Santana-Madera v. U.S., SANTANA-MADER
| Decision Date | 04 May 2001 |
| Docket Number | RESPONDENT-APPELLEE,SANTANA-MADER,PETITIONER-APPELLANT,Docket No. 99-2125 |
| Citation | 260 F.3d 133 |
| Parties | (2nd Cir. 2001) LEONARDO R., v. UNITED STATES OF AMERICA, Argued: |
| Court | U.S. Court of Appeals — Second Circuit |
Jeremy G. Epstein, Shearman & Sterling, New York, Ny, (Karen S. Hart and Olav A. Haazen, on the brief) for Petitioner-Appellant.
Elizabeth S. Riker, Assistant United States Attorney, for Daniel J. French, United States Attorney for the Northern District of New York (John G. Duncan, on the brief), for Respondent-Appellee.
Before: McLAUGHLIN, Pooler, Circuit Judges, and Martin, District Judge.*
In this case, a convicted drug dealer invokes two recent Supreme Court decisions, Richardson v. United States, 526 U.S. 813 (1999), and Apprendi v. New Jersey, 530 U.S. 466 (2000)--both of which were decided long after his convictions became final--in the hope of reversing his conviction for engaging in a continuing criminal enterprise ("CCE") and reducing his sentence of 324 months' imprisonment. Even though we conclude that the new rule announced in Richardson has retroactive application to the Petitioner's case, it is, nevertheless, an inadequate basis for upsetting his CCE conviction. And because the CCE conviction thus stands, whether or not Apprendi is to be retroactively applied (an issue we leave for another day) we conclude that there was no Apprendi error in the district court's sentence in the instant case.
In September 1992, an indictment filed in the United States District Court for the Northern District of New York (McCurn, J.) charged Petitioner, Leonardo Santana-Madera, with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846; eight substantive counts of cocaine distribution in violation of 21 U.S.C. § 841(a); and engaging in a continuing criminal enterprise ("CCE") in violation of 21 U.S.C § 848. The government alleged that, from January 1986 to June 1992, Santana-Madera masterminded a huge cocaine distribution pipeline between New York City and Syracuse, New York.
Consistent with the traditional practice before Apprendi, the indictment did not allege the quantity of cocaine involved either for the individual distribution counts or the aggregate amount of the CCE. Furthermore, like nearly all pre-Richardson CCE indictments, Santana-Madera's indictment did not specify which offenses constituted the "continuing series of violations." The CCE count simply alleged that Santana-Madera organized or managed at least five other persons in connection with three or more of the nine federal drug law violations alleged in the indictment.
Having pled not guilty to all charges, Santana-Madera came to trial in 1993. In its jury charge, the district court issued the following instruction on the "continuing series of violations" element of the CCE offense:
A continuing series of violations is three or more violations of the Federal Drug Laws committed over a definite period of time. These violations do not have to be convictions or separate counts in the indictment. They may be acts not mentioned in the indictment at all, as long as the Defendant had the intent to violate the drug laws when he or she committed these acts.
Thus, the jury was not required to agree unanimously on which specific violations constituted the "continuing series." Under this instruction, if the jury unanimously agreed that Santana-Madera supervised five or more people in the commission of three or more violations of the federal drug laws--even if each juror had a different set of three violations in mind--the jury could convict Santana-Madera of the CCE charge. Santana-Madera's counsel did not object to this instruction or request other instructions.
The jury convicted Santana-Madera on all charges. At sentencing, the district court concluded that Santana-Madera's participation in the conspiracy involved at least 50, but less than 150, kilograms of cocaine. This finding (along with others not here relevant) yielded a sentencing range, under the Sentencing Guidelines, of 324 to 405 months' imprisonment. Before continuing with the background of this case, we need to make a brief digression to discuss the sentence imposed by the district court.
