UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
July 19, 2007
MICHAEL ANTHONY WOOD, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Sifton, Senior Judge
MEMORANDUM OPINION AND ORDER
On September 12, 1989, Michael Anthony Wood was convicted after a jury trial of one count of conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 846, one count of possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(b)(1)(A)(iii), and one count of using and carrying a firearm in relation to a drug-trafficking offense in violation of 18 U.S.C. § 924(c)(1). Presently before the Court is petitioner's motion for relief on the grounds that he was sentenced in violation of his due process rights, pursuant to the rule expressed in Apprendi v. New Jersey, 530 U.S. 466 (2000). For the reasons set forth below, petitioner's application for relief is denied. Background
Familiarity with the underlying facts and procedural history of this case, as set forth in prior decisions, is presumed. Only those facts relevant to the present motion are discussed.
On December 6, 1988, pursuant to a search warrant, federal agents searched a home at 14 Turner Place in Brooklyn, New York. On the premises, the agents found, among others, petitioner, who was a resident of 14 Turner Place. In one rear bedroom, the agents found, among other things, a loaded .45 caliber semi-automatic pistol under the mattress of the bed. In another bedroom, agents found over 600 grams of cocaine base of 90% purity, a loaded Tech 9 submachine gun, a loaded 9 millimeter semi-automatic pistol, and documents with petitioner's name on them. In the kitchen, agents found $72,000 in cash, crack vials, glassine bags, a digital scale, ammunition, and a Pyrex pot containing crack residue. In the dining room, agents found a notebook containing entries reflecting narcotics transactions.
Petitioner was convicted after trial of one count of conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C. § 846, one count of possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(b)(1)(A)(iii), and one count of using and carrying a firearm in relation to a drug-trafficking offense in violation of 18 U.S.C. § 924(c)(1).
The sentencing guidelines range for petitioner was 235 to 292 months, based on an offense level of 38 and a criminal history category of I, including a 2 point enhancement for obstruction of justice due to petitioner's perjury at trial.*fn1 I sentenced petitioner to concurrent sentences of 235 months imprisonment on the conspiracy and substantive drug counts and to a consecutive 60-month prison sentence on the gun count. In a nonpublished order issued on March 2, 1990, the Court of Appeals affirmed Wood's conviction.
Petitioner moved to vacate his conviction for violating 18 U.S.C § 924(c)(1) and to modify his sentence on the drug counts. In a May 15, 1998 Memorandum Opinion and Order, I vacated Wood's conviction on the gun count in light of Bailey v. U.S., 516 U.S. 137 (1995),*fn2 and ordered that Wood be resentenced on the drug counts. At the May 20, 1999 resentencing I imposed an additional 2 point enhancement for possessing a gun, and found the minimum sentence in the applicable Guidelines range to be 292 months based on an offense level of 40.*fn3 I decided to downwardly depart from that sentence to impose concurrent terms of 264 months, in light of petitioner's post-conviction rehabilitation and, "his acknowledgment . . . of his responsibility for both the offense and for testifying falsely during his trial," admissions having the consequence of "foregoing a claim of actual innocence." Petitioner appealed the resentencing, challenging his firearms enhancement and the use of the crack cocaine guidelines. The Court of Appeals affirmed the sentence and the Supreme Court denied certiorari on March 19, 2001 and denied a petition for rehearing on May 21, 2001.
On March 1, 2002, petitioner filed another petition in this Court pursuant to 28 U.S.C. § 2255, challenging his sentence based on Apprendi. On January 26, 2004, I transferred that petition to the Court of Appeals as a second or successive petition. On May 31, 2005, the Court of Appeals held that the petition was not second or successive, and transferred the case back to this Court, directing that I provide the necessary form for filing a § 2255 motion.
While that case was pending, petitioner filed another motion under Rule 60(b) on March 7, 2005, and a supplemental motion under Rule 60(b) and Rule 15(a) on May 2, 2005, also seeking relief pursuant to Apprendi. On July 6, 2006, I held that I would treat that motion as a non-successive § 2255 petition, pursuant to the Court of Appeals' ruling of May 31, 2005.
Petitioner also filed a new § 2255 petition on May 30, 2006, putting forth substantially the same arguments, and then filed a "motion for summary judgment" on July 27, 2006, also on Apprendi grounds. As these motions are substantially the same in the claimed grounds for relief, I address them all in this Opinion.
Apprendi holds that any fact, other than that of a prior conviction, which "increases the penalty for a crime beyond the prescribed statutory maximum" must be either admitted by the defendant or submitted to the jury and proved beyond a reasonable doubt. 530 U.S. at 490.
