Filed: May 08, 2008
Latest Update: Feb. 22, 2020
Summary: Nonetheless, the district court, which sentenced, Martínez pre-Apprendi, should still have made an individualized, drug finding so as to determine whether the murder-based guideline, sentence was within the statutory maximum applicable to Martínez's, drug offense.Medina, 279 F.3d at 122.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-1594
MARCOS MARTÍNEZ-MEDINA,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Lipez and Howard,
Circuit Judges.
Marcos Martínez-Medina on brief pro se.
Nelson Pérez-Sosa, Assistant U.S. Attorney, Julia M.
Meconiates, Assistant U.S. Attorney, and Rosa Emilia Rodriguez-
Velez, United States Attorney, on brief for appellee.
May 8, 2008
Per Curiam. Pro se appellant Marcos Martínez-Medina
appeals from the district court's denial of his motion to vacate
his sentence under 28 U.S.C. § 2255. For reasons given below, we
affirm. On appeal, Martínez also raises new claims, which are
outside the scope of the certificate of appealability (COA) granted
by the district court. As to such claims, we deny a COA. We begin
with background.
I. Background
In 1998, Martínez and various co-defendants were
convicted of conspiring to possess with intent to distribute and
distribution of multi-kilograms of cocaine, heroin, and marijuana
in violation of 21 U.S.C. § 841(a)(1) and § 846. At his sentencing
hearing in 1999, the district court found that Martínez had
committed certain murders in furtherance of the drug conspiracy, a
finding that significantly increased the applicable sentencing
guideline range. Eventually, the court imposed the high end of the
guideline range--a prison term of 405 months, or nearly 34 years.
Martínez appealed, and his appeal was consolidated with appeals by
two of his co-defendants.
On appeal, Martínez's appointed appellate attorney, who
had also been his trial attorney, challenged his conviction and
sentence. During the pendency of the appeal, Apprendi v. New
Jersey, 530 U.S. 466 (2000), was decided. In a supplemental brief,
counsel raised an Apprendi claim, alleging that Martínez's sentence
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had been based on murders that were neither charged in the
indictment nor determined by the jury beyond a reasonable doubt.
In her brief, however, counsel conceded that Martínez was
responsible for more than 500 grams of cocaine and that the 40-year
statutory maximum in § 841(b)(1)(B) applied.
We affirmed Martínez's conviction and sentence. We
rejected his Apprendi and other sentencing claims, relying in part
on counsel's appellate concession that the statutory maximum was 40
years. But before we turned to Martínez's Apprendi claim, we
discussed a possible sentencing guideline error that we had noticed
sua sponte--that the district court had not determined the specific
drug quantity attributable to Martínez. We stated that, in the
absence of a quantity determination, the 20-year statutory maximum
would apply, and noted that Martínez had received a nearly 34-year
sentence.1 But we suggested that any error had been forfeited or
1
As this court has emphasized both before and after Apprendi,
a sentencing court may not automatically attribute the conspiracy-
wide drug quantity to an individual defendant for purposes of
guideline sentencing, but must make an individualized determination
of drug quantity. See United States v. Sepúlveda, 15 F.3d 1161,
1197 (1st Cir. 1993) (stating that the guidelines require an
individualized determination of drug quantity); United States v.
Colón-Solis,
354 F.3d 101, 103 (1st Cir. 2004) (stating that this
court has "consistently . . . required a defendant-specific
determination of drug quantity as a benchmark for individualized
sentencing under the guidelines"). In many drug cases, the
individualized finding of drug quantity will determine the
appropriate base offense level under the drug guideline, § 2D1.1.
Prior to Apprendi, it was also used to determine the appropriate
statutory maximum under § 841(b)(1). See United States v. Irvin,
2 F.3d 72, 77-78 (4th Cir. 1993).
In Martínez's case, however, the base offense level was
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waived--counsel had not objected to the lack of findings at the
sentencing proceeding, and, on appeal, she had conceded to a higher
maximum. At the same time, however, we observed that based on the
trial evidence, the district court "would have had no difficulty"
finding Martínez responsible for more than 500 grams of cocaine.
