Opinion
Crim. Action No. 99-252, Section "K"(4)
June 14, 2002
Before this Court is defendant's Motion to Vacate, Set Aside or Correct Sentence (rec. doc. 540). Through this motion, defendant argues that this Court should set aside her sentence imposed on May 24, 2000, pursuant to 28 U.S.C. § 2255, for the following reasons: (1) through the course of negotiations, the government offered defendant two plea agreements and "violated the terms of the first agreement" because the second agreement included an imprisonment term "in excess of 57 months," (2) defendant did not freely and voluntarily sign or agree to the second plea agreement because of its close proximity to the time of sentencing, (3) defendant was incorrectly assigned a base offense level of 30 — the level assigned to "major players" — because she was a "minor, minor player" in the conspiracy, (4) the government used stale, old convictions to enhance defendant's penalty (e.g. March 18, 1980, Sept. 19, 1980 and Sept. 7, 1983), (5) evidence supporting defendant's conviction was gathered in violation of constitutional principles, and (6) the count to which defendant pled guilty does not contain any reference or allegation to the amount of cocaine defendant conspired to possess with intent to distribute — in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court has considered the memoranda and relevant law and finds that defendant's motion should be DENIED.
Defendant's objections to her guilty plea will be taken in turn. However, the Court first notes that the instant motion should be dismissed because (1) defendant failed to raise her objections prior to sentencing and (2) she waived her right to attack her sentence through a § 2255 motion pursuant to the terms of her plea agreement. Specifically, defendant's plea agreement stated:
Except as otherwise provided in this paragraph, the defendant hereby expressly waives the right to appeal her sentence on any ground, including but not limited to any appeal right conferred by 18 U.S.C. § 3742 on the defendant, and the defendant further agrees not to contest her sentence in any post-conviction proceeding, including but not limited to a proceeding under 28 U.S.C. § 2255. The defendant, however, reserves the right to appeal the following: (a) any punishment imposed in excess of the statutory maximum, and (b) any punishment to the extent it constitutes an upward departure from the Guideline range deemed most applicable by the sentencing court.
In United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) the Fifth Circuit eloquently explained the standard of review for a petition for relief under 28 U.S.C. § 2255:
The Supreme Court has emphasized repeatedly that a "collateral challenge may not do service for an appeal." After conviction and exhaustion or waiver of any right to appeal "we are entitled to presume that [the defendant] stands fairly and finally convicted." A defendant can challenge his conviction after it is presumed final only on issues of constitutional or jurisdictional magnitude, Hill v. United States, 368 U.S. 424 (1962), and may not raise an issue for the first time on collateral review without first showing both "cause" for his procedural default and "actual prejudice" resulting from the error. This cause and actual prejudice standard presented a "significantly higher hurdle" than the "plain error" standard we apply on direct appeal. We apply this rigorous standard in order to ensure that final judgments command respect and that their binding effect does not last only until "the next in a series of endless post-conviction collateral attacks." (Emphasis added)
Further, the court noted in United States v. Walker, 2001 WL 125342 (E.D. La. 2001):
If the error raised is not of constitutional or jurisdictional dimension, the defendant must demonstrate that the error could not have been raised on direct appeal, and if condoned, would result in a complete miscarriage of justice. Citing Shaid, 947 F.3d at 232. Even in instances of fundamental constitutional error, the defendant must meet this cause and prejudice test. Citing Murray v. Carrier, 477 U.S. 478 (1986).
Defendant was sentenced on April 12, 2000 and the record establishes that she did not appeal her conviction. Defendant now raises objections that could have been raised on direct appeal. Likewise, she has not shown cause for her failure to raise her claims on direct appeal and, therefore, has not met her burden under the "cause and actual prejudice test." Therefore, all of her claims are procedurally barred. Nonetheless, the Court will address defendant's claims individually.
