                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-18-2003

USA v. Jenkins
Precedential or Non-Precedential: Precedential

Docket No. 01-1722




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                               PRECEDENTIAL

                                         Filed June 18, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                         No. 01-1722


               UNITED STATES OF AMERICA
                               v.
                   WILLIAM R. JENKINS,
                         Appellant

     On Appeal From the United States District Court
         For the Middle District of Pennsylvania
              (D.C. Crim. No. 97-cr-00023)
          District Court Judge: William J. Nealon

                 Argued: February 13, 2003
     BEFORE: ALITO and McKEE, Circuit Judges, and
          SCHWARZER,* Senior District Judge

                   (Filed: June 18, 2003)
                       JOSEPH A. O’BRIEN (ARGUED)
                       Oliver, Price & Rhodes
                       1212 South Abington Road
                       P.O. Box 240
                       Clarks Summit, PA 18411
                       Attorney for William R. Jenkins,
                       Appellant

* Honorable William W Schwarzer, Senior District Judge, Northern
District of California, sitting by designation.
                             2


                      BRUCE BRANDLER (ARGUED)
                      Assistant U.S. Attorney
                      U.S. Attorney’s Office
                      P.O. Box 11754
                      Harrisburg, PA 17108
                      Attorneys for United States of
                      America, Appellee


                OPINION OF THE COURT

SCHWARZER, Senior District Judge:
  William R. Jenkins was convicted of ten of eleven counts
charging conspiracy to distribute marijuana, drug
trafficking, possessing and transferring machine guns and
related offenses. 18 U.S.C. §§ 2, 371, 922(a)(4) and (6),
922(g)(1), 922(o), 924(c)(1), 1952; 21 U.S.C. §§ 841(a)(1),
846; and 26 U.S.C. § 5861. The convictions were affirmed.
United States v. Jenkins, 185 F.3d 863 (3d Cir. 1999)
(unpublished), cert. denied, 528 U.S. 978 (1999).
   The indictment on which Jenkins was convicted did not
specify the quantity of drugs with which he was charged.
The sentence the district judge imposed on the drug counts
was for an offense involving between sixty and ninety
kilograms of marijuana, based on the calculation in the
presentence report. Because the resulting sentence
exceeded the statutory maximum for an offense involving
less than fifty kilograms under 21 U.S.C. § 841(b)(1)(D),
Jenkins moved under 28 U.S.C. § 2255 to vacate his
sentence on the drug counts, invoking Apprendi v. New
Jersey, 530 U.S. 466 (2000).
  Apprendi was not decided until after Jenkins’s conviction
had been affirmed and become final. Although the
government opposed his motion on the ground of
Apprendi’s non-retroactivity, the district court did not rule
on the issue. Instead, the court ruled, erroneously as the
government concedes, that Jenkins’s sentence of 210
months did not exceed the statutory maximum of 480
months on the two drug counts. See United States v.
McCulligan, 256 F.3d 97, 104-05 (3d Cir. 2001); United
                              3


States v. Henry, 282 F.3d 242, 251 (3d Cir. 2002) (finding
the statutory maximum under § 841(b)(1)(D) is sixty
months).
   Jenkins appealed the denial of his motion and this court
issued a certificate of appealability limited to the Apprendi
issue. We have jurisdiction under 28 U.S.C. §§ 1291 and
2255. Our review of an order denying a motion under
§ 2255 is plenary. Cradle v. United States ex rel. Miner, 290
F.3d 536, 538 (3d Cir. 2002). We may affirm an order of the
district court on any ground supported by the record. See
In re Columbia Gas System Inc., 50 F.3d 233, 237 n.6 (3d
Cir. 1995).

