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holding that plea allocution as to drug quantity satisfies the proof requirements of Apprendi (citing United States v. White, 240 F.3d 127, 134 (2d Cir.2001) (defendant's stipulation to a drug quantity renders a jury finding on the issue unnecessary)); United States v. Champion, 234 F.3d 106, 110 & n. 3 (2d Cir.2000) (per curiam)
Summary of this case from United States v. LoganOpinion
01 CV 2514 (RR)
January 15, 2002
VINCENT MEDINA BROOKLYN OFFICE Inmate No. 48117-053 P.O. Box 26030 Beaumont, Texas 77720-6030 Petitioner, Pro Se
HONORABLE ALAN VINEGRAD UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK One Pierrepont Plaza Brooklyn, New York 11201 By: Emily Berger, Assistant U.S. Attorney Attorney for Respondent
MEMORANDUM AND ORDER
Vincent Medina, proceeding pro se, moves pursuant to 18 U.S.C. § 2255 for this court to vacate his April 3, 1998 conviction for conspiring to possess cocaine with intent to distribute it in violation of 21 U.S.C. § 846, 841(b)(1)(A), and using and carrying a firearm in connection with a drug trafficking crime, 18 U.S.C. § 924(c)(1). See United States v. Miguel Caban, et al., CR 97-337(RR). Medina is presently incarcerated, serving a 210-month prison term on the cocaine conspiracy charge, which sentence reflects a significant downward departure from his 260-327 month guideline range, and a statutorily mandated consecutive five-year prison term on the gun charge. Medina unsuccessfully challenged his conviction and sentence on direct appeal.See United States v. Caban, 173 F.3d 89 (2d Cir. 1999). His petition for certiorari review was denied by the Supreme Court on October 4, 1999. See Medina v. United States, 528 U.S. 872 (1999).
This court concluded that the guidelines' two-point adjustment for Medina' s acceptance of responsibility at the time of his guilty plea, see U.S.S.G. § 3E1.1, did not adequately reflect the benefit of that plea to the court, the prosecution, and society when compared to the high base offense level dictated by the quantity of drugs, which, in this case, had been determined by the government. Accordingly, the court elected to depart the equivalent of another two points. See Sentencing Trans., Apr. 3, 1998, at 16-17; see also United States v. Caban, 173 F.3d at 93 (discussing court's reasons for departure).
Approximately fifteen months later, on January 21, 2001, Medina filed his pending motion with this court. Relying on the Supreme Court's June 26, 2000 decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), Medina complains that the prosecution failed to plead or prove beyond a reasonable doubt the essential element of drug quantity in his case. The United States opposes Medina's motion, arguing that it is both procedurally barred from collateral review and without merit. Having carefully reviewed the submissions of the parties, as well as relevant portions of the criminal record, this court agrees with respondent and hereby denies Medina' s motion. In briefly addressing the points raised in the petition, the court assumes familiarity with the facts, which are summarized in the Court of Appeals decision on direct appeal.
Since a prisoner's papers are deemed filed on the date they are given to prison authorities for mailing, see. e.g., Zarvela v. Artuz, 254 F.3d 374, 377 (2d Cir. 2001) (citing Houston v. Lack, 487 U.S. 266, 276 (1988)), the court assumes that Medina' s papers were given to prison authorities on the day they are dated, January 21, 2001.
Discussion
I. Procedural Bar
For reasons discussed at length in Herrera v. United States, 169 F. Supp.2d 92 (E.D.N.Y. 2001), this court finds that Medina is procedurally barred from seeking collateral review of his Apprendi claims because (1) he failed to raise them on direct appeal, see. e.g., United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995); and (2) Teague v. Lane, 489 U.S. 288 (1989), generally proscribes the application of new criminal procedural rules on collateral review.
Like Herrera, Medina cannot show good cause to excuse his procedural default on direct appeal. Neither can he show prejudice since he does not argue that he is actually innocent of the crime of conviction see Bousely v. United States, 523 U.S. 614, 623 (1998), and his sentence is below the guideline range that would apply if he were sentenced pursuant to 21 U.S.C. § 841(b)(1)(C) (applying to drug crimes without regard to quantity).
In Medina' s case, his 262-327 month guideline range exceeds the 240-month statutory maximum under § 841(b)(1)(C). of course, under such circumstances, the statutory maximum controls. These facts are of no import, however, since Medina's 210-month sentence is also below this twenty-year statutory maximum.
As for the Teague bar to petitioner's complaint, the court notes that Medina, like Herrera, had the benefit of a specific citation to 21 U.S.C. § 841(b)(1)(A)(ii)(II) in his indictment to alert him "to the quantity of drugs at issue and the attending sentencing consequences." Herrera v. United States, 169 F. Supp.2d at 99. Further, unlike Herrera, who stood trial, Medina signed a plea agreement that specifically stated that his plea would be to that part of 21 U.S.C. § 841(b)(1) providing for a prison term of ten years to life. Indeed, the court emphasized this point at petitioner's allocution before he made his final decision to plead guilty. See Plea Trans., Sept. 15, 1997, at 16, 19. Under these circumstances, the failure to allege a specific drug quantity in the indictment that would trigger this sentencing range does not come within the limited exceptions to the Teague bar. See Jones v. Smith, 231 F.3d 1227, 1238 (9th Cir. 2000) (refusing to apply Apprendi to a collateral challenge to an indictment, holding that where a defendant has actual notice of the particular accusation against him and the sentence he might receive, "the omission of particular key words from the [formal charge] neither increases the risk that an innocent person will be convicted nor hinders the fundamental fairness of the trial").