Plea Agreement
In addition to being procedurally barred, the Court finds defendant's objections to her plea agreement unconvincing. During her rearraignment, the defendant's agreement with the government was recited into the record. Specifically, the government explained that in exchange for her plea of guilty as to count one of the second superseding indictment, the government would, inter alia, dismiss Count Six of the Second Superseding Indictment, the Superseding Indictment and the Original Indictment as it pertains to defendant. The agreement also reflected that the possible sentencing range for defendant upon her plea of guilty to count one was a "mandatory minimum of five and not more than forty years" imprisonment. Following the government's explanation of the plea agreement, the Court asked defense counsel whether he agreed with the plea agreement as presented by the United States Attorney's. Defense counsel answered in the affirmative. The Court then asked defendant the following questions:
Do you understand what the United States Attorney and your attorney have just outlined? And, is this your understanding of the plea bargain reached in this case?
Do you understand that although the United States Attorney has agreed to recommend the dismissal of Count 6 of the second superseding indictment, that this is merely a recommendation and I am not bound by it?
Defendant affirmatively answered all of the Court's questions. Both defendant and her counsel signed the plea agreement and neither complained that there had been more than one agreement or that the agreement was incorrect in any manner.
Also, there was no mention to this Court by defendant or her attorney that defendant's consent to the agreement was not free or voluntary. Several courts have explained that, by personally interrogating the defendant, a judge will be better able to ascertain the plea's voluntariness and develop a more complete record to support his determination in a subsequent, post-hearing attack. During the rearraignment in the case at bar, this Court posed a series of questions to defendant in order to ascertain whether her plea was free and voluntary. Specifically, the Court asked defendant, while under oath, the following questions:
The Court notes that defendant's attorney during her rearraignment and sentencing is the same counsel she is represented by presently.
United States v. Granier, 1990 WL 36123 (E.D. La. 1990) citing McCarthy v. U.S., 394 U.S. 459 (1969).
The questions posed were intended to satisfy the requirements set forth in Boykin v. Alabama, 395 U.S. 238 (1969) (holding that a plea of guilty cannot support a criminal conviction of the record fails to show that the defendant voluntarily and intelligently entered her plea).
Are you pleading guilty because you are in fact guilty of the crime charged? To put it another way, are you pleading guilty because you did the acts charged in the indictment?
Have you been influenced, induced or persuaded in any manner to plead guilty because any promises of leniency or other things made by anyone?
Let me ask you again, do you fully understand the charge against you?
Do you fully understand the consequences of your plea of guilty?
Are you pleading guilty because you are in fact guilty?
Are you pleading guilty voluntarily and of your own free will?
Defendant affirmatively answered each of the above questions. The Court likewise asked defense counsel (1) whether he had any doubts as to the defendant's competence to plead guilty and (2) whether he was satisfied that she was pleading guilty "voluntarily and understandingly and with full knowledge of the consequences of her plea." Defense counsel voiced no objection to his client's decision to plead guilty.
Neither defendant nor her attorney indicated that her guilty plea was involuntary or without full knowledge of the consequences of her actions. Thus, the Court is satisfied that Ms. Henry entered her plea voluntarily and with knowledge of the nature of the crime charged and the consequences of her plea. Base Offense Level
See United States v. Granier, 1990 WL 36123 (E.D. La. 1990) citing U.S. v. Bucchino, 606 F.2d 590 (5th Cir. 1980).
As noted above, defendant argues she was incorrectly assigned a base offense level of 30 — the level assigned to "major players" — because she was a "minor, minor player" in the conspiracy. According to the pre-sentence report, defendant's base offense level was 30 and, after the adjustment for defendant's acceptance of responsibility, her total offense level was 27.
At sentencing, defendant and her attorney admitted that they had received and read the presentence report and neither objected to defendant's base offense level (30) through written objections in advance of sentencing or verbally at the hearing. In fact, defense counsel's only request during sentencing was that the Court note for the record that the vehicle mentioned at paragraph 76 of the presentence report did not belong to defendant. With no further objection from defendant or her attorney, the Court found the pre-sentence report to be "accurate and uncontested" and adopted the guideline calculations and reasons for sentencing as set forth in that report. Sentencing Transcript, p. 4.
