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.
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
"`[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 sentencing court, acting under the
sentencing guidelines, does not increase the sentence beyond the maximum
statutory penalty. Each of these independent barriers to Trinh's
constitutional claim is examined below.
1. Procedural Default
"Where a defendant has procedurally defaulted a claim by failing to
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.'" Bousley v. United States,
523 U.S. 614, 622 (1998). Trinh pled guilty, does not here allege actual
innocence, and hence he must show both cause and actual prejudice in
order to avoid waiver.
"Cause" exists where there is an "external impediment, whether it be
government interference or the reasonable
unavailability of the factual
basis for the claim," that prevents the petitioner from raising the
claim. See McClesky v. Zant, 499 U.S. 467, 497 (1991). Furthermore,
"cause" exists "where a constitutional claim is so novel that its legal
basis is not reasonably available to counsel." Reed v. Ross, 468 U.S. 1,
16 (1984). The record reveals no facts to substantiate government
interference or the unavailability of facts.
Furthermore, Trinh cannot establish "cause" for failing to raise a
claim under Apprendi. Although Apprendi had not been decided by the time
of his guilty plea and sentencing, the claim presented in Apprendi had
been raised in 1997 by the Apprendi defendant in the New Jersey Superior
Court. See State v. Apprendi, 698 A.3d 1265 (N.J. Super. 1997).
Furthermore, the Supreme Court has specifically noted that the legal
issue in Apprendi had long been the subject of legal debate. See
Apprendi, 120 S.Ct. at 2360-63; cf. United States v. Chappel, 985 F.2d 729,
731 (3d Cir. 1993) (rejecting proposition that jury rather than the court
must decide drug quantity); United States v. Gibbs, 813 F.2d 596-604 (3d
Cir. 1987) (rejecting claim that indictment must allege drug quantity).
In short, it is plain that the Apprendi issue was reasonably available to
Finally, Trinh cannot establish prejudice, because an Apprendi
violation occurs only when the defendant receives a sentence that exceeds
the statutory maximum penalty. See United States v. Ceper, 224 F.3d 256,
267 n. 5 (3d. Cir. 2000). Here Trinh faced a maximum penalty of 240
months under 21 U.S.C. § 841 (b)(1)(C) as well as under
18 U.S.C. § 1956, but received a lesser term of 135 months. In sum,
Trinh, due to his failure to raise his Apprendi claim on direct review,
has procedurally defaulted his Apprendi claim for purposes of collateral
review and has demonstrated neither cause nor actual prejudice to excuse
2. Retroactive Effect
Even were Trinh not to have procedurally defaulted his Apprendi claim,
Trinh is still barred from § 2255 relief because Apprendi does not
apply retroactively on collateral review. A habeas petitioner "must
demonstrate as a threshold matter that the court-made rule of which he
seeks the benefit is not `new'" or that although the rule is new, it
applies retroactively nonetheless. See O'Dell v. Netherland, 521 U.S. 151,
155 (1997); accord Teague v. Lane, 489 U.S. 288, 310 (1989). A rule
applies retroactively only if (1) the defendant's conviction became final
prior to the institution of the rule, (2) the rule is new, and (3) the
rule falls under one of the Teague exceptions: either the rule places the
conduct for which the defendant was convicted beyond the power of the
criminal law-making authority to proscribe or the rule establishes
procedures that are implicit in the concept of ordered liberty. See id.;
West v. Vaughn, 204 F.3d 53, 61 (3d Cir. 2000).
Trinh's conviction became final on the day of his appeal deadline, May
27, 2000, which fell prior to the June 26, 2000 issuance of Apprendi.
See 120 S.Ct. at 2348. Furthermore, "[i]n general,  a case announces a
new rule when it breaks new ground or imposes a new obligation on the
States or Federal Government." Teague, 489 U.S. at 301. "To put it
differently, a case announces a new rule if the result was not dictated
by precedent existing at the time the defendant's conviction became
final." Id. (emphasis in original). As other courts have noted, "[t]he
holding in Apprendi was not dictated by precedent and clearly imposes a
on the Government." United States v. Gibbs,
125 F. Supp.2d 700, 702 (E.D.Pa. 2000); accord United States v. Heckard,
238 F.3d 1222, 1234 (10th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1236
(9th Cir. 2000). Accordingly, Apprendi states a new rule.
Apprendi does not fall under the first Teague exception, as Apprendi
does not relate to a law-making authority's power to proscribe conduct,
but rather relates to the procedure whereby sentences are assigned. See
Apprendi, 120 S.Ct. at 2354 ("The substantive basis for New Jersey's
enhancement is not at issue; the adequacy of New Jersey's procedure
is."). In order for a rule to fall under the second Teague exception,
"the procedure at issue must implicate the fundamental fairness of the
trial." Moreover, "[a] rule that qualifies under this exception must not
only improve accuracy, but also alter our understanding of the bedrock
procedural elements essential to the fairness of a proceeding." Sawyer v.
