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 ...