                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-26-2005

USA v. Fritz
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2641




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Recommended Citation
"USA v. Fritz" (2005). 2005 Decisions. Paper 781.
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BPS-297                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 04-2641
                                  ________________

                           UNITED STATES OF AMERICA

                                             v.

                                ROBERT J. FRITZ,
                                        Appellant
                      ____________________________________

                   On Appeal From the United States District Court
                       For the Middle District of Pennsylvania
                       (M.D. Pa. Crim. No. 99-cr-00042-MM)
                      District Judge: Honorable Malcolm Muir
                   _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   July 8, 2005

        Before: RENDELL, FISHER AND VANANTWERPEN, Circuit Judges.

                                 (Filed: July 26, 2005)


                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Robert L. Fritz appeals from the order of the District Court for the Middle District

of Pennsylvania denying his § 2255 motion.

      In 2000, Fritz was convicted by a jury in the Middle District of Pennsylvania of
conspiracy to possess with intent to deliver controlled substances, including heroin,

cocaine, and more than fifty (50) grams of crack cocaine, and of possession with intent to

deliver crack cocaine resulting in the death of a female, in violation of 21 U.S.C. §§ 846

and 841(a)(1). He was sentenced to a term of 360 months imprisonment. This Court

affirmed. See United States v.Fritz, C.A. No. 00-4120 (3d Cir. January 28, 2002). The

Supreme Court denied certiorari on October 7, 2002.

       On October 3, 2003, Fritz filed a timely § 2255 motion claiming ineffectiveness of

counsel and misconduct by the Government attorney at trial, and challenging the

enhancement of his sentence based on judicial findings of drug type and quantity, Fritz’s

role in the offense, the use of a minor in the commission of the offense, and possession of

a firearm during the commission of the offense. Upon consideration of the filings, the

District Court denied the § 2255 motion on its merits. By order entered April 23, 2004,

the District Court denied the § 2255 motion and declined to issue a certificate of

appealability. Fritz timely appealed. Fritz filed a request for a certificate of appealability

on all of the § 2255 claims and, for the first time, raised Blakely v. Washington, 124 S.Ct.

2531 (2004) to attack the sentence enhancements imposed under the Federal Sentencing

Guidelines. We granted a certificate of appealability on the Blakely claim only.

       We have jurisdiction to consider this appeal under 28 U.S.C. §§ 1291 and 2255.

We exercise plenary review over the District Court’s order denying § 2255 relief. United

States v. Jenkins, 333 F.3d 151, 153 (3d Cir. 2003). In April 2005, we stayed Fritz’s



                                              2
appeal pending our decision in Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005) and

granted his motion for appointment of counsel. After Lloyd was decided in May 2005,

we issued an order lifting the stay. We notified the parties that it was possible that we

would take summary action in light of Lloyd and that we would reconsider appointment

of counsel under I.O.P. 10.3.2. The parties have responded and the matter is ready for

disposition. We will also address Fritz’s pro se motion to expand the certificate of

appealability filed in February 2005, requesting that we revisit all of the claims raised in

his § 2255 motion.

                                             I.
                                     The Blakely Claim

       Fritz contends that the District Court wrongly adjusted his base offense level

upward by five points based on the court’s factual findings made pursuant to the Federal

Sentencing Guidelines. Fritz argues that his sentence was imposed in violation of

Blakely. Of course, now, the argument is governed by the Supreme Court’s decision in

United States v. Booker, 125 S.Ct. 738 (2005). This Court has held that the new rule

announced in Booker, which applied the Blakely rule to the Federal Sentencing

Guidelines, is not retroactively applicable to cases on collateral review. See Lloyd v.

United States, 407 F.3d 608 (3d Cir. 2005). Fritz’s conviction became final in October

2002, well before Blakely or Booker were decided, and thus, the new rule announced in

these cases is not applicable to Fritz’s § 2255 claim. Fritz opposes summary action,

distinguishing Lloyd on its facts and procedural history and requesting that we reconsider

                                              3
Lloyd in light of what the Supreme Court may decide on the question of retroactivity. We

find Fritz’s arguments unpersuasive. Our decision in Lloyd resolves the threshhold

question of retroactivity in this case. Accordingly, we will summarily affirm the District

Court’s denial of Fritz’s collateral challenge to the sentence enhancements. In light of the

foregoing, we see no need to appoint counsel.

                                          II.
                    Motion to Expand the Certificate of Appealability

       Fritz requests that the certificate of appealability be expanded to include the

remaining claims in his § 2255 motion. By granting a certificate of appealability on the

Blakely claim only, we denied a certificate of appealability on the remaining § 2255

claims. Fritz has offered no reason sufficient to revisit the decision, and we find none on

the record.

                                             III.

       Because precedent set forth in Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005)

warrants it, we will summarily affirm the District Court’s judgment. See Third Circuit

LAR 27.4 and I.O.P. 10.6. Fritz’s application to expand the certificate of appealability to

include the remaining claims in his § 2255 motion is denied.




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