Opinion
Nos. 3-01-CR-0296-H(03), 3-04-CV-1888-H.
March 23, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Jeff Hendricks, appearing pro se, has filed a motion to correct, vacate, or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated herein, the motion should be denied.
I.
Defendant was convicted by a jury of conspiracy to possess with intent to distribute more than 500 grams of methamphetamine and conspiracy to possess pseudoephedrine, a List I chemical, knowing it would be used to manufacture methamphetamine. Punishment was assessed at a total of 360 months confinement followed by supervised release for a period of five years. His conviction and sentence were affirmed on direct appeal. United States v. Hendricks, 71 Fed.Appx. 441, 2003 WL 21417502 (5th Cir. Jun. 5, 2003), cert. denied, 124 S.Ct. 507 (2003). Defendant now seeks post-conviction relief pursuant to 28 U.S.C. § 2255.
II.
Defendant raises three broad arguments in multiple grounds for relief: (1) the amount of pseudoephedrine allegedly purchased in furtherance of the conspiracy and the amount of drugs used to enhance his sentence were not charged in the indictment, submitted to the jury, or proved beyond a reasonable doubt in violation of the Sixth Amendment to the United States Constitution; (2) the trial court relied on a faulty drug analysis in calculating his base offense level under U.S.S.G. § 2D1.1; and (3) he received ineffective assistance of counsel.
A.
In two related grounds, defendant contends that his conviction and sentence are invalid under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny. Apprendi holds 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, 120 S.Ct. at 2362-63. Four years later, in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d. 403 (2004), a majority of the Supreme Court held that an enhanced sentence imposed by a judge under the Washington Sentencing Reform Act, which was based on facts neither admitted by the defendant nor found by a jury, violated the Sixth Amendment to the United States Constitution. See Blakely, 124 S.Ct. at 2538. The Court recently extended its holdings in Apprendi and Blakely to invalidate the mandatory nature of the federal sentencing guidelines. United States v. Booker, 125 S.Ct. 738, 2005 WL 50108 at *15 (U.S. Jan. 12, 2005). Relying on these authorities, defendant argues that his conviction should be set aside because the amount of pseudoephedrine allegedly purchased in furtherance of the conspiracy and the amount of methamphetamine used to enhance his sentence were not charged in the indictment, submitted to the jury, or proved beyond a reasonable doubt.
1.
As a preliminary matter, the court must determine whether these claims are barred by the rule in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994) ("A threshold question in every habeas case . . . is whether the court is obligated to apply the Teague rule to the defendant's claim."). Teague prohibits the application of new rules of criminal procedure on collateral review, except where the new rule places certain kinds of conduct beyond the power of the government to proscribe or requires the observance of procedures that are "implicit in the concept of ordered liberty." Teague, 109 S.Ct. at 1073.
Neither exception is applicable to the instant case.
In United States v. Brown, 305 F.3d 304, 309-10 (5th Cir. 2002), cert. denied, 123 S.Ct. 1919 (2003), the Fifth Circuit held that Apprendi announced a new constitutional rule of criminal procedure, rather than substantive law, which is not retroactively applicable to initial section 2255 motions. Other circuit courts have reached the same result. See Curtis v. United States, 294 F.3d 841, 843-44 (7th Cir.), cert. denied, 123 S.Ct. 451 (2002); Goode v. United States, 305 F.3d 378, 383-85 (6th Cir.), cert. denied, 123 S.Ct. 711 (2002); United States v. Sanchez-Cervantes, 282 F.3d 664, 667 (9th Cir.), cert. denied, 123 S.Ct. 48 (2002); United States v. Aguirre, 26 Fed.Appx. 892, 2002 WL 188972 at *1 (10th Cir. Feb. 7, 2002); McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001), cert. denied, 122 S.Ct. 2362 (2002); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001), cert. denied, 122 S.Ct. 848 (2002); United States v. Sanders, 247 F.3d 139, 151 (4th Cir.), cert. denied, 122 S.Ct. 573 (2001). Similarly, nothing in Blakely or Booker suggests that those rulings, which are based on Apprendi, apply retroactively. To the contrary, Booker expressly holds that the decision applies "to all cases on direct review." Booker, 2005 WL 50108 at *29 (Breyer, J.), citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (emphasis added). See also In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004) (holding that Blakely is not applicable to cases already final); United States v. Juarez, 2004 WL 2965029 at *2 (N.D. Tex. Dec. 8, 2004) (same); United States v. Montana, 2004 WL 2996963 at *1 (N.D. Ill. Dec. 23, 2004) ("[N]othing suggests any likelihood that the Supreme Court's ruling in [ Booker] will include a retroactive application and extension of the Blakely principles that would open up for potential revision the many thousands of long-ago-imposed sentences such as [defendant's]."). Because Apprendi, Blakely, and Booker are not retroactive, defendant's first two claims are Teague-barred.
