F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 25 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 01-6206
CLARENCE LEE GREEN, (D.C. No. 00-CV-1151-A, 96-CR-108)
(W.D. Oklahoma)
Defendant - Appellee.
ORDER AND JUDGMENT*
Before SEYMOUR, BALDOCK, and KELLY, Circuit Judges.
A jury convicted Defendant Clarence Lee Green on seventeen counts arising out of
Defendant’s participation in a conspiracy to distribute crack cocaine. The district court
sentenced Defendant to life imprisonment on the four counts involving violations of 21
U.S.C. § 841(a)(1), to be served concurrently. Defendant directly appealed his
convictions. We affirmed. United States v. Green, 175 F.3d 822 (10th Cir. 1999).
Defendant then filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence. Defendant argued for the first time his rights under Apprendi v.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
New Jersey, 530 U.S. 466 (2000), were violated because the district court sentenced him
to the increased maximum penalty of life imprisonment without a jury finding of drug
quantity beyond a reasonable doubt. The district court granted Defendant’s Apprendi
challenge to his life sentences and re-sentenced Defendant to four twenty-year sentences,
to run concurrently. The Government appeals the district court’s order granting
Defendant relief pursuant to § 2255. We have jurisdiction pursuant to 28 U.S.C. §§ 1291,
2253(a), and 2255. We reverse the district court’s grant of relief and remand to the
district court with instructions to vacate the present sentence and reinstate Defendant’s
original life sentence.
I.
In July 1996, a federal grand jury in the Western District of Oklahoma returned a
97-count indictment charging Defendant and others with conspiracy to distribute cocaine
base and other drug-related offenses.1 At trial, the district court instructed the jury,
1
The eighteen counts on which the grand jury indicted Defendant included: one
count of conspiring to possess with intent to distribute crack cocaine, in violation of 21
U.S.C. § 841(a)(1); two counts of knowingly and intentionally possessing with intent to
distribute approximately one kilogram of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1); one count of knowingly and intentionally possessing with intent to distribute
approximately one-half kilogram of crack cocaine, in violation of 21 U.S.C. § 841(a)(1);
nine counts of interstate travel in aid of racketeering, in violation of 18 U.S.C. § 1952;
one count of knowingly maintaining a place for the purpose of manufacturing or
distributing cocaine base, in violation of 21 U.S.C. § 856(a)(1); two counts of knowingly
using a telephone facility to facilitate the acquisition and distribution of cocaine base, in
violation of 21 U.S.C. § 843(b); and two counts of knowingly engaging in financial
transactions affecting interstate commerce with the proceeds of drug activities, in
(continued...)
2
without objection, that the Government “need not establish that the amount or quantity of
controlled substance was as alleged in a count, but only that a measurable amount of the
controlled substance was in fact the subject of the acts charged in that count.” The jury
convicted Defendant on 17 of the 18 counts.2
In order to establish the base offense level for sentencing, the pre-sentence report
(PSR) grouped Defendant’s offenses, and applied the offense level corresponding to the
aggregated drug quantity for the grouped counts.3 U.S.S.G. § 3D1.2(d) (1995) (providing
1
(...continued)
violation of 18 U.S.C. § 1956(a)(1)(A)(i).
2
The jury acquitted Defendant on one of the two money laundering charges under
18 U.S.C. § 1956(a)(1)(A)(i).
3
“Grouping” involves combining all counts involving substantially the same harm
to determine a base offense level. U.S.S.G. § 3D1.2. Counts are to be grouped together
into a single group if any one or more of the four subsections to § 3D1.2 provide for such
grouping:
(a) when counts involve the same victim and the same act or transaction;
(b) when counts involve the same victim and two or more acts or
transactions connected by a common criminal objective or constituting part
of a common scheme or plan;
(c) when one of the counts embodies conduct that is treated as a specific
offense characteristic in, or other adjustment to, the guideline applicable to
another of the counts;
(d) when the offense level is determined largely on the basis of the total
amount of harm or loss, the quantity of a substance involved, or some other
measure of aggregate harm, or if the offense behavior is ongoing or
continuous in nature and the offense guideline is written to cover such
behavior.
Id. When, as here, counts are grouped pursuant to § 3D1.2(d), the offense guideline
applicable to the aggregate behavior or quantity is used. § 3D1.3(b). To determine the
combined offense level for more than one group, the court must determine the disparity of
(continued...)
3
for grouping “[w]hen the offense level is determined largely on the basis of the . . .
quantity of a substance involved . . . .”); § 3D1.3(b) (instructing the sentencing court to
apply an offense level reflecting the aggregated quantity for the grouped offenses). The
PSR attributed to Defendant an aggregated quantity of approximately 15.5 kilograms of
cocaine base,4 and therefore applied a base offense level of 38. Id. at § 2D1.1(c)(1)
(assigning base offense level of 38 to persons convicted of a drug offense involving 1.5
kilograms or more of cocaine base). The PSR recommended Defendant receive a two-
level enhancement for possessing a firearm during the commission of these offenses, and
a four-level enhancement for serving as a leader or organizer, pursuant to U.S.S.G.
