ORAL ARGUMENT SCHEDULED FOR OCTOBER 16, 1995





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT





NO. xx-3130







BRIEF OF APPELLANT











UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxx, Defendant-Appellant.









APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA













A. J. KRAMER

FEDERAL PUBLIC DEFENDER

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500













District Court

Cr. No. xx-330

CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES





Pursuant to Rule 28(a)(1) of the General Rules of this court, appellant hereby states as follows:

A. Parties and Amici: The parties below and in this court are the defendant-appellant,  xxxxxxx, and the plaintiff-appellee, the United States of America. There are no intervenors or amici, either in the district court or this court.

B. Rulings Under Review: In this appeal defendant challenges the denial by the district court, the Honorable Stanley S. Harris, of defendant's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C.  2255. There is no official citation to the district court's ruling.

C. Related Cases: This case has previously been before this court, as United States v. Bryan xxxxxxx, 951 F.2d 399 (D.C. Cir. 1991). This court on September 20, 1991, affirmed defendant's conviction on the direct appeal from the district court's judgment and conviction.



TABLE OF CONTENTS





TABLE OF AUTHORITIES ii



ISSUES PRESENTED iv



JURISDICTION 1



STATEMENT OF THE CASE 1



A. Introduction 1



B. The Prior Proceedings 4



STATEMENT OF FACTS



SUMMARY OF ARGUMENT 7



STANDARD OF REVIEW



DISCUSSION



I. THE DISTRICT COURT ERRED IN DENYING THE MOTION WITHOUT GIVING DEFENDANT A CHANCE TO RESPOND TO THE GOVERNMENT'S OPPOSITION



II. THERE WAS BOTH CAUSE AND PREJUDICE FOR DEFENDANT'S FAILURE TO RAISE THE ISSUE AT TRIAL AND ON DIRECT APPEAL



A. The Applicability of Frady



B. Cause



C. Prejudice



III. THIS COURT'S DECISION IN MICHAEL DID NOT ANNOUNCE A NEW CONSTITUTIONAL RULE OF CRIMINAL PROCEDURE



A. The Michael Decision Involved Statutory Interpretation, Not a New Rule of Criminal Procedure



B. Even if Michael Announced a Rule of Constitutional Criminal Procedure, It Was Dictated by Precedent



CONCLUSION



CERTIFICATE OF LENGTH



CERTIFICATE OF SERVICE



TABLE OF AUTHORITIES





ISSUES PRESENTED



I. WHETHER THE DISTRICT COURT ERRED IN DENYING THE MOTION WITHOUT GIVING DEFENDANT A CHANCE TO RESPOND TO THE GOVERNMENT'S OPPOSITION.





II. WHETHER THE DISTRICT COURT ERRED IN DENYING THE  2255 MOTION BECAUSE DEFENDANT HAD NOT DEMONSTRATED CAUSE FOR HIS PROCEDURAL DEFAULT, WHERE DEFENDANT WAS SENTENCED TO A TERM OF IMPRISONMENT THAT WAS OVER SEVEN TIMES MORE THAN THE CORRECT STATUTORY MAXIMUM.





III. WHETHER THE DISTRICT COURT ERRED IN DENYING THE  2255 MOTION BECAUSE THE MOTION RELIED UPON THIS COURT'S DECISION IN UNITED STATES V. MICHAEL, 10 F.3D 838 (D.C. CIR. 1993), WHICH WAS DECIDED AFTER DEFENDANT'S CONVICTION WAS FINAL.



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT





NO. 94-3130





BRIEF OF APPELLANT









UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



BRYAN xxxxxxx, Defendant-Appellant.







APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA







JURISDICTION



The district court had jurisdiction pursuant to 28 U.S.C.  2255. The notice of appeal having been filed within the sixty-day period of Fed. R. App. P. 4(a), this court has jurisdiction pursuant to 28 U.S.C.  1291.

STATEMENT OF THE CASE

A. Introduction

The defendant was convicted and sentenced for a crime for which he was not indicted and which was not a lesser-included offense of the offense with which he was charged. The eighty-six month sentence defendant received was seventy-four months longer than the one-year maximum sentence he could have received for conviction on the proper lesser-included offense. The defendant's attempt, via a petition under 28 U.S.C.  2255, to redress this manifest injustice, was rejected by the district court.

