U.S. v. Moss

• Decision Date: 15 December 2000
• Docket Number: No. 99-3169,99-3169
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. DARIUS M. MOSS, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 993

252 F.3d 993 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. DARIUS M. MOSS, APPELLANT.

No. 99-3169

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: December 15, 2000

Filed: June 11, 2001

Appeal from the United States District Court for the District of Nebraska. [Copyrighted Material Omitted] Before Wollman, Chief Judge, Richard S. Arnold and Hansen, Circuit Judges.

Hansen, Circuit Judge

Darius Moss appeals from the district court's¹ denial of his initial motion pursuant to 28 U.S.C. § 2255 to set aside his sentence. Moss argues his 360-month sentence for drug law violations was imposed in violation of the rule announced in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), because drug quantity was not charged in his indictment or submitted to the jury during trial. Because we conclude Moss is foreclosed from collaterally attacking his sentence based on Apprendi, we affirm the judgment of the district court.

I.

Moss was convicted in September 1996 of one count of conspiracy to possess with intent to distribute crack cocaine and one count of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. At Moss's sentencing hearing in July 1997, the district court found by a preponderance of the evidence that Moss was responsible for 1,644.3 grams of crack cocaine, which supported a combined base offense level of 38. The district court added two levels for obstruction of justice, see USSG § 3C1.1 (1995), and two levels for recklessly creating a substantial risk of death or serious bodily injury to another in the course of fleeing from a law enforcement officer, see id. § 3C1.2. Moss's combined adjusted offense level of 42 and a criminal history category III resulted in a sentencing range of 360 months to life. The district court sentenced Moss at the bottom end of the range, imposing concurrent terms of 360 months on the conspiracy count and 240 months on the distribution count.

Moss's conviction and sentence was affirmed on direct appeal, see United States v. Moss, 138 F.3d 742 (8th Cir. 1998), and Moss then filed the present § 2255 motion, which the district court denied. This court subsequently granted Moss a certificate of appealability on the issue of whether Jones v. United States, 526 U.S. 227 (1999), applies to 21 U.S.C. § 841. The Supreme Court held in Jones that serious bodily injury under the federal car-jacking statute, see 18 U.S.C. § 2119(2), is an element of the offense, not a sentencing factor, which must be charged in an indictment and submitted to the jury. Jones, 526 U.S. at 251-52.

Moss's opening brief focuses on the validity of the district court's two-level enhancement for reckless endangerment during flight. He argues that after Jones the government was required to charge reckless endangerment in the indictment and prove to the jury beyond a reasonable doubt that he created a substantial risk of death or injury. Shortly after the opening brief was filed, the Supreme Court issued its decision in Apprendi, in which it held that any fact (other than a prior conviction) which increases the penalty for a crime beyond the maximum statutory penalty authorized by a legislature must be submitted to a jury and proved beyond a reasonable doubt. 120 S. Ct. at 2362-63. Our circuit subsequently held in the context of § 841's quantity-dependent sentencing scheme that Apprendi prohibits the government from seeking to impose a sentence in excess of § 841(b)(1)(C)'s 20-year maximum sentence unless drug quantity is both alleged in the indictment and found beyond a reasonable doubt by a jury. See United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir. 2000).

Following Apprendi and Aguayo-Delgado, Moss now raises the issue of whether his sentence is improper because the district court's drug quantity finding increased his sentence beyond § 841(b)(1)(C)'s 20-year maximum sentence. Although the certificate of appealability was issued prior to Apprendi, that decision is a natural outgrowth of, and closely related to, the Jones issue on which the certificate was granted. We therefore believe we have the authority to decide the Apprendi question raised, and neither party suggests otherwise.

II.

We find no merit to Moss's initial argument that the district court's imposition of the reckless endangerment during flight enhancement is constitutionally unsound after Jones or Apprendi. Moss contends the district court's finding that he recklessly created a substantial risk of death and serious bodily injury increased his sentence beyond § 841(b)(1)(C)'s 20-year maximum sentence. His argument, however, confuses the Guidelines enhancement with § 841(b)(1)(C)'s statutory enhancement when "death or serious bodily injury results from the use" of a controlled substance, which exposes a defendant to a maximum statutory penalty of life imprisonment. The district court's finding related solely to whether Moss's relevant conduct, his flight from law enforcement officers, was a sufficient basis to enhance his Guideline sentence and played no part in exposing Moss to the higher statutory sentencing range. A district court may always find relevant conduct under the Guidelines by a preponderance of the evidence because the Guidelines themselves prohibit a sentence in excess of the statutory maximum sentence authorized for the offense of conviction. See USSG §§ 5G1.1, 5G1.2 (2000); see also United States v. Jones, 248 F.3d 671, 677 (7th Cir.2001) (rejecting argument that relevant conduct must be proven to jury beyond a reasonable doubt).

