the requirements ofJones and Apprendi, petitioner Jones must be resentenced on count two under 21 U.S.C. § 841 (b)(1)(B).
Ineffective Assistance of Counsel
It is unnecessary to address Jones' claim of ineffective assistance of counsel. For purposes of appellate review, however, the Court makes the following findings. Jones' trial and appellate counsel, Bruce Ashley, advised the defendant of the requirements of the initial plea agreement and of the possibility of sentence enhancement due to his prior felony drug convictions. If the Court accepts Ashley's testimony that he impressed upon Jones the critical significance of his cooperation concerning Marcell Jackson, and the fact that the plea agreement could be revoked and a multiple bill filed exposing Jones to mandatory life imprisonment, then the Court must find that it was not reasonable for Ashley to allow the debriefing session to take place without his presence. Ashley stated that he knew the AUSA and the case agent involved in the session. He was aware that the AUSA had some particular idea about co-defendant Marcell Jackson's role in the drug conspiracy. Ashley also stated that he was aware that his client, petitioner Jones, was reluctant to implicate Marcell Jackson.
Given the fact that Ashley admitted it was crucial to the unusual plea agreement that Jones cooperate with respect to Jackson, Jones' reluctance to do so, despite his signing the plea agreement, and the delicate balance to be struck in. the debriefing session, it was constitutionally ineffective for Ashley to allow the session to go forward without him. This is particularly so in light of the fact that the government had threatened to multiple bill Jones and expose him to a mandatory life sentence if he did not cooperate. Jones was prejudiced by this error of counsel because the Court finds that if counsel had been present, it is unlikely that the government would have filed a motion to revoke the plea agreement. The Court finds it probable that counsel would have consulted with his client, in the event the client attempted to recant his prior statement, and prevented the hasty termination of the session, or at least, ended it on a more cordial note, with an effort to urge Jones' cooperation. Certainly Jones did not help himself at the session, but that is what the assistance of counsel is supposed to provide. The Court, who is familiar with Ashley's ability and finds him to be a highly competent counsel, finds that Ashley erred gravely in this instance and it likely cost his client a very favorable plea agreement, exposing him to a life sentence.
Conclusion
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of petitioner Al King Jones to vacate or correct sentence under 28 U.S.C. § 2255 be and is hereby GRANTED and his sentence (Rec. Doc. No. 125) is hereby VACATED;
Resentencing is scheduled on MAY 2, 2002. at 10:00 a.m. The United States Probation Office is DIRECTED to prepare an updated Presentence Report in accordance with the ruling herein.