B. The Prior Proceedings

The defendant, on August 7, 1990, was charged in a one-count indictment with possession with intent to distribute cocaine base, in violation of 21 U.S.C.  841(a) & 841(b)(1)(B)(iii) (APP 1). (1) The charges arose from a search of defendant, during which 13.01 grams of cocaine base were discovered in his back pocket. 951 F.2d at 400-01. At a non-jury trial, the district court found defendant not guilty of the possession with intent to distribute charge, but convicted defendant of simple possession of cocaine base, 21 U.S.C.  844(a). Id. at 401. The district court stated the following with respect to its finding of guilt:

I think there is no question that the defendant, Mr. xxxxxxx, possessed crack. It was passed to him inside a plastic bag inside a napkin. We're talking about 13.7 grams.



The court concludes that the government has not proved beyond a reasonable doubt that Mr. xxxxxxx possessed the substance with the specific intent to distribute it; and, accordingly, I find Mr. xxxxxxx not guilty of a violation of possession with intent to distribute five grams or more of a controlled substance, cocaine base.



The evidence that he intended to possess crack, though, is readily acknowledged by Mr. xxxxxxx himself.



The standard instruction we give, of course, does not require that anybody knows what the quantity was.



The court concludes that Mr. xxxxxxx is guilty of the lesser included offense of simple possession of a usable amount of crack in violation of 21 U.S.C., section 844(a).



So he is found not guilty as charged and guilty of the lesser included offense of simple possession. (Verdict Transcript, 11/5/90 at 2-3) (APP 3-4).



At the sentencing, there was discussion about what crime defendant was convicted of, and the possible sentences:

THE COURT: Let me interrupt you there and touch on a problem that I don't know the answer to and I don't think we need to answer it here today.



MR. BAYLES: Yes, Your Honor.



THE COURT: We have an anomaly here with these statutes. Simple possession is basically a misdemeanor, and there is a sentencing provision that says if it's simple possession of more than five grams, it's a five-year penalty.



I don't know whether he's been found guilty here of a misdemeanor with an enhanced sentencing provision or whether he's been found guilty of a felony. But I don't think it matters for purposes of this case.



I think Mr. xxxxxxx, when he does get out, if he gets in trouble gain, I think that matter then becomes important.



I don't think it's necessary to resolve that very esoteric question at this point, do you?



MR. BAYLES: (No Response)



THE COURT: I think it is necessary for me to resolve what amount we're talking about.



MR. BAYLES: Oh, I'm sorry.



Whether it is--



THE COURT: Whether he's been found guilty of a misdemeanor with an enhanced sentencing provision or whether he's been found guilty of a felony.



MR. BAYLES: I've never heard of a misdemeanor being something over a year outside of Maryland, where they use the common law, I guess--



THE COURT: That's why I say it's an anomalous situation.



MR. BAYLES: If I could just move on then within the statute itself, Your Honor--well, does the court wish to make a finding first on that to clear that up, or should I move on to another--



THE COURT: I would be interested if Ms. Fortine agrees that I don't have to resolve the question of a misdemeanor or a felony here, whether it is a misdemeanor with an enhanced sentencing provision or whether it's a felony.



MS. FORTINE: Not for purposes of the sentencing, Your Honor.



THE COURT: That's my feeling also.



(Sentencing transcript, 1/11/91 at 4-6) (APP 8-10).



The district court sentenced defendant to an eighty-six months term of imprisonment (APP 23, 26)

This court affirmed defendant's conviction on December 6, 1991. 951 F.2d 399. The court rejected both arguments raised by defendant: 1) the validity of the search, and 2) the disappearance of the drugs and the packaging before the trial.

Almost two years later, on December 3, 1993, this court decided in United States v. Michael, 10 F.3d 838 (D.C. Cir. 1993), that possession of cocaine base, the third sentence of 21 U.S.C.  844(a), is not a lesser included offense of 21 U.S.C.  841(a), (2) but is an independent crime. Id. at 839. The court concluded in Michael, in circumstances essentially identical to the present case:

Michael's conviction and sentence pursuant to the third sentence of 21 U.S.C.  844(a) cannot stand. We can, however, see no obstacle to his resentencing for possession of a controlled substance under the first sentence of  844(a). The crime created by that sentence, possession of a controlled substance, is a lesser crime included within possession of a controlled substance with intent to distribute. Michael was implicitly found guilty of it, for the jury found him guilty of possessing cocaine base, which is a controlled substance. 21 U.S.C.  802(6) and  812(c) Schedule II(a)(4). Accordingly, we reverse and remand for further proceedings consistent with this opinion.



