U.S. v. Rosendary

Decision Date09 July 2001
Docket NumberCivil Action No. 01-107 ERIE.,Criminal Action No. 99-31 ERIE.
Citation152 F.Supp.2d 835
PartiesUNITED STATES of America, v. Emire Salen ROSENDARY, Defendant.
CourtU.S. District Court — Western District of Pennsylvania

Emire Salen Rosendary, Bradford, PA, pro se.

Marshall Piccinini, U.S. Attorney's Office, Erie, PA, for U.S.


McLAUGHLIN, District Judge.

Presently pending is a motion by Petitioner Emire Salen Rosendary to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, this motion will be denied.


On September 14, 1999, Rosendary was charged with Conspiracy to Distribute and Possess with Intent to Distribute Cocaine Base in violation of 21 U.S.C. § 846. The indictment alleged possession of a "detectable amount" of cocaine base; it did not specify quantity. Indictment, Ex. A. to Government's Response to the Defendant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, at 1. On February 4, 2000, the parties entered into a plea agreement that stipulated that the quantity of cocaine base was at least 35 grams but not more than 50 grams. The agreement specified that the maximum penalty for this offense was:

(a) A term of imprisonment of not less than five (5) years and not more than forty (40) years;

(b) A fine of $2,000,000;

(c) A term of supervised release of at least four (4) years;

(d) A special assessment under 18 U.S.C. § 3013 of $100.

Plea Agreement, Ex. B. to Government's Response, at 4-5.1

For sentencing purposes, this Court determined that Rosendary's background placed him in criminal history category IV. Judgment, Ex. D to Government's Response, at 5. The stipulated quantity placed his offense at level 27. Id. This combination yielded a guideline range of 100 to 125 months. Because Rosendary was granted a downward departure for his substantial assistance to the government, however, he was sentenced to a term of imprisonment of 88 months and a term of supervised release of 4 years. He was sentenced on May 15, 2000.

Rosendary filed leave to appeal, but withdrew his direct appeal on June 21, 2000. See Appellant's Voluntary Dismissal of Appeal, Ex. E to Government's Response (certificate of service dated June 21, 2000). On June 30, 2000, the Third Circuit Court of Appeals dismissed his appeal. Id. Between Rosendary's withdrawal and the Third Circuit's dismissal, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Rosendary argues that his sentence should be vacated because: 1) the "detectable amount" language in his indictment contravened the rule set forth in Apprendi ("the Apprendi rule") and rendered his indictment defective; and 2) he received ineffective assistance of counsel because his counsel did not object to the indictment on Apprendi grounds. Petitioner's Brief at 1-6.


When a motion is made under 28 U.S.C. § 2255, the question of whether to order a hearing is committed to the sound discretion of the district court. In exercising that discretion, the court must accept the truth of the petitioner's factual allegations unless they are clearly frivolous on the basis of the existing record. United States v. Day, 969 F.2d 39, 41, 42 (3d Cir.1992). Further, the court must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the petitioner is not entitled to relief. Id.; United States v. Gordon, 979 F.Supp. 337, 339 (E.D.Pa.1997).

Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside or correct a sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. Relief under this provision is "generally available only in `exceptional circumstances' to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." United States v. Gordon, 979 F.Supp. 337, 339 (E.D.Pa.1997) (citing Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)).

1. Apprendi v. New Jersey

Rosendary's first challenge to his conviction and sentence is based on the Apprendi rule. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-2363, 147 L.Ed.2d 435 (2000), the Supreme Court set forth this rule when it stated 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." Rosendary argues that under Apprendi, it was error for this Court to consider the quantity of cocaine base he pled to for sentencing purposes when his indictment alleged possession of only a "detectable amount." The statutory maximum sentence applicable to unspecified amounts of controlled substances is 20 years pursuant to 21 U.S.C. § 841(b)(1)(C); the statutory maximum sentence applicable to the quantity of cocaine base Rosendary pled to is 40 years pursuant to 21 U.S.C. § 841(b)(1)(B).

