Opinion
01 Civ. 11557 (SAS)
October 9, 2002
Gregory Ayala, FCI Cumberland, Cumberland, Maryland, Petitioner (Pro Se).
W.S. Wilson Leung, Assistant United States Attorney, One St. Andrew's Plaza, New York, New York, For Respondent.
OPINION AND ORDER
Petitioner Gregory Ayala, proceeding pro se, has moved to vacate, set aside, or correct his sentence pursuant to section 2255 of Title 28, United States Code ("section 2255"). Ayala presents three claims, all of which are premised on the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). First, Ayala contends that his Fifth and Sixth Amendment rights were violated because the Superseding Indictment failed to allege drug quantity as an element of the crimes with which he was charged and because drug quantity was not determined by the jury using a reasonable doubt standard. See Memorandum of Law in Support of Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Pet. Mem.") at 4-8. Alternatively, Ayala contends that his sentence was improperly calculated in light of Apprendi. See id. at 9-11. Second, Ayala contends that this Court improperly applied the two-level enhancement for possession of a gun under United States Sentencing Guideline ("U.S.S.G.") section 2D1.1(b)(1) because, according to Ayala, Apprendi requires this enhancement to be submitted to the jury and found beyond a reasonable doubt. See id. at 11-13. Third, Ayala contends that Apprendi has rendered section 841 of Title 21, United States Code ("section 841") unconstitutional. See id. at 14-16.
The Government opposes Ayala's motion arguing that the his claims are procedurally barred because he failed to raise them on direct appeal and, even if not procedurally barred, they are without merit. Because Ayala's claims are meritless, his motion is denied.
Because petitioner's claims are without merit, I do not address the question of whether they are procedurally barred.
I. FACTS
On March 2, 1998, Superseding Indictment S8 97 CR 786 (SAS) was filed. Counts One, Two, Twenty-Nine, and Thirty-One of the fifty-two count Superseding Indictment named Gregory Ayala as a defendant. Count One charged Ayala with racketeering, in violation of section 1962(c) of Title 18, United States Code, based on his participation in the following two Racketeering Acts: (1) Racketeering Act Seventeen, charging conspiracy to distribute and distribution of heroin and (2) Racketeering Act Nineteen, charging conspiracy to distribute and distribution of cocaine base ("crack"). Count Two charged Ayala with conspiring to violate the racketeering laws in violation of section 1962(d) of Title 18, United States Code. Count Twenty-Nine charged Ayala with conspiring to distribute and possess heroin in violation of section 846 of Title 21, United States Code ("section 846") — the same conduct charged as Racketeering Act Seventeen of Count One. Count Thirty-One charged Ayala with conspiring to distribute and possess crack in violation of section 846 — the same conduct charged as Racketeering Act Nineteen of Count One.
Count 29 charged Ayala, in relevant part, as follows:
It was part and object of said conspiracy that GREGORY AYALA, a/k/a "Greggo" . . . would and did distribute and possess with intent to distribute one kilogram and more of mixtures and substances containing a detectable amount of heroin, in violation of Sections 812, 841(a)(1) and 841(b)(1)(A) of Title 21, United States Code.
Indictment S8 97 CR 786 (SAS) ¶ 87.
Count 31 charged Ayala, in relevant part, as follows:
It was part and object of said conspiracy that . . . GREGORY AYALA, a/k/a "Greggo" . . . would and did distribute and possess with intent to distribute 50 grams and more of mixtures and substances containing a detectable amount of cocaine base, commonly known as "crack," in violation of Sections 812, 841(a)(1) and 841(b)(1)(A) of Title 21, United States Code.
Indictment S8 97 CR 786 (SAS) ¶ 91.
The trial of Ayala and his co-defendants commenced on March 16, 1998 and concluded approximately three months later. Ayala was convicted by the jury on all four counts in which he was charged. On July 7, 1999, Ayala was sentenced to concurrent terms of 151 months imprisonment on each of the four counts, five years supervised release, and a mandatory special assessment of $4OO. See United States v. Ayala, 75 F. Supp.2d 126, 140 (S.D.N.Y. 1999).