                        DISCUSSION
I.   RETROACTIVITY OF APPRENDI
   In Apprendi, the Court held that “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” 530 U.S.
at 490. Jenkins contends that his constitutional rights were
violated because the jury did not make a determination
beyond a reasonable doubt of the amount of drugs for
which he was held responsible. We held in In re Turner, 267
F.3d 225 (3d Cir. 2001), that Apprendi is not retroactive to
a successive habeas petition in light of the specific
requirement of the Antiterrorism and Effective Death
Penalty Act of 1996 for such petitions that “a new rule of
constitutional law [must have been] made retroactive to
cases on collateral review by the Supreme Court.” 28 U.S.C.
§ 2255 ¶ 8. We now decide whether Apprendi is retroactive
to initial motions for post conviction relief which are not
subject to that requirement.
  All eight courts of appeals to have addressed the question
have held that it is not. See United States v. Brown, 305
F.3d 304, 309 (5th Cir. 2002), rehearing en banc denied, 54
Fed. Appx. 415, ___ F.3d ___, (2002), petition for cert. filed,
(2003); Curtis v. United States, 294 F.3d 841, 842-44 (7th
Cir. 2002), cert. denied, 123 S. Ct. 451 (2002); United
States v. Mora, 293 F.3d 1213, 1218-19 (10th Cir. 2002),
cert. denied, 123 S. Ct. 388 (2002); United States v. Moss,
                              4


252 F.3d 993, 997-1001 (8th Cir. 2001), cert. denied, 543
U.S. 1097 (2002); Goode v. United States, 305 F.3d 378,
382 (6th Cir. 2002), cert. denied, 123 S. Ct. 711 (2002);
United States v. Sanchez-Cervantes, 282 F.3d 664, 667-71
(9th Cir. 2002), cert. denied, 123 S. Ct. 48 (2002); McCoy v.
United States, 266 F.3d 1245, 1256-58 (11th Cir. 2001),
cert. denied, 122 S. Ct. 2362 (2002); and United States v.
Sanders, 247 F.3d 139, 141 (4th Cir. 2001), cert. denied,
534 U.S. 1032 (2001).
   Jenkins contends that the retroactivity analysis of
Apprendi should be approached on the premise that its
principle lies on a “continuum midway between the
procedural and substantive standards,” requiring a
determination whether a non-retroactive application of
Apprendi would “clearly result in an egregious injustice,”
citing United States v. Woods, 986 F.2d 669, 678 (3d Cir.
1993). There, the court found that the Supreme Court’s
decision in Hughey v. United States, 495 U.S. 411 (1990),
limiting the district court’s statutory authority to order
restitution, did not fall neatly into either the substantive or
procedural doctrinal categories for purposes of retroactivity
analysis.
  Jenkins’s reliance on Woods is misplaced. In Apprendi
the Supreme Court defined the issue to be procedural: “The
substantive basis for New Jersey’s enhancement is thus not
at issue; the adequacy of New Jersey’s procedure is.”
Apprendi, 530 U.S. at 475. All of the circuits to have
addressed the issue have held that Apprendi is procedural.
As the Seventh Circuit put it:
    Apprendi is about nothing but procedure—who decides
    a given question (judge versus jury) and under what
    standard (preponderance versus reasonable doubt).
    Apprendi does not alter which facts have what legal
    significance, let alone suggest that conspiring to
    distribute marijuana is no longer a federal crime
    unless the jury finds that some particular quantity has
    been sold.
Curtis, 294 F.3d at 843. See also Brown, 305 F.3d at 309;
Mora, 293 F.3d at 1218; Moss, 252 F.3d at 997-99; Goode,
305 F.3d at 383; Sanchez-Cervantes, 282 F.3d at 668;
                              5


