U.S. v. Pittman

Decision Date15 November 2000
Docket NumberNo. CV 00-449-MA.,No. CR 96-293-MA.,CV 00-449-MA.,CR 96-293-MA.
PartiesUNITED STATES of America, Plaintiff-Respondent, v. Marlo Dion PITTMAN, Defendant-Petitioner.
CourtU.S. District Court — District of Oregon

Marc D. Blackman, Ransom Blackman LLP, Portland, OR, for Defendant-Petitioner.

Michael Brown, Assistant U.S. Attorney, Portland, OR, for U.S.

OPINION & ORDER

MARSH, District Judge.

On August 9, 1996, defendant/petitioner Marlo Dion Pittman entered a guilty plea to a single count information charging him with distribution of cocaine base in violation of Title 21 U.S.C. § 841(a)(1). It is undisputed that neither the information nor the factual basis for the guilty plea made any reference to a specific drug quantity. However, the plea agreement and plea petition stated that the defendant would be subject to a statutory minimum sentence of 10 years, a maximum term of life and a $4,000,000 fine. At sentencing, the defendant challenged the application of a 2-level gun enhancement under USSG 2D1.1 and sought a downward departure on two grounds: (1) a claimed unfairness relative to the severity of treatment of crack versus powder cocaine; and (2) overstatement of his criminal history score under USSG § 4A1.3. I accepted the defendant's objection to the gun enhancement, rejected his challenge to the severity of Congress' treatment of crack cocaine, and granted his request for a downward departure based upon the overstatement of his criminal history score. In so holding, I reduced defendant's criminal history category one level from a VI to a V and sentenced him to 140 months, the low end of the sentencing range.

Defendant now seeks habeas corpus relief pursuant to 28 U.S.C. § 2255 claiming that his conviction and/or sentence should be set aside because the information failed to recite drug quantity and on grounds that his guilty plea was neither knowing nor voluntary since he was unaware of the fact that the government should carry the burden of proving drug quantity beyond a reasonable doubt. His initial petition was premised upon the Supreme Court's decision in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Jones, the Court held that higher statutory penalties found within the federal carjacking statute, 18 U.S.C. § 2119, set forth additional elements of an offense which must be alleged in an indictment and proven beyond a reasonable doubt. Jones, 526 U.S. at 232-39, 119 S.Ct. 1215. Compare Almendarez-Torres v. United States, 523 U.S. 224, 230, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (finding that recidivism's typical status as a sentencing factor weighed against construing statute provision as creating a separate element of the crime rather than a sentencing factor); and Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 2093-94, 147 L.Ed.2d 94 (2000)(use of a machine gun not a typical sentencing factor).

The defendant has since supplemented his petition and seeks to rely upon the Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi held 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 2362-63. In Jones v. United States, Almendarez-Torres and Castillo, the Court's analysis focused upon the structure of the statute in issue, the legislative history, and whether courts historically considered a particular fact during the sentencing phase. Apprendi extended the reasoning and analysis of these decisions based upon Constitutional principles: the Fifth and Fourteenth Amendments due process rights and the Sixth Amendment right to a jury trial.

In Apprendi, the Supreme Court overturned a sentencing scheme that allowed a state judge to enhance a defendant's penalty beyond the prescribed statutory maximum upon finding, by a preponderance of the evidence, that the defendant "acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation, or ethnicity," Apprendi, 530 U.S. at ___, 120 S.Ct. at 2351 (quoting N.J.S.A. § 2C:44-3(e)). The Supreme Court reversed, holding that "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 2363-64.