It is perfectly clear that the district court sentenced Santana-Madera to 324 months' imprisonment, but the internal architecture of the sentence is not so clear. The written judgment of the district court stated, "324 months, consisting of 324 months on Counts 4, 10 [cocaine distribution counts] & 11 [CCE count] and 240 months on each of [emphasis added] Counts 2, 3, 5, 6, 8, & 9 [cocaine distribution counts], all to be served concurrently."1
The use of the words "each of" with respect to counts 2, 3, 5, 6, 8 and 9, and the absence of that phrase in connection with counts 4, 10 and 11, suggests that the district court merged the two distribution offenses (counts 4 and 10) within the CCE count (count 11) and issued a single sentence of 324 months on the merged CCE offense. This is peculiar because the Sentencing Guidelines make no provision for such a merger of offenses. Rather, the Guidelines for sentencing on multiple counts of conviction require a sentencing court to impose a separate sentence on each count of conviction. U.S.S.G. § 5G1.2 (1993). In a case such as this, a sentencing court is instructed to impose the total punishment level on the count carrying the highest statutory maximum, and then impose concurrent sentences on the remaining counts. U.S.S.G. § 5G1.2(c) (1993).
Although we would ordinarily be inclined to believe that the district court followed the Sentencing Guidelines, those closest to this case--the Petitioner and the government--agree that the district court did not impose concurrent sentences of 324 months on counts 4 and 10. The government states that all eight of Santana-Madera's cocaine distribution offenses fell under the rubric of 21 U.S.C. § 841(b)(1)(C), and each carries a maximum sentence of 20 years. Therefore, the district court could have imposed only a sentence of 240 months on counts 4 and 10, just as it did with the six other cocaine distribution counts.
For his part, Petitioner agrees that the district court "did not sentence [him] for the § 848 [the CCE offense] conviction separately, but instead lumped Counts 4 and 10 (possession with intent to distribute) and 11 (CCE) together." The parties thus agree that the district court merged Counts 4 and 10 into the CCE count, and neither has argued, on direct appeal or in this habeas proceeding, that such a merger was improper. In any event, 324 months was an appropriate sentence on the CCE count. So, while we cannot help but wonder why the district court elected to sentence Santana-Madera in this manner, we have no more cause to discuss it here.
After sentencing, Santana-Madera appealed and this Court affirmed. United States v. Santana-Madera, 47 F.3d 1157 (2d Cir. 1995) (table). Santana-Madera did not contest the CCE jury instruction in that appeal. In July 1998, Santana-Madera returned to the district court (McCurn, J.) to file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. The district court denied the petition in January 1999, finding that it was time-barred and, in any event, that Petitioner's claims were not cognizable because the claims had either been raised and rejected on direct appeal, or lacked any showing of cause for the omission or resulting prejudice.
Petitioner filed a notice of appeal, which this Court construed as a motion for a certificate of appealability ("COA"). While that COA motion was pending, the Supreme Court decided Richardson, which interpreted the CCE statute. Richardson held that § 848's phrase "continuing series of violations" did not refer to a single element of the CCE offense, but rather to several elements. 526 U.S. at 818-19. Therefore, in a CCE case, the jury must unanimously and separately agree on each of the violations that constitute a "continuing series of violations" required for a CCE conviction. Id. at 824. Petitioner promptly amended his motion for a COA, raising the Richardson issue.
In May 2000, this Court granted a COA on the following issues: "(1) whether the decision in Richardson v. United States, 526 U.S. 813 (1999), should be applied retroactively; (2) if so, whether trial counsel is ineffective for failing to request the jury instructions required by Richardson where the direct appeal was decided prior to the Richardson decision; and (3) if so, whether harmless error analysis is applicable such that habeas relief is not appropriate."
In June 2000, the Supreme Court decided Apprendi, further complicating matters. Apprendi held that any fact other than a prior conviction that increases a defendant's sentence beyond the otherwise applicable maximum penalty must be decided by a jury beyond a reasonable doubt. 530 U.S. at 490. Petitioner again moved to amend his COA to allow him to raise Apprendi issues. This Court granted that motion in March 2001, allowing Petitioner to raise the issues: (1) whether Apprendi applies retroactively; and (2) if so, whether there was an Apprendi error in this case.
We review a district court's denial of a habeas petition de novo. Farrington v. Senkowski, 214 F.3d 237, 240 (2d Cir. 2000). Having reviewed all of the questions certified for appeal, we now affirm the judgment of the district court.
Whether or not a new rule of law announced by the Supreme Court is to be applied retroactively in criminal cases on habeas review for the first time2 depends largely on whether the rule is substantive or procedural. It is axiomatic that, with limited exceptions "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before new rules are announced." Teague v. Lane, 489 U.S. 288, 310 (1989)...
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