NO. 3-98-CR-0303-P, NO. 3-01-CV-0050-P
May 2, 2001
MEMORANDUM OPINION AND ORDER
Movant Michael Charles Jones has filed a motion to correct, vacate or set aside his sentence under 28 U.S.C. § 2255. Movant is an inmate in the federal prison system. Respondent is the United States of America.
Movant pled guilty to possession with intent to distribute "crack" cocaine. Punishment was assessed at 262 months confinement followed by supervised release for a period of five years. Movant appealed his conviction and sentence. The court of appeals dismissed the appeal as frivolous. United States v. Jones, No. 99-10491 (5th Cir. Jan. 6, 2000). Movant then filed this motion under 28 U.S.C. § 2255.
Movant attacks his conviction and sentence on two bases. He contends that: (1) the statutes under which he was convicted are unconstitutional in light of the Supreme Court's decision in Apprendi; and (2) he received ineffective assistance of counsel.
Movant argues that 21 U.S.C. § 841 and 846 are unconstitutional because they do not include the quantity of drugs involved as an element of the offense.
A. Applicable Law
The Supreme Court recently 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 the jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). Drug quantity determinations are critical to the statutory sentencing provisions of21U.S.C. § 841. Depending on the kind and amount of drugs involved, the maximum penalty for a drug-related offense increases from 20 years to life imprisonment. See 21 U.S.C. § 841(b)(1)(A) (b)(1)(C). Thus, "if the government seeks enhanced penalties based on the amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the quantity must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable doubt." United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000), cert. denied, 121 S.Ct. 1152(2001).
Movant is not entitled to post-conviction relief for two reasons. First, this claim is barred under the rule in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.3d 334 (1989). Teague prohibits the application of new rules of criminal procedure on collateral review. Id., 109 S.Ct. at 1075. There are two exceptions: (1) where the rule places certain kinds of conduct beyond the power of the government to proscribe; or (2) if the rule requires the observance of procedures that are "implicit in the concept of ordered liberty." Id. at 1073.
The Fifth Circuit has not yet considered whether an Apprendi claim is barred by Teague. However, the court confronted a similar situation in United States v. Shunk, 113 F.3d 31 (5th Cir. 1997). At issue in Shunk was whether the Supreme Court's decision in United States v. Gaudin, 515U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), created a rule of substantive criminal law rather than a rule of criminal procedure. Gaudin holds that the materiality of a false statement is an essential element of an offense under 18 U.S.C. § 1001. Therefore, the issue must be presented to and decided by a jury beyond a reasonable doubt. Id., 115 S.Ct. at 2313-14. The defendants in Shunk were tried before the Gaudin decision and were not permitted to submit the issue of materiality to the jury. On collateral review, they argued that Gaudin announced a rule of substantive law that was not barred by Teague. The Fifth Circuit disagreed, noting that:
This statute provides, in relevant part:
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully —
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title or imprisoned not more than 5 years, or both.18 U.S.C. § 1001(a).
Gaudin did not change what the Government must prove; materiality was always an element of a § 1001 offense. [Citation omitted]. Instead, Gaudin changed the party to whom the government must prove materiality — from judge to jury. [Citation omitted].Shunk, 113 F.3d at 35. The court also found that the rule announced in Gaudin was "new" because it altered the existing practice among the circuits of permitting the judge to determine materiality. Id. Finally, the court concluded that Gaudin did not create a "watershed rule of criminal procedure" that is "central to an accurate determination of innocence or guilt." Id. at 36, quoting Teague, 109 S.Ct. 1076-77. Therefore, the Fifth Circuit held that Gaudin error does not meet either Teague exception.
At least two other circuit courts have also rejected the retroactive application of Gaudin to cases on collateral review. See United States v. Mandanici, 205 F.3d 519, 529-30 (2nd Cir.), cert. denied, 121 S.Ct. 190 (2000); United States v. Swindall, 107 F.3d 831, 836 (11th Cir. 1997).