In United States v. Nordby, 225 F.3d 1053 (9th Cir.2000), the Ninth Circuit held that Apprendi applies to federal drug convictions such that any enhanced penalty based upon drug quantity under § 841(b) must be premised upon a factual finding beyond a reasonable doubt. See also United States v. Doggett, 230 F.3d 160 (5th Cir. 2000) (applying Apprendi to drug quantity challenge on direct appeal); United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.2000), pet. for cert. filed (Oct. 16, 2000).1 Although the Ninth Circuit did not expressly address the issue, several courts have held that while Apprendi applies to any factual determination used to justify application of a higher statutory maximum penalty, Apprendi does not apply to a district court's determination of sentencing guideline issues and any factual determination under the guidelines that increases a sentence within the applicable statutory maximum. In Doggett, the Fifth Circuit explained that drug quantity for any sentence beyond a statutory maximum penalty was an element of the offense which must be established beyond a reasonable doubt, while the drug quantity determination for all other purposes remained an issue for the sentencing court under the preponderance of the evidence standard. Accord United States v. Angle, 230 F.3d 113 (4th Cir. 2000); Hernandez v. United States, 226 F.3d 839, 841 (7th Cir.2000); United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.2000). The court based its conclusion, in part, upon a determination that Apprendi did nothing to overrule the Court's prior holding in Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998), that the sentencing judge properly determines drug quantity and relevant conduct when imposing a sentence within the relevant sentencing range. Doggett, 230 F.3d 160, 166.

The Ninth Circuit has not yet decided the issue of whether Apprendi may be applied retroactively to habeas corpus petitions and this is an issue of first impression in this district.2 Several Circuits have held that Apprendi may not be applied retroactively to successive habeas corpus petitions because the Supreme Court has not declared Apprendi to be retroactive. Hernandez v. United States, 226 F.3d 839, 840 (7th Cir.2000); In Re Joshua, 224 F.3d 1281, 1282 (11th Cir.2000); and Sustache-Rivera v. United States, 221 F.3d 8, 15 (1st Cir.2000), pet. for cert. filed (Oct. 23, 2000). These courts have reasoned that the language of successive petition provision of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 22553 mandates that the Supreme Court actually hold that a new rule is retroactive before it can be applied retroactively by lower courts. See also Rodriguez v. Superintendent, 139 F.3d 270 (1st Cir.1998) ("AEDPA does not codify Teague. To the contrary, its plain language instructs that only new rules rendered retroactive on collateral review `by the Supreme court' may inure to the benefit of habeas petitioners ... [the] AEDPA ... invests the Court with sole authority to make such declarations.").

The parties have not cited, nor have I found any authority extending the holdings of these decisions to an initial § 2255 petition. Further, the Supreme Court has continued to apply the retroactivity analysis of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) to initial habeas corpus petitions after the effective date of the AEDPA, see e.g. O'Dell v. Netherland, 521 U.S. 151, 157, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997), as has the Ninth Circuit, as discussed more fully below.

Under Teague, as a threshold matter, the court must first determine if the rule in question is "new." Then, a habeas corpus petitioner who seeks to set aside his conviction or sentence based upon a Supreme Court decision announcing a "new" procedural rule must establish that the rule falls within one of two exceptions.4 The general principle announced in Teague is that new procedural rules should not be applied retroactively primarily out of respect for the doctrine of finality. Id. at 307, 109 S.Ct. 1060. If it is determined that a new rule exists, it should be applied retroactively only in two limited instances: (1) if the new rule "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe ..." or (2) "if it requires the observance of those procedures that are implicit in the concept of ordered liberty." Id. at 305, 109 S.Ct. 1060 (cites omitted).5

The Teague analysis is a "threshold issue" that must be decided before reaching the merits of the petitioner's claims. Jones v. Gomez, 66 F.3d 199, 201 (9th Cir.1995), cert. denied, 517 U.S. 1143, 116 S.Ct. 1437, 134 L.Ed.2d 559 (1996).

Following the Ninth Circuit's recent decision in Jones v. Smith, 231 F.3d 1227 (9th Cir. 2000), there can no longer be any dispute in this Circuit that Apprendi announced a "new" rule for purposes of Teague. "Under either definition (breaking new ground or imposing new obligation on the government), Apprendi certainly established a new rule ..." Id. at *6, ___.6 See also, United States v. Rogers, 228 F.3d 1318 (11th Cir.2000) (explaining why Apprendi constitutes a "new" rule). In Jones v. Smith, the Ninth Circuit applied Apprendi to a state petitioner's claim that his conviction was unconstitutional based upon a variance between the indictment and the charge actually submitted to the jury. The court nevertheless held that Apprendi should not be applied...

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