The opinion of the court was delivered by: Shirley Wohl Kram, United States District Judge
Pro se petitioner Anthony Cruz moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence for conspiracy to distribute heroin in violation of 21 U.S.C. § 846. Cruz argues that the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), should be applied retroactively to his case. For the reasons set forth below, Cruz's petition is denied.
On June 7, 1990, a fourteen count indictment charged Cruz and his co-defendants with conspiracy to distribute heroin in Manhattan and the South Bronx.*fn1 Count One charged Cruz with violating Title 21, United States Code, Section 846 by conspiring to distribute and possess with intent to distribute a controlled substance. The object of the conspiracy was the violation of Title 21, United States Code, Section 841(b)(1)(A), through the distribution of more than one kilogram of heroin between 1987 and 1989. On November 16, 1990, a jury convicted Cruz on Count One and made a specific finding that the object of the conspiracy was to distribute one kilogram or more of heroin. Tr. at 4789.*fn2 On June 26, 1991, this Court sentenced Cruz to a term of 365 months imprisonment, five years supervised release and a mandatory special assessment. On July 30, 1992, the Second Circuit affirmed Cruz's conviction. See United States v. Rivera, 971 F.2d at 892.*fn3
Cruz later filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582 (c)(2) based upon Amendments 439 and 503 to the United States Sentencing Guidelines. On March 11, 1997, this Court denied Cruz's motion, finding that the Guidelines Amendments relied upon by Cruz were not retroactively applicable to a Section 3582(c)(2) motion. United States v. Cruz, 1997 WL 115835, at *3 Cruz filed the instant petition for relief on June 19, 2001.
Cruz makes the following arguments in his petition for habeas corpus review: (1) Congress did not intend for the penalties of 21 U.S.C. § 841 (b)(1)(A) to apply to persons who sold less than one kilogram of heroin in a single transaction; (2) the Court impermissibly broadened the Indictment by failing to require the jury to find that Cruz distributed, or possessed with the intent to distribute, one kilogram or more of heroin on one specific occasion; (3) the Court's determination of drug quantity during sentencing violated the rule set forth in Apprendi and (4) ineffective assistance of counsel based upon his attorney's failure to raise an Apprendi based argument at trial and on direct appeal.
A. CONGRESSIONAL INTENT BEHIND 21 U.S.C. § 841 SUPPORTS THE
FINDING THAT CRUZ IS RESPONSIBLE FOR THE DISTRIBUTION OF ONE
KILOGRAM OR MORE OF HEROIN OVER THE LIFE OF THE CONSPIRACY
Contrary to Cruz's argument that Congress intended only to punish those who possess or distribute more than one kilogram of heroin at one time, the Court finds that the legislative history of Section 841 and subsequent case law interpreting the statute support the practice of holding a defendant responsible for the total weight of narcotics distributed or possessed during the life of the conspiracy if that amount was reasonably foreseeable to the defendant.
"The base offense level in a drug conviction is set by determining the quantity of drugs in which a defendant trafficked, or in the case of a conspiracy, the amount in which his co-defendants trafficked if that amount was reasonably foreseeable to the defendant." United States v. Ayala, 75 F. Supp.2d 126, 129 (S.D.N.Y. 1999) (citations omitted); see also U.S.S.G. § 1B1.3 (a)(1)(B). The amount of drugs distributed over the course of the "overall scheme" should be used to establish the applicable offense level. See United States v. Hodges, 935 F.2d 766, 772 (6th Cir. 1991). "The entire quantity of [narcotics] attributable to a distribution enterprise must be used to establish the base offense level of a conspirator in the undertaking." United States v. Miller, 910 F.2d 1321, 1326-27 (6th Cir. 1990) (emphasis in original).
Pursuant to the Sentencing Guidelines and applicable case law, the Court did not err in failing to require the jury to find that Cruz distributed one kilogram or more of heroin on one specific occasion, as opposed to over the course of the conspiracy. It was sufficient for the purposes of Section 841(b)(1)(A) that the jury found Cruz guilty of conspiracy to distribute one kilogram or more of heroin over the course of the conspiracy.
B. APPRENDI DOES NOT APPLY TO CRUZ'S CLAIMS
Cruz argues for retroactive application of Apprendi and a subsequent reduction in his sentence based upon the Court's determination at sentencing that it was reasonably foreseeable to Cruz that hundreds of kilograms of cocaine would be distributed by the organization and that he should be held liable for that amount of narcotics. However, Cruz overlooks the fact that the jury specifically reached a determination that Cruz was guilty of conspiring to distribute one kilogram or more of heroin as a part of the organization, thereby authorizing a maximum statutory sentence of life imprisonment. Tr. at 4789.
Section 841(b)(1)(A) authorizes increased statutory maximum sentences based upon the quantity and type of controlled substance involved in the offense. Thus, while a violation of Section 841(b)(1)(C) carries a statutory maximum penalty of twenty years imprisonment for an indeterminate amount of narcotics, if the Government establishes at trial that the offense involved one kilogram or more of heroin, then the penalty provisions of Section 841(b)(1)(A) apply, including an increased statutory maximum penalty of life imprisonment.
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), sets forth the following new rule of criminal procedure: "[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." 530 U.S. at 490. Apprendi merely shifts the ...