Opinion
00 Civ. 9099 (SWK)
September 4, 2001
MEMORANDUM OPINION AND ORDER
Petitioner pro se Frank Colon ("Colon") moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. For the reasons set forth below, Colon's motion is denied.
BACKGROUND
Colon was a member of the "Blue Thunder" organization, which between 1986 and 1991, distributed millions of dollars worth of heroin at retail street spots in New York City. See United States v. Milan-Colon, 91 Cr. 685, 1992 WL 236218, at 2 (S.D.N.Y. Sept. 8, 1992). The Superseding Information charged that from on or about January 1, 1991, until on or about August 1, 1991, Colon possessed and distributed heroin to others in violation of 21 U.S.C. § 812, 841(a)(1)(b)(1)(C). On October 2, 1992, Colon pled guilty to the one count in the Superseding Information and on November 4, 1993, the Court sentenced Colon to 151 months of incarceration, five years of supervised release, an a special assessment of $50. Colon did not appeal his sentence.
Colon now moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence based upon the Supreme Court's recent decision inApprendi v. New Jersey, 530 U.S. 466 (2000) ("Apprendi"), and upon an ineffective assistance of counsel claim.
DISCUSSION
I. Apprendi v. New Jersey
Colon argues that his sentence is unconstitutional as a result of the Supreme Court's ruling in Apprendi v. New Jersey. See Petitioner's Memorandum ("Pet. Memo.") at 2, 5. Colon alleges, inter alia, thatApprendi effectively invalidated his guilty plea, violated his due process rights to a Grand Jury, and terminated the Court's jurisdiction to sentence him.
In Apprendi, the Supreme Court held that any fact other than a prior conviction that increases a defendant's sentence beyond the otherwise applicable maximum penalty must be decided by a jury beyond a reasonable doubt. See Apprendi, 530 U.S. at 490. Colon was sentenced to 151 months' imprisonment, less than the 20 year statutory maximum penalty pursuant to 21 U.S.C. § 841(b)(1)(C). The Second Circuit has held that "Apprendi is inapplicable to Guidelines calculations that do not result in a sentence on a single count above the statutory maximum for that count."United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001); accord United States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001) (holding Apprendi does not alter "a sentencing judge's traditional authority to determine those facts relevant to selection of an appropriate sentence within the statutory maximum"). Accordingly, because Colon's sentence of 151 months is less than the 20 year statutory maximum, there is no Apprendi error and Colon's motion to vacate, set aside or correct his sentence in light of Apprendi is denied.
II. Ineffective Assistance of Counsel
Colon also asserts an ineffective assistance of counsel claim and argues, inter alia, that he "should not have been permitted to plead guilty to an offense that never existed." Pet. Answer to the Government's Memo. at 31. To demonstrate that his attorney provided constitutionally ineffective assistance of counsel, Colon must show that his attorney "made errors so serious that counsel was not functioning as the `counsel' guaranteed [him] by the Sixth Amendment" and that the "errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court finds that Colon has failed to sustain this burden. Therefore, Colon's claim of ineffective assistance of counsel is denied.
CONCLUSION
For the reasons set forth above, Colon's motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence is denied.