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United States District Court, M.D. Pennsylvania

December 7, 2005.

LLOYD TUCKER, Defendant.

The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge


Defendant, Lloyd Tucker, has filed a pro se motion for reconsideration of our order of November 18, 2005.*fn1 That order dismissed his motion under Fed.R.Civ.P. 60(b)(5) to reopen the unsuccessful 28 U.S.C. § 2255 motion he had filed in April 1997. See United States v. Tucker, 2005 WL 3095107 (M.D. Pa.). In October 1993, Defendant was convicted of conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 841(a), and we sentenced him to 262 months' imprisonment. The subject of Defendant's Rule 60(b)(5) motion is our determination at sentencing that his crime involved more than five, but less than fifty, grams of crack cocaine, a drug-quantity finding that contributed to the length of the sentence.

In light of Gonzalez v. Crosby, ___ U.S. ___, 125 S. Ct. 2641, 162 L.Ed.2d 480 (2005), we dismissed the Rule 60(b) motion because it was really a second or successive 2255 motion which we could not consider unless the Third Circuit authorized us to do so. The Rule 60(b) motion essentially presented the claim that Defendant's sentence violated the Fifth Amendment because we, rather than the jury, had determined the drug quantity that established the length of the sentence.*fn2 In dismissing the motion, we characterized Defendant's claim as one under United States v. Booker, 543 U.S. 229, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), although Defendant had not cited that case.

  In moving for reconsideration, Defendant argues that we misconstrued his claim. It is not a Booker claim, he did not intend to make a Booker claim, and we should not have construed it as one. Rather, understood correctly, his claim raised "a defect in the collateral review process as this Honorable Court lacked jurisdiction to impose a penalty pursuant to 21 U.S.C. § 841(a) and 841(b)(1)(B) when the jury did not determine the drug quantity associated with that crime." (Doc. 171, Def.'s Mot. for Recons., p. 2). Defendant asserts that the jury's verdict would have allowed only a sentence commensurate with 21 U.S.C. § 841(b)(1)(C), the default sentencing provision for an unspecified quantity of cocaine base, (id., p. 3), but that we "declared during the collateral review process" that while "the evidence did not sustain a conviction" for the drug quantities listed in section 841(b)(1)(A) [fifty grams or more of cocaine base], the evidence did meet a finding of a drug quantity of more than five but less than fifty grams of cocaine base [section 841(b)(1)(B)]. (Id.). Continuing to view the issue as one of jurisdiction, Defendant maintains that since we had the independent obligation to satisfy ourselves "at the outset of the collateral review process" that we had jurisdiction to impose a sentence under section 841(b)(1)(B), he is entitled to have his 2255 proceedings reinstated to "open[] the way for further proceedings seeking ultimately to vacate and correct an unconstitutionally imposed sentence based upon a defect in the collateral review process." (Id.). Defendant's attempt to use Rule 60(b) must fail. First, he is mistaken in tying our determination of the drug quantity to the 2255 proceedings. That determination was not made in the collateral proceedings but at Defendant's sentencing. Second, the drug-quantity determination is not a jurisdictional issue. The cases Defendant cites in support of that argument, FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31, 110 S.Ct. 596, 607-08, 107 L.Ed.2d 603, 621-22 (1990); and Duquesne Light Co. v. Barasch, 488 U.S. 299, 306, 109 S.Ct. 609, 614, 102 L.Ed.2d 646, 656 (1989), stand only for the proposition that a court has an independent obligation to assure itself that it has jurisdiction before adjudicating a case. But we did have jurisdiction, over Defendant's 2255 motion, and his original criminal proceedings as well. See United States v. Cross, 308 F.3d 308, 314 n. 10 (3d Cir. 2002) (noting that 18 U.S.C. § 3231 confers jurisdiction on district courts to try federal criminal cases and that 28 U.S.C. § 2255 confers jurisdiction to entertain 2255 motions).

  Further, this jurisdiction extends to sentencing issues although the Sixth and Fifth Amendments confer on a defendant the right to have the jury decide any issue that would enhance a sentence and to do so under a reasonable-doubt standard. See Harris v. Warden, 425 F.3d 386, 389 (7th Cir. 2005) (rejecting the defendant's claim that Apprendi and its progeny meant that the district court lacked jurisdiction to sentence him).*fn3 As support, Harris cited United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860, 867 (2002), in which the Supreme Court ruled that defects in an indictment do not deprive a district court of jurisdiction to adjudicate a criminal case and rejected the defendant's Apprendi claim that the failure of the indictment to allege drug quantity deprived the district court of the power to try the case against him. See also United States v. Davis, 348 F. Supp. 2d 964, 967 (N.D. Ind. 2004) (rejecting claim that Blakely deprived the court of jurisdiction to impose that portion of the sentence based on drug quantity and gun possession, noting that "United States district judges always have subject-matter jurisdiction over indictments charging a violation of federal criminal laws, including the power and jurisdiction to impose sentence") (citing Cotton, in part).

  In conclusion, we adhere to our decision that Defendant's claim really goes to the validity of the judgment of sentence, not to any defect in the 2255 proceedings, and hence cannot be pursued unless the court of appeals grants him permission to do so.*fn4

  We will therefore deny the motion for reconsideration, treated as a motion to alter or amend under Rule 59(e). Defendant is advised that: (1) he has sixty (60) days from the date of our order denying his motion for reconsideration to appeal; and (2) our denial of a certificate of appealability does not preclude an appeal as long as he also seeks a certificate of appealability from the court of appeals. See Federal Rule of Appellate Procedure 22. ORDER

  AND NOW, this 7th day of December, 2005, it is ordered that:

1. Defendant's motion (doc. 171) for reconsideration, treated as a motion to alter or amend under Fed.R.Civ.P. 59(e), is denied.
2. A certificate of appealability is denied.

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