Id. at 842.

The court in Michael mentioned the present case twice. First, it noted that on his direct appeal defendant failed to raise the issue decided in Michael. Id. at 839 n.2. Second, the Michael court stated that the proof of the character of the drug was particularly important in cases such as the present one, where the drug evidence had been lost. Id. at 842.

As a result of the Michael opinion, on May 19, 1994, defendant filed a pro se  2255 petition to vacate his sentence, because he was in the same position as the defendant in Michael (APP 30). On June 6, 1994 the defendant also asked for appointment of counsel. The district court denied defendant's request for appointment of counsel on the same day it was filed (APP   ).

The government filed, on June 24, 1994, a two-page opposition to the  2255 motion (APP 36). The government argued that defendant had not raised the issue at trial or on direct appeal, and that he did not show cause for failing to do so, which barred consideration of his claim under United States v. Frady, 456 U.S. 152 (1982) (APP    ). The government also contended that the Michael decision could not be applied on collateral attack in defendant's case, under the rule of Teague v. Lane, 489 U.S. 288 (1989) (APP 37).

The district court, on July 8, 1994, issued a one-sentence order denying the 2255 motion:

Upon consideration of the defendant's motion to vacate, set aside, or correct sentence, and the government's opposition thereto, and it appearing that the defendant does not show any cause for not raising the issue he would raise now on appeal and it further appearing that the case upon which defendant relies, United States v. Michael, 10 F.3d 838 (D.C. Cir. 1993), was decided after his conviction had become final, and cannot be applied to his case on collateral attack it is ORDERED that the defendant's motion is denied. (APP 38).



The district court's denial of the motion issued two weeks after the government filed its opposition, which included the July 4 holiday. The district court never gave defendant, a pro se petitioner whose request for appointment of counsel was denied the same day it was made, a chance to respond to the government's claims made in its opposition, of cause under Frady and of bar Teague.

Defendant filed a timely pro se notice of appeal on September 9, 1994 (APP 39). (3) On February 10, 1995, defendant filed a pro se brief, the government filed its appellee's brief on March 20, 1995, and defendant filed a reply brief on April 27, 1995. Defendant had also filed a request for assistance of counsel for this appeal. On June 2, 1995, this court appointed the Federal Public Defender as counsel for defendant and set a new briefing schedule (APP 40-41).



SUMMARY OF ARGUMENT































STANDARD OF REVIEW



The district court's ruling involved matters of law only, as there was no dispute about the facts. This legal determination in a  2255 proceeding is reviewed de novo. United States v. Pollard, 959 F.2d 1011, 1023 (D.C. Cir.), cert. denied, 113 S. Ct. 322 (1992).







DISCUSSION



I. THE DISTRICT COURT ERRED IN DENYING THE MOTION WITHOUT GIVING DEFENDANT A CHANCE TO RESPOND TO THE GOVERNMENT'S OPPOSITION



Defendant filed a pro se petition, and requested that counsel be appointed for him. The district court denied the request for counsel the day it was filed. The government's opposition simply stated that defendant had not shown cause for failing to raise the issue at trial or on appeal, quoting Frady, and cited Teague for the proposition that the rule of law upon which defendant relied could not be applied to his conviction because it was final before the rule of law was announced. Two weeks later, without giving defendant any chance to respond to the government's opposition, the district court denied the petition because defendant had not shown cause for not raising the issue on appeal, and because defendant's conviction was final when Michael was decided, it could not be applied to defendant's case on collateral attack.

It was fundamentally unfair for the district court to deny defendant, a pro se petitioner whose request for counsel was denied, a chance to respond to the government's opposition. This is especially so where the government did not claim that there was no prejudice under Frady to defendant. In addition, the district court only referred to there being no cause for failing to raise the issue on appeal, but not making a finding that there was not cause for failure to raise the issue at trial. Defendant should have been given some opportunity to explain cause for failure to raise the issue and why Teague was inapplicable. As shown in the discussion below, neither the Frady issue nor the Teague issue are simple, and in fact, neither one barred relief in the present case.

