United States District Court, M.D. Pennsylvania
December 7, 2005.
UNITED STATES OF AMERICA Plaintiff
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
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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