This same analysis applies to an Apprendi claim. Both Gaudin and Apprendi involve a new rule of criminal procedure requiring the government to prove an element of its case to a jury rather than to a judge. Neither decision places certain kinds of conduct beyond the power of the government to proscribe or involves procedures that are "implicit in the concept of ordered liberty." See Shunk, 113 F.3d at 36 ("[O]ne can easily envision a system of `ordered liberty' in which certain elements of a crime can or must be proved to a jury, not to the jury."). The Fourth and Ninth Circuit and a majority of district courts that have considered the matter concur with this result. See e.g., United States v. Sanders, ___ F.3d ___, 2001 WL 369719 *6 (4th Cir. April 13, 2001) ( Teague bars retroactive application of Apprendi on collateral review); Jones v. Smith, 231 F.3d 1227, 1237-38 (9th Cir. 2000); Bowen v. United States, 2001 WL 263306 *1 (D. Me. Mar. 16, 2001); United States v. McCloud, 2001 WL 173776 at *1 (D. Kan. Feb. 16, 2001); United States v. Latney, 131 F. Supp.2d 31, 34 (D.D.C. 2001); Levan v. United States, 128 F. Supp.2d 270, 276 (E.D. Pa. 2001); Panoke v. United States, ___ F. Supp.2d ___, 2001 WL 46941 at *3 (D. Haw. Jan 5. 2001); United States v. Brown, 2000 WL 1880280 at *4 (N.D. Tex. Dec. 28, 2000); United States v. Johnson, 126 F. Supp.2d 1222, 1227 (D. Neb. 2000); Klein v. United States, 125 F. Supp.2d 460, 467 (D. Wyo. 2000); Ware v. United States, 124 F. Supp.2d 590, 599 (M.D. Tenn. 2000); United States v. Joseph, 2000 WL 1789989 at *2 (E.D. La. Dec. 5, 2000); West v. United States, 123 F. Supp.2d 845, 847 (D. Md. 2000); United States v. Pittman, 120 F. Supp.2d 1263, 1270-71 (D. Ore. 2000). But see United States v. Hernandez, ___ F. Supp.2d ___, 2001 WL 339164 *9-10 (N.D. Ohio Mar, 30, 2001); Jackson v. United States, 129 F. Supp.2d 1053, 1068 (E.D. Mich. 2001); Darity v. United States, 124 F. Supp.2d 355, 360 (W.D.N.C. 2000) ( Apprendi decision announced new substantive rule); United States v. Murphy, 109 F. Supp.2d 1059, 1064 (D. Minn. 2000) ( Apprendi falls within second Teague exception). Therefore, movant's Apprendi claim is barred by Teague.
Even if the Court considered this claim on the merits, movant is not entitled to relief. The Fifth Circuit recently rejected a challenge under Apprendi to the constitutionality of those statutes. United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000). See also United States v. Strachan, ___ F.3d ___, 2001 WL208470 *5 n. 1 (4th Cir. Mar. 2, 2001) (rejecting constitutional challenge to § 841). This ground for relief is without merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
Movant also contends that he received ineffective assistance of counsel at sentencing. He argues that his attorney: (1) did not move for a downward departure pursuant to U.S.S.G. § 4A 1.3; (2) failed to request a downward departure based on sentence manipulation by the government; and (3) did not challenge the use of a prior conviction for enhancement purposes based on the fact that movant was not represented by counsel during the prior criminal proceedings.
A. Applicable Law
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. U.S. CONST, amend VI; Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to obtain post-conviction relief due to ineffective assistance of counsel, a defendant must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must first demonstrate that counsel's performance fell below an objective standard of reasonable professional service. Id., 104 S.Ct. at 2064. He then must show that this deficient performance prejudiced the defense such that the outcome of the proceeding would have been different. Id. There is a strong presumption that counsel' s conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). A defendant must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
The Strickland test also applies to claims involving ineffective assistance of counsel during the punishment phase of a non-capital case. Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993); United States v. Bartholomew, 974 F.2d 39, 42 (5th Cir. 1992). A defendant must demonstrate that his sentence would have been "significantly less harsh" but for the deficient performance of his attorney. United States v. Segler, 37 F.3d 1131, 1136 (5th Cir. 1994); Spriggs, 993 F.2d at 88. The court must consider: (1) the sentence imposed in the case; (2) the minimum and maximum sentence allowed by law; (3) the relevant placement of the sentence within the allowable range; and (4) any mitigating or aggravating factors considered by the trier of fact. Id. at 88-89.
Movant further claims that counsel should have moved for a downward departure based on sentence manipulation by the government. He maintains that the government increased the severity of his sentence by using a confidential informant to engage in three separate drug buys of an increasing quantity of drugs. Movant claims that, because, the government could have arrested and prosecuted him based on the first transaction, their continuing actions were aimed solely at increasing the severity of his sentence. Moreover, he contends that the confidential informant paid greater than market value for the drugs, encouraging further transactions.
