LACY H. THORNBURG, UNITED STATES DISTRICT COURT JUDGE
THIS MATTER is before the Court on the Petitioner's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. The Government has responded and moved to dismiss the petition. For the reasons stated herein, the undersigned vacates in part the Petitioner's sentence.
I. PROCEDURAL HISTORY
Petitioner was indicted on December 5, 1995, and charged with conspiracy to manufacture and distribute cocaine base. Bill of Indictment, filed December 5, 1995. The Government filed a Bill of Information alleging that the conspiracy involved more than 50 kilograms of cocaine base. Information pursuant to 21 U.S.C. §, 841(b), filed December 7, 1995. On July 9, 1997, Petitioner was convicted by jury verdict. Verdict Sheet, filed July 9, 1997. Numerous post-trial motions were filed, considered and denied. On January 29, 1998, the undersigned sentenced the Petitioner to serve 384 months incarceration. Judgment in a Criminal Case, filed February 5, 1998.
Petitioner's conviction and sentence were affirmed by the Fourth Circuit on June 17, 1999. United States v. Darity, 181 F.3d 92 (Table), 1999 WL 397722 (4th Cir. 1999). On appeal, Petitioner claimed the undersigned made the following errors: (1) the denial of a new trial based on juror misconduct; (2) the denial of a motion to suppress evidence of a 1997 arrest; (3) the admission of that evidence pursuant to Federal Rule of Evidence 404(b);(4) the denial of a motion for a change of venue based on the racial makeup of the general population of the division in which he was tried; (5) the admission of testimony by cooperating witnesses in violation of the anti-gratuity statute; and (6) sentencing errors in the calculation of drug quantities. All grounds were rejected by the Fourth Circuit. Id. A petition for a rehearing en banc was denied on July 27, 1999. On January 18, 2000, the Supreme Court declined the petition for a writ of certiorari. Petitioner's motion pursuant to 28 U.S.C. § 2255 was filed on August 2, 2000, and thus is timely.
II. STANDARD OF REVIEW
A prisoner in federal custody may attack his conviction and sentence on the ground that it is in violation of the Constitution or United States law, was imposed without jurisdiction, exceeds the maximum penalty, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. Petitioner argues that his conviction and sentence are unconstitutional due to the recent decision of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) . The Supreme Court there held that other than 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. Based on Apprendi, Petitioner also argues that the United States Sentencing Guidelines are unconstitutional. The remaining two grounds in support of the motion are that Petitioner received ineffective assistance of counsel and the undersigned erred by enhancing Petitioner's sentence due to his leadership role in the offense.
III. DISCUSSION
The Court first addresses the impact of Apprendi on Petitioner's conviction and sentence. The bill of indictment charged the Petitioner with conspiring to manufacture and distribute cocaine base. The quantity of the drug involved in the conspiracy was not specified in the indictment; but, the bill of information alleged that in excess of 50 kilograms of base were involved. Based on the evidence at trial, the Probation Officer found that 602.3 grams of cocaine base and 93.7 kilograms of cocaine powder should be attributed to the Petitioner. Presentence Report, prepared October 14, 1997. Because of the amount of cocaine base attributed to the Petitioner, he faced a mandatory minimum sentence of not less than 10 years or more than life imprisonment. 21 U.S.C. § 841(b)(1)(A)(iii). As previously noted, the undersigned sentenced Petitioner to serve 384 months incarceration. This sentence was based on a finding by the Court from the preponderance of the evidence presented during the trial that the Petitioner knew or could reasonably foresee the drug quantities involved in the conspiracy as indicated by the probation officer.
