Opinion
Criminal Action No. 96-125 Section "H"
June 1, 2000
ORDER AND REASONS
Defendant's motion for post conviction relief pursuant to 28 U.S.C. § 2255 was considered on memoranda. Upon review of the entire record, it is clear that an evidentiary hearing is not necessary and that defendant is not entitled to relief. Accordingly, the motion is DENIED.
Defendant was convicted of one count of conspiracy to distribute a controlled substance ( 21 U.S.C. § 846) following a trial by jury. The superseding indictment contained seven counts, one of which charged defendant and others with conspiracy to distribute heroin, cocaine, cocaine base, and marijuana. The jury verdict form included special interrogatories directing the jury to indicate which of the four drugs each defendant was guilty of conspiring to distribute. The jury found that Jackson was guilty of conspiring to distribute only marijuana.
Defendant received an enhanced sentence due to prior convictions; he is currently serving a 360 month term of imprisonment, followed by a 10 year term of supervised release. Defendant's conviction and sentcnce were affirmed on appeal. United States v. Lampton, 158 F.3d 251 (5th Cir. 1998).
Defendant seeks to vacate his sentence on several grounds:
— the sentencing judge improperly determined that defendant had trafficked in cocaine and heroin and that this activity constituted relevant conduct for the purpose of determining the appropriate sentencing guideline range;
— the sentencing judge erred in concluding that the government had proved his cocaine and heroin trafficking by a preponderance of the evidence;
— the sentencing judge erred in holding defendant accountable for the criminal activities of his co-conspirators;
— the sentencing judge erred in considering a 1980 state conviction for sexual battery in determining that defendant was a career offender; and
— ineffective assistance of counsel.
CLAIMS RELATED TO RELEVANT CONDUCT
Defendant contends that because the jury concluded that he did not conspire to distribute cocaine or heroin, his participation in the trafficking of cocaine and heroin cannot be considered to be relevant conduct under § 1B1.3 of the United States Sentencing Guidelines. This claim lacks merit.
In United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 638, 136 L.Ed.2d 554 (1997), _ the Supreme Court concluded that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence." Thus, defendant's illegal activitics related to cocaine and heroin distribution constitute relevant conduct if the government proved that conduct by a preponderance of the evidence.
On direct appeal, the Fifth Circuit Court of Appeals concluded that "the record establishes that the government met its burden of establishing this relevant conduct by a preponderance of the evidence." United States v. Lampton, 158 F.3d at 257. Because the Fifth Circuit Court of Appeals considered and rejected this claim on direct appeal, defendant's claim that the government failed to prove the relevant conduct by a preponderance is barred from collateral review. United States v. Rocha, 109 F.3d 225, 229 (5th Cir. 1997).
Defendant also contends that his sentence should be vacated because he should not "be held criminally liable for the activities of his co-defendants. . . ." Defendant is not entitled to relief on this claim.
Contrary to defendant's contention, the sentencing judge did not hold defendant accountable for any of his co-conspirators' criminal activity. The sentencing judge held defendant accountable for only that quantity of cocaine and heroin which the government proved by a preponderance of the evidence defendant personally transported or purchased.
CAREER OFFENDER STATUS
Defendant contends that the sentencing judge erred in considering a 1980 sexual battery conviction in determining that Jackson was a career offender. This claim is also barred from collateral review; the court of appeals considered and rejected this claim on direct appeal. United States v. Lampton, 158 F.3d at 256 n. 3.
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant asserts that his appellate counsel was ineffective for failing to urge on direct appeal that the defendant's illegal activities involving cocaine and heroin trafficking could not be considered relevant conduct because the jury concluded that defendant did not conspire to distribute cocaine and heroin. Prior to defendant's trial, the Supreme Court had already decided United States v. Watts, 117 S.Ct. 633, which specifically decided this issue contrary to petitioner's contention. Therefore, it is clear that counsel's failure to urge that issue on direct appeal cannot constitute ineffective assistance of counsel.