Opinion
Criminal Action No. 97-081.
January 30, 2001
ORDER AND REASONS
Petitioners Pierre Parsee and Everette Harrison have filed separate motions under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. Parsee is currently incarcerated in a federal institution serving a 360 month sentence. Harrison is also currently incarcerated in a federal institution serving a 150 month sentence. Both petitioners were co-defendants in a single count indictment charging them with conspiracy to possess with the intent to distribute an unspecified quantity of cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1) and 846. The jury returned guilty verdicts as to both Parsee and Harrison.
The motions for relief under 28 U.S.C. § 2255 of petitioner Parsee and Harrison are being consolidated for the purposes of this opinion.
Petitioners Parsee and Harrison both filed appeals. On June 15, 1999, the Fifth Circuit Court of Appeals affirmed the convictions of both Parsee and Harrison. United States v. Parsee, 178 F.3d 374 (5th Cir. 1999). The mandate was issued by the appellate court on July 27, 1999. Both defendants filed petitions in the United States Supreme Court for writs of certiorari. On November 8, 1999, the Supreme Court denied Parsee's and Harrison's certiorari petitions. Parsee v. United States, 528 U.S. 988, 120 S.Ct. 450 (1999); Harrison v. United States, 528 U.S. 988, 120 S.Ct. 465 (1999). Petitioner Parsee proceeding pro se filed the instant motion for habeas relief on April 27, 2000. Petitioner Harrison proceeding pro se filed the instant motion for habeas relief on October 31, 2000. Both motions were timely under 28 U.S.C. § 2255 as they were filed within one year from the date on which their judgments of conviction became final. These are the first habeas petitions filed on behalf of both Parsee and Harrison.
A conviction becomes final when a judgment of conviction has been rendered, the availability of appeal is exhausted, and the time period for filing a petition for certiorari has elapsed or the petition for certiorari denied. Griffith v. Kentucky, 479 U.S. 320, [ 479 U.S. 314] 324, 107 S.Ct. 708, 712 n. 6 (1987).
Facts
This factual recitation from the appellate opinion is an accurate description of the evidence presented at trial. United States v. Parsee, 178 F.3d 374, 377-78 (5th Cir. 1999).
In mid-August 1996 two local Louisiana officers made a traffic stop of a rental auto traveling east on Interstate 10 near the Texas-Louisiana line. A consensual search of the vehicle yielded approximately three kilograms of cocaine and 15 pounds of marijuana. The driver, Nicole Harrison (hereinafter "Nicole"), confessed that she was delivering the drugs to New Orleans from Houston and she agreed to make a controlled delivery. Nicole was being followed closely by two other parties to the charged drug conspiracy, Pierre Parsee and Alvin Harvey.
Upon seeing Nicole stopped by the authorities, Parsee and Harvey called and advised Everette Harrison (hereinafter "Harrison"), who had supplied the drugs. Harrison paged his cousin Nicole who was still with the authorities. She gave him a telephone number where she could be contacted and Harrison called her twice. The calls were recorded and played at trial. Harvey also paged Nicole and they had several telephone conversations which the authorities recorded. Parsee declined to speak to Nicole by telephone after he saw her apprehended by the officers and he sought to distance himself.
Nicole arranged to meet Harvey to deliver the drugs and when she did so they were arrested. After their arrest they were separated and not permitted to communicate.
The evidence reflects the following relevant scenario. In early 1996, Parsee, who lived in New Orleans, ran into Nicole, a longtime acquaintance then living in Houston. He mentioned that he was seeking a drug supplier for his illicit operation. Nicole was aware of her cousin Harrison's activities and agreed to put the two in touch with each other. Parsee began recruiting help, bringing Harvey into the picture.
In late May 1996 Parsee was scheduled to fly to Houston to meet Harrison for a purchase. He was leery of flying with the large amount of cash needed for the purchase so he arranged for Harvey to wire the money to him in Houston. In an attempt to insulate himself he arranged for the funds to be wired to Nicole and one of Harrison's associates. Upon arriving in Houston, Parsee met with Nicole and then called Harvey to make the transfer. Harvey also desired insulation and had trouble getting someone to assist him by wiring the money. Finally he located random individuals outside of a Western Union office who agreed to wire the funds for a fee. The funds were finally wired and Nicole delivered same to Parsee who completed the drug purchase from Harrison. As leery of flying with the drugs as he was of flying with the cash, Parsee persuaded Nicole to fly to New Orleans with the contraband. She did so using an alias.
