Gonzales v. U .S.
| Decision Date | 13 August 2001 |
| Docket Number | No. H-95-299-02.,No. H-01-7-7.,H-01-7-7.,H-95-299-02. |
| Citation | 159 F.Supp.2d 555 |
| Parties | Enrique GONZALES, Sr., Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
John Donohue, Attorney at Law, Waco, TX, Counsel for Plaintiff.
Paula Offenhauser, United States Attorney's Office, Houston, TX, Counsel for Defendant.
Pending before the Court is the Motion Under 28 U.S.C. § 2255 filed by Petitioner Enrique Gonzales, Sr. Having considered the motion, submissions on file, and applicable law, the Court determines that the motion should be denied.
On January 26, 1996, Enrique Gonzales, Sr. ("Gonzales") was charged in a four count superseding indictment. Counts one and two of the indictment charged Gonzales with possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Count three of the indictment charged Gonzales with carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). Count four charged Gonzales with possession of a machine gun in violation of 18 U.S.C. § 922(o)(1).
On December 7, 1995, the United States magistrate judge arraigned Gonzales. On that occasion, Gonzales was informed, inter alia, that he faced a five-year consecutive sentence for count three of the indictment. This statement was confirmed by the assistant United States attorney. Gonzales thereafter pleaded not guilty to all four counts.
Gonzales's case was tried to a jury, and on February 29, 1996, the jury found Gonzales guilty on all counts. The government subsequently filed a motion seeking a thirty-year consecutive sentence enhancement for count three pursuant to 18 U.S.C. § 924(c)(1). Section 924(c)(1) provides such an enhanced sentence if the firearm used in the drug offense is a machine gun. 18 U.S.C. § 924(c)(1) (1994).1 The thirty-year consecutive sentence was significantly greater than the five-year consecutive sentence discussed at Gonzales's arraignment. Over Gonzales's objections, this Court granted the government's motion and sentenced Gonzales to 78 months incarceration for counts one, two, and four, and 360 months incarceration for count three. These terms were to be served consecutively as required by statute. See id.
The United States Court of Appeals for the Fifth Circuit affirmed Gonzales's conviction on direct appeal. United States v. Gonzales, 121 F.3d 928, 933 (5th Cir.1997). Gonzales's petition for writ of certiorari was thereafter denied by the United States Supreme Court. Gonzales v. United States, 522 U.S. 1131, 118 S.Ct. 1084, 140 L.Ed.2d 141 (1998). Gonzales filed his original motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 in December 1998. Prior to this Court's ruling on Gonzales's § 2255 motion, however, the Supreme Court decided Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Soon thereafter, Gonzales amended his § 2255 motion to include arguments based on these two decisions. Gonzales now contends that this Court erred in imposing the thirty-year enhancement. Specifically, Gonzales contends that the enhancement was neither contained in the indictment, nor discussed until after Gonzales's conviction. Accordingly, Gonzales claims that the enhancement violates both Apprendi and Castillo.
To obtain collateral relief pursuant to 28 U.S.C. § 2255, Gonzales "must clear a significantly higher hurdle than would exist on direct appeal." See United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Errors of law that may require reversal on direct appeal do not necessarily provide a basis for relief under § 2255. Id. at 165, 102 S.Ct. 1584. Rather, "§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.1992).
In Apprendi, the Supreme Court held that "a fact that increases the penalty for a crime beyond the prescribed statutory maximum must be alleged in the indictment and proved to the jury beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In the instant case, the indictment charged Gonzales with using a firearm in a drug trafficking offense (count three) and with possession of a machine gun (count four). The indictment, however, did not allege that the machine gun referenced in count four was the firearm used in count three. Rather, the Court determined that the firearm used in count three was a machine gun after Gonzales's conviction but prior to sentencing. This determination triggered the thirty-year sentence enhancement pursuant to § 924(c)(1). Gonzales now argues that the thirty-year sentence enhancement violates Apprendi because the prescribed statutory maximum for a violation of 18 U.S.C. § 924(c)(1) without enhancement at the time of Gonzales's conviction was five years. Moreover, Gonzales asserts that the issue of whether he used the machine gun (as required by § 924(c)(1)) should have been submitted to the jury and proved beyond a reasonable doubt rather than decided by the Court by a preponderance of the evidence.