II. THERE WAS BOTH CAUSE AND PREJUDICE FOR DEFENDANT'S FAILURE TO RAISE THE ISSUE AT TRIAL AND ON DIRECT APPEAL



In its opposition to defendant's motion, the government contended that defendant's claims were barred under the rule of United States v. Frady, 456 U.S. 152 (1982), because they were not raised at trial or on direct appeal. Under Frady, to "obtain collateral relief based on improper jury instructions neither objected to at trial nor challenged on direct appeal, a habeas petitioner must establish both cause for the procedural default and actual prejudice resulting from the improper instructions." United States v. Kleinbart, 27 F.3d 586, 590 (D.C. Cir.), cert. denied, 115 S. Ct. 456 (1994). The district court's denial of defendant's motion stated that defendant had not shown cause for not raising the issue.

A. The Applicability of Frady

The cause and prejudice test of Frady should not even apply to the present case. The "Supreme Court has never held that the Frady test applies to every claim of constitutional error, but has only applied the test to claims running afoul of an express statutory waiver." United States v. De La Fuente, 8 F.3d 1333, 1336 (9th Cir. 1993) (footnote omitted). The court in De La Fuente dealt with the claim of a breach of a plea agreement, which involved a due process claim. Id. The court decided it did not have to decide whether Frady applied because the defendant in De La Fuente was able to meet the cause and prejudice standard in any event. Id. at 1337.

The present case, like De La Fuente, involves a due process claim, as well as a statutory claim, of a right not to be sentenced to more than the statutory maximum sentence. There is also an Eighth Amendment right not to be sentenced to more than the statury maximum. In addition, there was a violation of the Fifth Amendment's indictment clause. See United States v. Deisch, 20 F.3d 139, 146-47 (5th Cir. 1994).

In Frady, which dealt with a claim of erroneous jury instructions, the express waiver provision was Fed.R.Crim.P. 30. See also Davis v. United States, 411 U.S. 233, 239-40 (1973) (involving express waiver provision of Fed.R.Crim. P. 12(b)(2)). (4) Because there is no express waiver provision with which defendant failed to comply, the rule of Frady is inapplicable.

The constitutional claims at issue in the present case, dealing with a sentence above the statutory maximum, are akin to the structural error of Sullivan v. Louisiana, 113 S. Ct. 2078 (1993), and therefore require a remand for resentencing within the statutory limit. The same result is required under the standard of Chapman v. California, 386 U.S. 18, 24 (1967), of whether federal constitutional error is "harmless beyond a reasonable doubt." See also Brecht v. Abrahamson, 113 S. Ct. 1710, 1713 (1993). There is no question in the present case that the district court's errors of convicting defendant of an offense for which he was not indicted and of sentencing deendant to more than the statutory maximum were not harmless.

Even if defendant's claim is interpreted as a purely statutory one, however, the district court's denial of the motion should be reversed. The Supreme Court has recently stated that habeas review is available "when a federal statute, but not the Constitution, is the basis for postconviction attack" only where "the error qualifies as a `fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary standards of fair procedure.'" Reed v. Farley, 114 S. Ct. 2291, 2297, 2300 (1994) (quoting Hill v. United States, 368 U.S. 424, 428 (1962).

In Davis v. United States, 417 U.S. 333 (1974), the Court considered a situation where the law of the circuit had changed after the defendant's conviction. The court, as in Reed v. Farley, held that the appropriate inquiry for  2255 relief was whether there was "'a fundamental defect which inherently results in a complete miscarriage of justice' and whether '[i]t present[s] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'" Id. at 346 (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Then-Justice Rehnquist's dissent in Davis recognized that imposition of a sentence "not authorized by law" was one of the specific reasons for granting relief set forth in  2255 itself. 417 U.S. at 357.

The present case qualifies as a fundamental defect. Defendant should have been sentenced to one year at most, because the first sentence of  844(a) was the only offense on which he could properly have been sentenced. A sentence of over seven times the proper statutory maximum is a fundamental defect resulting in a miscarriage of justice and by its nature presents exceptional circumstances. In the context of the sentencing guidelines, when "a sentence that is substantially more harsh than the law otherwise provides, exceptional circumstances warranting collateral relief under  2255 are plainly present.'" United States v. Tayman, 885 F. Supp. 832, 844-45 (E.D. Va. 1995). In the present case, the sentence was over seven times the maximum permissible statutory sentence was not authorized by law, thus warranting  2255 relief. Furthermore, defendant was "convicted" of a crime for which he was not indicted, which is also a fundamental defect and which presents exceptional circumtances.