In determining Ayala's sentence, all four counts were grouped together, pursuant to U.S.S.G. § 3D1.2, as they involved substantially the same harm. See United States v. Ayala, 75 F. Supp.2d 126, 127 (S.D.N.Y. 1999). Pursuant to U.S.S.G. § 2E1.1, the base offense level for the two RICO offenses (Counts One and Two) was the higher of either 19 or the base offense level of the predicate Racketeering Acts — in this case, the heroin and crack conspiracies charged in Counts 29 and 31. See id. at 128. Thus, Ayala's sentence was predicated on the quantity of drugs for which he was found responsible.
In connection with Ayala's sentencing, a Fatico hearing was held, after which the Court found that Ayala was responsible for distributing at least ¶ kilograms of heroin and ¶ kilograms of crack. See id. at 130. The Court found these quantities by "clear and convincing evidence, if not beyond a reasonable doubt" and set the base offense level at 38. Id. at 130-31 ("These quantity findings are based on the trial testimony of Luis Soto, the hearing testimony of Luis Soto and Tommy Perez, and Ayala's own statement to the police at the time of his arrest."). The Court also found that Ayala possessed a gun in connection with the drug trafficking offense. See id. at 132 ("I find by both the preponderance of the evidence and by clear and convincing evidence that Ayala possessed weapons in connection with the narcotics offense of which he was charged and convicted."). Accordingly, Ayala's base offense level was increased by two levels, to 40, pursuant to U.S.S.G. § 2D1.1(b)(1). See id. at 132. However, the Court rejected the four-level leadership role enhancement proposed by the Government pursuant to U.S.S.G. § 3B1.1. See id. at 133-34 ("The evidence offered is insufficient to establish that Ayala was a leader or organizer with respect to the charged drug conspiracies. The evidence is also insufficient to establish that he was a manager or supervisor in these conspiracies."). In addition, the Court granted an eight-level downward departure, pursuant to U.S.S.G. § 5K2.0, due to Ayala's extraordinary family circumstances. See id. at 137-40. The resulting offense level of 32, coupled with Ayala's Criminal History Category of I, yielded a sentencing range of 121 to 151 months. Ayala was sentenced to a term of 151 months imprisonment. See id. at 140.
Ayala timely appealed his conviction, contending that:
(1) his trial counsel was ineffective for failing to object to the redaction and admission of certain post-arrest statements;
(2) he was improperly tried jointly with his co-defendants; (3) the evidence was insufficient to sustain his convictions; and
(4) the district court improperly instructed the jury on the interstate commerce element.See United States v. Guzman, No. 99-1262(L), 2001 WL 290508, at *2 (2d Cir. Mar. 23, 2001). Ayala did not otherwise challenge the propriety of his conviction or sentence. The Second Circuit affirmed Ayala's conviction in an unpublished decision. See id. Ayala did not file a petition for certiorari. Ayala then filed the instant motion which was received by this Court's Pro Se Office on November 14, 2001.
II. DISCUSSION
A. Relevant Standard
Section 2255 allows a convicted person being held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255. Accordingly, collateral relief under section 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes `a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)); accord United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989).
B. Apprendi and Section 841
Ayala attacks the constitutionality of section 841 in light of Apprendi. See Pet. Mem. at 14-16. Ayala contends that in enacting section 841, "Congress did not have the authority to remove these required elements [ i.e., drug quantity] from the government's burden of proof and allow them to be factors demonstrated only by a preponderance of the evidence at sentencinq." Pet. Mem. at 15. Although Apprendi did substantially alter the way section 841 is applied in some instances, it did not call into question its constitutionality.
In Apprendi, the Supreme Court addressed the constitutionality of New Jersey's sentencing scheme for hate crimes. Under that scheme, a court could enhance a defendant's sentence beyond the statutory maximum that would otherwise apply if the sentencing judge found by a preponderance of the evidence that the defendant's crime was motivated by racial bias. See 530 U.S. at 470-71. The Court held that this scheme was unconstitutional because it enhanced the statutory maximum sentence based on a fact not found by the jury beyond a reasonable doubt. See id. at 490. The Court therefore set forth a new constitutional rule of criminal procedure: "Other 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." Id.
In sum, there is no basis to conclude that section 841 is unconstitutional by reason of Apprendi. The case on which Ayala primarily relies in support of this proposition, United States v. Buckland, 259 F.3d 1157 (9th Cir. 2001), was reversed by the Ninth Circuit sitting en banc, see United States v. Buckland, 277 F.3d 1173 (9th Cir. 2002), amended and superseded by 289 F.3d 558 (9th Cir. 2002). Indeed, every circuit that has considered this issue has held that section 841 is constitutional notwithstanding Apprendi.