2.
Even if the court considers these claims on the merits, defendant would not be entitled to post-conviction relief. The Fifth Circuit has held that Apprendi is "specifically limited to facts which increase the penalty beyond the statutory maximum, and does not invalidate a court's factual finding for the purpose of determining the applicable Sentencing Guidelines." United States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000), cert. denied, 121 S.Ct. 1152 (2001); see also United States v. Meshak, 225 F.3d 556, 576-77 (5th Cir. 2000), cert. denied, 121 S.Ct. 834 (2001). Here, the indictment charges defendant with a drug offense involving, inter alia, "more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine, a schedule II controlled substance." (Def. App., Exh. E at 1). The jury found beyond a reasonable doubt that defendant conspired to possess with intent to distribute 500 grams of a mixture or substance containing a detectable amount of methamphetamine. ( Id., Exh. G; see also Def. Mem. Br. at 31). The statutory maximum penalty for such an offense is life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(viii). Defendant was sentenced to 360 months confinement, or 30 years. Consequently, his sentence does not implicate Apprendi. See United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert. denied, 121 S.Ct. 1163 (2001) ( Apprendi applies only to cases where sentence exceeds statutory maximum); United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000), cert. denied, 121 S.Ct. 1152 (2001) (same). These grounds for relief are without merit and should be overruled.
Defendant correctly notes that the indictment failed to allege a specific amount of pseudoephedrine involved in the conspiracy and the jury was never asked to determine that amount. However, defendant's 240-month sentence for conspiracy to possess pseudoephedrine runs concurrently with his 360-month sentence for conspiracy to possess with intent to distribute more than 500 grams of methamphetamine. Consequently, any Apprendi error with respect to the lesser sentence is harmless.
B.
Defendant next argues that the trial court relied on a faulty drug analysis in calculating his base offense level under U.S.S.G. § 2D1.1(c)(1). This claim fails for two reasons. First, a misapplication of the sentencing guidelines does not fall within the narrow category of claims subject to review under 28 U.S.C. § 2255. See United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998); United States v. Payne, 99 F.3d 1273, 1281 (5th Cir. 1996).Second, the substance of this claim was considered and rejected on direct appeal. In finding that the trial court properly calculated the base offense level, the court wrote:
Section 2D1.1(c)(1) of the Sentencing Guidelines provides for a base offense level of 38 when an offense involves "15 KG or more of Methamphetamine, or 1.5 KG or more of Methamphetamine (actual), or 1.5 KG or more of `Ice'." A DEA chemist analyzed the methamphetamine and found it to be d-methamphetamine hydrochloride. He testified that "D is an isomer" that only exists when purity exceeds 80 percent. "Ice", as defined by the guidelines, "means a mixture or substance containing d-methamphetamine hydrochloride of at least 80% purity." U.S.S.G. § 2D1.1(c) note C. The DEA chemist further testified that the conspiracy realistically involved at least four kilograms of actual methamphetamine or "ice". Thus, it was not clear error for the district court to sentence Hendricks according to U.S.S.G. § 2D1.1(c)(1).Hendricks, 2003 WL 21417502 at *3. Although defendant still believes that the drugs analyzed by the DEA chemist did not meet the legal definition of "ice," he cannot relitigate this claim in a section 2255 motion. See United States v. Kalish, 780 F.2d 506, 508 (5th Cir.), cert. denied, 106 S.Ct. 1977 (1986) (claims raised in previously appeal may not be relitigated on collateral review).
C.
Finally, defendant contends that he received ineffective assistance of counsel because his attorney: (1) did not request a jury instruction on the lesser included offense of simple possession of methamphetamine; and (2) failed to object to the introduction of three different transaction records showing multiple entries for the same purchase of Suphedrine and Aphedrid tablets.1.
