Opinion
Crim. No. 5-93-10(2) (JRT), Civil No. 00-1931 (JRT)
November 15, 2002
Mark Alan Wilson, Federal Correctional Institution, P.O. Box 6001 Ashland, KY 41105, pro se.
Joseph T. Walbran, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 600 United States Courthouse, 300 South Fourth Street, Minneapolis, Minnesota 55415, for respondent.
MEMORANDUM OPINION AND ORDER DISMISSING § 2255 MOTION
Petitioner Mark Alan Wilson ("Wilson") is currently serving a sentence for federal drug charges. He has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Court dismisses Wilson's motion.
BACKGROUND
On May 26, 1994, Wilson was sentenced to a term of 168 months, after having been convicted of one count of conspiracy to manufacture and distribute marijuana, and two counts of aiding and abetting possession with intent to distribute marijuana. This conviction was affirmed upon appeal. See United States v. Wilson, 49 F.3d 406 (8th Cir. 1995). Pursuant to a 1996 amendment to the federal Sentencing Guidelines, on November 21, 1996 Wilson's sentence was changed to 125 months. As part of the re-sentencing procedure, both Wilson and the United States Attorney stipulated that at least 4,000 marijuana plants should be attributed to Wilson. See United States v. Wilson, Crim. No. 5-93-10, Order (D.Minn. Nov. 21, 1996). Wilson's re-sentence was based upon a base offense level of 28, plus two additional points for obstruction of justice. The resulting base level of 30, combined with Wilson's criminal history category of II, corresponded to a sentencing range of 106-305 months. Wilson received a re-sentence of 125 months.
The obstruction of justice points stemmed from Wilson's committing perjury at trial.
ANALYSIS
Wilson has filed a § 2255 motion challenging his 125-month sentence. Wilson's motion lists five grounds, which collectively allege that: (1) the 125-month sentence violates the U.S. Supreme Court's rule in Apprendi v. New Jersey, 530 U.S. 466 (2000); and (2) his counsel and the re-sentencing court incorrectly applied a ten-year mandatory minimum penalty.
Wilson's "traverse" reply memorandum also includes a variety of allegations, such as prosecutorial misconduct and irregularity in the selection and sequestration of the jury. None of these allegations were listed as grounds in Wilson's § 2255 motion, nor did he argue them in his initial memorandum. Because they were not part of his habeas petition, these claims are not properly before the Court.
I. Apprendi Claims
The bulk of Wilson's claims pertain to his allegation that his sentence violated the U.S. Supreme Court's rule in Apprendi, which held that any fact, other than a prior conviction, increasing the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Id. at 490. Wilson alleges that the jury in his case did not consider the quantity of drugs in the counts upon which he was convicted, and that this violates Apprendi. Moreover, Wilson argues that Apprendi should apply retroactively to cases, like his, that were completed before the Supreme Court's decision.In the time since Wilson initially filed his § 2255 motion, the Eighth Circuit has conclusively ruled that Apprendi does not apply retroactively on collateral review. United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001). See also United States ex rel. Perez v. Warden, FMC Rochester, 286 F.3d 1059, 1060 (8th Cir. 2002) ("[F]ederal prisoners may not raise Apprendi claims in initial 28 U.S.C. § 2255 motions."); Murphy v. United States, 268 F.3d 599, 600 (8th Cir. 2001). Wilson's re-sentencing was complete on November 21, 1996, four years before Apprendi. Grounds One through Three of Wilson's motion each allege a retroactive Apprendi violation. The Court therefore finds that Wilson is not entitled to relief on these grounds.
II. Mandatory Minimum/Acquitted Conduct
Grounds Four and Five of Wilson's motion allege ineffective assistance of counsel and plain error by the re-sentencing judge. Both of these claims are based upon Wilson's contention that the court improperly imposed a ten-year mandatory minimum sentence. Section 841(b)(1)(A)(vii) of Title 18 of the United States Code provides that if Wilson's conviction involved 1,000 or more marijuana plants, he is subject to a ten-year minimum sentence. In Wilson's 1996 re-sentencing, he and the government stipulated that at least 4,000 marijuana plants should be attributed to him. This clearly would make him eligible for the 10-year minimum under 18 U.S.C. § 841(b)(1)(A)(vii). Wilson maintains, however, that the mandatory minimum was improper.
Wilson suggests that this stipulation is somehow invalid, but gives no reasons or evidence to support this assertion. In the absence of evidence to the contrary, the Court considers the stipulation valid and binding.
First, Wilson cites United States v. Barnes, 158 F.3d 662 (2d Cir. 1998), to argue that the ten-year mandatory minimum was inappropriately applied to him, and that he should be subject to the most lenient mandatory minimum available. That case, however, does not support Wilson's argument. In Barnes, the petitioner was charged with conspiring to possess four different drugs, but was found guilty of a general verdict that did not specify any particular drug. Id. at 668. In this case, there is no doubt over what drug led to Wilson's conviction. Therefore, Barnes does not help Wilson.
Second, Wilson relies upon United States v. Rettelle, 165 F.3d 489 (6th Cir. 1999), to argue that his sentence was improperly based on conduct upon which he was acquitted. This case too, is inapposite. In Rettelle, the defendant (Rettelle) pleaded guilty to one count of manufacturing marijuana under the same statute under which Wilson was convicted. Id. at 491. In sentencing Rettelle, the district court aggregated all the marijuana plants for which she was responsible in her violation and in all "relevant conduct," to arrive at a total that triggered a mandatory minimum sentence. Id. The Sixth Circuit held that this method of calculation was improper, and that "the statutory minimum is imposed only when a single violation of § 841 . . . involves more than the threshold quantity of drugs." Id. In Rettelle, the defendant's violation did not involve such a threshold quantity. Id. In this case, however, the charges of which Wilson was convicted did surpass the threshold. Here, Wilson stipulated that his involvement in the conspiracy and other convicted charges made him responsible for at least 4,000 marijuana plants. The statutory threshold for a ten-year mandatory minimum is 1,000 plants. 18 U.S.C. § 841(b)(1)(A)(vii). Therefore, Rettelle's reasoning does not apply here.
Finally, it is not correct that Wilson's sentence was based upon conduct for which he was acquitted. Wilson argues that because he was acquitted of Count IV, possession of marijuana at the Blackduck farm, his sentence cannot take into account any of the marijuana grown on the Blackduck farm. This is incorrect. Although Wilson was acquitted on Count IV, that count only involved possession of the Blackduck farm marijuana on September 26, 1990. In Count I, Wilson was convicted of a conspiracy that involved cultivating that same marijuana in the preceding months. Therefore, taking the Blackduck farm marijuana into account for Wilson's sentence was proper.
For example, Count I of the indictment provides that in the summer of 1990, Wilson "cultivated, grew, and watered marijuana plants at the Blackduck farm in Minnesota." (Indictment ¶ 20.)
Based on this discussion, the Court finds that Wilson is not entitled to relief based on the remaining grounds in his petition.
III. Appealability
For purposes of appeal under 28 U.S.C. § 2253, the Court finds that it is unlikely that some other court would decide the issues raised in Wilson's motion differently. For this reason, the Court concludes that Wilson has not made a "substantial showing of the denial of a constitutional right," as is required under the appeal statute for the issuance of a certificate of appealability. See 28 U.S.C. § 2253(c)(2).
ORDER
Based on the foregoing, and all of the records, files and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Criminal Docket No. 164] is DISMISSED WITH PREJUDICE.
2. The Court does not certify the issues raised in defendant's motion for appeal under 28 U.S.C. § 2253(c)(2).