See, e.g., United States v. Buckland, 289 F.3d at 572; United States v. McAllister, 272 F.3d 228, 232 (4th Cir. 2001); United States v. Cernobyl, 255 F.3d 1215, 1219 (10th Cir. 2001); United States v. Martinez, 253 F.3d 251, 256 n. 6 (6th Cir. 2001); United States v. Brough, 243 F.3d 1078, 1079-80 (7th Cir. 2001); United States v. Slaughter, 238 F.3d 580, 582 (5th Cir.), cert. denied, 121 S.Ct. 2015 (2001); United States v. Candelario, 240 F.3d 1300, 1311 n. 16 (11th Cir.), cert. denied, 121 S.Ct. 2535 (2001).
Because section 841 can be implemented in a manner consistent with Apprendi, it is not thereby rendered unconstitutional. Apprendi now requires drug quantity, which may increase the statutory maximum sentence, to be proved to a jury beyond a reasonable doubt if the sentence imposed exceeds the statutory maximum term. Nothing in section 841 prevents federal courts from implementing the statute accordingly. Indeed, as the Tenth Circuit recently explained, "application of Apprendi to § 841 is consistent with the plain language of the statute. Section 841(b) itself is silent on the question of what procedures courts are to use in implementing its provisions, and therefore the rule in Apprendi in no way conflicts with the explicit terms of the statute." United States v. Cernobyl, 255 F.3d at 1219. Moreover, there is no reason to think that Congress intended to preclude the submission of the statute's sentencinq provisions to a jury, with the application of the beyond-a-reasonable-doubt standard, where such procedures are constitutionally required. See Brough, 243 F.3d at 1079 ("If Congress had specified that only judges may make the findings required by § 841(b), or that these findings must be made by a preponderance of the evidence, then § 841 would create a constitutional problem. But the statute does not say who makes the findings or which party bears what burden of persuasion.") Thus, Apprendi poses "no impediment to convictions under the statute as written," and there is "no constitutional defect in the design of § 841." Id. at 1080. Accordingly, "nothing in Apprendi renders either Section 841 or Section 846 of Title 21, United States Code, unconstitutional." Coleman v. United States, No. 99 CR 867, 2001 WL 262738, at *1 (S.D.N.Y. Mar. 15, 2001). Ayala's claim that section 841 is unconstitutional in light of Apprendi must therefore be dismissed.
C. Apprendi and Drug Quantity
Akyala argues that his conviction and sentence run afoul of Apprendi because he was convicted and sentenced without any specific allegation of drug quantity in the indictment or a jury finding of drug quantity that had been proven beyond a reasonable doubt. See Pet. Mem. at 4-8. In the alternative, Ayala also argues that Apprendi requires that
where there is no specific drug amount charged in the indictment, and there is no finding by a jury as to specific drug amount beyond a reasonable doubt, a sentencing court must sentence a defendant in accordance with the lowest base offense level for the particular substance in question.Id. at 11. Ayala concludes that because the lowest base offense level for the offense charged in Count 29 (conspiracy to distribute heroin) is 12, he should have been sentenced within the Guidelines range of 10-16 months incarceration. See id. at 11. Both of these arguments lack merit.
The Second Circuit has held that Apprendi does not preclude a district court from considering drug quantity for sentencing purposes in cases where drug quantity is not charged in the indictment or found by the jury "so long as the resulting sentence does not exceed the statutory maximum" of 240 months set forth under section 841(b)(1)(C) for an unspecified amount of cocaine or heroin. See United States v. Thomas, 274 F.3d 655, 663-64 (2d Cir. 2001) (en banc); accord United States v. Dennis, 271 F.3d 71, 74 (2d Cir. 2001) (holding that Apprendi is not applicable where court sentenced defendant to a term of incarceration below the twenty-year statutory maximum of section 841(b)(1)(C) even though the actual sentence the court imposed was based on a drug quantity higher than that found by the jury via special interrogatories); United States v. Chavez, 267 F.3d 76, 79 (2d Cir. 2001) (per curiam) (holding that Apprendi is inapplicable in cases where the actual sentence imposed was less than the statutory maximum sentence for an unspecified drug quantity under section 841(b)(1)(C)). The actual sentence the Court imposed on Ayala — four concurrent 151-month terms of imprisonment — falls well below the default 240-month maximum sentence authorized under section 841(b)(1)(C). Accordingly, Apprendi is inapplicable to Ayala's case. See United States v. Rivera, 282 F.3d 74, 76 (2d Cir. 2002) (per curiam) ("Because Cook's life sentence did not exceed the statutory maximum applicable to the CCE count, the fact that the district court relied on judicial findings of drug quantity and `sanctioned use of violence' to increase his sentence is irrelevant. A court's reliance on such findings without exceeding the relevant statutory maximum does not open the resulting sentence to attack under Apprendi.").
