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U.S. v. PINKSTON

July 17, 2001

UNITED STATES OF AMERICA, PLAINTIFF
V.
JULIUS JOHN PINKSTON, DEFENDENT.



The opinion of the court was delivered by: William W. Caldwell, District Judge.

MEMORANDUM

I. Introduction.

In July 1992, after he pled guilty to conspiring to distribute cocaine in violation of 18 U.S.C. § 846, this court sentenced the defendant, Julius John Pinkston, to 248 months in prison, later reduced to 198 months for substantial assistance in the prosecution of a codefendant.

Pinkston has filed a pro se motion under 28 U.S.C. § 2255 to vacate his conviction and sentence, his first attempt at such postconviction relief. It is based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).*fn1

The motion presents the following grounds. First, the Defendant's guilty plea was not knowing and intelligent because the indictment did not charge him with being an organizer or a leader in the conspiracy, a factor used to increase his sentence under U.S.S.G. § 3B1.1, thus leaving him ignorant of an element of the offense at the time of his plea. Second, the indictment was also defective because it failed to mention a drug quantity. Third, the drug quantity was determined by the court at a sentencing hearing by the preponderance of the evidence rather than by a jury using the reasonable-doubt standard. Fourth, section 841 is unconstitutional on its face. In addition to the Apprendi claims, the Defendant also seems to attack the section 3B1.1 enhancement on the merits.

We will deny the motion because, as the government argues, it is time-barred. We also believe that, even if we did reach the Apprendi claims, we could not grant relief because Apprendi does not apply retroactively in collateral proceedings and because Pinkston stipulated to a drug quantity that under Third Circuit law defeats his Apprendi claims.

II. Backcrround.

In November 1989, the Defendant and co-defendants were indicted under 21 U.S.C. § 846 for conspiracy to distribute thirty kilograms of cocaine. They were also charged with four counts of the substantive offense of distributing cocaine in violation of 21 U.S.C. § 841(a)(1).

The Defendant took no direct appeal. On June 22, 1993, the court reduced the sentence to 198 months pursuant to the government's motion under Fed. R. Crim. P. 35(b) for substantial assistance. The Defendant then moved for reconsideration seeking a further reduction which we denied on October 15, 1993.

On November 9, 1998, Pinkston again moved for a downward departure based on information he had allegedly supplied to federal authorities in Michigan. On December 16, 1998, we denied the motion, ruling that we had no authority to reduce a sentence on a defendant's motion. On March 1, 1999, we denied a motion to reconsider that order. On July 30, 1999, the Third Circuit dismissed Pinkston's appeal because it was untimely filed.

On January 30, 2001, the Defendant filed the current 2255 motion, raising claims based on Apprendi.

III. Discussion.

A. The Statute of ...


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