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U.S. v. TRINH

April 12, 2001

UNITED STATES OF AMERICA, PLAINTIFF,
V.
OZZY TRINH, DEFENDANT.



The opinion of the court was delivered by: William H. Yohn, Jr., Judge

  Memorandum and Order

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.

I. Facts

Ozzy Trinh pled guilty to four counts of his superceding indictment: (1) participating in a money laundering conspiracy in violation of 18 U.S.C. § 1956(h); (2) participating in a conspiracy to evade currency reporting requirements under 31 U.S.C. § 5313(a), 5316 and structuring and assisting in the structuring of transactions to evade reporting requirements in violation of 31 U.S.C. § 5324(a), (b) and 18 U.S.C. § 371; (3) participating in a conspiracy to distribute and to possess heroin with the intent to distribute in violation of 21 U.S.C. § 846; and (4) participating in a conspiracy to import heroin into the United States in violation of 21 U.S.C. § 963. Guilty Plea Agreement (Doc. No. 280); Plea (Doc. No. 283). Under his guilty plea agreement, Trinh and the government assented to various sentencing stipulations not relevant to the matter at hand.*fn1 Guilty Plea Agreement at 5-6. However, also under the agreement, the parties explicitly reserved the right to present at sentencing evidence and arguments concerning Trinh's possession of a firearm and the applicability of a sentence enhancement under § 2D1.1(b)(1) of the Sentencing Guidelines. Id. at 6.

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.

II. Discussion

Trinh argues that the application of the firearm enhancement to his sentence was unconstitutional. Section 2255 Mot. (Doc. No. 421) at 4. Trinh specifically states that his sentence was enhanced even though the firearm enhancement "was not a part of the indictment against him [and was not] voted on by a jury." Id. He goes on to state that he had a permit to carry the firearm in question and that the firearm was not used in the commission of the crimes for which he pled guilty. Id. The court understands Trinh to be basing his constitutional arguments on either of two claims: (1) the firearm-possession enhancement was not specifically alleged in the superceding indictment; (2) the court, not a jury, conducted the relevant fact-finding inquiry, and the findings were not made under a reasonable doubt standard. Each of these bases for Trinh's constitutional claim is considered in turn.

A. Availability of Collateral Review of Alleged Defects in Superceding Indictment

"`[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 jurisdictional exception.

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 ...


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