The Second Circuit's extension of Apprendi to cases where the statutory mandatory minimum exceeds the otherwise applicable guideline range is also inapplicable. See United States v. Guevara, 277 F.3d 111 (2d Cir. 2001). In Guevara, the defendant's guideline range was 168-210 months in custody but he was sentenced to the 240 statutory minimum found in section 841(b)(1)(A) based on the court's finding of drug quantity by a preponderance of the evidence. The Second Circuit held that the 240 month sentence was constitutionally impermissible, stating that "a statutory mandatory minimum sentence specified either in § 841(b)(1)(A) or § 841(b)(1)(B) cannot mandate a prison sentence that exceeds the highest sentence to which the defendant would otherwise have been exposed ( i.e., the top of the federal Guideline range, based on district court findings under the Guidelines, with or without a departure) if the applicability of subsections (A) or (B) depends on a finding of drug quantity not made by the jury." Id. at 118-19. Here, Ayala was subject to a ten year statutory minimum but this minimum was below his guidelines range of 121-151 months in custody, thus making Guevara inapposite.
Because Ayala was sentenced below the statutory maximum of 240 months, the drug quantity was not an issue that needed to be submitted to the jury. Moreover, there is no legal support for Ayala's argument that Apprendi requires him to be sentenced at the lowest applicable Guidelines offense level for any heroin distribution offense. Accordingly, Ayala's claims regarding Apprendi and drug quantity are dismissed.
Ayala makes this argument only with regard to Count 29. See Pet. Mem. at 9-11.
D. Apprendi and the Gun Enhancement
Ayala also claims that his two-level sentencing enhancement for possession of a gun pursuant to U.S.S.G. § 2D1.1(b)(1), violates Apprendi because possesion of a gun is a fact that must be alleged in the indictment and submitted to the jury. See Pet. Mem. at 11-13. This claim, however, does not implicate Apprendi because the two-level gun enhancement did not affect the maximum statutory penalty applicable to Ayala. See United States v. Garcia, 240 F.3d 180, 184 (2d Cir.) (holding, post- Apprendi, that "a guideline factor, unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury"), cert. denied, 121 S.Ct. 2615 (2001); accord United States v. Feola, 275 F.3d 216, 218-19 (2d Cir. 2001) (per curiam); Dennis, 271 F.3d at 74; United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001); United States v. Breen, 243 F.3d 591, 599 (2d Cir.), cert. denied, 122 S.Ct. 214 (2001). Indeed, the only case that Ayala cites to support his argument that all sentencinq enhancements — even those that do not affect statutory maximums — must be submitted to a jury is United States v. Norris, 143 F. Supp.2d 243, 247 (E.D.N.Y. 2001) (disagreeing with the Second Circuit's decision in Garcia). The Second Circuit, however, recently reversed this decision and explicitly held that " Apprendi does not apply to enhancements that determine a sentence that is within the applicable statutory maximum and that would otherwise be above the applicable statutory minimum." United States v. Norris, 281 F.3d 357, 359 (2d Cir. 2002). Accordingly, this Court properly applied the gun enhancement and Ayala's claim to the contrary is dismissed.
III. CONCLUSION
For the foregoing reasons, Ayala's motion is denied. The Clerk of the Court is directed to close this case. Finally, there is the question of whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A `substantial showing' does not compel a petitioner to demonstrate that he would prevail on the merits, but merely that the issues involved in his case `are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.'" Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983) (internal quotation marks omitted) (emphasis and alteration in original)). In sum, "`[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" Rudenko v. Costello, 286 F.3d 51, 79 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Petitioner has made no such showing in this case. Accordingly, this Court denies a certificate of appealability and certifies that any appeal would not be taken in good faith within the meaning of 28 U.S.C. § 1915.