U.S. v. Morris

• Decision Date: 07 November 2005
• Docket Number: No. 04-7889.,04-7889.
• Citation: U.S. v. Morris, 429 F.3d 65 (4th Cir. 2005)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Debra Lynn MORRIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 65

429 F.3d 65

UNITED STATES of America, Plaintiff-Appellee, v. Debra Lynn MORRIS, Defendant-Appellant.

No. 04-7889.

United States Court of Appeals, Fourth Circuit.

Argued: September 20, 2005.

Decided: November 7, 2005.

ARGUED:

Charles Ethan Luftig, Dickstein, Shapiro, Morin & Oshinsky, L.L.P., Washington, D.C., for Appellant. Kevin Frank McDonald, Assistant United States Attorney, Office of the United States Attorney, Columbia, South Carolina, for Appellee.

ON BRIEF:

Elaine Metlin, Laura H. Hamilton, Bernard F. Sheehan, Dickstein, Shapiro, Morin & Oshinsky, L.L.P., Washington, D.C., for Appellant. Jonathan S. Gasser, United States Attorney, Columbia, South Carolina, for Appellee.

Before NIEMEYER and SHEDD, Circuit Judges, and James C. DEVER, III, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge NIEMEYER and Judge DEVER joined.

OPINION

SHEDD, Circuit Judge:

Debra Lynn Morris appeals the district court's order denying her 28 U.S.C. § 2255 motion for relief from her conviction and sentence. Morris argues that her sentence is unconstitutional under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because the district court increased her base offense level using facts that she did not admit and that were not found beyond a reasonable doubt by a jury. We granted a certificate of appealability to consider whether Morris may raise a Booker claim for the first time in her § 2255 motion when her judgment of conviction became final before the Supreme Court decided Booker.¹ Nine circuit courts of appeals have considered this issue and have held that Booker does not apply retroactively to cases on collateral review.² We agree with these courts and we therefore affirm the district court's order.

I

The pertinent background for this case begins with the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi involved a New Jersey hate crime statute that provided for an enhancement of a defendant's sentence if the sentencing court found, by a preponderance of the evidence, that the offense was committed with a purpose to intimidate an individual or group based on (among other things) that person's race. The defendant, who had fired shots into the home of an African-American family, pled guilty to a state firearm possession charge for which the maximum penalty established by New Jersey statute was ten years. However, the sentencing court found by a preponderance of the evidence that the defendant's conduct had been racially motivated, and (applying the hate crime enhancement) it therefore sentenced him to a 12-year prison term. After the sentence was affirmed by the state supreme court, the Supreme Court reversed, holding 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." Id. at 490, 120 S.Ct. 2348. Because the defendant had not admitted a racial motivation for the shooting and the state had not proved such a motivation to a jury beyond a reasonable doubt, the Court concluded that he could not be sentenced beyond the ten-year maximum punishment set forth in the statute.

In the wake of Apprendi, we were presented with the issue of whether the holding of that case affected sentencing practices under the federal sentencing guidelines ("Guidelines").³ In United States v. Kinter, 235 F.3d 192 (4th Cir.2000), the district court enhanced the defendant's Guidelines offense level based on its factual findings made under a preponderance of evidence standard. Application of the enhancement increased the defendant's sentence above the maximum Guidelines sentence he could have received without the factual findings. We rejected the defendant's argument that Apprendi rendered sentencing practices under the Guidelines unconstitutional, concluding that "[b]ecause Apprendi does not apply to a judge's exercise of sentencing discretion within a statutory range, the current practice of judicial factfinding under the Guidelines is not subject to the Apprendi requirements — at least so long as that factfinding does not enhance a defendant's sentence beyond the maximum term specified in the substantive statute." 235 F.3d at 201.

This was the state of the law in 2002, when Morris pled guilty to conspiring to distribute oxycodone and methadone, being a felon in possession of ammunition, and retaliating against an informant. The indictment against Morris did not allege a specific drug quantity, and she did not admit to a specific drug quantity during her guilty plea. Instead, at her sentencing hearing, Morris contested the drug quantity attributed to her by the government. Following an evidentiary presentation, the district court agreed with the government and found that Morris was responsible for 2,460.80 grams of prescription drugs, which resulted (after an adjustment for acceptance of responsibility) in a base offense level of 30 for the conspiracy count. Utilizing a criminal history category of IV, the district court sentenced Morris to 200 months of imprisonment on the conspiracy count. The district court sentenced Morris to concurrent 120-month terms for the other counts.