The Sixth Amendment to the United States Constitution guarantees a defendant reasonably effective assistance of counsel at all critical stages of a criminal proceeding. See 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, a defendant must prove that the performance of his attorney was constitutionally inadequate and that such deficiency prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 692-94, 104 S.Ct. 2052, 2067-68, 80 L.Ed.2d 674 (1984). 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). Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 104 S.Ct. at 2068. See also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel).
2.
Defendant first criticizes his attorney for failing to request a jury instruction on the lesser included offense of simple possession of methamphetamine. In order to be entitled to such an instruction, the elements of the lesser offense must be a subset of the elements of the charged offense. See United States v. White, 972 F.2d 590, 596 (5th Cir. 1992), cert. denied, 113 S.Ct. 1651 (1993), citing Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). Indeed, each statutory element of the lesser offense must be present in the greater offense. United States v. Browner, 937 F.2d 165, 168 (5th Cir. 1991). The Fifth Circuit has held that simple possession is not a lesser included offense of a drug conspiracy because the element of "possession" need not be proved to establish a conspiracy. See United States v. Krout, 66 F.3d 1420, 1431 (5th Cir. 1995), cert. denied, 116 S.Ct. 963 (1996). Other circuits are in accord. See, e.g., United States v. Colon, 268 F.3d 367, 375 (6th Cir. 2001); United States v. Horn, 946 F.2d 738, 744-45 (10th Cir. 1991); United States v. Brown, 604 F.2d 557, 560-61 (8th Cir. 1979). As the Tenth Circuit explained in Horn:
Possession, possession with intent to distribute, and distribution are substantive offenses which require the element of possession or distribution. Conspiracy to commit these same offenses under § 846 does not require an overt act, let alone possession or distribution. Thus, these substantive offense (as suggested lesser offenses) require an element not required for the greater offense of conspiracy and are not lesser included offenses. Stated another way, it is possible to conspire to commit these drug offenses without actually committing the offense themselves; thus it is not impossible to commit the greater offense (conspiracy) without committing the suggested lesser offenses.Horn, 946 F.2d at 744-45 (emphasis in original) (citations omitted).
The elements of simple possession under 21 U.S.C. § 844(a) are: (1) knowingly or intentionally, (2) possessing, (3) a controlled substance. See United States v. Steen, 55 F.3d 1022, 1031 (5th Cir.), cert. denied, 116 S.Ct. 577 (1995). By contrast, to establish a drug conspiracy under 21 U.S.C. § 846, the government must prove: (1) an agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy. See United States v. Cartwright, 6 F.3d 294, 299 (5th Cir. 1993), cert. denied, 115 S.Ct. 671 (1994).
Moreover, a defendant is not entitled to a lesser included offense instruction unless the evidence permits a jury to rationally convict of the lesser offense and acquit of the greater offense. White, 972 F.2d at 596. Here, defendant's participation in the conspiracy and the amount of drugs involved do not support a jury instruction on simple possession. At trial, Julie Porter, a co-conspirator testified that defendant helped manufacture and sell methamphetamine. (Trial Tr.-II at 54). In particular, defendant delivered drugs on three or four occasions, provided Porter with a telephone and beeper, and rented a storage unit where equipment and supplies used to manufacture drugs were kept. ( Id. at 55-58). Defendant also accompanied Porter to Sam's Club where she purchased a large quantity of pseudoephedrine. Although defendant did not go into the store, he helped Porter load between 6,000 and 7,000 pseudoephedrine pills into her car and drove to the storage unit he had rented. ( Id. at 56-57). A DEA chemist testified that at least 500 grams of methamphetamine, but likely far more, were involved in the conspiracy. ( Id. at 128). In light of this evidence, it would have been unreasonable for a jury to conclude that the amount of drugs possessed by defendant were for his own personal consumption. See United States v. Lacey, 853 F.Supp. 1358, 1359-60 (D. Kan. 1994) (citing cases) (possession of more than 500 grams of cocaine does not support simple possession instruction).
3.