Sentencing entrapment is defined as "outrageous official conduct [that] overcomes the will of an individual predisposed only to dealing in small quantities for the purpose of increasing the amount of drugs . . . and the resulting sentence of the entrapped defendant." United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993). Sentencing factor manipulation occurs when a "defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment." United States v. Staufer, 38 F.3d 1103, 1107-08 (9th Cir. 1994). See also United States v. Tremelling, 43 F.3d 148, 150 n. 1 (5th Cir.), cert. denied, 115 S.Ct. 1990 (1995) (referring to sentencing factor manipulation as "kissing cousin" of entrapment). Several circuits have approved sentencing departures based on such claims. See United States v. Searcy, 233 F.3d 1096, 1099 (8th Cir. 2000) (sentencing entrapment viable grounds for downward departure); United States v. Montoya, 62 F.3d 1, 3-4 (1st Cir. 1995) (same); Tremelling, 43 F.3d at 151(noting circuit not yet expressly determined acceptance of concept of sentencing factor manipulation); United States v. Washington, 44 F.3d 1271, 1280 (5th Cir.), cert. denied, 115 S.Ct. 2011 (1995)(same). See also United States v. Lacey, 86 F.3d 956, 963 (10th Cir.), cert. denied, 117 S.Ct. 331 (1996) (addressing claim of sentencing factor manipulation under existing "outrageous governmental conduct" standard); United States v. Messino, 55 F.3d 1241, 1256 (7th Cir. 1995) (same).
Although the Fifth Circuit has not yet ruled on the viability of a downward departure based on the government's manipulation, it has considered similar claims under a due process theory. In Tremelling, the defendant argued that the government had brought a larger quantity of drugs to a drug transaction than anticipated to increase his sentence. Tremelling, 43 F.3d at 151. The court found that a downward departure was not warranted, in part because there was no evidence that the government engaged in either entrapment or outrageous conduct. Id. at 152. In an earlier decision, the court considered defendant's argument that the government, in a reverse-sting-money-laundering operation, improperly brought more money to the table in order to rachet up his sentence. The court rejected the contention, holding that the trial judge's discretion in determining whether the amount of money was relevant conduct was a sufficient check on the government's ability to arbitrarily influence the sentence. United States v. Richardson, 925 F.2d 112, 117-18 (5th Cir.), cert. denied, 111 S.Ct. 2868(1991). See also United States v. Evans, 941 F.2d 267, 273 (5th Cir.), cert. denied, 112 S.Ct. 451 (1991) (finding government had not manipulated drug amount in violation of due process).
This Court concludes movant's argument fails for at least two reasons. First, it is clear that counsel did raise the issue of sentencing manipulation. The presentence report notes that movant provided a statement which included the following:
I understand that my lawyers will submit a sentencing argument on my behalf that the amount of crack cocaine in the transactions was increased, based on an above market price paid by the confidential informant who purchased cocaine from me. My lawyers will argue that the amount of drugs involved in the transactions was increased by the high price paid by the government. As a result, the amount purchased was increased, from transaction to transaction, based on the excess cash I received, above market value for each transaction. This enabled me to obtain, and offer for sale to the government's confidential informant, an increased quantity of crack cocaine.
(Presentence Report ¶ 14). During sentencing, counsel argued that the government used a "stair-step series of transactions" to incrementally increase the quantity of drugs and resulting sentence. (Sentencing Tr. 6-9). Clearly, the issue of sentencing manipulation was raised to the trial court.
Second, the Court finds that the circumstance in this case are not so extraordinary and outrageous to have mandated a reduction in movant's sentence based on the conduct of the government. The presentence report summarizes the offense conduct as follows:
On May 6, 1998, plans were formulated for a cooperating source to purchase $500 worth of crack cocaine from a known cocaine dealer . . . The cooperating source was fitted with monitoring devices and dropped off at a predetermined location in Corsicana. After waiting approximately 15 minutes for the target subject, who did not appear, the cooperating source began walking from the location, when he/she was approached by [movant], who was driving a burgundy vehicle.
According to the case agent, [movant] asked the cooperating source about another individual. After responding to [movant's] question, the cooperating source informed [movant] that he/she had been waiting for another individual so that he/she could purchase $500 worth of crack cocaine. The cooperating source showed [movant] the money, and [movant] told the cooperating source that he could fix him/her up (meaning [movant] could supply the cooperating source with $500 worth of crack cocaine). [Movant] instructed the cooperating source to wait there because he had to go get it (referring to the crack cocaine) and he would be right back. When [movant] returned several minutes later, he handed the cooperating source a large quantity of crack cocaine. The cooperating source handed [movant] the $500. According to the case agent, [movant] also informed the cooperating source that he could supply him/her with more crack cocaine whenever he/she needed more. [Movant] handed the cooperating source a business card with a telephone number written on it. [Movant] instructed the cooperating source to page him at the number and put the code #10 in it so [movant] would know it was him/her. [Movant] then drove out of the area. A laboratory report indicated that the net weight of the cocaine base was 14.9 grams.