However, under the reasoning of Apprendi, the sentencing court may no longer make a finding of drug quantities by a preponderance of the evidence if the result would be a sentence greater than the statutory maximum set out in § 841(b)(1)(C). Thus, Petitioner's sentence should not have exceeded 240 months because no drug quantity was specified in the bill of indictment. 21 U.S.C. § 841(b)(1)(C); United States v. Angle, ___ F.3d ___, 2000 WL 1515159 *10 (4th Cir. 2000) ("Pursuant to Apprendi, in order for imprisonment penalties under § 841(b)(1)(A) or (B) to apply to the defendants, such that findings of particular drug quantities could expose them to imprisonment terms greater than § 841(b)(1)(C)'s catch-all statutory maximum of twenty years, the drug quantity must be treated as an element: charged in the indictment, submitted to a jury, and proven to beyond a reasonable doubt."); United States v. Doggett, ___ F.3d ___, 2000 WL 1481160 **3 (5th Cir. 2000). Thus, if Apprendi is retroactive, Petitioner's sentence was increased by a fact, the drug quantity, beyond the prescribed statutory maximum without that fact having been submitted to the jury and proved beyond a reasonable doubt. The only issue then is whether Apprendi should be applied retroactively. Because that issue is a matter of law, no evidentiary hearing is necessary.
The Government has conceded that Apprendi announced a "new constitutional rule of criminal procedure" but argues it should not be applied retroactively on collateral review. United States' Response to Petition and Motion to Dismiss, at 2.
First, there is no question that the holding in Apprendi is of constitutional import: the Supreme Court so stated.
In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other 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. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."
Apprendi, 120 S.Ct. at 2362-63 (quoting Jones v. United States, 526 U.S. 227, 252-53 (1999)) (emphasis added). Likewise, the Fourth Circuit has recently recognized that in
Apprendi, the "Court announced as a constitutional rule a principle that had been suggested as one in
Jones. . . ."
Angle, 2000 WL 1515159 at **7. New rules of constitutional law, whether procedural or substantive, apply retroactively to cases on direct review.
Hankerson v. North Carolina, 432 U.S. 233 (1977). "In
Teague [the Supreme Court] held that, in general, `new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.'"
Lambrix v. Singletary, 520 U.S. 518, 526 (1997) (quoting Teague v. Lane, 489 U.S. 288, 310 (1989)). However, new rules of substantive criminal law are applied retroactively to cases on collateral review.
Bousley v. United States, 523 U.S. 614 (1998); Davis v. United States, 417 U.S. 333 (1974.) Petitioner and the Government agree that
Apprendi announced a procedural rule but disagree as to its retroactivity under the exceptions provided by
Teague.
In
Teague [the Supreme Court] held that, in general, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." To apply
Teague, a federal court engages in a three-step process. First, it determines the date upon which the defendant's conviction became final. Second, it must survey the legal landscape as it then existed,' and `determine whether a court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution. Finally, if the court determines that the petitioner seeks the benefit of a new rule, the court must consider whether the relief sought falls within one of the two narrow exceptions to nonretroactivity.
Lambrix, 520 U.S. at 527 (quoting Teague, supra) (other citations omitted). The first two steps of the
Teague process are met in this case.
Angle, supra; United States v. Martinez, 139 F.3d 412, 415 (4th Cir. 1998),
cert denied, 525 U.S. 1073 (1999) ("A rule announced in a case decided subsequent to the date on which the [§ 2255] petitioner's conviction became final is considered a new rule `if the result was not
dictated by precedent existing at the time the defendant's conviction became final.'"). The only issue is whether one of the two
Teague exceptions apply. The first exception is inapplicable because it deals with a rule which places a class of conduct beyond the power of the Government to prescribe.
Lambrix, at 539 . The second exception is for "`watershed rules of criminal procedure' that significantly improve the accuracy of the factfinding procedure and implicate the fundamental fairness of the trial."
Weeks v. Angelone, 176 F.3d 249, 263 n. 7 (4th Cir. 1999), aff'd, 528 U.S. 225 (2000) . It "is directed toward the accurate determination of guilt or innocence."
Id., at 266. "It is thus not enough under Teague to say that a new rule is aimed at improving the accuracy of trial. More is required. A rule that qualifies under this exception must not only improve accuracy, but also "alter our understanding of the
bedrock procedural elements' essential to the fairness of a proceeding."
Sawyer v. Smith, 497 U.S. 227, 242 (1990) (quoting Teague, at 311) (other citations omitted). "[The Supreme Court] observed in Saffle v. Parks that the paradigmatic example of a watershed rule of criminal procedure is the requirement that counsel be provided in all criminal trials for serious offenses."
