The opinion of the court was delivered by: William H. Yohn, Jr., Judge
Before the court is Ozzy Trinh's pro se § 2255 motion to vacate,
set aside, or correct his sentence. Trinh claims that the enhancement for
possession of a firearm under § 2D1.1(b)(1) of the United States
Sentencing Guidelines applied to his sentence was unconstitutional
because the facts giving rise to the enhancement were not alleged in his
superceding indictment. Trinh also claims that the enhancement was
unconstitutional because the court, not a jury, determined the relevant
findings of fact concerning the enhancement.
Trinh's first argument fails because possession of a firearm is not an
element of any of the offenses to which he pled guilty. Therefore, it
need not be alleged in the indictment. Thus, Trinh's guilty plea bars him
from collaterally attacking the indictment. For a variety of reasons,
Trinh's second argument also fails as a matter of law. Trinh procedurally
defaulted his claim by not raising it on direct review, and he has not
alleged cause, prejudice or actual innocence. Moreover, Trinh's claim
relies on the retroactive application of the new rule of constitutional
procedure announced in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). This
new rule, however, does not warrant retroactive application on collateral
review. Finally, even were the new rule to be considered, based on the
Third Circuit's interpretation of Apprendi, this rule would not apply to
sentencing guideline issues.
On March 24 and 29, 2000, I held evidentiary hearings on the firearm
enhancement. Tr. of 3/24 Hr'g (Doc. No. 406); Tr. of 3/29 Hr'g (Doc. No.
407). I concluded that Trinh possessed a firearm in connection with the
drug trafficking offenses to which he had pled guilty. Tr. of 3/29 Hr'g
(Doc. No. 407) at 56-58.*fn2 Based on this conclusion, on May 17, 2000,
I enhanced Trinh's guideline range two levels under § 2D1.1(b)(1).
Sentencing (May 17, 2000). As a result, Trinh's adjusted offense level
was 33 which, under criminal history Category I, dictated a guideline
range of 135 to 168 months. Id. The court imposed a sentence of 135
months. Trinh did not appeal his conviction or his sentence.
On October 10, 2000, Trinh filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. At no point prior to his
§ 2255 motion did Trinh object that his indictment was defective due
to failure to allege the firearm enhancement or assert that the jury,
rather than the sentencing court, should have determined the facts
warranting imposition of the firearm enhancement.
A. Availability of Collateral Review of Alleged Defects in Superceding
"`[I]t is well settled that a voluntary and intelligent plea of guilty
made by an accused person, who has been advised by competent counsel, may
[generally] not be collaterally attacked.'" United States v. Broce,
488 U.S. 563, 574 (1989) (quoting Mabry v. Johnson, 467 U.S. 504, 508
(1984)); accord, e.g., Tollett v. Henderson, 411 U.S. 258, 267 (1973).
However, the general bar on collateral attack does not apply where one
seeks to challenge a court's jurisdiction to convict or sentence. See
id. at 575. Here, Trinh does not allege that his guilty plea was
involuntary or unintelligent, and hence, analysis moves to the
To confer federal jurisdiction, an indictment must allege all elements
of an offense. See States v. Spinner, 180 F.3d 514, 515-16 (1999). Trinh
does not claim that his superceding indictment failed to allege the
elements of the offenses for which he was convicted. Furthermore, Trinh's
firearm-possession is not an element of any of the offenses for which he
was charged, rather the possession serves to trigger a sentencing
enhancement under the guidelines. Consequently, the superceding
indictment is not jurisdictionally defective, and Trinh's guilty plea
forecloses collateral attack on the superceding indictment.
B. Basis for Determination of Enhancement
The Supreme Court recently held that "other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." Apprendi v. New Jersey, 120 S.Ct. 2348,
2363-64 (2000). Here, Trinh argues that, in applying a firearms
enhancement to his sentence, the court made the factual determinations
and did not apply the reasonable doubt standard. However, the Apprendi
rule, for a variety of reasons, is not applicable to Trinh's case.
First, Trinh procedurally defaulted his Apprendi claim by not raising it
on direct appeal. Second, Apprendi was decided after Trinh's case and
does not apply retroactively on collateral review. Third, the Apprendi
rationale does not apply where the ...