B. Cause

If the Frady cause and prejudice standard does govern consideration of defendant's claims, defendant can show cause for several reasons. First, counsel's failure to raise the issue at trial or on appeal (5) constituted ineffective assistance of counsel. Ineffective assistance of counsel provides cause for a procedural default. See Murray v. Carrier, 477 U.S. 478, 487 (1986); Smith v. Murray, 477 U.S. 527, 535 (1986).

Ineffective assistance has been rendered when 1) counsel's representation fell below an objective standard of reasonableness; and 2) there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984); Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Counsel's performance is deficient if it does not rise to the level of reasonably effective assistance. Strickland, 466 U.S. at 687. A court measures the reasonableness of counsel's performance against prevailing professional norms. United States v. Barbour, 813 F.2d 1232, 1234 (D.C. Cir. 1987). Counsel has a duty to act "on behalf of his client's best interests." Id.

In the present case, despite the fact the district court raised the issue of the structure of the statute and the sentencing possibility, defendant's counsel did not raise the issue decided in Michael either at trial or on appeal. This failure to raise the issue was especially egregious on appeal because over two months before defendant's direct appeal was argued, the Tenth Circuit decided United States v. Puryear, 940 F.2d 602 (10th Cir. 1991), which reached the same conclusion as Michael. There was "no conceivable tactical or strategic reason for [the] failure to raise" the sentencing issue. United States v. De La Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993). In De La Fuente, the court found counsel's ineffectiveness was cause for failing to raise an issue at sentencing. The Third Circuit has also found ineffectiveness for failure to raise an argument at sentencing:

There is no rational basis to believe that ... trial counsel's failure to argue adjustment was a strategic choice. Clearly it falls outside the prevailing professional norms.



United States v. Headley, 923 F.2d 1079, 1084 (3d Cir. 1991).

"The wide range of reasonableness requires that counsel take some action to update and verify the state of the law respecting the elements of the offense" of which a defendant is convicted. McNamara v. United States, 867 F.Supp. 369, 376 (E.D. Va. 1994). The court in McNamara, in a  2255 proceeding, found ineffective counsel where a lawyer did not realize that the Supreme Court had granted certiorari in a case concerning the elements of the offense with which the defendant in McNamara was charged. The court stated that "it is beyond the range of acceptable professional conduct to be unaware of developments in the law." Id. This is especially applicable to the present case where the district court brought up the sentencing issue and Puryear was decided before the direct appeal was argued. (6) The record in this case "conclusively shows" that counsel was not making any tactical choice, as there could be no reason not to ask for a twelve month sentence as opposed to an eighty-six month sentence. United States v. Fennell, 53 F.3d 1296, 1304 (D.C. Cir. 1995).

If this court believes that counsel was not ineffective for failing to raise the issue at trial or on direct appeal, then cause is provided by the fact that the Michael issue was "reasonably unknown" to counsel at the time of defendant's trial and appeal. Reed v. Ross, 468 U.S. 1, 14 (1984). A claim is novel enough to constitute cause where a subsequent decision disapproves "'a practice this court arguably has sanctioned in prior cases.'" Id. at 17 (quoting United States v. Johnson, 457 U.S. 537, 551 (1982)).

In United States v. Gibbs, 904 F.2d 52, 58 (D.C. Cir. 1990), this court had reversed a  841(a) conviction because a lesser-included instruction on simple possession of cocaine was not given. The defendant in Gibbs did not raise, and the court did not discuss, what sentence of  844(a) might be a lesser-included offense. Thus, Gibbs "arguably sanctioned" the conviction and sentence that were imposed in the present case. Therefore, if counsel's representation was not ineffective, it was because the issue was so novel that under Reed v. Ross, cause is established.

Indeed, the district court apparently believed that at least at trial the issue was novel enough to be cause for failure to raise it at trial. The district court's denial of the motion based on the procedural default refers only to failure to raise the issue on appeal. The district court, while giving no explanation, may have felt that the issue was novel before the Puryear decision, thus excusing the failure to raise the isse at trial, but not on appeal. This still does not, however, address the problem that Gibbs had arguably sanctioned that 844(a) in its entirety was a lesser included offense of 841(a).

