MARY E. STANLEY, United States Magistrate Judge
Pending before the court is Movant's Motion to Vacate, Set Aside and Correct Sentence, filed pursuant to 28 U.S.C. § 2255, filed on January l6, 2001 (document # 98). By Standing Order dated December 26, 2001, this matter was referred to this Magistrate Judge to make proposed findings and recommendations pursuant to 28 U.S.C. § 636 (b)(1)(B)
PROCEDURAL HISTORY
On May 18, 1999, Movant, Anthony Thomas Foye (hereinafter referred to as "Defendant") was convicted of one count of distribution of cocaine base and one count of possession with intent to distribute cocaine base,
At sentencing, Defendant was held responsible for a total of 206.18 grams of cocaine base, of which 34.81 grams was attributed as offense conduct and 171.37 grams of which was attributed as relevant conduct. The District Court found Defendant's base offense level to be 34. The District Court also imposed a 2-level enhancement under USSG 301.1 for obstruction of justice arising out of Defendant's failure to appear for a previously scheduled plea hearing. Thus, the total offense level was 36.
Defendant's criminal history category was determined to be a category III. Accordingly with a total offense level of 36 and a criminal history category of III, the Guideline range was 235-293 months. Defendant was sentenced to 235 months in prison and five years of supervised release.
Following the imposition of sentence, Defendant filed a direct appeal with the United States Court of Appeals for the Fourth Circuit. In that appeal, Defendant argued that the District Court was barred from considering drug quantities as relevant conduct that had not been specifically charged in the indictment and proved beyond a reasonable doubt at trial. Defendant also contended that the District court erred in applying the 2-level obstruction of justice enhancement. The Fourth Circuit affirmed Defendant's convictions and his sentence in their entirety. See United States v. Foye, No. 99-4653 (4th Cir. 2000) (unpublished)
Defendant then filed the instant motion. Defendant's motion again raises the issues of drug quantities considered as relevant conduct and the obstruction of justice enhancement. The government was ordered to tile a response to Defendant's motion, which it filed on or about March 22, 2001. Defendant filed a Traverse on or about April 16, 2001.
In the Traverse, Defendant raised two additional grounds: (1) that he should not have received a 2-point enhancement in the calculation of his criminal history points for commission of the subject offense within two years of a previous incarceration; and (2) that the 5-year period of supervised release imposed on Defendant was excessive. On December 19, 2002, this court ordered the government to file a sur-reply in light of the Defendant's new contentions. The government filed its sur-reply on January 25, 2002. Defendant's motion is now ripe for consideration. The court will address each of Defendant's contentions in turn.
ANALYSIS
1. Relevant Conduct Calculation
Defendant's first ground for relief appears to state that, in light of the United States Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), the relevant conduct attributed to Defendant concerning rug quantities should have been specifically stated in the indictment and proved beyond a reasonable doubt. In Apprendi, the Supreme Court held that any factual circumstance that has the effect of increasing the statutory maximum sentence must be treated as an element of the offense and proven beyond a reasonable doubt. 530 U.S. at 490.
Defendant's contentions concerning the calculation of his relevant conduct lack merit. First, Defendant is barred from pursuing this claim by way of collateral attack because he raised this issue in his direct appeal, and the Fourth Circuit affirmed the District Court's findings. Unless an intervening change in the law has justified revisiting a prior judicial determination, the right to pursue collateral relief through a § 2255 motion is not an invitation to re-litigate issues already resolved. See Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976) (collateral attack cannot ordinarily be made on basis of issues litigated on direct appeal)
Here, even though Apprendi was decided after Defendant's conviction, the ruling does not justify revisiting the judicial determination through collateral attack because the Fourth Circuit has held that Apprendi is not retroactively applicable on collateral review. See United States v. Sanders, 247 F.3d 139 (4th Cir.), cert. denied, 122 S.Ct. 573 (200l). Defendant was convicted in May of 1999; Apprendi was decided in June of 2000. Thus, the ruling does not apply to this matter.
Finally, even if Apprendi did apply in the instant case, "judicial factfinding [such as determining relevant conduct] under the Guidelines is not subject to the Apprendi requirements — at least so long as that factfinding does not enhance a defendant's sentence beyond the maximum term specified in the substantive statute." United States v. Kinter, 235 F.3d 192, 201 (4th Cir. 2000). Defendant was sentenced under 21 U.S.C. § 841 (b)., because the indictment did not set forth a quantity of cocaine base, under Apprendi, Defendant's period of incarceration could be no greater than 20 years. See United States v. Promise, 255 F.3d 150 (4th Cir. 2001) ( 21 U.S.C. § 841 (b)(1)(C) is a fallback provision applicable when drug guantity has not been specified in indictment).
After the determination of relevant conduct and the application of the Guideline enhancements, Defendant was sentenced to 235 months, less than the statutory maximum of 240 months. See 21 U.S.C. § 841 (b)(1) (C). Because the enhancements Defendant received under the Guidelines did not extend Defendant's sentence beyond the statutory maximum, Defendant's sentence was not improper. Accordingly, the District Court should find that Defendant's sentence was appropriate under the ruling in Apprendi.
2. Obstruction of Justice Enhancement
Defendant's second claim concerns the application of a 2-level enhancement for obstruction of justice. Defendant also raised this issue in his direct appeal, and the Fourth Circuit affirmed the District Court's application of the 2-level enhancement for obstruction, stemming from Defendant's failure to appear at a scheduled plea hearing and resultant fugitive status.
