Derman v. U.S.

• Citation: 298 F.3d 34
• Decision Date: 25 July 2002
• Docket Number: No. 01-2545.,01-2545.
• Parties: Herbert DERMAN, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

298 F.3d 34

Herbert DERMAN, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 01-2545.

United States Court of Appeals, First Circuit.

Heard June 11, 2002.

Decided July 25, 2002.

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Richard E. Miller, with whom Kurzman Karelsen & Frank, LLP was on brief, for appellant.

Kevin O'Regan, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and Dina Michael Chaitowitz, Appellate Chief, were on brief, for appellee.

Before SELYA and LYNCH, Circuit Judges, and SCHWARZER,^* Senior District Judge.

SELYA, Circuit Judge.

In this appeal, petitioner-appellant Herbert Derman challenges the district court's denial of his application for post-conviction relief. He argues that the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) — announced after we rejected his direct appeal but before the expiration of the time within which he was eligible to apply for a writ of certiorari — demands that we set aside his conviction. Although his appeal is ably argued and raises intricate issues (including one that has divided our sister circuits and another that is of first impression at the appellate level), it is in the end unavailing. Consequently, we affirm the district court's dismissal of the application for post-conviction relief.

I. BACKGROUND

We limn those facts pertinent to the instant appeal, referring readers who crave more exegetic detail to our opinion affirming the petitioner's conviction. See United States v. Derman, 211 F.3d 175 (1st Cir.2000).

Beginning in 1984, Marcel Rosenzweig oversaw an underground greenhouse on property owned by the petitioner. This facility housed a huge marijuana-growing operation. The venture prospered for several years.

When word of a large-scale marijuana grow leaked in 1991, police officers visited the site. They were thrown off the scent by a legal above-ground greenhouse that Rosenzweig and his cohorts ran to conceal the illegal activities below. Because the officers did not realize what lay beneath, their search revealed only trace amounts of marijuana.

In an abundance of caution, Rosenzweig moved the enterprise to a different locus. The culprits continued growing and distributing marijuana until the federal government cracked the case four years later. A federal grand jury sitting in the District of Massachusetts soon indicted the petitioner and six other persons (including Rosenzweig). The indictment charged the defendants with, inter alia, conspiring to manufacture and distribute marijuana. See 21 U.S.C. §§ 841(a)(1), 846. As part of the conspiracy charge, the indictment specifically mentioned a statutory provision mandating a ten-year minimum sentence for conspiracies involving at least 1,000 marijuana plants. See id. § 841(b)(1)(A).

All the defendants, save only the petitioner, pleaded guilty to the charges. The petitioner maintained his innocence, asserting that he had no knowledge of either the underground greenhouse or its unlawful contents. The district court instructed the jury on the standard issues, but not on the question of drug quantity. The jury found the petitioner guilty on the conspiracy count and on a related forfeiture count.¹

The jury returned its verdict on July 29, 1998. The district court denied the petitioner's post-trial motions and scheduled the disposition hearing to take place on March 5, 1999. Drug quantity was a contested issue. See United States v. O'Campo, 973 F.2d 1015, 1026 (1st Cir.1992) ("[T]he base offense level of a co-conspirator at sentencing should reflect only the quantity of drugs he reasonably foresees it is the object of the conspiracy to distribute after he joins the conspiracy."). The relevant measure of drug quantity in this case was the number of marijuana plants involved. Leaving recidivism to one side, a defendant convicted of participation in a conspiracy that involves fewer than fifty plants can receive an incarcerative sentence of no more than five years. 21 U.S.C. § 841(b)(1)(D). If the conspiracy involved fifty plants or more, the maximum sentence is twenty years. Id. § 841(b)(1)(C). For a conspiracy of 100 plants or more, the maximum sentence is forty years. Id. § 841(b)(1)(B). Finally, for a conspiracy of 1,000 plants or more, the maximum sentence is life. Id. § 841(b)(1)(A). The number of marijuana plants also can dictate a mandatory minimum sentence: five years for 100 plants or more, id. § 841(b)(1)(B), and ten years for 1,000 plants or more, id. § 841(b)(1)(A).