During June and July 1996 there were several other transactions between Parsee and Harrison but the fund-wiring difficulties precipitated a new scheme. Nicole would rent a vehicle in Houston; drive to New Orleans and secure the cash for the transaction from Parsee; return to Houston, followed by Parsee and Harvey in Parsee's vehicle; rent a room at a hotel where Harrison, Parsee, and Harvey would conclude the transaction; and then drive the drugs back to New Orleans, again followed closely by Parsee and Harvey.
The evidence includes records for the autos leased by Nicole on the relevant dates, telephone and pager records revealing calls from Nicole's residence to Parsee's pager on the relevant dates, hotel records for rooms rented by Nicole in Houston on the dates in question, hotel records reflecting telephone calls from the rented rooms to a pager linked to Harrison, records of money transfers from New Orleans to Houston on the dates in question, and Parsee's employment records showing absences without excuse on the days that the illicit transactions occurred.
The first trial resulted in a deadlocked jury. On retrial, Parsee and Harrison were convicted of conspiracy with intent to distribute an unspecified quantity of cocaine. They timely appealed.
Nicole and Harvey pled guilty to conspiracy charges and did not file an appeal of their convictions.
Issues Raised on Appeal
On appeal, Parsee and Harrison contended that the district erred in jury selection by its ruling on certain Batson peremptory challenges and that the court erred on several evidentiary rulings in connection with Rule 404(b) evidence, lay witness testimony and business records evidence. The appellate court rejected their arguments and affirmed both their convictions and sentences. Significantly, neither Parsee nor Harrison raised any issues on appeal with respect to drug quantity as the basis for the length of their sentences.Standard of Review
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).
§ 2255 Issues by Parsee and Harrison
Parsee raises the following grounds for relief in his motion under 28 U.S.C. § 2255, and seeks an evidentiary hearing and an order vacating his conviction and sentence and an order granting a new trial:
(1) The Government constructively amended the indictment by allowing evidence to be introduced concerning conspiracy to possess marijuana with intent to distribute, when the indictment only charges the defendant with conspiracy to possess with intent to distribute cocaine;
(2) He was denied the effective assistance of counsel at trial, at sentencing, and on appeal, because counsel allowed the government to try him on an uncharged felony count, i.e. conspiracy to possess marijuana with intent to distribute;
(3) He is actually innocent of conspiring with Nicole Harrison, Alvin Harvey, and Everette Harrison to distribute cocaine and the evidence is insufficient to sustain the conviction.
(4) His conviction and sentence violated the Fifth Amendment due process clause and the Six Amendment right to a jury determination of all facts because the jury did not determine quantity of drugs, which is an element of the offense.
Harrison raises only one claim in his motion for relief. He contends, as does Parsee, that his due process rights under the Fifth Amendment and his right to a jury trial under the Sixth Amendment were violated because the indictment did not charge a specific quantity of drugs and the jury was not asked to determine the specific amount of drugs, which is an element of the offense of which he was convicted, i.e., a cocaine conspiracy under 21 U.S.C. § 841(a)(1)
Each ground shall be address seriatim.
Constructive Amendment of Indictment
The indictment in the instant case charges the following single count:
Beginning at a time unknown and continuing until on or about August 13, 1996, in the Eastern District of Louisiana and elsewhere, the defendants, PIERRE PARSEE and EVERETTE HARRISON, did knowingly and intentionally combine, conspire, confederate and agree with each other, and with others known and unknown to the Grand Jury, to possess with intent to distribute a quantity of cocaine hydrochloride, a Schedule II narcotic drug controlled substance, in violation of Title 21, United States Code, Section 841(a)(1); all in violation of Title 21, United States Code Section 846.
Rec. Doc. No. 1.
The evidence introduced at trial established that petitioner Parsee purchased cocaine as well as marijuana from Harrison in Houston and used Nicole to courier the money and the drugs from Houston to New Orleans. Petitioner Parsee argues that there was a material variance between the indictment and the proof offered at trial, violating his substantial rights to be tried only on the charges presented in the indictment, that he may have been convicted of a crime not charged in the indictment, and that the government sought a sentencing advantage by choosing not to include the marijuana conspiracy.
