UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No.
BRIEF OF AMICUS CURIAE
ON BEHALF OF PETITIONER
In Re: ROBERT xxxxxx, Petitioner.
JURISDICTION
This Court has original jurisdiction pursuant to 28 U.S.C. 2255 and 2244 over Mr. xxxxxx's motion to certify a second or successive motion to vacate, set aside or correct a federal sentence.
ISSUES PRESENTED FOR REVIEW
On March 9, 1999, this Court issued an order appointing the undersigned as amicus curiae for the petitioner, Robert xxxxxx. This amicus brief addresses the procedural issues set forth in this Court's Order:
(1) [W]hether the motion for leave to file is barred by the limitations provision of 28 U.S.C. 2255;
(2) [W]hether application of the Antiterrorism and Effective Death Penalty Act of 1996 would be impermissibly retroactive (see United States v. Ortiz, 136 F.3d 161 (D.C. Cir. 1998)); and
(3) [I]f petitioner's motion would be barred under the "cause and prejudice" test, see McCleskey v. Zant, 499 U.S. 467, 494 (1991), whether his claim of "actual innocence" excuses him from the need to show cause for his failure to raise the claim earlier (compare Embrey v. Hershberger, 131 F.3d 739 (8th Cir. 1997) with United States v. Maybeck, 23 F.3d 888 (4th Cir. 1994), cert. denied, 517 U.S. 1161 (1996)).
STATUTES AND REGULATIONS
Pertinent statutes are contained in the
addendum to this amicus brief.
STATEMENT OF THE CASE
On April 8, 1992, Robert xxxxxx was arrested after selling crack cocaine to a confidential informant for the Metropolitan Police Department in Washington, D.C. (App. 11; PSR 4). The confidential informant had arranged to meet Mr. xxxxxx in a supermarket parking lot to purchase two ounces of crack in exchange for $2,400. The exchange was made in the confidential informant's car, and police arrested Mr. xxxxxx after he left the car. (PSR 4). The confidential informant also had participated in six other controlled buys from Mr. xxxxxx during a seven-week period prior to the day of his arrest. (App. 11; PSR 3-4).
On May 7, 1992, a grand jury returned a fifteen-count indictment against Mr. xxxxxx for various drug distribution and related firearm charges. (App. 12-17). On February 2, 1993, Mr. xxxxxx pleaded guilty to count twelve, distribution of five grams or more of crack cocaine in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B)(iii). (App. 18, 40).
The presentence report calculated Mr. xxxxxx's offense level under the drug distribution guideline to be 34 based on a quantity of 140.708 grams of crack cocaine. The report calculated his criminal history category to be V. (PSR 5-6). With a downward adjustment for acceptance of responsibility, Mr. xxxxxx would have had an offense level of 31, resulting in a sentencing range of 168 to 210 months. The presentence report recommended that the court apply the career offender guideline, U.S.S.G. 4B1.2, to Mr. xxxxxx based on the fact that he had two prior convictions in 1984, one for attempted robbery in Washington, D.C. and one for housebreaking in Prince Georges County, Maryland. (PSR 5-6). Application of the career offender guideline did not increase Mr. xxxxxx's offense level but increased his criminal history category to VI, resulting in a higher sentencing range of 188 to 235 months. (PSR 12).
At sentencing, defense counsel sought a
downward departure from the career offender guideline, but did not otherwise challenge its
application. (App. 23-32). The district court determined that Mr. xxxxxx was a career
offender under the sentencing guidelines and imposed a sentence of incarceration of 188
months, at the low end of the guideline range. (4/28/93 Tr. at 8, 10, 13; App. 41). The
court also imposed a four-year term of supervised release and a $50 special assessment
fee. (4/28/93 Tr. at 13; App. 42). The district court stated that it chose a sentence at
the low end of the guideline range because the government conducted a "string of
undercover buys" which "simply ran up the total of crack cocaine that
[Mr. xxxxxx] sold." (4/28/93 Tr. at 9). It questioned why the government had not
arrested Mr. xxxxxx after the first buy. (Id.).
No appeal was filed in this case. On May 10, 1993, twelve days after sentencing, counsel for Mr. xxxxxx filed a Motion to Reconsider Sentence with the district court. Through the motion, counsel requested that the district court reconsider the career offender sentence in light of the then recent decision in United States v. Spencer, No. 92-0273 (D.C.D.C. May 10, 1993), in which the district court held that a career offender sentence as applied in that case violated the Fifth and Eighth Amendments to the Constitution. (App. 44-45). The district court denied Mr. xxxxxx's motion "without prejudice" in a one sentence order. (App. 69).
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