In this instance, the probation department prepared a presentence investigation report (the PSI Report) concluding that the petitioner was responsible for 213,000 marijuana plants. The petitioner objected, claiming that he could not reasonably have foreseen the vast amounts of marijuana grown underneath his property and elsewhere. On that basis, he argued that his sentence should not be more than five years. See id. § 841(b)(1)(D) (establishing a five-year default statutory maximum for a quantity of marijuana less than fifty plants).

The district court flatly rejected the petitioner's contention. Focusing on the fact that 1,000 plants was the number of marijuana plants needed to trigger a ten-year mandatory minimum sentence, see id. § 841(b)(1)(A), the court stated: "I would have to find that the sky was green to conclude that there weren't at least a thousand plants that were foreseeable in this conspiracy at the time that [the petitioner] entered into it...." That said, the court proceeded to calculate the total number of plants attributable to the petitioner. The court presumed that the petitioner reasonably could have foreseen an output of 200 plants a month (a total of 26,400 plants over the eleven-year span of the conspiracy). The court then sentenced the petitioner to an incarcerative term of 121 months (one month above the applicable mandatory minimum).

The petitioner appealed his conviction, but not his sentence. We rejected his direct appeal on May 5, 2000. Derman, 211 F.3d at 177. In the course of that appeal, he assigned no error implicating either the jury instructions or the lower court's assessment of drug quantity.

The petitioner had ninety days from the date of entry of our judgment to file a petition for a writ of certiorari to the Supreme Court of the United States. See Sup.Ct. R. 13(1). The Supreme Court decided Apprendi on June 26, 2000 — well within that ninety-day window. Apprendi's core holding is that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. The petitioner's trial seemingly flouted this principle: after all, the district court did not instruct the jury on a fact — drug quantity — that increased the maximum penalty for the petitioner's crime from five years (the default statutory maximum) to life imprisonment. Compare 21 U.S.C. § 841(b)(1)(D) with id. § 841(b)(1)(A). The petitioner claims that he instructed his appellate counsel to file a certiorari petition on this ground during the period in which that opportunity was available to him, but that counsel neglected to comply. So ended direct review of the petitioner's conviction and sentence.

The petitioner thereafter retained a new lawyer. On April 27, 2001, he launched a collateral attack in the district court. See 28 U.S.C. § 2255. He asserted that the court had sentenced him in violation of Apprendi, and that he had received ineffective assistance of counsel because his appellate attorney had ignored his instructions to file a petition for a writ of certiorari.

The district court held a hearing on October 9, 2001. Ruling from the bench, the court dismissed the petition. Three days later, the court elaborated on its reasoning in a written rescript. To summarize, the court rejected the petitioner's Apprendi claim for three reasons. It held that Apprendi could not be applied retroactively to the petitioner's habeas claim; that the petitioner had waived any and all objections to his sentence by failing to challenge the sentence on direct appeal; and that, in all events, the district court's failure to submit the drug quantity question to the jury was harmless because the record contained overwhelming evidence that the number of marijuana plants involved in the plot exceeded the number necessary to bring an elevated maximum sentence into play. On much the same basis the court also rejected the petitioner's ineffective assistance claim.

This appeal ensued. We granted a certificate of appealability to decide the Apprendi issues. See 28 U.S.C. § 2253(c).

II. FINALITY

We begin our analysis by determining the applicability of Apprendi to this petition — a determination that requires us to decide when the petitioner's conviction became "final" within the meaning of the relevant statute.

Whether a convicted defendant may find refuge in a rule of criminal procedure newly announced by the Supreme Court depends in large part on timing. If the conviction is not yet final when the Supreme Court announces the rule, then inferior courts must apply that rule to the defendant's case. Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). If, however, the conviction is already final, then the defendant ordinarily may not avail himself of the newly announced rule. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).²

But words often are chameleons, taking on different shades of meaning in different contexts. The question, then, is how to define the word "final" in this setting. At the time the Court decided Teague, the definition seemed clear: a conviction becomes final when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for...