The threshold issue for the Court is whether Apprendi applies retroactively. Gonzales's appeal became final in 1998, prior to the Apprendi decision. Hence, if Apprendi is not retroactive, Gonzales is precluded from raising it in this collateral attack on his sentence. See United States v. Foote, Nos. 3:97-CR-263-R, 3:99-CV-838-R, 2001 WL 671465, at *7 (N.D.Tex. June 12, 2001).
In his petition, Gonzales does not address whether Apprendi can be applied retroactively on collateral review. Rather, he assumes that it is retroactive. The Fifth Circuit has not yet addressed this issue. See, e.g., United States v. Clark, No. 99-50485, 2001 WL 845193, at *1 (5th Cir. Jul.26, 2001) ().2 Nor has a district court within the Southern District of Texas. District courts within the Fifth Circuit that have considered this issue have held that Apprendi does not apply retroactively. See Foote, 2001 WL 671465, at *7; United States v. Jones, Nos. 3-98-CR-0303-P, 3-01-CV-0050-P, 2001 WL 493171, at *2 ; United States v. Lang, Nos. 3:96-CR-326-P, 3:01-CV-0068-P, 2001 WL 335841, at *3 (N.D.Tex. Apr.5, 2001); United States v. Joseph, No. 96-275, 2000 WL 1789989, at *2 (E.D.La. Dec.5, 2000). The vast majority of courts in other circuits that have considered the issue have likewise determined that Apprendi cannot be applied retroactively.3 Because neither the Fifth Circuit nor the Southern District of Texas has definitively ruled on this issue, this Court must decide the issue as a matter of first impression in this district.
In determining whether a new rule is retroactive, a court must first establish whether the rule is substantive or procedural in nature. Teague v. Lane, 489 U.S. 288, 289, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). If the rule is substantive, then it applies retroactively. Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). If the rule is procedural, then its retroactive application is governed by the test set forth in Teague, as discussed infra. Teague, 489 U.S. at 289, 109 S.Ct. 1060.
The Supreme Court's holding in Apprendi does not affect what activities are prohibited by law; rather, it affects the burden of proof required by the government on specific issues. The circumstances in the instant case are illustrative. Gonzales does not argue that using a machine gun in a drug trafficking offense does not violate 18 U.S.C. § 924(c)(1); rather, he argues that the jury, not the Court, should have made the factual determination of whether he used a machine gun in the offense. Allowing the jury to rule on this issue would raise the government's burden of proof from a preponderance of the evidence to beyond a reasonable doubt. Hence, Apprendi is procedural in nature. E.g., Ware v. United States, 124 F.Supp.2d 590, 595-96 (M.D.Tenn.2000).4 The Court must apply the Teague analysis. Teague, 489 U.S. at 289, 109 S.Ct. 1060.
In Teague, the Supreme Court held that a new rule of criminal procedure cannot be applied retroactively unless the rule falls under one of two exceptions. Id. at 307, 109 S.Ct. 1060. The first exception involves a determination of whether the new rule puts certain types of private conduct beyond the power of the law. Id. at 311, 109 S.Ct. 1060; Fisher v. State of Texas, 169 F.3d 295, 306 (5th Cir.1999). This exception is not applicable to Apprendi claims. Foote, 2001 WL 671465, at *5. The second exception applies to "watershed" rules. Teague, 489 U.S. at 311, 109 S.Ct. 1060. That is, those rules that not only "improve the accuracy of criminal proceedings, but also alter our understanding of the bedrock procedural elements essential to the fairness of the proceeding." Foote, 2001 WL 671465, at *5 (citing Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990)). Indeed, the second exception applies only to "those new procedures without which the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 312, 109 S.Ct. 1060 (emphasis added). For example, the rule announced in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that defendants shall be appointed counsel in criminal trials, is "the prototypical example of a watershed ruling." United States v. Moss, 252 F.3d 993, 998 (8th Cir.2001). Apprendi, however, only applies in situations where the defendant has already been convicted and faces sentencing enhancements....
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U.S. v. Gonzales
...holding that Apprendi and Castillo announce new procedural rules that are not retroactive under Teague. See Gonzales v. United States, 159 F.Supp.2d 555 (S.D.Tex.2001). Because of their importance, the court granted a certificate of appealability on both Gonzales seeks collateral relief fro......