II. Merits
Even if no procedural bar stood in the way of Medina' s Apprendi claim, petitioner would not be entitled to have his conviction or sentence vacated for the simple reason that his claim lacks merit.
A. Failure to Plead Drug Quantity in the Indictment
In Herrera, this court held that a grand jury's failure to specify a particular drug quantity in an indictment does not deprive the court of jurisdiction so as to warrant vacating a conviction. This is because 21 U.S.C. § 841(a)(1), 846 prohibit conspiracies to traffic in any quantity of cocaine. See Herrera v. United States, 169 F. Supp.2d at 101. In its recent en banc decision in United States v. Thomas, No. 98-1051, 2001 WL 1579993 (2d Cir. Dec. 12, 2001), the Second Circuit expressly rejected a direct appeal claim that an indictment's omission of drug quantity constituted a jurisdictional defect. Thus, even ifApprendi were to preclude this court from sentencing Medina pursuant to § 841(b)(1)(A), the court would retain jurisdiction to proceed pursuant to § 841(b)(1)(C), which provides for a prison sentence from zero to twenty years for persons who traffic in unspecified quantities of cocaine. Since Medina's sentence of 210 months was a departure from the same 262-327 month guideline range that would apply regardless of whether his case fell within § 841(b)(1)(A) or § 841(b)(1)(C), see generally United States v. Garcia, 240 F.3d 180, 184 (2d Cir. 2001) (holding that Apprendi does not require a guideline factor "unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum" to be submitted to a jury or proved beyond a reasonable doubt), and since petitioner's sentence is well below the twenty-year maximum provided in § 841(b)(1)(C), cf., United States v. Guevara, No. 00-1133, 2001 WL 1613512, at *5 (2d Cir. Dec. 18, 2001) (holding that "if drug quantity is used to trigger a mandatory minimum sentence that exceeds the top of the Guideline range that the district court would otherwise have calculated . . . that quantity must be charged in the indictment and submitted to the jury"), he cannot sustain his claim that a pleading defect in the indictment warrants vacating his conviction.
B. Failure to Prove Quantity Beyond a Reasonable Doubt
Medina also errs in asserting that drug quantity was not proved beyond a reasonable doubt in his case. At his plea allocution, he stated under oath that he knew the drug concealed in the containers was cocaine and that the quantity was more than the five kilograms necessary to trigger the ten-to-life provision of 21 U.S.C. § 841(b)(1)(A)(ii)(II). Indeed, he acknowledged knowing that the conspirators planned to steal fifty kilograms of cocaine:
THE COURT: [to the prosecutor] Mr. Altman, may I just ask you for a proffer . . . as to how the government anticipates calculating the quantity of drugs at issue here.
MR. ALTMAN: Your Honor, with respect to the charge of conspiracy, which is what the defendant pled to, the government will offer proof or would have offered proof at the trial that there were a number of meetings that took place between coconspirators of Mr. Medina and, in fact, one case with Mr. Medina, where quantities were discussed. In the final meeting, a quantity of 50 kilos was discussed as what would be in the stash house at the time this defendant entered with this coconspirators to steal what he thought was going to be drugs.
THE COURT: Mr. Medina, [did] you understand that the approximate quantity of drugs to be stolen was going to be 50 kilograms?
THE DEFENDANT: Yes, ma'am.
THE COURT: Did you know it was going to be cocaine?
THE DEFENDANT: Yes.
Plea Trans., Sept. 15, 1997, at 25.
As this court ruled in Torres v. United States, Nos. CV 00-6542 and CV 00-6667, 2001 WL 477253, at *3 (E.D.N.Y. Mar. 26, 2001), such an allocution amply satisfies the proof requirements of Apprendi. This conclusion is supported by recent Second Circuit decisions. See United States v. White, 240 F.3d 127, 134 (2d Cir. 2001) (holding that defendant's stipulation to a drug quantity that triggers a higher statutory minimum renders a jury finding on the issue unnecessary);United States v. Champion, 234 F.3d 106, 110 n. 3 (2d Cir. 2000) (per curiam) (same); cf. United States v. Thomas, 2001 WL 1579993, at *11 (distinguishing Thomas's case from those of defendants who "stipulate or allocute to the drug quantity used to enhance . . . sentence.").
Conclusion
For the reasons stated, the court rejects Medina's Apprendi-based challenge to his conviction and sentence as both procedurally barred and without merit. The petition for a writ of habeas corpus is denied as is a certificate of appealability.
SO ORDERED.