The case upon which Defendant relies does just that. James imposes upon the federal government the obligation of establishing that the cocaine base involved in any offense was crack in order for the enhanced sentencing provisions for cocaine base crack to apply to that offense. James, 78 F.3d at 858. Because James imposes a new procedural obligation upon the government in cases involving crack, it announces just the sort of "new rule" contemplated by Teague.
Because James announces a new rule, the rules of retroactivity announced by the Supreme Court in Teague apply. In Teague, the Supreme Court adopted the position previously advanced by Justice Harlan in Mackey v. United States, 401 U.S. 667, 28 L. Ed. 2d 404, 91 S. Ct. 1160 (1971). Under this view, with two exceptions, "new rules generally should not be applied retroactively to cases on collateral review." Teague, 489 U.S. at 305. The exceptions involve cases in which the new rule "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," or in which the new rule "requires the observance of those procedures that are implicit in the concept of ordered liberty." Id. at 307 (internal quotations omitted). The Third Circuit has adopted the Teague approach to retroactivity. Zettlemoyer v. Fulcomer, 923 F.2d 284, 303 (3d Cir.), cert. denied 502 U.S. 902, 116 L. Ed. 2d 232, 112 S. Ct. 280 (1991).
As we have already stated, the procedural rule of law announced in James did not decriminalize Defendant's conduct. Nor did the clarification announced in James implicate "those procedures that are implicit in the concept of ordered liberty" such as the right to counsel which Teague offers as an example. Under these circumstances, we conclude that even if Defendant's motion were not procedurally barred, we would not find that James was retroactively applicable to Defendant's case. However, even if James were to be applied retroactively, it would not entitle Defendant to the relief he seeks.
D. Defendant's Admission that Cocaine Base was Crack
Defendant asserts that his case mirrors the facts at issue in James. The defendant in James pleaded guilty to possession and distribution of cocaine base. He was then sentenced under the sentencing guidelines for cocaine base crack, rather than those for cocaine powder. The James defendant appealed his sentence, asserting that the Government never proven that the drugs involved were crack rather than another form of cocaine base. After a careful review of James, we believe that even if we were to allow Defendant to assert his new argument he would not be entitled to the relief he requests.
In James, the only reference to "crack" in the record was made by the Government during the plea colloquy. Under those circumstances, the Third Circuit wrote:
We do not believe that, without more, the casual reference to crack by the Government in the colloquy with the court over the relevant quantity of cocaine base in determining [the defendant's] offense level unmistakably amounted to a knowing and voluntary admission that the cocaine base constituted crack.
78 F.3d at 856 (internal quotation omitted). In contrast to the circumstances of James, a review of the record in the instant case indicates that Defendant twice acknowledged that the cocaine base involved was crack.
First, the Guilty Plea Agreement signed by Defendant and his counsel explicitly states:
The defendant agrees to plead guilty to an Information charging him with two counts of possession with intent to distribute in excess of 50 grams of a mixture or substance containing a detectable amount of cocaine base, . . . arising from his possession of approximately 224 grams of "crack" cocaine . . . on March 23, 1995 and his possession of approximately 111 grams of "crack" cocaine on April 20, 1995.
Guilty Plea Agreement of 6/9/ 95 P 1 (emphasis supplied). The explicit, repeated use of term "crack" in the document signed by Defendant indicates the kind of knowing, intelligent waiver which the Third Circuit found lacking in James.
Second, Defendant's counsel admitted during sentencing proceedings that the cocaine base involved was crack. Counsel's second argument for a downward departure was based on the disparate sentencing guidelines for crack and powder cocaine. Counsel said, "Number two, the disparity that is still in the law between crack and powder cocaine, Judge. The guidelines are as stated relative to the crack, but if this was powder cocaine at this weight, it would be a guideline of twenty-two." Sentencing Hearing Transcript ("Tr.") 12/1/95 at 8 (emphasis added). We then asked the Defendant if he disagreed with anything his lawyer had said, and he did not indicate any disagreement with the statements of his lawyer. Id. at 15-16. The admissions by both Defendant and his counsel that the drug involved was crack clearly distinguish this case from Jones. The Government also referred to the substance involved repeatedly as crack. Id. at 18. Accordingly, even if we were to allow Defendant's motion and apply Jones retroactively, Defendant would not be entitled to have his sentence vacated and recalculated.
Defendant's so-called § 2241 petition is actually a § 2255 motion in disguise. As such, it is procedurally barred. However, even if we were not precluded from considering this motion on its merits, the authority cited therein would not apply to Defendant retroactively. Finally, even if this authority were applicable, Defendant would not be entitled to the relief he seeks. For these reasons, Defendant's motion must be denied. An appropriate order follows.
AND NOW, this 20th day of October, upon consideration of Defendant's Petition to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody Pursuant to Title 28 Section 2241(c)(3), filed September 8, 1997, and the Government's response, filed October 1, 1997, it is hereby ORDERED that Defendant's petition is DENIED.
BY THE COURT
Franklin S. Van Antwerpen
United States District Judge
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