Gray v. Netherland, 518 U.S. 152, 169 (1996) (citations omitted).
In ascertaining whether Apprendi falls within this admittedly narrow exception, the language used by the Supreme Court in its decision is telling.
The question whether Apprendi had a constitutional right to have a jury find [an essential element] on the basis of proof beyond a reasonable doubt is starkly presented. Our answer to that question was foreshadowed by our opinion in Jones v. United States,
526 U.S. 227 (1999), construing a federal statute. We there noted that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.". . . At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without "due process of law," Amdt. 14, and the guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." Amdt. 6. Taken together, these rights indisputably entitle a criminal defendant to a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. . . . As we have, unanimously, explained, the historical foundation for our recognition of these principles extends down centuries into the common law. . . . [T]rial by jury has been understood to require that
the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbours. . . . Equally well founded is the companion right to have the jury verdict based on proof beyond a reasonable doubt.
Apprendi, 120 S.Ct. at 2355-56 (quoting
Jones, 526 U.S. at 243) (other citations omitted).
Clearly, the Court itself considers the Apprendi rule of fundamental constitutional import, resonating its previous decision in Sullivan v. Louisiana, 508 U.S. 275 (1993), that the denial of the right to a jury verdict beyond a reasonable doubt is a "structural defect" "without which a criminal trial cannot reliably serve its function." Id., at 281.
Prior to Apprendi, a defendant could be sentenced beyond the statutory maximum sentence of 20 years in drug cases, 21 U.S.C. § 841(b)(1)(C), if the sentencing judge found by a preponderance of the evidence that the Government had proven drug quantities sufficient to invoke either § 841(b)(1)(A) or (B). "[T]here is a vast difference between . . . a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof." Apprendi, 120 S.Ct. at 2366. "The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence — that bedrock "axiomatic and elementary' principle whose `enforcement lies at the foundation of the administration of our criminal law.'" In re Winship, 397 U.S. 358, 363 (1970) (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)). Indeed, the fact that there is a Teague exception was preordained by Justice O'Connor's characterization of the Apprendi holding: "Today, in what will surely be remembered as a watershed change in constitutional law, the Court imposes as a constitutional rule the principle it first identified in Jones." Apprendi, 120 S.Ct. at 2380 (O'Connor, J. concurring).
The fact that Apprendi announced a constitutional rule of criminal procedure does not appear to be disputed by those courts which have addressed the decision. See, e.g., Angle, supra; Sustache-Rivera v. United States, 221 F.3d 8 (1st Cir. 2000); Doggett, supra; In re Joshua, 224 F.3d 1281 (11th Cir. 2000); United States v. Henderson, 105 F. Supp.2d 523 (S.D. W. Va. 2000); United States v. Murphy, 109 F. Supp.2d 1059 (D. Minn. 2000) (Apprendi announced a watershed rule of criminal procedure). However, the undersigned concludes that Apprendi is also a substantive decision to which Teague's retroactivity rules do not apply.
[N]ot all cases are easily categorized as being either substantive or procedural. For example, in United States v. Gaudin, the Court held that if materiality of a false statement is a violation of 18 U.S.C. § 1001, then it must be submitted to the jury. If Gaudin is read as holding that every element of the crime must be submitted to the jury, then it is clearly a procedural rule which should be analyzed under Teague standards. If, on the other hand, it is read as holding that materiality is an element of an offense under Section 1001, then it is a substantive decision governed by Davis." 28 Moore's Federal Practice, § 672.06 [2] at 672-72 (3rd ed. 2000). In Apprendi, the Court clearly ruled that every element of a crime must be submitted to a jury. However, it also held that any element which would increase a defendant's punishment beyond a statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.
In Angle, supra, the Fourth Circuit recently applied Apprendi to hold that drug quantities are an element of an offense under § 841.