Parsee did not raise this argument in his appeal, and thus he must meet the cause and prejudice tests to raise it on collateral challenge. In order to show cause, Parsee must show that "some objective factor external to the defense" prevented him or his defense counsel from raising this claim in a procedurally proper manner. United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996), quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)). "Objective factors that constitute cause include interference by officials that makes compliance with the procedural rule impracticable, a showing that the factual or legal basis for the claim was not reasonably available to counsel at the prior occasion, and ineffective assistance of counsel in the constitutional sense." United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996); see also Robison v. Johnson, 151 F.3d 256, 262 (5th Cir. 1998); Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997);McCowin v. Scott, 67 F.3d 100, 102 (5th Cir. 1995)
While Parsee does allege ineffective assistance of counsel, which would satisfy the cause prong, he must also meet the actual prejudice requirement. To show actual prejudice, the petitioner must establish that he was deprived of his fundamental due process rights by the introduction of evidence of a marijuana conspiracy along with that of a cocaine conspiracy. See, Frady, 456 U.S. at 167-169, 102 S.Ct. at 1594-1595;Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508-2509 (1977). This petitioner cannot do.
Petitioner contends that the evidence at trial impermissibly varied from that charged in the indictment. However, there was substantial evidence presented at trial that the defendants, including both Parsee and Harrison, were engaged in a conspiracy to possess with intent to distribute cocaine, as charged in the indictment. There was also evidence, which was inextricably intertwined with the charged offense part of the same criminal episode, that the defendants were engaged in a conspiracy to possess with intent to distribute marijuana. Such evidence was intrinsic to the cocaine conspiracy charged in the indictment, as Nicole transported both cocaine and marijuana from Texas to Louisiana in furtherance of the cocaine conspiracy. The fact that there was marijuana was being transported along with cocaine was only incidental to the cocaine conspiracy and was necessarily introduced "to complete the story of the crime by proving the immediate context of the events in time and place." Evidence was presented to establish all of the elements of the cocaine conspiracy and the district court ruled prior to trial that the marijuana evidence was admissible under Rule 404(b) of the Federal Rules of Evidence after performing a Beechum analysis.
See United States v. Maceo, 947 F.2d 1191, 1199 (5th Cir. 1991)
United States v. Taylor, 210 F.3d 311, 317 (5th Cir. 2000), quoting United States v. Coleman, 78 F.3d 154, 156 (5th Cir. 1996).
The court in United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) ( en banc), cert. denied, 440 U.S. 920 (1975) requires that the trial court first determine the relevance of the extrinsic offense to an issue other than the defendant's character and then determine whether its probative value outweighs any danger of undue prejudice. 582 F.2d at 911.
Because sufficient evidence was presented to convict Parsee on the charges presented in the indictment, the fact that evidence was presented which might also have allowed the jury to convict him of an additional offense, i.e., conspiracy to possess marijuana, did not violate his fundamental right to be tried on the offense charged in the indictment. As explained by the Fifth Circuit in United States v. Young, 730 F.2d 221 (5th Cir. 1984):
It is a long-established principle of our criminal justice system that, after an indictment has been returned, its charges may not be broadened through amendment except by the grand jury itself. [Citation omitted]. In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270 (1960), a leading case, the Supreme Court recognized that a trial court's amendment of the indictment need not be explicit to constitute reversible error, but that it may be implicit or constructive. . . Stating that "a court cannot permit a defendant to be tried on charges that are not made in the indictment against him," 361 U.S. at 217, 80 S.Ct. at 273, [the Stirone Court] overturned the conviction: While there was a variance in the sense of a variation between pleading and proof, that variation here destroyed the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury . . . .361 U.S. at 217-18, 80 SCt. at 273-74.
In applying the Stirone case to the issue before it, the court inUnited States v. Adams, 778 F.2d 1117, 1123 (5th Cir. 1985) recognized the following rules:
Stirone requires that courts distinguish between constructive amendments of the indictment, which are reversible per se, and variances between indictment and proof, which are evaluated under the harmless error doctrine. The accepted test is that a constructive amendment of the indictment occurs when the jury is permitted, to convict the defendant upon a factual basis that effectively modifies an essential element of the offense charged. [Citations omitted]. In such cases, reversal is automatic, because the defendant may have been convicted on a ground not charged in the indictment. [Citations omitted]. If, on the other hand, the variation between proof and indictment does not effectively modify an essential element of the offense charged, "the trial court's refusal to restrict the jury charge to the words of the indictment is merely another of the flaws in trial that mar its perfection but do not prejudice the defendant." United States v. Ylda, 653 F.2d 912, 914 (1981).778 F.2d at 1123.
A review of the record on this question reveals that there was substantial, probative evidence that Parsee was engaged in a conspiracy to possess cocaine and the indictment and jury instructions were directed to the cocaine conspiracy. This Court is convinced that the jury based its verdict of guilty on the single count of conspiracy to possess cocaine with intent to distribute on the sizeable evidence that Parsee was engaged in a cocaine conspiracy. Accord, United States v. Green, 180 F.3d 216, 227 (5th Cir. 1999), cert. denied 120 S.Ct. 599 (1999). It was incidental that Parsee' co-conspirator, Nicole, also purchased marijuana and evidence of such was necessarily introduced to complete the story of what transpired. The Court finds that the jury was not permitted to convict the defendant on a factual basis that modified an essential element of the crime charged.
