*10. Having denied two Rule 33 motions more than six years after DeFeo
had been convicted, Judge Lowe denied the request for additional
investigative funds as a useless "exercise in repetition." (Pet. Br. Ex.
In short, Schoen went to heroic lengths to substantiate the claims in
DeFeo's successive Rule 33 motion, but in the end was unsuccessful. As
Schoen's investigation was objectively reasonable, see Strickland, 466
U.S. at 690-91, 104 S.Ct. at 2066, DeFeo has not demonstrated that
Schoen's post-trial representation was constitutionally ineffective. The
motion to vacate the sentence due to ineffective assistance of Rule 33
counsel is denied.
DeFeo next contends that all of Judge Lowe's factual findings on the
amount of narcotics at sentencing (and perhaps his leadership role)
should have been determined by a reasonable doubt standard, rather than a
preponderance of the evidence standard, pursuant to Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi
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 a jury, and proved beyond a reasonable
doubt." 120 S.Ct. at 2362-63. Like DeFeo, defendants have urged courts to
adopt the most expansive reading of Apprendi — that it requires
all facts relevant to sentencing other than a prior conviction to be
decided by a jury beyond a reasonable doubt. The government, not
surprisingly, has suggested a correspondingly limited interpretation.
As a preliminary matter, no controlling authority exists on the
question whether Apprendi is retroactively applicable on collateral
review. Although the government suggests that Apprendi does not present a
"new rule of constitutional criminal procedure" that would qualify for
retroactivity under the principles set forth in Teague v. Lane,
489 U.S. 288, 301 (1989), and its progeny, the petitioner has failed to
address this issue. As DeFeo's claim fails on the merits in any event,
the Court need not address the retroactivity issue.
Both the Supreme Court and the Second Circuit provide this Court
guidance in addressing DeFeo's claim. First, the specific holding of
Apprendi was that "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." Id. (emphasis added). As such, Apprendi
applies only where a fact found by a judge increases the otherwise
applicable statutory maximum sentence.
The Second Circuit recently upheld this interpretation of Apprendi in
the context of the Guidelines, which have traditionally been applied by
judges under a preponderance standard. In United States v. Garcia, ___
F.3d ___, 2001 WL 167018 (2d Cir. Feb. 20, 2001), the Second Circuit
We see nothing in the [Supreme] Court's holding in
Apprendi or its explication of the holding that alters
a sentencing judge's traditional authority to
determine those facts relevant to selection of an
appropriate sentence within the statutory maximum, an
authority the Supreme Court has recognized both before
the Sentencing Guidelines, and since their adoption.
Id. at *3 (citations omitted). The Court therefore "join[ed] the other
nine circuits that have ruled on direct review that a guideline factor,
unrelated to a sentence above a statutory maximum or to a mandatory
statutory minimum, may be determined by a sentencing judge and need not
be submitted to a jury." Id. at *4 (citations omitted). See also United
States v. White, ___ F.3d ___, 2001 WL 121081, *6 (2d Cir. Feb. 13,
2001) ("Where, as here, factual determinations were used to sentence the
defendant to a sentence within the maximum allowed by statute, Apprendi
is not controlling, and such determinations can be made by the court
without violating the defendant's right to due process.").
DeFeo received a sentence that was within the applicable statutory
maximum on each count of the indictment. Counts One, Three and Five
involved the distribution of narcotics, and were each subject to
statutory sentencing maxima of twenty years pursuant to
21 U.S.C. § 841(b)(1)(C) and 960(b)(3). These maxima were increased
to thirty years because the government had served DeFeo with a prior
felony information prior to trial pursuant to 21 U.S.C. § 851. See
21 U.S.C. § 841(b)(1)(C), 960(b)(3).*fn5 Considering the prior
felony, DeFeo faced a statutory sentencing range of ten years to life on
Count Four, the charge of importing more than 100 grams of heroin. See
21 U.S.C. § 952(a), 960(a)(1), 960(b)(2)(A). The statutory sentencing
range for Count Two, employing a minor in narcotics trafficking, was
"twice the maximum punishment otherwise authorized" for narcotics
trafficking. See former 21 U.S.C. § 845(b), now codified at
21 U.S.C. § 861. In other words, DeFeo faced a statutory maximum of
sixty years of imprisonment on Count Four, double the maximum applicable
to Counts One, Three and Five. See 21 U.S.C. § 861(b).
In short, before the judge did any factfinding, a sentence of between
ten and thirty years would have been within the applicable statutory
range on every count. The sentence actually imposed, 360 months (thirty
years), is within this statutory maximum. As such, Apprendi is not
implicated by the judge's findings of fact. It is worth noting that the
jury found beyond a reasonable doubt that Counts Four and Five each
involved more than 100 grams of heroin. (Tr. 829-33, 855.)
Finally, DeFeo contends that the amount of narcotics is an element of
the crime that must be alleged in the indictment and decided by a jury
beyond a reasonable doubt pursuant to Apprendi. Specifically, DeFeo
argues that the only drug amounts that were properly considered at
sentencing were the total of 200 grams the jury found him to have
trafficked in Counts Four and Five. In addition, he suggests that the
sentencing enhancements leading to a six level increase in the base
offense level were imposed based upon statutes under which he was not
indicted, in violation of Apprendi. Recalculating the sentence under
these principles, DeFeo arrives at an offense level of 27 and a criminal
history category of IV, yielding a sentence of 100-125 months, which
would translate to a range of 120-125 months when the mandatory minima in
Counts Four and Five are considered.
This argument appears to be foreclosed by Garcia, which held that "a
guideline factor, unrelated to a sentence above a statutory maximum or to
a mandatory statutory minimum, may be determined by a sentencing judge
and need not be submitted to a jury" under Apprendi. Garcia, 2001 WL
167018 at *4. See also White, 2001 WL 121081, *6
("Where, as here,
factual determinations were used to sentence the defendant to a sentence
within the maximum allowed by statute, Apprendi is not controlling, and
such determinations can be made by the court without violating the
defendant's right to due process.").
Moreover, the Second Circuit recently affirmed this Guidelines rule in
United States v. McLeod, 251 F.3d 78 (2d Cir. May 21, 2001), holding:
We have ruled that Apprendi is inapplicable to
Guidelines calculations that do not result in a
sentence on a single count above the statutory maximum
for that count. In addition, we have ruled that the
"preponderance of the evidence" standard applies to
determinations of relevant conduct for purposes of
ascertaining the "total punishment".
Id. at *3 (citing, inter alia, Garcia and White, citations omitted). To
hold that every fact pertinent to sentencing must be determined by a jury
would eviscerate the Guidelines altogether and lead to interminable jury
deliberations that would further choke already crowded dockets.
To the extent that the Second Circuit may address this issue in the
forthcoming en banc opinion in United States v. Thomas, 248 F.3d 76 (2d
Cir. 2001) (ordering en banc review),*fn6 this Court cannot rely on law
that does not yet exist in the face of the directly contradictory
controlling authority cited above.
For the foregoing reasons, the motion is denied.
As DeFeo has failed to make a substantial showing of the denial of any
constitutional right, a certificate of appealability will not issue.
28 U.S.C. § 2253 (as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA")); see United States v. Perez, 129 F.3d 255,
259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011, 1016 (2d
Cir. 1997). I certify pursuant to the Prisoner Litigation Reform Act of
1996 ("PLRA"), 28 U.S.C. § 1915(a)(3), that any appeal from this
order would not be taken in good faith. See Coppedge v. United States,
369 U.S. 438, 444-45 (1962).
It is so ordered.