McCoy, 266 F.3d at 1256; Sanders, 247 F.3d at 147 (“To
the contrary, Apprendi constitutes a procedural rule
because it dictates what fact-finding procedure must be
employed to ensure a fair trial.”). We join our sister circuits
and hold Apprendi to be a rule of criminal procedure.
   Moreover, all of the circuit decisions cited above holding
Apprendi not to be retroactive have analyzed it as a new
rule under Teague v. Lane, 489 U.S. 288 (1989). Under
Teague, a new procedural rule may be applied retroactively
if it (1) “places certain kinds of conduct beyond the power
of the criminal law-making authority to proscribe” or (2)
“requires the observance of those procedures that . . . are
implicit in the concept of ordered liberty.” Id. at 311
(internal quotations omitted). Jenkins does not contend
that Apprendi falls into either category and we see no
reason to part ways with the other circuits in this regard.
   Jenkins argues that because he was convicted as a result
of a proceeding in which he was denied the constitutionally
required reasonable doubt standard, and the truth-finding
safeguard it implicates, the Apprendi rule should be applied
retroactively, citing V. v. City of New York, 407 U.S. 203
(1972). But this argument misconceives the function of
Apprendi. Its application affects only the enhancement of a
defendant’s sentence after he or she has already been
convicted by proof beyond a reasonable doubt. Allowing a
judge to determine the quantity of drugs for sentencing
purposes does not impair the jury’s ability to find the truth
regarding the defendant’s involvement in the underlying
offense. See Sanchez-Cervantes, 282 F.3d at 671.
II.   PROCEDURAL BAR
  Even if Apprendi applied, we would affirm the denial of
Jenkins’s § 2255 motion on the additional ground that he
is procedurally barred from challenging his sentence
because he failed to raise the Apprendi claim before the
judgment of conviction had become final. To avoid this
default, Jenkins must demonstrate both cause for the
default and actual prejudice to him as the result of this
error. United States v. Frady, 456 U.S. 152, 167 (1982);
Bousley v. United States, 523 U.S. 614, 622 (1998) (“Where
a defendant has procedurally defaulted a claim by failing to
                              6


raise it on direct review, the claim may be raised in habeas
only if the defendant can first demonstrate either ‘cause’
and actual ‘prejudice,’ or that he is ‘actually innocent.’ ”)
(internal citations omitted).
   Jenkins contends not that he is actually innocent, but
that he cannot be held to have forfeited his claim because
settled law in the circuit pre-Apprendi did not provide a
legal basis for the claim, citing United States v. Lewis, 113
F.3d 487, 490 (3d Cir. 1997) (holding drug quantity in
§ 841 is a “sentencing factor” to be determined by the court
rather than an element of the offense to be determined by
the jury). In Reed v. Ross, 468 U.S. 1 (1984), the Court held
that “cause” to excuse a procedural default may exist
“where a constitutional claim is so novel that its legal basis
is not reasonably available to counsel.” Id. at 16. However,
as held in Bousley, 523 U.S. at 622-23, where the
argument was not novel and “the Federal Reporters were
replete with cases involving [similar] challenges,” the
default is not excused. We agree with the circuit courts to
have considered the question, which concluded, without
exception, that the foundation for Apprendi was laid years
before the decision was announced. See Moss, 252 F.3d at
1001-02; McCoy, 266 F.3d at 1258; Sanders, 247 F.3d at
145-46.
  Jenkins, moreover, has failed to demonstrate “actual
prejudice.” Frady, 456 U.S. at 167. The evidence at trial
was overwhelming that Jenkins’s drug trafficking offenses
involved at least fifty kilograms of marijuana. See United
States v. Vazquez, 271 F.3d 93, 106 (3d Cir. 2001) (en
banc) (stating that on the undisputed evidence, a rational
jury would have found defendant had conspired to possess
or distribute no less than the quantity of drugs charged).
And because Jenkins withdrew his objections to the drug
quantity attributable to him in the presentence report, the
district court accepted those quantities as its findings of
fact. Fed. R. Crim. P. 32(b)(6); United States v. Gricco, 277
F.3d 339, 355 (3d Cir. 2002).
  Finally, even if Apprendi applied, the Guidelines would
have required the district court to impose a consecutive
sentence on the remaining counts of conviction to achieve
the 210-month sentence. See U.S.S.G. § 5G1.2(d) (1999)
                              7


(when statutory maximum sentence on count of conviction
with highest maximum is inadequate to achieve total
Guidelines sentence, “the sentence imposed on one or more
of the other counts shall run consecutively . . . to the
extent necessary to produce a combined sentence equal to
the total punishment”). Had the Guidelines been correctly
applied, Jenkins’s total punishment would actually have
been increased. It follows that Jenkins’s claim is
procedurally barred.
  For the foregoing reasons, the district court’s order
denying Jenkins’s motion is AFFIRMED.

A True Copy:
        Teste:

                  Clerk of the United States Court of Appeals
                              for the Third Circuit
