U.S. v. Pettigrew

• Decision Date: 21 October 2003
• Docket Number: No. 02-3033.,02-3033.
• Citation: 346 F.3d 1139
• Parties: UNITED STATES of America, Appellee, v. Craig PETTIGREW, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1139

346 F.3d 1139

UNITED STATES of America, Appellee, v. Craig PETTIGREW, Appellant.

No. 02-3033.

United States Court of Appeals, District of Columbia Circuit.

Argued September 8, 2003.

Decided October 21, 2003.

Appeal from the United States District Court for the District of Columbia (No. 96cr00336-01).

Robert S. Becker argued the cause for appellant.

Mary B. McCord, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and Mary Ann Snow, Assistant U.S. Attorneys.

Before: EDWARDS, RANDOLPH, and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Appellant Craig Pettigrew contends that his 1997 drug convictions and sentence are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because a judge rather than a jury determined the quantity of drugs involved in his crimes. Pettigrew, however, failed to raise this claim at trial or on direct appeal. As a consequence, we may not consider Pettigrew's challenge on collateral review unless he shows "cause and prejudice" sufficient to overcome his procedural default. We conclude that the appellant has failed to satisfy his burden of demonstrating that he suffered prejudice from the alleged Apprendi error, and we therefore affirm the district court's denial of his motion for collateral relief.

I

On September 26, 1996, a grand jury returned a four-count indictment against Pettigrew that grew out of an undercover investigation of his drug trafficking activities. Counts 1 and 2 charged him with distributing cocaine base (crack cocaine) on March 7, 1996: Count 1 charged a violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) for distributing 50 grams or more of the drug; Count 2 charged a violation of 21 U.S.C. § 860(a) for distributing 50 grams or more of cocaine base within 1000 feet of a school. Counts 3 and 4 of the indictment charged Pettigrew with violations of the same two statutes for distributing cocaine base in a second transaction on March 22, 1996.

Pettigrew's case went to trial on January 22, 1997. An undercover police officer and a government informant testified regarding the defendant's participation in the two drug transactions. Their testimony was supported by audiotape and, in the case of the second transaction, videotape recordings. The officer testified that Pettigrew had agreed to provide two ounces of crack cocaine for $2000 on each occasion. A government chemist, in turn, testified that the crack cocaine Pettigrew actually provided in the first transaction weighed 50.62 grams, and that the amount he provided in the second weighed 50.57 grams. Pettigrew testified in his own defense, conceding that he had engaged in the drug deals, but insisting that he had been entrapped into so doing.

Consistent with then-prevailing precedent in this circuit, the trial court did not instruct the jury that, to convict, it must find the 50-gram drug quantity recited in the indictment for each count; instead, the court told the jury, without objection from the defendant, that "[t]he Government need not prove that the defendant distributed any particular numerical amount of cocaine base or crack but it must prove beyond a reasonable doubt that the defendant distributed a detectable or measurable amount of cocaine base or crack." 1/27/97 Tr. at 100. On January 28, 1997, the jury convicted Pettigrew on Counts 1, 3, and 4, but acquitted him on Count 2. The trial court later vacated Count 3 as a lesser included offense of Count 4. It subsequently entered a judgment of conviction on Count 1 for the distribution of 50 grams or more of cocaine base on March 7, in violation of § 841(a)(1) and (b)(1)(A)(iii), and on Count 4 for the distribution of cocaine base within 1000 feet of a school on March 22, in violation of § 860(a).

The district court conducted a sentencing hearing on July 3, 1997. The Presentence Investigation Report (PSR), prepared by the U.S. Probation Office, recited the quantities of crack cocaine as reported by the government chemist. The report stated that, as a consequence of his convictions for violating both § 841(b)(1)(A) and § 860(a), Pettigrew was subject to a statutory mandatory minimum sentence of imprisonment for 10 years followed by supervised release for an additional 10 years. PSR ¶¶ 43, 45; see infra Part II. The Probation Office calculated Pettigrew's sentencing range under the United States Sentencing Guidelines as 151 to 188 months' imprisonment.¹

The district court adopted the presentence report's factual findings and guidelines calculations. Judgment at 4. But the court announced that it would depart downward from the guidelines range, based on what it perceived to be an unjustified disparity in the guidelines sentences for offenses involving crack as compared to powder cocaine. 5/2/97 Tr. at 11-21.² The court then sentenced Pettigrew to the statutory mandatory minimum of 120 months' imprisonment and 10 years' supervised release. Pettigrew filed a direct appeal, and, on September 24, 1999, we affirmed the judgment of the district court. United States v. Pettigrew, 203 F.3d 53, 1999 WL 963106 (D.C.Cir.1999). The defendant did not petition the Supreme Court for a writ of certiorari.

