Opinion
Crim. File No. 4-91-72(2) (PAM)
April 24, 2001
MEMORANDUM AND ORDER
This matter is before the Court on Defendant's "Motion for Application for Petition of the Federal Rules of Civil Procedure, Rule 60(b)(4); Judgement [sic] is Void." Defendant challenges the validity of his indictment under the Supreme Court's decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000).
BACKGROUND
In 1991, Defendant was sentenced by this Court to concurrent 360-month terms of imprisonment for two violations of 21 U.S.C. § 841(a)(1), possession with intent to distribute and distribution of cocaine. Defendant appealed his sentence, and the Eighth Circuit affirmed. United States v. Henderson-Durand, 985 F.2d 970 (8th Cir. 1993). Defendant then petitioned this Court pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. That petition was denied, and the Eighth Circuit once again affirmed. Arnold v. United States, 63 F.3d 708 (8th Cir. 1995).
Defendant now raises another challenge to his conviction and sentence. He contends that this Court lacked jurisdiction over him because of defects in the indictment. Specifically, he asserts that the indictment failed to specify the penalties for the offenses charged, in violation of Apprendi. He also alleges that the indictment failed to charge him with willfulness or with aiding and abetting, as required by 18 U.S.C. § 2, and that the indictment is unconstitutionally duplicitous because it alleges in a single count both a substantive offense and conspiracy to commit that offense.
The Government responds that Defendant's Motion should be construed as a second or successive § 2255 motion, and should be dismissed for failure to comply with the Court of Appeals certification requirements of § 2255. Moreover, the Government argues that Apprendi does not render Defendant's indictment unconstitutional, and that the remainder of Defendant's contentions have no merit.
DISCUSSION
Section 2255 requires a defendant to apply to the Court of Appeals for certification prior to submitting a second or successive § 2255 motion to the district court. Defendant argues that his Motion is legitimately characterized as a Rule 60(b) motion, and not as a successive § 2255 motion, because the Motion questions the Court's jurisdiction over his indictment and because the Motion does not raise the same issues as those raised in his previous § 2255 motion. The Court notes that whether Defendant's Motion is successive does not depend on whether that Motion raises new grounds for relief. Under the Anti-Terrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), a § 2255 motion filed subsequent to a decision on a different § 2255 motion is deemed a second or successive motion requiring Court of Appeals certification.
Although Defendant attempts to characterize the Motion as an attack on the Court's jurisdiction rather than an attack on his sentence, the Motion is more properly characterized as a successive motion for relief pursuant to 28 U.S.C. § 2255. See Bolder v. Armontrout, 983 F.2d 98 (8th Cir. 1992) (finding 60(b) motion successive § 2255 motion); Blair v. Armontrout, 976 F.2d 1130 (8th Cir. 1992) (same); Johnson v. United States, 196 F.3d 802, 805 (7th Cir. 1999) (same); Rollen v. United States, 125 F. Supp.2d 877, 880-81 (C.D.Ill. 2000) (same). Defendant did not receive certification by the Eighth Circuit prior to filing his Motion, therefore under § 2244, the Court is bound to dismiss it.
Moreover, had Defendant complied with the second or successive petition requirements of § 2255, the Eighth Circuit would not have granted him certification to present his arguments. Section 2255 provides that certification may be granted if the second § 2255 motion contains "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court. . . ." 28 U.S.C. § 2255(b)(2). The Eighth Circuit has held that the Supreme Court did not make Apprendi retroactive to cases on collateral review, and therefore that Apprendi is inapplicable to second or successive § 2255 motions. Abdullah v. United States, 240 F.3d 683, 687 (8th Cir. 2001); Rodgers v. United States, 229 F.3d 704, 706 (8th Cir. 2000).
Even if Apprendi applied retroactively, it does not apply to this case. In Apprendi the Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 120 S.Ct. at 2362. 21 U.S.C. § 841(b)(1)(C) provides for a sentence of 30 years if the defendant commits a schedule I or II controlled substance violation after a prior felony drug offense has become final, regardless of the quantity involved. Defendant's record indicates that he had a prior felony drug conviction, and the offense of conviction is a controlled substance violation. Thus, Defendant's 360-month sentence is within the statutory maximum, and Apprendi can afford no relief. United States v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir. 2000).
Defendant's argument that Apprendi requires that the indictment specify the applicable penalties is ingenious, if ultimately unavailing. As stated above, Apprendi only requires that a fact resulting in an increase of penalties above the statutory maximum be charged in the indictment. Apprendi does not require that the indictment specify what penalties the charged person is subject to. This is perhaps a fine distinction, but it is a distinction nonetheless.
Defendant's remaining challenges to the Court's jurisdiction are likewise unsuccessful. 18 U.S.C. § 2 does not require either proof of willfulness or of aiding and abetting. 18 U.S.C. § 2 may be violated by commission of the substantive offense. See 18 U.S.C. § 2(a) ("Whoever commits an offense against the United States. . . ."). Section 2(b) requires willfulness, but applies only if a person "causes an act to be done which if directly performed by him . . . would be an offense against the United States." 18 U.S.C. § 2(b). There is no allegation in the indictment that Defendant directed the actions of another, and § 2(b) does not apply to his offenses. Even if proof of willfulness were required, however, the indictment charged Defendant with intentionally possessing cocaine with intent to distribute. "Intentionally" in this instance is functionally equivalent to § 2's definition of "willfully," and thus, even under Defendant's reading of § 2, the indictment was sufficient. See United States v. Gabriel, 125 F.3d 89, 101 (2d Cir. 1997) ("The most natural interpretation of section 2(b) is that a defendant with the mental state necessary to violate the underlying section is guilty of violating that section if he intentionally causes another to commit the requisite act.")
Defendant's argument that a single count may not charge him with both a substantive offense and conspiracy to commit that offense is simply wrong, and merits no discussion. However, the Court notes that the indictment does not charge Defendant with a violation of a substantive offense and conspiracy in the same count. Rather, Count I, which is the only count to charge a conspiracy, alleges that Defendant conspired to violate 18 U.S.C. § 841(a)(1), in violation of § 846. The Count does not charge both a violation of §§ 841 and 846.
CONCLUSION
Whether the Motion is construed as a Rule 60(b) motion or as a § 2255 motion, Defendant's arguments are without merit.
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion (Clerk Doc. No. 84) is DENIED.