See United States v. Martínez-Medina, 279 F.3d 105, 125 & n.10 (1st
Cir.), cert. denied,
537 U.S. 921 (2002). In so doing, we
essentially confirmed that the district court's apparent error and
counsel's failure to press for a specific drug amount finding were
not prejudicial since it was clear that the district court, if it
had addressed the issue, would have attributed at least 500 grams
of cocaine to Martínez, thereby exposing him to a 40-year maximum,
which exceeded the sentence he actually received.
Subsequently, Martínez's attorney urged him to file a §
2255 motion alleging that she had rendered ineffective assistance
determined under the murder guideline, § 2A.1.1, not the drug
guideline. Nonetheless, the district court, which sentenced
Martínez pre-Apprendi, should still have made an individualized
drug finding so as to determine whether the murder-based guideline
sentence was within the statutory maximum applicable to Martínez's
drug offense. See § 5G1.1(c) (permitting imposition of a guideline
sentence only if it is within "the statutorily authorized maximum
sentence" and "any statutorily required minimum sentence"); id.
(commentary) (indicating that the statutory maximum is the one
"authorized by statute for the offense of conviction"). For
example, if the district court had determined that no specific
quantity of cocaine could be attributed to Martínez, then it could
not have imposed a guideline sentence of nearly 34 years on
Martínez. At most, it could have imposed the 20-year statutory
maximum that applies to an offense involving an undetermined amount
of cocaine.
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of counsel. Based apparently in part on what was a
misunderstanding of our appellate decision, she stated that she had
misconstrued Apprendi, that Apprendi required application of the
20-year default maximum, and that she had erroneously conceded to
a 40-year statutory maximum.
In November 2002, Martínez filed the instant § 2255
motion and certain amendments. He asserted Apprendi claims,
alleging that his indictment had not charged him with murders or
adequately stated a specific drug quantity and that the jury had
not made pertinent determinations either. He also asserted an
ineffective assistance of counsel claim, relying on counsel's
suggestion that she had misconstrued Apprendi. He contended that
if counsel had not conceded to the 40-year statutory maximum, this
court would have vacated his sentence on appeal on the ground that
Apprendi required application of the 20-year maximum. Among other
things, Martínez noted that certain co-defendants of his, who had
played a more significant role in the conspiracy, but who had been
sentenced after Apprendi, had received sentences of 20 years on the
drug conspiracy count.
On February 7, 2006, the district court issued an Opinion
and Order denying the § 2255 claims. The court upheld a magistrate
judge's report recommending that the claims be denied and also
offered additional analysis. Subsequently, it granted Martínez's
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application for a COA and his motion to proceed in forma pauperis
on appeal.
II. Discussion
After careful consideration of Martínez's contentions, we
affirm the district court's denial of the § 2255 motion, and we
deny a COA relative to Martínez's new appellate claims. See 28
U.S.C. § 2253(c)(2) (permitting a COA "if the applicant has made a
substantial showing of the denial of a constitutional right").
A. The Apprendi Issues
1. Drug Quantity
Martínez argues that his indictment was defective under
Apprendi because it did not adequately charge drug quantity. He
also objects to the fact that the jury did not determine drug
quantity and type as was subsequently required by Apprendi. His
claims are unpersuasive for the following reasons.
First, Martínez fails to cite any case law to support his
claim that his indictment violated Apprendi.2 In pertinent part,
the indictment charged a conspiracy involving "multi-kilograms" of
cocaine, which implied that it involved a minimum of 1 kilogram of
cocaine. In addition, the indictment specified a relevant overt
act--that, in early 1996, approximately 2 kilograms of cocaine were
2
And we note that, in the direct appeal, the appellants did
not raise Apprendi claims challenging the adequacy of the drug
quantity allegations in the indictment, and that we did not rule on
that question.
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delivered to the drug point with which Martínez had allied himself.
Hence, taken together, the indictment allegations put Martínez on
notice that he could be subject to a 40-year statutory maximum.3
See United States v. Soto-Beníquez, 356 F.3d 1, 49 n.10 (1st Cir.