We affirmed Morris' conviction and sentence in June 2003. Pertinent to our discussion, we held that the district court's drug quantity calculation was not clearly erroneous and that Morris' claim under Apprendi failed because her sentence did not "exceed the statutory maximum [20 years] for convictions in which drug quantity was not alleged." United States v. Morris, 68 Fed.Appx. 458, 459 (4th Cir.2003) (unpublished). Morris did not seek certiorari review of our decision.

In June 2004, the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which involved the constitutionality of the State of Washington's determinate sentencing scheme. In Blakely, the defendant pled guilty to kidnapping, a felony punishable by a term of not more than ten years of imprisonment. Other provisions of Washington law, comparable to the Guidelines, mandated a sentencing range of 49 to 53 months, unless the sentencing court found aggravating facts justifying an exceptional sentence. The sentencing court found one such aggravating fact and therefore sentenced the defendant to 90 months of imprisonment. The state court of appeals affirmed the sentence, but the United States Supreme Court reversed. Applying the rule announced in Apprendi, the Court set aside the defendant's sentence, holding that the imposition of the sentencing enhancement — which was based solely on the sentencing court's factual findings — violated the defendant's Sixth Amendment rights because the facts supporting the findings were neither admitted by him nor found by a jury. Blakely, 124 S.Ct. at 2536-38. Responding to an argument made by the United States as amicus curiae, the Court expressly noted that the constitutionality of the Guidelines was not at issue. Id. at 2538 n. 9.

After Blakely was decided, Morris filed her § 2255 motion raising several grounds for relief, including that her sentence is invalid under Blakely. While her motion was pending before the district court, we held that Blakely did not apply to Guidelines sentences. United States v. Hammoud, 378 F.3d 426 (4th Cir.2004) (en banc order).⁴ Based on Hammoud, the district court rejected Morris' Blakely claim. The district court also rejected Morris' other claims, and it therefore denied her motion and granted summary judgment in the government's favor.

Morris appealed, arguing (among other reasons) that the district court erred by denying her relief on her Blakely claim. Shortly thereafter, the Supreme Court decided Booker, holding that Blakely applies to the Guidelines and, therefore, the Sixth Amendment is violated when a district court imposes a mandatory sentence under the Guidelines that is greater than the maximum authorized by the facts found by the jury alone. Booker, 125 S.Ct. at 755. The Court also held, however, that two provisions of the statute creating the Guidelines system must be excised to make it compatible with the Sixth Amendment; this aspect of Booker makes the Guidelines advisory and their application subject to review for reasonableness. Id. at 764-65. Moreover, this aspect of Booker also requires district courts to continue making appropriate findings of fact to calculate the sentencing range prescribed by the Guidelines; thus, Booker ultimately did not change the procedure by which Guidelines sentencing facts are found. See United States v. White, 405 F.3d 208, 219 (4th Cir.2005), petition for cert. filed, No. 05-6891 (Oct. 13, 2005) ("In any given case after Booker, a district court will calculate, consult, and take into account the exact same guideline range that it would have applied under the pre-Booker mandatory guidelines regime.").

Although the Court held in Booker that its decision applies to all cases on direct review, 125 S.Ct. at 769, it did not address whether its decision applies to cases on collateral review. Therefore, we granted a certificate of appealability to determine "whether Morris may raise a Blakely v. Washington or United States v. Booker claim for the first time in her § 2255 motion and, thus, whether Booker applies retroactively to her final judgment of conviction entered before Booker."⁵

II

"When a decision of [the Supreme] Court results in a `new rule,' that rule applies to all criminal cases still pending on direct review. As to convictions that are already final, however, the rule applies only in limited circumstances." Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 2522, 159 L.Ed.2d 442 (2004) (citation omitted). Generally, a new procedural rule does not apply...