Once again, this issue is not appropriate for consideration on collateral attack. See Boeckenhaupt, 537 P.2d at 1183. Here, there has been no material change in the judicial interpretation of the obstruction of justice enhancement under the Guidelines since Defendant's conviction. Thus, the District Court should find that Defendant's attempt to again raise this issue on collateral review is inappropriate.
3. Criminal History Point Enhancement
The third issue raised by Defendant, and raised for the first time in his Traverse, concerns the District Court's application of a 2-point enhancement in Defendant's criminal history points for commission of the instant offense within two years of previous incarceration. Because Defendant did not raise this issue in his direct appeal, the court must apply the "cause and actual prejudice" standard in order to obtain collateral relief. See United States v. Prady, 456 U.S. 152, 167 (1982) Under this standard, Defendant must show both "cause" excusing his procedural default for not raising this issue in his direct appeal, and "actual prejudice" resulting from the error. Id.
The court finds it unnecessary to address the cause prong of the test because Defendant can show no actual prejudice sufficient to justify collateral relief. A review of Defendant's Presentence Report indicates that Defendant's instant offense date was May 13, 1998, with relevant conduct including a controlled buy which occurred on March 25, 1997.
The report further indicates that Defendant had a prior arrest for controlled substance offenses on March 7, 1990. He was subsequently convicted of those charges, and was sentenced to 5 years in prison, with a 3-year term of supervised release to follow. Defendant began his supervised release on May 12, 1995. On November 13, 1995, Defendant's supervised release was revoked, and Defendant was sentenced to 18 months in prison. Defendant was released by way of a community corrections center on February 14, 1997. Thus, Defendant committed the instant offense within two years of February 14, 1997. Accordingly the District Court should find that the 2-point enhancement to Defendant's criminal history points was appropriate.
4. Term of Supervised Release
Defendant's final claim concerns the 5-year term of supervised release imposed at his sentencing. Defendant argues in his Traverse that, because the maximum term of imprisonment to which he was subject was 20 years, the maximum term of supervised release to which he should have been subjected was three years, for a Class C felony. In support of his contention, Defendant relies upon the Fourth Circuit's ruling in United States v. Good, 25 F.3d 218 (4th Cir. 1994). In response, the government argues that, pursuant to 18 U.S.C. § 3581, Defendant's crime is a Class B, not a Class C felony, and thus, the maximum term of supervised release is five years. Both parties' contentions lack merit.
21 U.S.C. § 841 (b)(1)(C), the statute applicable to Defendant's sentence, in light of Apprendi, requires a term of supervised release of "at least 3 years." However, the statute does not specify a class of felony for the crimes which it governs. Normally, in such a case, the appropriate supervised release provision would be found, not in Section 3581, as argued by the government, but rather in 18 U.S.C. § 3559 (a) (3), which provides as follows:
(a) Classification. — An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is
(3) less than twenty-five years but ten or more years, as a Class C felony.
18 U.S.C. § 3559 (a)(3). Under
18 U.S.C. § 3583 (b)(2), the appropriate term of supervised release for a Class C felony is "not more than three years." Thus, Defendant would be correct that, under § 3583(b)(2), his maximum term of supervised release would be three years. however, Section 3583(b) contains the language "except as otherwise provided. . . ."
Subsequent to Good, the Fourth Circuit decided the case of United States v. Pratt, 239 F.3d 640 (4th Cir. 2001). In Pratt, the Court held that the statutory cap in 18 U.S.C. § 3583 (b) "does not apply to statutes, such as § 841(b)(1)(C), whose own mandatory minimum periods of supervised release are the same as, or exceed, the maximum periods provided by § 3583." Id. at 647. Thus, § 841(b)(1)(C) trumps § 3583(b)(2).
Similar to the instant case, the defendant in Pratt had been sentenced to a five-year term of supervised release for a § 841 conviction. Id. The court held that Pratt's supervised release term did not run afoul of the stature, or Apprendi, which only applies to sentences "beyond the prescribed statutory maximum." See also United States v. General, No. 00-4346 (4th Cir. 2001) (unpublished) (rejecting defendant/appellant's argument that 5-year term of supervised release was improper). Accordingly, the District Court should find that Defendant's five-year term of supervised release was appropriate under § 841(b)(1)(C).
The court has found that each of Defendant's grounds for collateral relief lack merit. Based upon the findings made herein, it is respectfully RECOMMENDED that the District Court DENY Defendant's Motion Under 28 U.S.C. § 2255 (# 98)
The parties are notified that this Proposed Findings and Recommendation is hereby FILED, and a copy will be submitted to the Honorable Joseph R. Goodwin. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), Rule 8(b) of the Rules Governing Proceedings in the United States District Courts Under Section 2255 of Title 28, United States Code, and Rule 45(e) of the Federal Rules of Criminal Procedure, the parties shall have three days (mailing/service) and then ten days (filing of objections), from the date of filing this Proposed Findings and Recommendation within which to tile with the Clerk of this Court, specific written objections, identifying the portions of the Proposed Findings Recommendation to which objection is made, and the basis of such objection. Extension of this time period may be granted for good cause shown.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989) Thomas v. Am, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984) Copies of such objections shall be served on opposing parties, Judge Goodwin, and this Magistrate Judge.
The Clerk is directed to file this Proposed Findings and Recommendation and to mail a copy of the same to Movant, Anthony Thomas Foye, and to counsel of record.