Petitioner argues that my determination at resentencing that petitioner obstructed justice and possessed a gun, which increased his Guidelines sentencing range above the maximum of 235 months which would have applied without those enhancements, is unconstitutional under Apprendi. Petitioner also argues that my determination as to the total drug weight and type, pursuant to U.S.S.G. § 2D1.1, enhanced his Guidelines sentence based on facts not found by a jury.
The Second Circuit has "repeatedly held that Guidelines ranges are not statutory maximums for the purpose of Apprendi analysis." U.S. v. Luciano, 311 F.3d 146, 153 (2d Cir. 2002) (citing cases). Rather, under the precedent of this circuit, Apprendi "appl[ies] only when a sentencing court's findings increase the penalty faced by the defendant above the statutory maximum for a given count and not when they merely affect the length of a sentence within the statutory range." U.S. v. White, 240 F.3d 127, 136 (2d Cir. 2001) (emphasis added).
However, petitioner argues that the Supreme Court's holdings in Blakely v. Washington, 542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S. 220 (2005) demonstrate that, for Apprendi purposes, the 'statutory maximum' is the maximum sentence available under the Federal Sentencing Guidelines. Blakely held that the Sixth Amendment prohibited the imposition under Washington State's determinative sentencing guidelines of a sentence greater than "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at 303. Booker extended Blakely's holding to the Federal Sentencing Guidelines, finding that the Guidelines violated the Sixth Amendment to the extent that a maximum Guidelines sentence was increased based on factual findings made by a judge. 543 U.S. at 243-44. Petitioner argues that these cases clarify that the 'statutory maximum' referred to by Apprendi is the maximum sentence allowable under the Guidelines and that, accordingly, even under Apprendi alone a judge may not find facts which increase a defendant's sentence beyond the Guideline range.*fn4
However, the Second Circuit has already made it clear that Booker, though based on the rule set out in Apprendi, was not merely reiterating or explaining Apprendi. In Guzman v. U.S., 404 F.3d 139 (2d Cir. 2005), the petitioner, whose conviction became final after Apprendi but before Booker, argued that the Court's holding in Booker was "compelled" by Apprendi and therefore, "since [petitioner's] conviction was not final when Apprendi issued, [petitioner] would be afforded any relief he could get under Booker." 404 F.3d at 142. However, the Second Circuit disagreed with petitioner's argument and found that Booker announced a "new rule" whose "result . . . was not dictated by Apprendi or, for that matter, the Court's later decision in Blakely." Id. ("It cannot be said that the result in Booker was apparent to 'all reasonable jurists'; in Booker itself, dissenters undertook to explain why the holding in Booker was not compelled by Apprendi or Blakely."). Accordingly, even after Booker, the statutory maximum for Apprendi purposes remains the maximum available for the given count, not the maximum allowable under the Guidelines. See Cook v. U.S., 2006 WL 3333068, at *15 (S.D.N.Y. 2006) ("[A]n Apprendi claim is wholly distinct from a Booker claim."); Lisnoff v. U.S., 2006 WL 1367413, at *4 (E.D.N.Y. 2006).*fn5
Contrary to petitioner's contention that the jury made no finding as to drug quantity or type, the jury convicted petitioner of violating 21 U.S.C. § 841(b)(1)(A)(iii), possession with intent to distribute 50 grams of more of cocaine base. The statutory range for a violation of § 841(b)(1)(A)(iii) is 10 years to life. Because petitioner's sentence of 264 months, based on the obstruction of justice and firearm enhancements and my determinations as to drug type and amount,*fn6 is in well within that statutory maximum, his Apprendi claim fails. See U.S. v. Martinez, 85 Fed.Appx. 791, 792 (2d Cir. 2004) ("[U]nder Apprendi, drug quantity may be used to determine the appropriate sentence so long as the sentence imposed is not greater than the maximum penalty authorized by statute for the offense charged in the indictment and found by the jury.") (internal quotations omitted); Grimes v. U.S., 2003 WL 553269, at *3 (W.D.N.Y. 2003) (Obstruction of justice and firearm enhancements are permissible under Apprendi where "the sentencing facts found . . . did not cause Petitioner's sentence to exceed the statutory maximum, nor did they trigger a mandatory statutory minimum.").
For the reasons set forth above, petitioner's application is denied and petitioner is denied a certificate of appealability because he has not made "a substantial showing of the denial of a constitutional right." Reyes v. Keane, 90 F.3d 676, 680 (2d Cir. 1996). The Clerk is directed to transmit a copy of the within to all parties.
Charles P. Sifton (electronically signed) United States District Judge