Smith, 497 U.S. 227, 242 (1990). While it is difficult to define the
"precise contours" of the second Teague exception, the Supreme Court has
specified that the second exception consists of "watershed rules of
criminal procedure implicating the fundamental fairness and accuracy of
the criminal proceeding." Saffle v. Parks, 494 U.S. 484, 496 (1990).
Furthermore the Supreme Court's decisions since Teague have "underscored
the narrowness of this second Teague exception." United States v.
Mandanici, 205 F.3d 519, 528 (2d Cir. 2000) (noting that in the eleven
cases where the Supreme Court has announced new rules, it has under the
Teague framework held that the rules do not apply retroactively); accord
Levan v. United States, 128 F. Supp.2d 270, 277 (E.D.Pa. 2001); Gibbs,
125 F. Supp.2d at 702. Finally, "the Supreme Court has repeatedly
declined to apply new constitutional standards retroactively to prior
cases if the defendants in those cases had the benefit of preexisting,
albeit less specific or less stringent standards protecting the same
interests." Levan, 128 F. Supp. d at 278; accord, e.g., Solem v. Stumes,
465 U.S. 638, 644 (1984).
The new rule announced in Apprendi — that a jury, not a judge,
must determine facts supporting a statutory sentencing enhancement and
that the determination must be made on the reasonable doubt standard
— is not the type of watershed rule encompassed by the second
Teague exception. "Shifting an element of the offense from jury to judge
and utilizing a preponderance rather than a beyond reasonable doubt
standard does not implicate fundamental fairness or relate to the
accuracy of the conviction or sentence." Levan, 128 F. Supp.2d at 278
(citing Jones v. Smith, 231 F.3d 1227, 1237-38 (9th Cir. 2000)).
Moreover, "[t]he fact that the application of a different standard of
review might lead to different results is [in itself] insufficient." Id.
(citing Mackey v. United States, 401 U.S. 667, 672 (1971)). The Apprendi
rule does not implicate the fundamental fairness of Trinh's sentencing,
and therefore, Apprendi cannot be retroactively applied in Trinh's motion
for collateral review.
3. Applicability of Apprendi
Even were Apprendi to be applied retroactively, it would provide no
relief for Trinh. The Third Circuit has held that Apprendi does not apply
where the district court's findings increased the defendant's sentence
under the sentencing guidelines but did not lead to a sentence over the
statutory maximum. See United States v. Williams, 235 F.3d 858, 862 (3d
Cir. 2000) ("[B]ecause application of the Sentencing Guidelines in this
case does not implicate a
fact that would increase the penalty of a crime
beyond the statutory maximum, the teachings of [Apprendi] are not
relevant here." (citation omitted)). The Third Circuit noted that
Apprendi did not address sentencing under the sentencing guidelines, but
rather addressed sentencing under state law. See United States v.
Williams, 235 F.3d 858, 862 (3d Cir. 2000); see also Apprendi, 120 S.Ct.
at 2366 n. 21 ("The Guidelines are, of course, not before the [Supreme]
Court. We therefore express no view on the subject beyond what this Court
has already held."). The Third Circuit further noted that prior Supreme
Court caselaw found no grounds for reversal where a district court had
made findings that increased a defendant's sentence but did not exceed
the maximum permitted by statute. See Williams, 235 F.3d at 863
(discussing Edwards v. United States, 523 U.S. 511 (1998)).
Here, the maximum statutory penalty applicable to Trinh's convictions
on Counts III and IV is 240 months imprisonment under
21 U.S.C. § 841(b)(1)(C). The maximum statutory penalty applicable
under Count I is also 240 months under 18 U.S.C. § 1956. This court,
after increasing Trinh's guideline range two levels under §
2D1.1(b)(1), imposed 135 months of imprisonment. Under Williams,
therefore, the Apprendi rule does not provide Trinh relief.
In sum, Trinh's motion to vacate, set aside, or correct his sentence
will be denied. First, Trinh's guilty plea bars him from collaterally
attacking the superceding indictment. Second, Trinh procedurally
defaulted his Apprendi claim. Even otherwise, his argument is premised on
the retroactive application of the Apprendi rule, but because the
Apprendi rule does not implicate the fundamental fairness of his
sentencing, the rule cannot be applied retroactively on collateral
review. Finally, even were the court to apply the Apprendi rule, it would
provide no relief for Trinh, since his sentence did not exceed the
And now, this day of April, 2001, upon consideration of defendant's
motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255
(Doc. No. 421) and the government's response thereto (Doc. No. 436), IT
IS HEREBY ORDERED that the defendant's motion is DENIED. IT IS FURTHER
ORDERED that as there has been no substantial showing of the denial of a
constitutional right, no certificate of appealability shall issue.