The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
Petitioner Alex Fares ("Fares" or "Petitioner") brings this
petition for a writ of habeas corpus (the "Petition") pursuant to
28 U.S.C. § 2255. Relying on Apprendi v. New Jersey,
530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004),
Petitioner argues that this Court's sentence violated his Sixth
Amendment right to a jury trial. For the reasons set forth below,
Fares' Petition is denied.
On October 17, 2002, Fares pled guilty to money laundering,
structuring transactions to evade reporting requirements and
conspiracy to defraud the United States. On April 10, 2003, this
Court sentenced Fares to a prison term of 87 months. (Transcript
of Sentencing Hearing, dated Apr. 10, 2003 ("Tr.") at 31.) Fares'
base offense level under the Federal Sentencing Guidelines (the
"Guidelines") was 20. This Court applied a three-level
enhancement because it found by a "preponderance of the evidence"
that Petitioner "knew or believed that the [laundered] funds were
the proceeds of an unlawful activity involving the manufacture,
importation or distribution of narcotics." (Tr. at 31-32.)
Additionally, nine levels were added because Petitioner
"laundered approximately $13.8 million in narcotics proceeds." (Tr. at 34.) Finally, this Court subtracted three levels because
Petitioner accepted responsibility for his crimes. Based on these
adjustments, the final offense level was 29. (Tr. at 34.)
Judgment was entered on April 14, 2003. (Judgment, dated Apr. 14,
2003.) On August 26, 2004, Petitioner moved to vacate his
sentence, arguing that the Guidelines enhancements violated his
Sixth Amendment right to a jury trial.
Under 28 U.S.C. § 2255, a prisoner in custody may move to have
his sentence vacated on the grounds that "the court was without
jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum allowed by law, or is otherwise subject to
collateral attack." 28 U.S.C. § 2255.
A. Application of Apprendi
Petitioner's reliance on Apprendi is misplaced, because
Apprendi's holding applies only to judge-enhanced sentences
that exceed the maximum sentence allowed by statute.
530 U.S. at 466; see also United States v. Booker/Fanfan,
125 S.Ct. 738, 755 (2005) (holding that "[a]ny fact . . . which is
necessary to support a sentence exceeding the maximum authorized
by facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury beyond a
reasonable doubt." (emphasis added)). Here, Petitioner pled
guilty to money laundering, which carries a maximum statutory
sentence of twenty years per count a term far exceeding
Petitioner's sentence. See 18 U.S.C. § 1856(a). Thus,
Petitioner's sentence does not violate Apprendi. See United
States v. King, 345 F.3d 149, 151 (2d Cir. 2003) (holding that
"Apprendi's requirement that factors related to sentencing be
submitted to the jury and proved beyond a reasonable doubt applies only when the factors in
question increase the penalty for a crime beyond the statutory
maximum" (internal quotation marks omitted)).
Further, Apprendi is not retroactively applicable. See
Coleman v. United States, 329 F.3d 77, 90 (2d Cir. 2003)
("Apprendi does not apply retroactively to initial § 2255
motions for habeas relief"); accord Love v. Menifee,
333 F.3d 69, 73 (2d Cir. 2003).
B. Application of Blakely and Booker/Fanfan
In Blakely, the Supreme Court found a state court sentence
enhancement based on judicial determinations not made by a jury
unconstitutional. 124 S.Ct. at 2542. Subsequently, in Booker
the Court held that the Guidelines violated the Sixth Amendment
to the extent they required a court to impose enhancements.
Booker, 125 S.Ct. at 756. However, the Court acknowledged that
preventing a judge from "relying on a presentence report for
factual information" would "undermine the sentencing statute's
basic aim of ensuring similar sentences for those who have
committed similar crimes in similar ways." Booker,
125 S.Ct. at 760-62. Thus, the Court invalidated only those provisions of the
Guidelines "that have the effect of making the Guidelines
mandatory." Booker, 125 S.Ct. at 746. Accordingly, the Court
rendered the Guidelines advisory, permitting courts to consider
the guidelines and find facts as long as the sentence imposed
does not exceed the statutory maximum. Booker, 125 S.Ct. at 764
(holding that absent provisions making the Guidelines mandatory,
"the Act satisfies the Court's constitutional requirement and
falls outside the rule of Apprendi"). The Second Circuit
summarized the current state of the law as follows:
[A]t this point, we can identify several essential
aspects of Booker/Fanfan that concern the selection
of sentences. First, the Guidelines are no longer
mandatory. Second, the sentencing judge must consider
the Guidelines and all of the other factors listed in section 3553(a). Third, consideration of the
Guidelines will normally require determination of the
applicable Guidelines range, or at least
identification of the arguably applicable ranges, and
consideration of applicable policy statements.
Fourth, the sentencing judge should decide, after
considering the Guidelines and all the other factors
set forth in section 3553(a), whether (I) to impose
the sentence that would have been imposed under the
Guidelines, i.e., a sentence within the applicable
Guidelines range or within permissible departure
authority, or (ii) to impose a non-Guidelines
sentence. Fifth, the sentencing judge is entitled to
find all the facts appropriate for determining either
a Guidelines sentence or a non-Guidelines sentence.
United States v. Crosby, 397 F.3d 103
, 113 (2d Cir. 2005).
Here, Fares' sentence full conforms with Booker and Crosby.
Finally, the holdings of Blakely and Booker do not apply
here. As the Second Circuit explained, "a new rule of
constitutional law does not apply retroactively to cases on
collateral review unless the rule is substantive or a `watershed'
rule of procedure that affects the fundamental fairness and
accuracy of the criminal proceeding." Guzman v. United States,
404 F.3d 139, 140 (2d Cir. 2005) (citing Schriro v. Summerlin,
348 U.S. ___, 124 S.Ct. 2519, 2522-23 (2004); Teague v. Lane,
489 U.S. 288 (1989)) (internal quotation marks omitted). Indeed,
because Booker does not establish a substantive or "watershed"
rule, it is not retroactive. Guzman, 404 F.3d at 141-43; see
Humphress v. United States, 398 F.3d 855, 862 (6th Cir. 2005)
(holding that Booker is not retroactive under the "substantive"
or "watershed" rule exceptions of Teague); Hamdani v. United
States, No. Civ. 04-3332 (DGT), 2005 WL 419727 at *2 (E.D.N.Y.
Feb. 22, 2005) ("Booker does not apply retroactively to
criminal cases that became final before its release on January
12, 2005." (internal quotation marks omitted)); see also
United States v. Morgan, 406 F.3d 135 (2d Cir. 2005) (holding
that "the possibility of a favorable change in the law after a plea is simply one of the risks that accompanies
pleas and plea agreements").*fn1 Accordingly, petitioner's
sentence does not violate Blakely or Booker.
For the reasons set forth above, petitioner Alex Fares'
petition for a writ of habeas corpus is denied. Moreover, because
petitioner has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability will not be
issued. See 28 U.S.C. § 2253(c), as amended by the
Antiterrorism and Effective Death Penalty Act of 1996. In
addition, this Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this order would not be taken in ...