On November 8, 2000, Pettigrew filed a motion pursuant to 28 U.S.C. § 2255, asking the district court to vacate, set aside, or correct his sentence.³ He asserted that his convictions and sentence were unlawful in light of Apprendi v. New Jersey, which the Supreme Court had issued in June of that year. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court denied Pettigrew's motion, holding that no violation of Apprendi had occurred in the case, but issued a certificate of appealability pursuant to 28 U.S.C. § 2253.

II

We begin with a description of Pettigrew's claim of error, and of the standard of review that we must apply to that claim.

Section 841(b)(1) of Title 21 of the United States Code provides three escalating penalty ranges for the distribution of cocaine base: § 841(b)(1)(C) authorizes a maximum sentence of 20 years' imprisonment (with no mandatory minimum), followed by at least 3 years of supervised release, for distributing any detectable amount of the drug; § 841(b)(1)(B) provides a mandatory minimum sentence of 5 years' and a maximum sentence of 40 years' imprisonment, followed by at least 4 years of supervised release, for distributing 5 grams or more; and § 841(b)(1)(A) — the section under which Pettigrew was convicted for the March 7 transaction — provides a mandatory minimum sentence of 10 years' and a maximum sentence of life imprisonment, followed by at least 5 years of supervised release, for distributing 50 grams or more. See United States v. Webb, 255 F.3d 890, 894 (D.C.Cir.2001). A violation of § 860(a), under which Pettigrew was convicted for the March 22 transaction, subjects a defendant to double the maximum prison term and minimum supervised release term authorized by the applicable subsection of § 841(b) — here, § 841(b)(1)(A) — resulting in a supervised release term for Pettigrew of at least 10 years.⁴

In Apprendi, the Supreme Court held that, "[o]ther than the fact of 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. After Apprendi, this circuit held that a conviction under § 841(b)(1)(A) "is not proper unless the relevant drug threshold has been stated in the indictment, submitted to the jury, and proven beyond a reasonable doubt." Webb, 255 F.3d at 900 (citing United States v. Fields, 251 F.3d 1041, 1043 (D.C.Cir.2001)). Based on these developments, which postdate his direct appeal, Pettigrew argues that his conviction for violating § 841(b)(1)(A) was unlawful, because the fact that his offense involved 50 grams or more of cocaine base was decided by a judge rather than a jury. Pettigrew further argues that his sentence was also unlawful, because it was only the improper conviction under § 841(b)(1)(A) that compelled the district court to impose the 10-year mandatory minimum periods of incarceration and supervised release⁵ — a sentence the court indicated it would not have imposed had it been permitted to depart below the statutory minimum term. Pettigrew thus asks us to vacate his § 841(b)(1)(A) conviction, and to remand the case for entry of a conviction and attendant resentencing under § 841(b)(1)(C) — the only provision of § 841(b)(1) that does not contain a threshold drug quantity.⁶

The government responds that there was no Apprendi error at all in Pettigrew's case. It avers that even if the drug quantity found by a judge increases a defendant's mandatory minimum sentence, Apprendi does not apply as long as the sentence imposed does not exceed the maximum sentence provided by § 841(b)(1)(C). See Appellee's Br. at 22-24 (citing Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002)).⁷ But the government also maintains that, for two reasons, we should not reach the merits of Pettigrew's Apprendi claim at all. First, it argues that Apprendi does not apply to cases, like Pettigrew's, that became final before Apprendi was announced, because Apprendi does not meet the requirements for retroactive application set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).⁸ Second, the government argues that, even if Apprendi were retroactively applied, Pettigrew's failure to challenge the omission of a quantity instruction at trial or on direct review constitutes a procedural default that he cannot overcome.

We need not decide the retroactivity question because the government's second point is sufficient to resolve this case.⁹ "Where a defendant has procedurally defaulted a claim by...