Petitioner Parsee also suggests that by charging him only with a cocaine conspiracy and not also a marijuana conspiracy, the government was seeking a sentencing advantage. The authorities he cites do not support his position that he would have received a lesser sentence if he had been charged with a second count of a marijuana conspiracy or even with a single count charging conspiracy to import both cocaine and marijuana. In fact, one of the cases defendant cites, the court in United States v. Gomez-Geraldo, 652 F.2d 452, 453 (5th Cir. 1981) held that where the defendant was charged in a single count with a conspiracy to import both cocaine and marijuana and the jury by special verdict found that both cocaine and marijuana were both objects of the conspiracy, sentencing the defendant to ten years on the basis of the cocaine (five years was the maximum for a marijuana conspiracy) was not error. In the instant case, the defendant was only charged, tried, and sentenced on the cocaine conspiracy and there is no support for the position that if a marijuana conspiracy would also have been charged and the defendant convicted of both a cocaine and a marijuana conspiracy, the defendant would have received a lesser sentence by reason of inclusion of the marijuana charge.
See Green, 180 F.3d at 226-227) (Fifth circuit reversed and remanded for resentencing district court's sentence limited to the statutory maximum for a conspiracy to distribute preludes, instead of a conspiracy to distribute prelude and cocaine, where the evidence was overwhelming that the defendant participated in a conspiracy to distribute both preludes and cocaine and the language in the indictment and the jury instructions indicated that defendants was being charged with both a cocaine and prelude conspiracy.)
The Court finds that there was no material variance between the evidence introduced and the indictment, that the evidence presented that petitioner Parsee was engaged in a cocaine conspiracy was substantial and thus there is no likelihood that he was convicted of a marijuana conspiracy, instead of a cocaine conspiracy, but that the evidence of the marijuana conspiracy was introduced as intrinsic to the offense charged, and that there no legal or factual basis supporting his argument that had the marijuana conspiracy been charged along with the cocaine conspiracy, Parsee would have received a lesser sentence. Petitioner Parsee has not demonstrated that he is entitled to relief on this ground.
Ineffective Assistance of Counsel
Petitioner Parsee contends that his counsel was constitutionally ineffective at the trial and sentencing stages and on appeal because of a failure to raise the issue, previously discussed, concerning the "uncharged" marijuana conspiracy. The court in Carter v. Johnson, 131 F.3d 452 (5th Cir. 1997), summarized the standards for evaluating such a claim in a habeas proceeding:
A habeas petitioner alleging ineffective assistance must demonstrate both constitutionally deficient performance by counsel and actual prejudice as a result of such ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); see also Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (summarizing the Washington standard of review.) Failure to prove either deficient performance or actual prejudice is fatal to an ineffective assistance claim. Washington, 466 U.S. at 687, 104 S.Ct. at 2064.
To establish deficient performance, the petitioner must prove that the performance of counsel fell below an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064-65. Therefore, courts may not fall prey to "the distorting effect of hindsight" but must be "highly deferential" to counsel's performance. Id. at 689-90, 104 S.Ct. at 2065-66. Hence, there is a strong presumption that the performance "falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065. [The petitioner] has the burden to overcome this presumption.
Moreover, even if counsel's performance was deficient, [the petitioner] must affirmatively demonstrate actual prejudice. To do so, he must establish that the attorney's errors were so deficient as to render the verdict fundamentally unfair or unreliable. See, Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842-43 (1993); Washington, 466 U.S. at 687, 104 S.Ct. at 2064.131 F.3d at 463.
Petitioner is unable to demonstrate either prong of the Washington test. Parsee was represented at trial, at sentencing, and on appeal with highly competent, experienced, and able counsel who mounted a vigorous defense. Their failure to raise the objection suggested here does not meet the criteria of performance which falls below an objective standard of reasonableness. Further, for the reasons discussed above, the ground urged by petitioner as a denial of his fundamental rights, i.e., the fact that the single count indictment only charged petitioner with a cocaine conspiracy, not one involving marijuana, when there was evidence that he also conspired to possess marijuana, is without merit. Petitioner was charged with and convicted of a conspiracy to possess cocaine with intent to distribute, of which there was ample evidence presented, and thus there was no denial of his rights. Petitioner cannot meet his burden to demonstrate actual prejudice resulting from the failure of counsel to raise the objection, since there is no reason in fact or law to suggest the outcome of the trial or the appeal, either as to his conviction or his sentence, would have been different if the argument had been urged. For these reasons, Petitioner's ineffective assistance of counsel claim must fail.