Defendant also complains that his attorney failed to object to the introduction of three different transaction records showing multiple entries for the same purchase of Suphedrine and Aphedrid tablets at Sam's Club. This claim was fully explored at an evidentiary hearing held on February 25, 2005. At that hearing, defendant's former attorney, Charles Caperton, acknowledged that Government Exhibits 47, 48, and 49 contained several duplicate entries. However, Caperton did not recognize this error at trial. Nor did he insist that the government establish the authenticity of the records. Relying on these exhibits, Brian Widra, a DEA chemist, determined that 91,008 tablets, each containing 30 milligrams of pseudoephedrine, and 77,136 tablets, each containing 60 milligrams of pseudoephedrine, were purchased on the Sam's Club account. The total amount of pseudoephedrine in these tablets was 7,358 grams, which would yield 6,774 grams of methamphetamine using a 100% theoretical conversion, or 4,403 grams of methamphetamine using a 65% "real world" analysis. (Trial Tr.-II at 126-28). After the duplicate entries were brought to his attention, Widra revised his calculations. He now believes that 34,944 tablets, each containing 30 milligrams of pseudoephedrine, and 34,560 tablets, each containing 60 milligrams of pseudoephedrine, were purchased on the Sam's Club account. The total amount of pseudoephedrine in these tablets was 3,121 grams, which would yield 2,873.1 grams, or 2.87 kilograms, of methamphetamine using a 100% theoretical conversion, or 1,867.5 grams, or 1.86 kilograms, of methamphetamine using a 65% "real world" analysis. ( See Def. Hrg. Exh. 4 at 3).
The court appointed Russell Wilson III to represent defendant at this evidentiary hearing. See Rules Governing Section 2255 Cases, Rule 8(c) ("If an evidentiary hearing is required, the judge shall appoint counsel for a movant who qualifies for the appointment of counsel under 18 U.S.C. § 3006(A)(g)[.])"
The parties stipulate that the following trial exhibits contain duplicate entries:Date Store # Exhibit Purchase Count Quantity Cost
Assuming arguendo that counsel should have recognized the duplicate entries when he reviewed the transaction records, the court determines that defendant was not prejudiced by such error. Defendant was charged with conspiracy to possess with intent to distribute more than 500 grams of methamphetamine. He was sentenced under U.S.S.G. § 2D1.1(c)(1), which provides a base offense level of 38 for an offense involving 1.5 kilograms or more of actual methamphetamine. Even if the duplicate entries appearing on the transaction records were excluded, the amount of drugs involved in the conspiracy exceed 1.5 kilograms using either a 100% theoretical conversion or a 65% "real world" analysis. Defendant likely would have been convicted of the charged offense and received the same punishment. Thus, defendant cannot show that the result of the proceeding would have been different.
The court is not convinced that counsel was ineffective for failing to recognize these duplicate entries. Indeed, defendant did not realize the records contained duplicate entries for the same Suphedrine and Aphedrid purchases when he first reviewed the documents.
To the extent defendant contends that counsel should have required the government to authenticate the transaction records, such a claim is without merit. Caperton testified that he stipulated to the authenticity of this evidence to expedite the trial. This was a sound decision given that the government easily could have proved-up the documents through a business records custodian. This ground for relief should be overruled.
In a post-hearing brief, defendant suggests for the first time that counsel was ineffective for failing to challenge Widra's testimony regarding the strength of the pseudoephedrine tablets and for not objecting to certain hearsay notations appearing on the transaction records. As neither argument was raised by defendant in his original section 2255 motion, both are deemed waived.
RECOMMENDATION
Defendant's motion to correct, vacate, or set aside sentence should be denied. Nov. 2000 6381 Gov't Exh. 47 Aphedrid 48 2 $ 3.94 Gov't Exh. 48 Aphedrid 48 4 $ 7.88 (Exhibit 47 entry should be eliminated) Mar. 2001 6265 Gov't Exh. 47 Suphedrine 96 94 $203.04 Gov't Exh. 49 Suphedrine 96 94 $203.04 (One entry should be eliminated) Apr. 2001 6265 Gov't Exh. 47 Suphedrine 96 198 $427.68 Gov't Exh. 48 Suphedrine 96 198 $427.68 Gov't Exh. 49 Suphedrine 96 198 $427.68 (Two entries should be eliminated) Gov't Exh. 47 Aphedrid 48 292 $575.24 Gov't Exh. 48 Aphedrid 48 354 $697.38 Gov't Exh. 49 Aphedrid 48 292 $575.24 (Exhibits 47 49 should be eliminated) 8282 Gov't Exh. 47 Aphedrid 48 72 $141.84 Gov't Exh. 48 Aphedrid 48 144 $283.68 Gov't Exh. 49 Aphedrid 48 72 $141.84 (Exhibits 47 49 should be eliminated) (Def. Hrg. Exh. 8).