Historically, this court and all of her sister circuits have held that drug quantity is a sentencing factor, not an element of the crime. After the Supreme Court noted in
Jones I that precedent suggested that any fact, other than prior conviction, that could increase the penalty beyond the statutory maximum penalty, must be charged in the indictment, submitted to a jury, and proven beyond reasonable doubt, circuit courts applying
Jones I interpreted this opinion as a suggestion rather than an absolute rule. . . . Of particular interest is the Tenth Circuit case of
United States v. Jones [hereinafter "Circuit Jones."], which analyzed the issue of drug quantity in light of the Supreme Court
Jones I, holding "Because
Jones [I] `suggests' rather than establishes a new principle of constitutional law, we adhere to the doctrine of
stare decisis and decline to reexamine whether the penalty provisions of § 841(b)(1) violated the Fifth and Sixth Amendments." In
Jones II, the Supreme Court vacated the judgment of Circuit Jones and remanded for further consideration in light of
Apprendi. The Supreme Court's remand of Circuit Jones indicates the possible or even likely view of the Court that Apprendi does change the traditional interpretation that drug quantity is always a sentencing factor. . . . [T]he Court in Apprendi made clear that labels are an unacceptable solution to making the "constitutionally novel and elusive distinction between `elements' and `sentencing factors.'" . . . Pursuant to
Apprendi, in order for imprisonment penalties under § 841(b)(1)(A) or (B) to apply to the defendants, such that findings of particular drug quantities could expose them to imprisonment terms greater than § 841(b)(1)(C)'s catch-all statutory maximum of twenty years, the drug quantity must be treated as an element. charged in the indictment, submitted to a jury, and proven to beyond a reasonable doubt.
Angle, 2000 WL 1515159 **8 (emphasis added) (citations omitted). Thus, Apprendi has been interpreted as having changed or clarified the essential elements of § 841. "The case before [this Court] involves the retroactivity of a decision [Apprendi] interpreting a substantive criminal statute, [as well as] one involving a rule of constitutional criminal procedure."
United States v. McKie, 73 F.3d 1149, 1153 (D.C. Cir. 1996) (emphasis added); accord, United States v. Brown, 117 F.3d 471, 479 (11th Cir. 1997) ("[T]he Supreme Court does `not express a new rule of constitutional law . . . [when] it interpret[s] a substantive criminal statute using rules of statutory construction.'"). Substantive statutory decisions which narrow the scope of a statute by requiring proof of all the elements of the crime are to be applied retroactively. McKie, supra. Apprendi "articulates the substantive elements that the government must prove to convict a person charged with" drug offenses. United States v. McPhail,
112 F.3d 197, 199 (5th Cir. 1997). Thus, it is also a substantive decision concerning the reach of the drug statute.
Id.; but see, Benevento v. United States, 81 F. Supp.2d 490, 492 (S.D.N.Y. 2000) (Where a decision announces that an element of a charge must be determined by the jury instead of the court, it is a procedural change.).
Having determined that Apprendi applies to this case either as a new rule of criminal procedure or as a substantive change in the law, Petitioner's sentence must be vacated. His sentence could not have exceed 240 months incarceration under 21 U.S.C. § 841(b)(1)(C). However, Petitioner has raised other issues in the motion. First, he claims that the United States Sentencing Guidelines are unconstitutional under the Apprendi ruling. Despite Justice O'Connor's dissent, the Court made clear that its ruling was not to have such a broad reach.
"We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute." Apprendi, 120 S.Ct. at 2358 . "[T]he Sentencing Guidelines are themselves a constitutional mechanism for channeling the discretion that a sentencing court would otherwise enjoy. . . ." United States v. Mack, ___ F 3d ___, 2000 WL 1456245 **14 (3rd Cir. 2000) (citing Mistretta v. United States, 488 U.S. 361 (1989)). Although Apprendi may come to mean that in some circumstances enhancements place a sentence beyond a statutory maximum and are therefore, unconstitutional as applied, "it has not yet acquired that meaning." Id . The undersigned is therefore in no position to make such a broad pronouncement. Henderson, 105 F. Supp.2d at 536; Doe v. United States, 112 F. Supp.2d 398, 403-04 (D.N.J. 2000).