Regardless of the fact that defendant voiced no objection to her base offense level before or during her sentencing, to the extent defendant is arguing that her base offense level was incorrect, her argument is without merit. A defendant's base offense level is determined solely by the amount of drugs involved in the transaction(s) for which defendant is in custody. Thus, whether defendant was a major or minor player in the conspiracy did not affect her assigned base offense level.
U.S.S.G. § 2D1.1 (a)(3) explains that the base offense level is governed by the type and quantity of the drugs involved in the offense for which the defendant is responsible pursuant to the Drug Quantity Table.
To the extent defendant is arguing that from her base offense level she should have received a reduction for her "minor role" in the transaction, the Court finds that her objection is also without merit. While defendant has cast herself as a minor player in the overall conspiracy, the government was not convinced that she was entitled to a role reduction based on her level of participation. The Court finds that the government did not abuse its discretion in determining that defendant did not qualify for a role reduction. Similarly, defendant's role as a "mere courier" of drugs within the conspiracy does not automatically entitle her to a role reduction. In light of the overall conspiracy and the amount of drugs involved in the transaction in which defendant was a participant, the Court finds that defendant's base and total offense levels were not erroneous.
See U.S. v. Davis, 36 F.3d 1424 (9th Cir. 1994) (holding in part that the fact a defendant may be less culpable than other participants in an offense does not entitle him to minimal or minor role adjustment under the Sentencing Guidelines) and U.S. v. Thomas, 963 F.2d 63 (5th Cir. 1992) (explaining that a co-defendant's greater culpability does not automatically qualify the defendant for either minor or minimal status for purposes of sentencing).
See Rosier v. United State Parole Commission, 109 F.3d 212 (5th Cir. 1997) (finding that an offender's status as a mere courier does not necessarily mean that the is entitled to a reduction in sentence) and citing United States v. Bethley, 973 F.2d 396 (5th Cir. 1992) (holding that a transporter of drugs is not entitled to a minor or minimal participant status).
Use of Convictions to Enhance Defendant's Sentence
Defendant has argued that the government used stale, old convictions to enhance her sentence. Defendant's argument is meritless. Pursuant to U.S.S.G. § 4A1.1, any "prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense is counted." The U.S.S.G. Commentary also notes that criminal history points under this section are based on the sentence pronounced, not the length of time actually served.
While defendant's presentence report acknowledges that defendant was convicted on three different charges in 1980 and on one charge in 1983, only the 1983 conviction was used in calculating defendant's criminal history. For that crime, defendant was sentenced to 1-3 years imprisonment. The underlying conspiracy in the case at bar began in or about July 1996. Defendant's individual conduct in the conspiracy began on or about April 8, 1999. Thus, relative to defendant's criminal history calculation: (1) the underlying conspiracy of the instant case began 12 years after defendant's 1983 conviction and (2) defendant's conduct in the conspiracy began 14 years after defendant's 1983 conviction. Thus, defendant has not established that the calculation of her criminal history points was in abrogation of U.S.S.G. § 41A.1.
Sentence was imposed on August 26, 1983.
Constitutional Violations
Through her § 2255 motion, defendant has argued for the first time that the evidence used to support her conviction was seized in violation of constitutional guarantees. Defendant's argument is untimely. In United States v. Ramos, 1991 WL 236187 (E.D. La. 1991), the court addressed a similar issue and reasoned that "because defendant did not move to suppress the gun by a pre-trial motion, he has waived any objection that he has to the introduction of the gun into evidence." Citing Fed.R.Crim.P. 12(a) and (f) and Indiviglio v. United States, 612 F.2d 624 (2d Cir. 1979). Specifically, Rule 12 provides that "failure by a party to raise defenses or objections . . . which must be made prior to trial . . . shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver." The waiver provision of Rule 12 applies in § 2255 proceedings. Ramos, at 3 citing Davis v. United States, 411 U.S. 233 (1973). Thus, § 2255 motions may only be used to bypass the "Rule 12 waiver rule" when there is "cause" shown by defendant as to why the arguments were not raised in earlier proceedings. In the case at bar, defendant has offered no argument to establish "cause" as to why her complaint, as to the constitutionality of the search, was not filed before the entry of her guilty plea. Therefore, her objection is denied.