2003) (stating that an indictment need not "specify the exact
amount of drugs involved in the conspiracy, as long as it allege[s]
the appropriate threshold amounts necessary to support the
defendants' sentences"); 21 U.S.C. § 841(b)(1)(B) (providing for a
40-year maximum if the offense involves at least 500 grams of
cocaine).
Next, it is true that there was Apprendi error because
the jury did not determine drug quantity. But as we explained in
rejecting the same Apprendi claim by Martínez's co-appellants, the
error was harmless under any standard of review since the
overwhelming trial evidence showed a conspiracy-wide drug quantity
that triggered a statutory maximum of life in prison. Martínez-
Medina, 279 F.3d at 122. The same reasoning applies to Martínez
3
Because Martínez has not established that his indictment
failed to adequately allege drug quantity, his other arguments
premised on that contention also fail. In any event, this panel
would be obliged to follow First Circuit precedent over conflicting
precedent from other circuits. E.g., United States v. González-
Vélez, 466 F.3d 27, 35 (1st Cir. 2006) (confirming this circuit's
position that drug quantity is not an element of a conspiracy crime
under 21 U.S.C. § 846). In addition, the jurisdictional
proposition that Martínez advocates is no longer valid. See United
States v. Cotton,
535 U.S. 625, 631 (2002) (overruling prior case
law holding that a defective indictment deprives a court of
jurisdiction over the prosecution).
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because he was found guilty of participating in the same
conspiracy. Id. at 113-15; United States v. Casas,
425 F.3d 23, 66
n.58 (1st Cir. 2005) (emphasizing that, for Apprendi purposes, it
is the drug quantity attributable to the entire conspiracy and not
the quantity attributable to the individual defendant that
determines the statutory maximum).
2. The Murders
Since the trial evidence supported a statutory maximum of
life, Martínez had no viable Apprendi claim based on the district
court's finding that he had committed certain murders that could be
used to enhance his guideline sentence. As of the time his appeal
was pending, Apprendi was deemed not to implicate “findings made
for purposes of the sentencing guidelines,” as we noted in
rejecting the same Apprendi claim by his co-appellants. Martínez-
Medina, 279 F.3d at 122.
B. Ineffective Assistance of Counsel
Martínez contends that his appellate counsel rendered
ineffective assistance on appeal. She allegedly misconstrued
Apprendi and so erroneously conceded that he was responsible for
more than 500 grams of cocaine and that a 40-year maximum applied.
But as discussed above, the statutory maximum based on the evidence
as to the conspiracy-wide drug quantity was life. Accordingly,
counsel's appellate concession to the lower 40-year statutory
maximum, and her failure to argue for the even lower 20-year
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default maximum, did not prejudice Martínez.4 Given the trial
evidence and the state of the law at that time, Martínez could not
have obtained a reduced sentence on appeal based on Apprendi.
C. The New Claims
In his appellate brief, Martínez raises new issues that
were not presented in his § 2255 motion or in his district court
application for a COA. As to such issues, Martínez must show that
a COA is warranted. We conclude that he has not done so.
Martínez argues that he should be resentenced consistent
with the 5-year default maximum for a marijuana offense. He
contends that the jury might have convicted him for having been
involved in marijuana transactions, but the trial transcripts
provide no factual support for his argument. Martínez also presses
a claim under United States v. Booker, 543 U.S. 220 (2005),
relative to the murder enhancement of his sentence. His claim is
foreclosed by our case law. "This court has held that petitions
under 28 U.S.C. § 2255 are unavailable to advance Booker claims in
the absence of a Supreme Court decision rendering Booker
retroactive." United States v. Fraser,
407 F.3d 9, 11 (1st Cir.
4
We note as well that counsel did not render objectively
unreasonable performance by adopting a position on appeal that was
supported by the trial evidence. As indicated in our appellate
opinion, the evidence would readily have permitted a finding that
over 500 grams of cocaine could be attributed to Martinez.
Martínez-Medina, 279 F.3d at 125 n.10.
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2005) (citing Cirilo-Muñoz v. United States, 404 F.3d 527 (1st Cir.
2005)).
We affirm the district court's judgment denying the
motion to vacate under 28 U.S.C. § 2255. We deny a COA to appeal
based on new claims and terminate the appeal as to such claims.
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