Petitioner's next argument for relief is that the undersigned erred by sentencing him as a leader. This issue was raised and rejected on the Petitioner's direct appeal. Therefore, it may not considered again here. Kaufman v. United States, 394 U.S. 217, 227 n. 8 (1969); Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976); United States v. Hatala, 29 F. Supp.2d 728 (N.D. W. Va. 1998), appeal dismissed, 191 F.3d 449 (4th Cir. 1999), cert. denied, 120 S. Ct. 1697 (2000).
Finally, Petitioner claims his attorney rendered ineffective assistance by failing to stipulate to the facts surrounding his 1997 arrest during which cocaine was found in his car. The Supreme Court has stated the test for determining whether a defendant received adequate assistance of counsel.
First, the defendant must show that counsels performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 686 (1984). Unless a defendant makes both showings, his claim of ineffective assistance of counsel must fail.
Id . Thus, a defendant must show counsel's performance fell below objective standards of reasonableness, and, that but for his conduct, there was a reasonable probability the result of the trial would have been different.
Id., at 688.
Petitioner cannot make this showing. First, there is no indication that the Government would have agreed to such a stipulation. Moreover, stipulating to the arrest and surrounding facts would have deprived defense counsel of the opportunity to cross-examine the witnesses. Indeed, had counsel so stipulated, it is highly likely that Petitioner would have assigned this as ineffective assistance of counsel. See, e.g., United States v. Gray, 91 F.3d 135 (table), 1996 WL 397417 **6 (4th Cir. 1996). Strategical and tactical decisions of defense counsel are not subject to review for ineffective assistance absent blatant omissions not shown here. Bacon v. Lee, 225 F.3d 470, 484 (4th Cir. 2000); Baker v. Corcoran, 220 F.3d 276, 295 (4th Cir. 2000); Bell v. Evatt, 72 F.3d 421, 429 (4th Cir. 1995).
Having concluded that the Petitioner's sentence must be vacated, the only issue remaining is whether the undersigned is compelled to conduct a new sentencing hearing at which the Petitioner must be present. Federal Rule of Criminal Procedure 43(c)(4) provides that a defendant need not be present when a proceeding involves the reduction or correction of a sentence pursuant to 18 U.S.C. § 3582(c). That statute provides that a court may not modify a sentence once imposed except to the extent "expressly permitted by statute. . . ." 18 U.S.C. § 3582 (c)(1)(B). Section 2255, of course, permits the modification and correction of a sentence. The only manner in which Petitioner's sentence will be changed involves the terms of imprisonment and supervised release which are both mandated by statute. 21 U.S.C. § 841(b)(1)(C) (240 months incarceration and three years of supervised release). The remaining terms and provisions of the original Judgment will be unchanged. The undersigned concludes that the Petitioner's presence in this circumstance is not required. United States v. Slate, 153 F.3d 724 (table), 1998 WL 387256 **1 (4th Cir. 1998); Pasquarille v. United States, 130 F.3d 1220, 1223 (6th Cir. 1997) ("The defendant's right to speak before the imposition of sentence under Fed.R.Crim.P. 32(c)(3)(C), applies to the original sentence and not to the subsequent resentencing. There is nothing in § 2255 which provides that defendant has either an absolute right to be present or a right of allocution. . . . Thus, the defendant does not have a right pursuant to § 2255 to be present and to allocute at his resentencing."); United States v. Tamayo, 80 F.3d 1514, 1519 (11th Cir. 1996) (Correction of a portion of sentence can be remedied without the defendant's presence provided the sentence is not more onerous.).
IV. ORDER
IT IS, THEREFORE, ORDERED that the Respondent's motion to dismiss is hereby DENIED; and
IT IS FURTHER ORDERED that the Petitioner's petition is hereby GRANTED. A Judgment is filed herewith.
JUDGMENT
For the reasons set forth in the Memorandum and Order filed herewith,
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Petitioner's petition pursuant to 28 U.S.C. § 2255 is ALLOWED, and his sentence is hereby VACATED IN PART; and
IT IS FURTHER ORDERED that the Clerk of Court shall prepare an amended Judgment of Commitment which provides a sentence of imprisonment for a term of 240 months and a three-year term of supervised release, with all other terms and provisions of the original sentence to remain the same and in full force and effect.