U.S. v. Cepero

Decision Date06 March 2000
Docket NumberNo. 99-3047,99-3047
Parties(3rd Cir. 2000) UNITED STATES OF AMERICA, v. ANGEL CEPERO a/k/a Angel Villar-Cepero a/k/a Mosquito Angel Cepero, Appellant
CourtU.S. Court of Appeals — Third Circuit

On Appeal from the United States District Court for the Middle District of Pennsylvania District Judge: Honorable William W. Caldwell, (D.C. No. 97-cr-00110-3)

ATTORNEY FOR APPELLANT, Angel Cepero: Theodore Sliwinski, Esq. (argued) 45 East River Road East Brunswick, NJ 08816

ATTORNEYS FOR APPELLEE, United States of America: David M. Barasch United States Attorney Theodore B. Smith, III (argued) Assistant United States Attorney Kim Douglas Daniel Assistant United States Attorney Federal Building 228 Walnut Street Harrisburg, PA 17108

ATTORNEY FOR AMICUS CURIAE, National Association of Criminal Defense Lawyers: Peter Goldberger Law Offices of Peter Goldberger 50 Rittenhouse Place Ardmore, PA 19003-2276

Argued March 6, 2000

Before: SCIRICA, ALITO and ALDISERT, Circuit Judges.

Re-Argued May 24, 2000

Before: BECKER, Chief Judge, SLOVITER, MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL, BARRY, FUENTES and ALDISERT, Circuit Judges.

OPINION FOR THE COURT

ALDISERT, Circuit Judge:

We must decide whether the Antiterrorism and Effective Death Penalty Act of 1996 precludes our review of Appellant's unsuccessful S 2255 motion to correct his sentence, notwithstanding the District Court's issuance of a certificate of appealability under 28 U.S.C. S 2253. Appellant contends that the District Court erred by sentencing him under U.S.S.G. S 2D1.1 because the Government did not prove the substance involved in his criminal offenses was crack cocaine. The court order declared: "A certificate of appealability on the crack-enhancement is granted. It is denied on all other issues." App. at 113a. The Government now moves for dismissal of this appeal on the grounds that the District Court erroneously issued the certificate of appealability because Cepero did not make a "substantial showing of the denial of a constitutional right" as required under S 2253(c)(2) so as to invoke our limited power to review the denial of his S 2255 petition. We will grant the Government's motion to dismiss.

I.

In April 1997, Angel Cepero was indicted along with two co-defendants for conspiracy to distribute and possess with intent to distribute "cocaine and more than 50 grams of cocaine base, a/k/a `crack' cocaine" in violation of 21 U.S.C. SS 841(a) and 846. The indictment listed the overt acts committed in furtherance of the conspiracy as the delivery and sale of "cocaine base," but did not specifically mention "crack cocaine."1

An assistant federal public defender was appointed as Cepero's counsel, and in June and July 1997 filed two pretrial motions, both of which referred to the substance at issue as "crack cocaine." Shortly thereafter, Cepero executed a plea agreement in which he agreed to plead guilty to the conspiracy count, which paragraph 1 identified as "conspiracy to distribute more than 5 grams of cocaine base." In pertinent part, paragraph 1 stated also that the "maximum penalty for the offense is imprisonment for a period of 40 years [and] a fine of $2,000,000," which corresponds to the maximum penalties for crack cocaine under 21 U.S.C. S 841(b)(1)(B)(iii). Paragraph 9 of the plea agreement stipulated that his offense conduct "involved no less than 35 but no more than 50 grams of cocaine base." Cepero and his public defender reviewed and signed the agreement.

Three days later a guilty-plea hearing was held, during which the sentencing court, the prosecutor and the public defender all referred to the offense as involving either cocaine or cocaine base. The prosecutor noted the statutory range of penalties as being from five to 40 years and a maximum fine of $250,000, based on the agreement that Cepero's conduct involved 35 to 50 grams of cocaine base. The prosecutor summarized the Government's case and consistently referred to the drug transaction as involving cocaine or cocaine base. Cepero agreed that this was an accurate account of his involvement and pled guilty to the conspiracy charge.