Rosendary's Apprendi challenge fails for several reasons. The first and most critical reason is that Rosendary knowingly and voluntarily pled to the quantity of cocaine base that caused the applicable statutory maximum to be 40 years. If a jury had determined beyond a reasonable doubt that Rosendary possessed a detectable amount of cocaine base and this Court had determined by a preponderance of the evidence that he possessed between 35 and 50 grams, the principles of Apprendi would be implicated. However, because Rosendary himself pled to this quantity with full knowledge that a 40-year statutory maximum sentence applied, this is not an Apprendi case. Numerous courts have held that Apprendi does not apply when a defendant enters a knowing and voluntary plea stipulating to the quantity considered by the sentencing court. See, e.g., United States v. Harper, 246 F.3d 520, 530-531 (6th Cir.2001); United States v. Champion, 234 F.3d 106, 109-110 (2nd Cir.2000); United States v. Walker, 228 F.3d 1276, 1278 n. 1 (11th Cir.2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1408, 149 L.Ed.2d 350 (2001); Panoke v. United States, ___ F.Supp.2d ___, No. Civ. 00-00548-ACK, 2001 WL 46941, at *5 (D.Hawai'i Jan.5, 2001). As stated by the Sixth Circuit:

[the defendant], however, stipulated to the amount of drugs for which he was held responsible, and the district court did not rely on any fact outside of the plea agreement to determine drug quantity at sentencing. Therefore, the principles articulated in Apprendi are not implicated by the instant case, and [the defendant's] argument must fail.

Harper, 246 F.3d at 530-531 (internal citations omitted). Similarly, this Court relied exclusively on the plea agreement to determine drug quantity for purposes of sentencing.2 Therefore, Rosendary's Apprendi argument is without merit.

A second reason that Rosendary's Apprendi argument fails is that even assuming that the 20-year statutory maximum for unspecified quantities is the applicable bar, the sentence actually imposed did not exceed this bar. The Third Circuit has held that the rule of Apprendi is inapplicable when the actual sentence imposed on a defendant does not exceed the lesser applicable statutory maximum:

[d]espite the ambiguity in Apprendi, we hold that it does not apply to Williams' sentence for several reasons. First and foremost, though the District Court's finding regarding the amount of drugs substantially increased the possible statutory maximum sentence under 21 U.S.C. § 841(b)(1), we hold that Apprendi is not applicable to Williams' sentence, because the sentence actually imposed (seven years and one month) was well under the original statutory maximum of 20 years.

United States v. Williams, 235 F.3d 858, 863 (3d Cir.2000). Thus, assuming that the 20-year statutory maximum applies in this case, the sentence actually imposed on Rosendary (7 years and 4 months) is well below this maximum.

Finally, a third reason that Rosendary's Apprendi challenge fails is that his conviction was final prior to the date the decision was rendered and the Apprendi rule is not retroactively applicable on initial collateral review. In Teague v. Lane, 489 U.S. 288, 306, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court adopted Justice Harlan's view that "[g]iven the `broad scope of constitutional issues cognizable on habeas,'... it is `sounder, in adjudicating habeas petitions, generally to apply the law prevailing at the time a conviction became final than it is to seek to dispose of [habeas] cases on the basis of intervening changes in constitutional interpretation.'" (quoting Mackey v. United States, 401 U.S. 667, 689, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971)). There are two exceptions to this rule: 1) a new rule will be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe;" and 2) a new rule will be applied retroactively if it requires the observance of "procedures that ... are implicit in the concept of ordered liberty." Mackey, 401 U.S. at 692-693, 91 S.Ct. 1160. In O'Dell v. Netherland, 521 U.S. 151, 156-157, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997), the Supreme Court outlined a three-step process for conducting the Teague inquiry.

The first step under O'Dell is to determine whether the defendant's conviction was final at the time the new decision was rendered. Id. at 156, 117 S.Ct. 1969. If the conviction was not final, the defendant is automatically entitled to its benefit. In...

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    • U.S. Court of Appeals — Third Circuit
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    ...to Count 1 of the indictment Mr. Lujan of course waived the right to have that fact determined by a jury"); United States v. Rosendary, 152 F.Supp.2d 835, 839 (W.D.Pa.2001) (stating that sentencing court can rely on facts admitted by defendant in plea agreement in determining sentencing wit......

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