Opinion
Case Nos. 96-40065-01, 00-3468-RDR.
December 15, 2000.
MEMORANDUM AND ORDER
This matter is presently before the court upon the defendant's pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Having carefully reviewed the defendant's motion, the court is now prepared to rule.
The defendant was convicted by a jury of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). The court sentenced the defendant to 120 months imprisonment, based in part on a prior drug conviction. His conviction and sentence were affirmed on appeal. United States v. Mixon, 185 F.3d 875, 1999 WL 436269 (10th Cir.), cert. denied, ___ U.S. ___ (1999).
The facts underlying the defendant's convictions were set forth in the Tenth Circuit's opinion in this case as follows:
On March 11, 1996, Defendant drove a black Isuzu car to the Midas Muffler Shop in Salina, Kansas, for brake service. Francisco Rodriguez was a passenger in the car. Because the work being performed was under warranty, Mark Taddiken, the manager of the Midas shop, looked in the unlocked glove compartment for the warranty documentation and found a large roll of money in a plastic sandwich bag. He called the Salina Police Department to report what he had found. Meanwhile, during the time that Defendant and Mr. Rodriguez waited for the car to be repaired, they sat in the waiting area of the shop eating and drinking items which they had purchased at a nearby Sonic Drive-In.
Shortly after the manager called the police, as Defendant and Mr. Rodriguez were outside preparing to leave in the repaired car, two police officers, Lieutenant Mike Marshall and Captain Brad Homman, arrived at the Midas shop. The officers announced that they were investigating a report of drug activity relating to the car Defendant had brought to the shop. Defendant admitted that he had driven the car to the shop and told the officers that his friend, Jami Piercy, owned the car. In their search of the car, the officers found the roll of cash totaling $2,470.00 in a plastic bag in the glove compartment. Both Defendant and Mr. Rodriguez denied owning the money. Officer Marshall called Ms. Piercy to determine if she owned the money, but she too denied that the money belonged to her. At some point after the police finished searching the car and questioning Defendant and Mr. Rodriguez, Defendant gave his Sonic Styrofoam cup to the manager and asked him to throw it away. The officers then confiscated the money and left, and Defendant and Mr. Rodriguez left the Midas shop in the black Isuzu.
The next day an unidentified woman called the manager at the Midas shop and told him to look in the Sonic Drive-In cup that he had thrown away for Defendant the day before. The manager retrieved the cup from the trash, discovered what appeared to be drugs inside, and called the police. The police seized the cup and its contents, approximately 6.6 grams of cocaine base.
Mixon, 1999 WL 436269 at ** 1 (footnote omitted).
In the instant motion, the defendant contends, based upon the United States Supreme Court's recent decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), that the court erred in failing to submit the issues of the amount of drugs and his prior conviction to the jury as elements of the offense.
An evidentiary hearing must be held on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; United States v. Galloway, 56 F.3d 1239, 1240 n. 1 (10th Cir. 1995). To be entitled to an evidentiary hearing, the defendant must allege facts which, if proven, would entitle him to relief. See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995), cert. denied, 517 U.S. 1235 (1996). The court finds that a hearing on the defendant's motion is not necessary because the files and records of the case show that the defendant is not entitled to relief.
The defendant argues, relying upon Apprendi, that the court erred in failing to submit the issues of the amount of drugs and his prior conviction to the jury as elements of the offense. The defendant contends that he improperly received a mandatory minimum sentence of ten years based upon decisions made by the court at sentencing concerning the quantity of the drugs involved and a prior conviction. The defendant suggests Apprendi forecasted a change in the law concerning the use of prior convictions.
In Apprendi, the Supreme Court held that any fact which increases a sentence beyond the statutory maximum, other than the fact of a prior conviction, must be pled and proven before a jury beyond a reasonable doubt. Apprendi, 120 S.Ct. at 2355-56. The defendant was sentenced to a term of imprisonment of ten years. Since the defendant did not receive a sentence of imprisonment that exceeded the statutory maximum set out in 21 U.S.C. § 841(b)(1)(C), we find that Apprendi is not applicable here. See United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.), cert. denied, ___ U.S. ___ (2000); see also United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000); United States v. Mack, 229 F.3d 226, 235 (3rd Cir. 2000); Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000).
The court also does not find that Apprendi changed the law concerning the use of prior convictions. The Apprendi Court made it clear that its holding is subject to a narrow exception and is not applicable when the sentence-enhancing fact is a prior conviction, as in this case. The exception was carved out of the Apprendi holding to account for the Court's holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998). The Apprendi Court specifically declined to revisit or overrule Almendarez-Torres. Apprendi, 120 S.Ct. at 2362 ("Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision's validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset."). This case falls within the exception to the Apprendi holding and is governed by Almendarez-Torres. See United States v. Martinez-Villalva, ___ F.3d ___, 2000 WL 1736964 (10th Cir. 2000). Accordingly, the court must deny defendant's § 2255 motion.
IT IS THEREFORE ORDERED that defendant's pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. # 118) be hereby denied.
IT IS SO ORDERED.