Actual Innocence
Petitioner Parsee alleges that he is actually innocent of the cocaine conspiracy of which he was convicted. He offers no evidence in support of this contention. A review of the record reveals that the evidence was substantial and convincing that Parsee was a member of a conspiracy to possess cocaine with intent to distribute which was charged in the indictment and which is a violation of 21 U.S.C. § 841(a)(1) and 846. Without any evidence to substantiate his claim of actual innocence, from a factual standpoint, the Court finds that petitioner Parsee has failed to meet his burden to show that he is actually innocent, i.e., that no reasonable jury could have convicted him.
Apprendi Claim
Petitioners Parsee and Harrison contend that their due process rights were violated because they were convicted of conspiring to possess with intent to distribute an unspecified quantity of cocaine under 21 U.S.C. § 841(a)(1), and that the jury was not asked to determine the quantity of drugs for purposes of determining which provision of that statute they violated, violating, their Sixth Amendment rights to trial by jury. 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 on Jones 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).
Jones was decided on March 24, 1999 and Apprendi was decided on June 26, 2000. Parsee filed his motion for habeas relief on April 27, 2000, and Harrison filed his habeas motion on October 31, 2000.
Neither Parsee nor Harrison raised this issue on appeal and must meet the cause and prejudice requirements of Shaid/Frady. 837 F.2d at 228, 102 S.Ct. at 1593. The Court finds that both Parsee and Harrison have shown adequate cause for their failure to raise this issue on appeal because neither Jones nor Apprendi had been rendered at the time of their trial or 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, Parsee and Harrison must also demonstrate prejudice, i.e., they must show that their 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 studyingApprendi, 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. Aguayo-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 Doggett 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 sentences imposed on Parsee and Harrison for their convictions of 21 U.S.C. § 841. Because there were no drug quantities 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 to life imprisonment." 21 U.S.C. § 841(b)(1)(C).
By Bill of Information filed on May 17, 1997, shortly after indictment, the government established that Parsee had a prior drug felony in that he was found guilty by jury verdict on August 1, 1991 of one count of conspiracy to possess with intent to distribute cocaine hydrochloride and one count of possession with intent to distribute cocaine hydrochloride. Thus, the maximum possible penalty under 21 U.S.C. § 841(b)(1)(C) to which Parsee could have been sentenced within the constraints of Apprendi was 30 years. Parsee was in fact sentenced to 360 months, or 30 years. Under the principles of Apprendi, as applied in Doggett, Parsee's claim that he is entitled to resentencing fails. His sentence equals, and thus necessarily does not exceed, the maximum prescribed sentence for the statutory violation for which he was charged. His Apprendi claim is without merit.
The Fifth circuit in Doggett expressly observed that a 30 year sentence in circumstances where in the drug quantity was not stated in the indictment and the defendant has a prior felony drug conviction does not offend Apprendi. It also noted that Doggett's co-defendant, who had two prior felony drug convictions and thus his base offense level, set at 34, was raised to 37, had a guidelines range of 360 months to life. U.S.S.G. § 5A. The Doggett court observed that "[b]ecause Apprendi does not affect a judge's ability to determine the quantity of drugs in formulating the appropriate sentencing range under the Guidelines, the range of 360 months to life is still applicable on remand. However, as discussed in the body of the opinion, the sentencing judge is limited, in that the jury did not find a quantity of drugs, to a maximum sentence of 30 years on each count." 230 F.3d at 166, n. 3. Parsee's total offense level was also 37 and this guideline range was 360 months to life. The reasoning of Doggett compels a determination that Parsee's sentence is limited to 360 months under Apprendi, but that his 360 months sentence accords with the Sentencing Guidelines.
Similarly, Apprendi affords Harrison no relief. The maximum possible statutory sentence for Harrison under 21 U.S.C. § 841(b)(1)(C) is 20 years, since he had no prior felony drug convictions. Harrison was sentenced to 150 months, which is less than the maximum sentence of 240 months allowed under the statute. For the reasons previously discussed, his Apprendi claim fails.
Conclusion
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the request of petitioner Parsee for an evidentiary hearing be DENIED.
IT IS FURTHER ORDERED that the motion of petitioner Pierre Parsee under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence be and is hereby DENIED.
IT IS FURTHER ORDERED that the motion of petitioner Everette Harrison under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence be and is hereby DENIED.