The presentence report identified the substance at issue as "crack cocaine." The report concluded that Cepero's base offense level was 30, derived from U.S.S.G. S 2D1.1 for offenses involving at least 35 grams but less than 50 grams of cocaine base. After a two point deduction for acceptance of responsibility, his offense level was 28, and his criminal history category was set at III, which resulted in a guideline range of 97 to 121 months. Neither the Government nor the defendant objected to the report. On November 2, 1997, Cepero was sentenced to 97 months imprisonment and he did not appeal.

On September 20, 1998, Cepero filed his pro se habeas petition in the District Court pursuant to 28 U.S.C. S 2255 and alleged inter alia that the Government failed to prove at sentencing that the substance in question was crack cocaine and not merely cocaine powder, which carries a lesser sentence.2 The court denied his petition by memorandum order but granted him a certificate of appealability under S 2253(c) with respect to the "crack- enhancement" issue--i.e., whether the Government adequately proved at sentencing that he had conspired to distribute crack cocaine. Cepero timely filed his notice of appeal and thereafter the Government moved to dismiss for want of subject-matter jurisdiction. We appointed counsel and referred the matter to a merits panel, to which both parties submitted briefs and argued their positions.

After argument, we granted re-hearing en banc to decide whether the District Court erroneously granted Cepero a certificate of appealability under 28 U.S.C. S 2253(c), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996). We exercise plenary review over the District Court's legal conclusions and apply a clearly erroneous standard to the court's factual findings. Rios v. Wiley, 201 F.3d 257, 262 (3d Cir. 2000).

II.

Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a petitioner in federal custody who was denied relief by a district court on a S 2255 petition could appeal to the court of appeals without obtaining a certificate of probable cause. See 28 U.S.C. S 2253 (1995) (pre-AEDPA language); United States v. Eyer, 113 F.3d 470, 472 (3d Cir. 1997). By contrast, a petitioner in state custody challenging his detention could not appeal the denial of his petition "unless the justice or judge who rendered the order or a circuit justice or judge issue[d] a certificate of probable cause." 28 U.S.C. S 2253 (1995) (pre- AEDPA language); see Eyer, 113 F.3d at 472.

Section 102 of the Antiterrorist and Effective Death Penalty Act amended the jurisdictional dimension of S 2253 to provide (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from--

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

28 U.S.C. S 2253(c)(1)-(3) (as amended Apr. 24, 1996) (emphasis added). The AEDPA thus replaced certificates of probable cause with "certificates of appealability" and required prisoners in federal custody to obtain certificates of appealability before appealing from the denial of their S 2255 petitions.

In our prior decisions interpreting the amended version of S 2253, we have held that, notwithstanding the ambiguous language of the statute which seems to empower only circuit court judges with the authority to grant certificates of appealability, see S 2253(c)(1), the district court judge who denies the prisoner's habeas petition is also authorized to certify issues for appeal. See Eyer, 113 F.3d at 472-473; accord Lozada v. United States, 107 F.3d 1011, 1016 (2d Cir. 1997) ("We therefore uphold the authority of district judges to issue [certificates of appealability], at least in section 2254 cases."); United States v. Asrar, 108 F.3d 217, 218 (9th Cir. 1997); Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1066-1073 (6th Cir. 1997); Hunter v. United States, 101 F.3d 1565, 1573-1577 (11th Cir. 1996) (en banc).

III.

We recognize that several courts of appeals have passed on the question we decide today--whether we have jurisdiction under S 2253(c) to review the denial of a S 2255 petition where the Government challenges the validity of a certificate of appealability issued by a district court. In United States v. Eyer, we assumed jurisdiction to review the denial of a S 2255 petition notwithstanding the questioned validity of the certificate of appealability, but in that case the Government opposed only the power of the district court to issue certificates of appealability and took the position that, if the district court was authorized to certify issues for appeal under S 2253(c), then the case should be decided on the merits. We concluded that district court judges were authorized to issue certificates of appealability and thereafter assumed jurisdiction. Nevertheless we recognized the lingering question of whether the petitioner made a "substantial showing of the denial of a constitutional right."

[Petitioner] raises questions . . . involving issues of statutory construction. Therefore, it is possible that [he] does not raise an issue involving a constitutional right.

Here [ ] we avoid the procedural point because...

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