Opinion
No. 3:00-CR-0176-M (03), No. 3:01-CV-1269-M
March 27, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case: This is a Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to the provisions of 28 U.S.C. § 2255.
Parties: Movant, Cristin Bautista Jaimes (Jaimes), is a currently incarcerated federal prisoner. Respondent is the United States of America (the government). The Court has not issued process in this case.
Procedural History: On June 2, 2000, Jaimes pled guilty to conspiracy to possess with intent to distribute a controlled substance. On August 31, 2000, the Court sentenced him to sixty months imprisonment. He did not appeal his sentence or conviction. On July 2, 2001, he filed the instant motion under 28 U.S.C. § 2255.
Substantive Issues: Petitioner bases this action on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He contends that, due to Apprendi, his fights under the Fourteenth Amendment to the United States Constitution were violated when the indictment faded to allege the quantity and type of drugs.
II. Scope of Relief Available under § 2255
"Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks omitted). It is well established that "a collateral challenge may not do service for an appeal." United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) ( en banc) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)), cert. denied, 502 U.S. 1076, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992).
In addition, defendants may only collaterally attack their convictions on wounds of error omitted from their direct appeals upon showing "cause" for the omission and "actual prejudice" resulting from the asserted error. Shaid, 937 F.2d at 232. Even then, any new assertion of error is limited to "issues of constitutional or jurisdictional magnitude." Id. The cause and prejudice test applies even to allegations of fundamental constitutional error. Id. The only exception to the application of the test is when a movant can establish a fundamental miscarriage of justice, i.e. that he or she is actually innocent of the crime convicted. Id. A showing of ineffective assistance of counsel, furthermore, satisfies the cause and prejudice standard. See United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000).
In this instance, Jaimes has neither argued nor shown that he is actually innocent of the crime convicted. He thus must show cause for not presenting his claim on direct appeal and prejudice from the asserted error. He, nevertheless, makes no attempt to show cause for not bringing his claim on direct appeal. He makes no claim that his attorney rendered ineffective assistance. Rather, he simply relies upon Apprendi to now assert his claim. Apprendi, however, had already been decided before the Court imposed his sentence. It, therefore, appears that he could have raised the issue on direct appeal.
The Court should summarily dismiss this action under Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts. Jaimes has shown no cause for not presenting his claim on direct appeal. Nor has he demonstrated any manifest injustice. His claim, moreover, lacks merit. Contrary to his assertions, his indictment does allege the quantity and type of drugs. Apprendi, furthermore, is simply not implicated under the facts of this case.
Movant pled guilty to a "one count indictment, charging a violation of Title 21, United States Code, Section 846, that conspiracy to possess with the intent to distribute in excess of 1000 kilograms of marijuana, a schedule I controlled substance." (Plea Agreement ¶ 2.) The indictment specifically charged:
On or about April 11, 2000, in the Dallas Division of the Northern District of Texas, defendants. . . [including] CRISTIN BAUTISTA JAIMES. . . knowingly and intentionally combined, conspired, confederated and agreed together and with each other, and with other persons known and unknown to the grand jury to commit the following offense against the United States: to possess with the intent to distribute in excess of 1000 kilograms or more of a mixture and substance containing a detectable amount of marijuana, a schedule I controlled substance, in violation of Title 21 United States Code Section 841(a)(1).
(Indictment at 1.)
The statutory maximum sentence for the charged offense is ten years to life. See 21 U.S.C. § 841(b)(1)(A) (vii); cf. United States v. Moreci, ___F.3d ___, ___, No. 00-20795, 2002 WL 226419, at *3-4 (5th Cir. Feb. 13, 2002) (holding that an indictment that sets only a minimum drug quantity, as opposed to a specific drug-quantity range or a precise drug quantity, is sufficient to satisfy Apprendi and thus the statutory maximum sentence is determined based upon the drug quantity set forth in the indictment); United States v. DeLeon, 247 F.3d 593, 597 (5th Cir. 2001) (holding that "an indictment's allegation of a drug-quantity range, as opposed to a precise drug quantity, is sufficient to satisfy Apprendi and its progeny" and thus the statutory maximum sentence is determined based upon drug quantity alleged in the indictment). The Court sentenced movant to sixty months. That sentence does not exceed the statutory maximum of life imprisonment. Apprendi is simply "not implicated" in such circumstances. See United States v. Wilson, 249 F.3d 366, 380 (5th Cir. 2001). "It is clear in this circuit that where an enhancement does not increase the defendant's sentence above the statutory maximum, there is no Apprendi violation." Id. "Factual determinations made by a district court, based on a preponderance of the evidence, . . . that simply dictate a sentence within the statutorily allowed range are not called into question by Apprendi." See United States v. Miranda, 248 F.3d 434, 444 (5th Cir.), cert. denied, ___U.S.___, 122 S.Ct. 410, 151 L.Ed.2d 312 (2001).
Movant's claim thus fails on the merits. The Court did not sentence movant above the statutory maximum. Apprendi is not implicated.
RECOMMENDATION
For the foregoing reasons, it is recommended that the Court summarily DENY movant's Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to 28 U.S.C. § 2255.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).