Moss is correct, however, in his assertion that the district court's drug quantity finding increased his sentence beyond the 20-year maximum, thereby resulting in a violation of the rule announced in Apprendi. The government concedes the constitutional violation but argues Moss is not entitled to relief because (1) Apprendi is a new rule of constitutional law inapplicable to cases on collateral review, see Teague v. Lane, 489 U.S. 288 (1989); and (2) Moss procedurally defaulted the claim by failing to raise it in his direct appeal.²

A.

In Teague, the Supreme Court held that new constitutional rules of criminal procedure cannot be applied retroactively to cases on collateral review unless they fall within an exception to the general rule. 489 U.S. at 311. The Court recognized two such exceptions. Relevant to our inquiry is the exception permitting watershed rules, ones which "implicate the fundamental fairness of the trial," to be raised collaterally.³ Id. at 312 (internal quotations omitted). In Rodgers v. United States, 229 F.3d 704 (8th Cir. 2000) (per curiam), we held that § 2255 forecloses Apprendi claims in a second or successive § 2255 motion because the Supreme Court has not "made" Apprendi retroactive to cases on collateral review. Id. at 706 (discussing the language of § 2255). We subsequently noted in United States v. Nicholson, 231 F.3d 445, 454 n.1 (8th Cir. 2000), that whether an Apprendi challenge raised in an initial § 2255 motion is Teague-barred is an open question in this Circuit. Consistent with the Ninth and Fourth Circuits, and the overwhelming majority of district courts,⁴ we hold today that Apprendi is not of watershed magnitude and that Teague bars petitioners from raising Apprendi claims on collateral review.

The Supreme Court's Teague inquiry is implicated because Apprendi is obviously a "new rule" subject to the general rule of non-retroactivity. A "new rule" is one that "breaks new ground or imposes a new obligation on the States or the Federal Government. . . . To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301. We believe that under either definition, Apprendi announces a new rule.

Prior to Apprendi, every federal circuit to have considered the question had held that drug quantity was a sentencing factor rather than an element of the crime defined in 21 U.S.C. § 841. See United States v. Thomas, 204 F.3d 381, 383 (2d Cir. 2000), cert. granted, judgment vacated, and remanded, ___U.S.___, 121 S. Ct. 749 (2001). This precedent was reaffirmed after Jones was decided. Our own case of United States v. Grimaldo, 214 F.3d 967 (8th Cir. 2000), decided just three weeks before Apprendi, is a case on point. Apprendi unmistakably altered the legal landscape and is easily categorized as a new rule.

The second step in our analysis is to ascertain whether the new constitutional principle announced in Apprendi is a watershed rule of criminal procedure, defined as a rule which implicates both the accuracy and fundamental fairness of criminal proceedings. Teague, 489 U.S. at 312. The Supreme Court has described this exception as encompassing only a "small core of rules requiring observance of those procedures that . . . are implicit in the concept of ordered liberty." O'Dell v. Netherland, 521 U.S. 151, 157 (1997) (quoting Graham v. Collins, 506 U.S. 461, 478 (1993)).⁵ According to the Court, the "sweeping rule" announced in Gideon v. Wainwright, 372 U.S. 335 (1963), that counsel shall be provided in all criminal trials for serious offenses, is the prototypical example of a watershed ruling. See O'Dell, 521 U.S. at 167; Gray v. Netherland, 518 U.S. 152, 170 (1996). Gideon, according to the Court, announced a rule that contains the "primacy and centrality" necessary to place it within Teague's watershed exception. Saffle v. Parks, 494 U.S. 484, 495 (1990). Apprendi does not fall within the same vein as Gideon's pronouncement that one who is unable to afford a lawyer "cannot be assured a fair trial unless counsel is provided for him." 372 U.S. at 344 (emphasis added). In other words, we do not believe Apprendi's rule recharacterizing certain facts as offense elements that were previously thought to be sentencing factors resides anywhere near that central core of...