Apprendi
It is the Government's position that the principles outlined in Apprendi v. New Jersey, 530 U.S. 466 (2000), do not apply in the case at bar because it is not a "watershed exception that alters our understanding of the bedrock procedural elements essential to the fairness of a proceeding." However, assuming that Apprendi applies in the case at bar, it does not afford defendant relief.
Citing Teague v. Lane, 489 U.S. 288 (1989) and Sawyer v. Smith, 497 U.S. 227 (1990).
The Fifth Circuit has clearly explained, "[I]t is clear in this circuit that where an enhancement does not increase the defendant's sentence above the statutory maximum, there is no Apprendi violation." For example in United States v. Lovell, 2001 WL 1076124 (N.D. Tex. 2001) the court noted that defendant had been sentenced to thirty months and explained that Apprendi did not apply because the statutory maximum sentence for the offense was five years and his sentence fell below the threshold. In the case at bar, the statutory maximum sentence defendant could have received was forty years. Defendant was sentenced to 78 months. Because there was no enhancement of defendant's maximum possible sentence, Apprendi does not apply.
See also United States v. Keith, 230 F.3d 784 (5th Cir. 2000) (specifying that Apprendi should only be applied to cases in which an enhancement based on uncharged activity results in a sentence which exceeds the statutory maximum) and Burton v. United States, 154 F. Supp.2d 1080, (E.D. Mi. 2001) (explaining that Apprendi protections are implicated only if a factor causes a prisoner's sentence to exceed the statutory maximum that is prescribed for the underlying offense and holding that where a defendant was sentenced to less than twelve years, when the maximum possible sentence was life, there was no constitutional violation).
Further, the Court notes that the factual basis adopted by the Court at defendant's sentencing, without objection by defendant, specified that the substance seized from her vehicle was cocaine hydrochloride and weighed 4,731 grams. In Burton v. United States, 154 F. Supp.2d 1080, (E.D. Mi. 2001), the court explained:
[W]hen Burton [the defendant] entered his guilty plea on the record, he admitted that he had conspired to possess and distribute certain quantities of heroin and crack cocaine. Moreover, in an attachment to the plea agreement, he stipulated to the quantity and kind of drugs for which he accepted responsibility. These admissions satisfy the reasonable doubt standard, and Apprendi does not permit him to undermine the binding effect.
Similarly, in United States v. Deville, 278 F.3d 500 (5th Cir. 2002), the court affirmed the reasoning of the trial court which stated:
Cherry pleaded guilty to Count 1 of the indictment charging him with conspiracy to distribute and possess . . . 1,000 kilograms of marijuana. During the plea colloquy, Cherry's counsel acknowledged that he was pleading guilty to the conspiracy charge, but contested the 1,000 kilogram quantity alleged in the indictment. However, Cherry entered a written factual stipulation in which he agreed that he conspired to distribute "at least 100 kilograms or more" of marijuana. . . . Because Cherry was sentenced within the permissible guidelines for the distribution of at least 100 kilograms of marijuana, as Cherry admits, Apprendi simply does not apply. Also citing United States v. Fort, 248 F.3d 475 (5th Cir. 2001) (holding that when defendant stipulated to the amount of drugs at the time of his plea and the sentence was enhanced within the statutory range based on stipulation, Apprendi does not apply) (emphasis added).
In the case at bar, the factual basis read into the record during the plea colloquy specified the amount of drugs defendant was charged with possessing with the intent to distribute — 4,731 grams. Factual Basis, p. 2. Defendant was fully aware and never objected to the government's stipulation as to the amount and type of drugs involved. Apprendi does not provide defendant with post-conviction relief.
Accordingly,
IT IS ORDERED that the petition of Lenjan Henry is hereby DISMISSED WITH PREJUDICE.