C. Prejudice

The government's opposition in the district court did not claim that defendant was not prejudiced under Frady by the failure to raise the issue of whether the third sentence of  844(a) is a lesser-included offense. The district court's order also did not refer to lack of prejudice as a grounds for denying the motion. The prejudice in the present case is clear. Had counsel raised the issue, defendant could have been found guilty of only the first sentence of  844(a), and his sentence would have been limited to a one-year maximum instead of the eighty-six months actually imposed.



III. THIS COURT'S DECISION IN MICHAEL DID NOT ANNOUNCE

A NEW CONSTITUTIONAL RULE OF CRIMINAL PROCEDURE



A. The Michael Decision Involved Statutory Interpretation, Not a New Rule of Criminal Procedure



In Teague v. Lane, 489 U.S. 288, 310 (1989) the Supreme Court held that "[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." The district court did not cite Teague, or any case or statute, in holding that because Michael was decided after defendant's conviction was final, it could not be applied on collateral attack. The government had relied upon Teague, however, in its opposition, so defendant assumes the district court relied upon Teague in denying the motion on this ground.

The district court and the government improperly relied upon Teague, because the court in Michael was interpreting a statute, not announcing a new constitutional rule of criminal procedure. The Supreme Court itself has consistently referred to Teague as being applicable to a "new rule of constitutional law." Caspari v. Bohlen, 114 S. Ct. 948, 953 (1994).

An analogous situation was presented in Callanan v. United States, 881 F.2d 229 (6th Cir. 1989), cert. denied, 494 U.S. 1083 (1990), where the court addressed the validity of a mail fraud conviction in light of the Supreme Court's holding in McNally v. United States, 483 U.S. 350 (1987), that schemes to defraud citizens of intangible rights were not covered by the statute. (7) In Callanan, the defendants did not challenge, either at trial or on direct appeal, the propriety of the intangible rights theory as a basis for conviction. After McNally was decided, the defendants filed a  2255 petition to vacate their sentences. The Sixth Circuit stated that:

The case at bar involves not a new rule of criminal procedure, but a new interpretation of the substantive criminal law. In this the present case resembles Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), a decision indicating that where the intervening change of law is such that the defendant was punished "for an act that the law does not make criminal," the new rule of law must be applied retroactively in postconviction proceedings.



881 F.2d at 231-32. The court further stated:

The Supreme Court's recent decision in Teague v. Lane, ___ U.S. ___, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), addresses only the retroactivity of "new constitutional rules of criminal procedure" and thus does not control our decision here. 109 S.Ct. at 1075.



Id. at 232 n.1. Another Circuit, addressing the issue of retroactivity of McNally, quoted, in words particularly applicable to the present case, that a "statute does not mean one thing prior to [a court] interpretation and something entirely different afterwards." United States v. Shelton, 848 F.2d 1485, 1489 (10th Cir. 1988 (8) (quoting Strauss v. United States, 516 F.2d 980, 983 (7th Cir. 1975)). An interpretation of a statute is a "declaration of what the law . . . meant from the date of its effectiveness onward." Id.

The Sixth Circuit addressed another analogous situation in United States v. Guardino, 972 F.2d 682 (6th Cir. 1992). In Guardino, the defendant had been ordered to pay restitution for offenses beyond the offense of conviction, which the Supreme Court subsequently, in Hughey v. United States, 495 U.S. 411 (1990), determined was not permitted under the statute as it was then worded. The defendant in Guardino, who had not challenged the restitution order at sentencing or on direct appeal, filed a motion to correct his sentence under former Fed.R.Crim.P. 35(a). The Guardino court, in considering the retroactivity of Hughey, stated:

Teague prohibited the retroactive application of a new constitutional rule of criminal procedure to an existing conviction. Teague does not bar the retroactive application of Hughey because, unlike Teague, Hughey did not announce a new constitutional rule but merely interpreted a statute, and, again unlike Teague, Hughey did not involve an attack on a conviction but only on a sentence.



Id. at 687-88 n.7.

The rationale of the above cases directly applies to the present case. This court in Michael interpreted the statute,  844(a), and determined its elements. Those elements did not appear as new elements, but have been the elements since the statute was enacted. Indeed, the court in Michael looked at the legislative history in interpreting the statute. Because Michael was a matter of statutory interpretation, not a new constitutional rule of criminal procedure, Teague is inapplicable and does not bar relief in the present case.

