Opinion
Case No 97-40013.
October 12, 2001
MEMORANDUM AND ORDER
This matter is before the court on defendant's motion brought pursuant to 28 U.S.C. § 2255 (Doc. 248). Defendant asserts his sentence should be vacated in light of the recent Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). After review, the court finds the record in this case conclusively shows defendant is entitled to no relief. The government will not therefore, be required to respond. For the following reasons, defendant's motion is denied.
I. BACKGROUND
On November 29, 1999, defendant pled guilty to distribution of approximately forty grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). Defendant was sentenced to 108 months in prison on March 30, 2000.
Defendant's sentence was based on the United States Sentencing Commission Guideline ("U.S.S.G.") found in U.S.S.G. § 2D1.1. The offense level used in determining the sentence length is calculated by assessing the amount of drugs attributable to the defendant, not the amount set forth in the indictment. Because the pre-sentence investigation report prepared by the United States Probation Office determined defendant was responsible for 540 grams of crack cocaine, he was given a base offense level of thirty six. After adjustments, defendant's total offense level was thirty-one. Based on this offense level combined with defendant's zero point rating for criminal history, the U.S.S.G. provides for a sentencing range of 108 months to 135 months. The statutory provisions, on the other hand, require a sentencing range of not "less than five years and not more than forty years." 21 U.S.C. § 841(b)(1)(B).
Defendant's base offense level would have been thirty had it been evaluated using the forty grams of crack cocaine contained in the indictment.
Defendant had no history of criminal convictions hence the zero point rating for criminal history.
The sentencing range dictated by 21 U.S.C. § 841(b)(1)(B), is the same regardless of whether sentencing was based on distribution of the forty grams of crack cocaine contained in the indictment or the 540 grams contained in the pre-sentence investigation report.
II. DISCUSSION
Defendant contends that the Supreme Courts decision in Apprendi renders his conviction unconstitutional. In Apprendi, the Court held that "any fact increasing the penalty for a crime beyond the statutory maximum, [other than prior convictions], must be submitted to the jury, and proved beyond on a reasonable doubt." Apprendi, 530 U.S. at 490. Defendant maintains this holding not only deems 21 U.S.C. § 841 unconstitutional, but also renders the technique used to calculate his sentence unconstitutional. For the following reasons, defendant's reliance on Apprendi is misplaced.
First, the Supreme Court's decision in Apprendi is not available to defendant because Apprendi was decided after defendant was sentenced. Defendant was sentenced on March 30, 2000. The Supreme Court announced it's decision in Apprendi on June 26, 2000. The issue, then, is whether the Supreme Court's decision in Apprendi retroactively applies to defendant's case even though defendant was convicted and sentenced before the decision.
The Tenth Circuit has held that although the rule announced in Apprendi is a new rule, the Supreme Court has not made the rule retroactive to cases on collateral review. Browning v. United States, 241 F.3d 1262, 1265 (10th Cir. 2001). See also United States v. Garcia, Nos. 0l-03029-JWL, 97-20067-11-JWL, 2001 WL 579817, at *5 (D. Kan. May 23, 2001). Thus, in the Tenth Circuit, Apprendi is inapplicable to defendant's collateral attack unless the rule in Apprendi falls within one of the exceptions set out in Teague v. Lane, 489 U.S. 288, 309 (1988).
The first exception announced in Teague is for these new Supreme Court rules ""forbidding criminal punishment of certain primary conduct [and] rules prohibiting a certain category of punishment for a class of defendants because of their status or offense."' Garcia, 2001 WL 579817 at *5 (quoting O'Dell v. Netherland, 521 U.S. 151, 157 (1997)) Clearly this exception does not apply to the new rule in Apprendi. The second exception found in Teague "`permits retroactive application of "watershed rules of criminal procedure implicating the fund ental fairness and accuracy of the criminal proceeding.'" Id. This exception has been considered by courts deciding whether Apprendi applies retroactively.
Although the Tenth Circuit has not decided whether the Teague exceptions apply to the new Apprendi rule, many courts in the District of Kansas as well as many circuit courts have decided the Teague exceptions are inapplicable to the new Apprendi rule. See, e.g., United States v. Sanders, 247 F.3d 139, 146-51 (4th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1237-38 (9th Cir. 2000); United States v. Moss, 137 F. Supp.2d 1249, 1253-54 (D. Kan. 2001) ; Garcia, 2001 WL 579817, at *5. This court concurs with the courts cited above and finds the Teague exceptions do not operate to apply the Apprendi rule retroactively. The rule set forth in Apprendi is not a rule "`alter[ing] our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction,'" and therefore, is not one of the exceptional circumstances under which the Teague exceptions apply. Garcia, 2001 IIL 579817, at *5 (quoting Teague, 489 U.S. at 311).
Second, even if Apprendi operated retroactively, the Apprendi rule would not impact this court's decision. As stated previously, in Apprendi, the Supreme Court held, "other than the fact of 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." 530 U.S. at 490. This includes an increase in penalty beyond the statutory maximum based on drug quantity. United States v. Wilson, 244 F.3d 1208, 1214 (10th Cir. 2001). The Apprendi rule, however, only applies in those instances where the defendant is sentenced beyond the statutory maximum. United States v. Heckard, 238 F.3d 1222, 1235-36 (10th Cir. 2001). In this case the statutory maximum set forth in 21 U.S.C. § 841(b)(1)(B) is forty years. The sentence imposed on defendant, 108 months, is well within the statutory maximum, rendering the Apprendi rule irrelevant to the facts of this case.
Because defendant was not convicted to a term greater than the statutory maximum, he asserts that after Apprendi drug quantity should always be submitted to the jury even if it is relevant only to question of determining a sentence under the U.S.S.G. that is at or below the statutory maximum. The Tenth Circuit squarely rejected this proposal holding "[j]udges may still ascertain drug quantities by a preponderance of the evidence for the purpose of calculating offense levels under the Sentencing Guidelines, so long as they do not sentence above the statutory maximum . . . ." United States v. Heckard, 238 F.3d 1222, 1235-36 (10th Cir. 2001).
Finally, defendant's allegation that 21 U.S.C. § 841 is unconstitutional in the aftermath of Apprendi is also without merit. The Tenth Circuit, joining many other circuit courts, determined § 841 "remain[s] constitutionally enforceable notwithstanding Apprendi." United States v. Cernobyl, 255 F.3d 1215, 1219 (10th Cir. 2001). See also United States v. Candelario, 240 F.3d 1300, 1311 n. 16 (11th Cir. 2001); United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000) ; United States v. Strachan, 2001 WL 208470, Nos. 99-4119, 99-4426, at *5 n.* (4th Cir. Mar. 2, 2001).
IV. CONCLUSION
Apprendi does not apply retroactively to defendant's case and even if it did it is inapplicable to the facts of this case because defendant's sentence was not above the statutory maximum of forty years. Furthermore, defendant's claim that Apprendi renders 21 U.S.C. § 841, the statute under which defendant was convicted, unconstitutional is also without merit.
IT IS THEREFORE BY THIS COURT ORDERED that the defendant's Motion (Doc. 248) is denied.