On May 21, 1998, the cooperating source met with [movant] in Corsicana and purchased $1,300 worth of crack cocaine. A laboratory report indicated that the net weight of the cocaine base was 38.6 grams.
On May 28, 1998, the cooperating source met with [movant] in Corsicana and purchased $2,400 worth of crack cocaine. A laboratory report indicated that the net weight of the cocaine base was 60 grams.
(Presentence Report ¶¶ 7-10). This evidence shows that movant is the one who approached the confidential source. Moreover, he provided his beeper number to the source and expressed his readiness to sell additional drugs. Movant has provided no evidence to dispute the clear inference of the presentence report that he was predisposed to engage in the sale of crack. Finally, it appears that the confidential source merely requested to buy a monetary amount of drugs. If an above-market price was paid, movant, not the government, was the one responsible. This Court finds that movant has not established conduct on the part of the government that rises to the level of entrapment or sentencing manipulation. See Tremelling, 43 F.3d at 152 (recognizing reduction may be warranted if government engaged in either entrapment or outrageous conduct).
Movant also complains that his attorney should have requested a downward departure pursuant to Section 4A1.3 of the Sentencing Guidelines. That section provides:
If reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range.
U.S.S.G. ¶ 4A1.3. See also United States v. Alford, 142 F.3d 825, 831 (5th Cir.), cert. denied, 119 S.Ct. 514 (1998). However, movant provides no argument or other support indicating why he believes his criminal history was the grounds for a downward departure. Accordingly, this ground for relief is denied. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000) (conclusory allegations of ineffective assistance of counsel do not raise constitutional issue in federal habeas proceeding).
Although movant does not explicitly phrase his argument in this manner, it is possible that he is asserting that his defense of entrapment entitled him to consideration for a downward departure under § 4A1.3 See United States v. Ogbonna, 184 F.3d 447, 451 (5th Cir.), cert. denied, 120 S.Ct. 600 (1999) (defendant moved for downward departure under 4 A1.3 based on argument that government should have arrested him after first drug transaction, cutting short his criminal liability). The Court has already concluded that movant's argument based on entrapment is without merit.
Movant finally asserts that his attorney failed to challenge the use of a prior conviction to enhance his sentence. Movant pled guilty to aggravated robbery on February 19, 1993. He maintains, however, that he was not represented by counsel during those criminal proceedings. Movant argues that the robbery conviction should not, therefore, have been used to enhance his sentence.
The Supreme Court recently concluded that a movant proceeding under § 2255 could not attack the validity of a prior conviction used to enhance his sentence under the Armed Career Criminal Act. See Daniels v. United States, ___ U.S. ___, ___ S.Ct. ___, 2001 WL 417151 *5 (April 25, 2001). The Court, however, specifically excluded an attack, such as movant makes here, based on the failure to appoint counsel during the prior criminal proceedings. Id. That exclusion is available only to those who first raised the claim in the sentencing proceeding. Id. Movant here did not raise this claim at sentencing. He is, therefore, procedurally barred from raising it here. However, the government did not raise this argument. The Court will, therefore, address the argument on the merits.
The presentence report calculated the offense level based on identification of movant as a career offender. (Presentence Report ¶¶ 118-19). A career offender is a defendant who is at least 18 years old, convicted of a crime of violence or controlled substance offense and has at least two prior felony convictions for crimes of violence or controlled substance offenses. See U.S.S.G. § 4B1.1; United States v. Robinson, 187 F.3d 516, 519 (5th Cir. 1999). The presentence report does list the aggravated robbery conviction as part of movant's criminal history. (Presentence Report ¶ 26). However, the report also lists a 1988 conviction for burglary of a habitation and two 1992 convictions for delivery of a controlled substance. ( Id. ¶¶ 25, 29-30). These convictions alone are sufficient to establish movant's status as a career offender. See U.S.S.G. ¶ 4B1.2(a) (b) (crime of violence includes burglary of a dwelling, controlled substance offense includes distribution or dispensing of controlled substance); United States v. Hornsby, 88 F.3d 336, 339 (5th Cir. 1996) (burglary of a habitation is crime of violence); United States v. Pearson, 910 F.2d 221, 222 (5th Cir. 1990), cert. denied, 111 S.Ct. 977 (1991) (upholding application of career offender status based on conviction for delivery of controlled substance). Accordingly, movant is not entitled to relief on this claim.
The motion to correct, vacate, or set aside sentence is denied.