B. Even if Michael Announced a Rule of Constitutional Criminal Procedure, It Was Dictated by Precedent



Even if somehow Michael can be construed as announcing a rule of constitutional criminal procedure, the rule was not "new" under Teague because it was "dictated by precedent existing at the time the defendant's conviction became final." Gilmore v. Taylor, 113 S.Ct. 2112, 2116 (1993) (quoting Butler v. McKellar, 494 U.S. 407, 412 (1990) (emphasis in original)). Neither the government's opposition nor the district court's decision contain any discussion or legal analysis of what new constitutional rule Michael may have announced. This is surprising in light of the fact that:

The crux of the analysis when Teague is invoked, then, is identification of the rule on which the claim for habeas relief depends. To survive Teague, it must be "old" enough to have predated the finality of the prisoner's conviction, and specific enough to dictate the rule on which the conviction may be held to be unlawful. A rule old enough for Teague may of course be too general, and while identifying the required age of the rule of relief is a simple matter of comparing dates, passing on its requisite specificity calls for analytical care.



Wright v. West, 112 S.Ct. 2482, 2501 (1992) (Souter, J., concurring).

In any event, the court in Michael determined whether 844(a) was a lesser included offense of  841(a) based on the elements test set forth in Schmuck v. United States, 489 U.S. 705, 716 (1989). The court in Michael found that the third sentence of  844(a) is an "independent crime of possession of cocaine base" and thus contained an element that  841(a) did not, because that provision "criminalizes possession of any controlled substances." 10 F.3d at 839 & n.1. Having so interpreted the statute, the court reversed the conviction on the third sentence of  844(a) bound by the "ancient doctrine of both the common law and of our Constitution that a defendant cannot be held to answer a charge not contained in the indictment brought against him." Schmuck v. United States, 489 U.S. at 717 (citing Ex parte McBain, 121 U.S. 1, 10 (1887)). Thus, the result in Michael was dictated by Schmuck and other long-standing precedents, all of which predated defendant's conviction.

In addition, if Michael somehow established a new rule, it comes within the second exception to Teague allowing application of "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle v. Parks, 494 U.S. 484, 495 (1990) (quoting Teague, 489 U.S. at 311). To limit a sentence to the statutory maximum for the offense for which a defendant may properly be convicted is a watershed rule. It would be fundamentally unfair to allow a defendant to be sentenced to almost six years more than the statutory maximum.

CONCLUSION













Respectfully submitted,







A. J. KRAMER

FEDERAL PUBLIC DEFENDER

Counsel for Bryan xxxxxxx

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500









CERTIFICATE OF LENGTH





I HEREBY CERTIFY that the foregoing brief contains no more than the number of words allowed by Circuit Rule 28(d).







_______________________

A. J. KRAMER













CERTIFICATE OF SERVICE



I HEREBY CERTIFY that two copies of the foregoing Brief of Appellant and one copy of the accompanying Appendix were on this ______th day of July, 1995, served by hand-delivery upon John R. Fisher, Chief, Appellate Division, United States Attorney's Office, Room 10-435, 555 Fourth Street, N.W., Washington, D.C. 20001.







A. J. KRAMER

1. "APP" refers to the appendix filed with this brief.

2. The defendant in Michael, just as in the present case, had originally been charged with possession with intent to distribute five or more grams of cocaine base. Id. at 839.

3. The district court's order was not entered on the docket until July 13, 1994. Thus, defendant's notice of appeal was timely under Fed.R.App. P. 4(a).

4. In Kleinbart, 27 F.3d at 590, applying the Frady test, this court was considering the identical issue as in Frady, a claim of improper jury instructions.

5. Defendant was represented by the same counsel at trial and on appeal.

6. There is no question that the prejudice prong of Strickland is met in the present case, because if the issue had been raised defendant would have been sentenced to only one year in prison at most, instead of eighty-six months.

7. The statute, 18 U.S.C.  1341, has since been amended to cover the intangible rights theory by 18 U.S.C.  1346.

8. Although Shelton was decided before Teague, the court in Shelton considered an analysis similar to that of Teague, in deciding whether collateral relief was available. Like the court in Callanan, the court in Shelton found that a statutory interpretation was to be treated differently than a new rule of criminal procedure.