§§ 2D1.1(b)(1) and 3B1.1(a), respectively. Defendant’s total offense level of 44,
3
(...continued)
levels between the separate groups. Here, the PSR combined Defendant’s sixteen
cocaine-related counts into one group and Defendant’s single money laundering count
into another group. The sixteen cocaine-related counts established a base offense level of
38, and the money laundering count established a base offense level of 23. §§ 2D1.1,
2S1.1. Groups nine or more levels less serious than the most serious group should not be
counted for purposes of determining the total offense level. § 3D1.4. Therefore, in the
instant case, because the cocaine-related group called for a base offense level of 38, and
the next lower group called for a base offense level of 23, the PSR did not count
Defendant’s money laundering group for purposes of calculating the combined offense
level. Id.
4
Defendant objected to portions of the PSR’s drug quantity calculations, asserting
“no evidence” supported his association with one co-conspirator accountable for
transporting 4.0 kilograms of cocaine base, and denying involvement in the transportation
of another 4.0 kilograms by a different co-conspirator. The district court overruled
Defendant’s objections. Defendant effectively conceded the PSR’s attribution of 7.5
kilograms, which remained far above the 1.5 kilogram minimum necessary to assign a
base offense level of 38 under U.S.S.G. § 2D1.1(c)(1).
4
combined with a criminal history category of V, established a guideline range of life
imprisonment. Id. at Chapter 5, Part A. The district court sentenced Defendant to life
imprisonment on each of the four drug counts involving violations of 21 U.S.C.
§ 841(a)(1), to be served concurrently. For the remaining thirteen counts, the district
court sentenced Defendant to concurrent sentences of 48 months imprisonment for two
counts, 60 months imprisonment for nine counts, and 240 months imprisonment for two
counts.
On direct appeal, Defendant unsuccessfully argued the trial court erred in (1)
validating a wiretap order; (2) admitting tapes resulting from a wiretap; and (3) admitting
evidence that Defendant threatened a co-conspirator at gunpoint. In his pro se motion,
Defendant renewed his direct-appeal challenges to his convictions, and added an
ineffective assistance of counsel claim. Defendant argued his trial counsel provided
ineffective assistance by not objecting to the Government’s failure to prove Defendant
was a leader of the conspiracy, and the Government’s failure to prove the quantity and
type of drugs. Defendant subsequently filed a motion for leave to amend his § 2255
motion asserting, for the first time, his four life sentences were invalid under Apprendi.
Defendant argued his rights under Apprendi were violated because the jury did not find a
drug quantity beyond a reasonable doubt. Instead, the sentencing judge found the drug
quantity by a preponderance of the evidence, subjecting Defendant to the increased
statutory maximum penalty of life imprisonment on each of the four drug counts. The
5
district court permitted Defendant to amend his § 2255 motion to include the Apprendi
claim.
In April 2001, the district court denied Defendant’s motion for § 2255 relief on
Defendant’s claims attacking his convictions. The district court, however, granted
Defendant’s Apprendi challenge to his life sentences. The court first found Apprendi
applied retroactively on collateral attack as a watershed constitutional rule of criminal
procedure. See Teague v. Lane, 489 U.S. 288 (1989) (new constitutional rules of
criminal procedure will not be applicable to cases which have become final before new
rules are announced, unless they are watershed rules of criminal procedure or are rules
that place “certain kinds of primary, private individual conduct beyond the power of the
criminal law–making authority to proscribe.”). The district court then concluded
Defendant’s life sentences violated Apprendi because “the jury made no findings
regarding [drug] quantity.” As relief for the Apprendi error, the court resentenced
Defendant to the twenty-year maximum sentence that may be imposed on the four counts
pursuant to 21 U.S.C. § 841(b)(1)(C). The district court ordered these sentences to run
concurrently, thus sentencing Defendant to an overall sentence of twenty years, instead of
life.5 The Government filed a motion for reconsideration, which the district court denied.
The Government appeals.
5
The district court did not sentence Defendant on any count exceeding twenty
years.
6
II.
Defendant failed to assert his Apprendi claim on direct appeal. “‘A defendant who
fails to present an issue on direct appeal is barred from raising the issue in a § 2255
motion, unless he can show cause for his procedural default and actual prejudice resulting
from the alleged errors, or can show that a fundamental miscarriage of justice will occur
if his claim is not addressed.’” United States v. Talk, 158 F.3d 1064, 1067 (10th Cir.
1998) (quoting United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994); and citing
United States v. Frady, 456 U.S. 152, 167-68 (1982)). If the government fails to raise
Frady’s procedural bar until the appellate level, however, the Government is not
necessarily entitled to disposition on those grounds. Id. Here, the Government failed to
raise a Frady defense before the district court. Nevertheless, we may raise Frady’s
procedural bar sua sponte, if doing so will further “the interests of judicial efficiency,
conservation of scarce judicial resources, and orderly and prompt administration of
justice.” Id.
We conclude the interests of judicial efficiency, conservation of scarce judicial
resources, and orderly and prompt administration of justice are best served by applying
Frady’s procedural bar to Defendant’s Apprendi claim. We should consider procedural
bar issues before considering whether Apprendi applies retroactively. Lambrix v.
Singletary, 520 U.S. 518, 524 (1997); Daniels v. United States, 254 F.3d 1180, 1189 n.2
(10th Cir. 2001). Daniels elaborated:
7
It is preferable that procedural default issues be addressed first, in part because it is
wise to avoid constitutional considerations whenever possible, and unlike the
cause and prejudice question, ‘the Teague inquiry requires a detailed analysis of
federal constitutional law.’
254 F.3d at 1189 n.2 (quoting Lambrix, 520 U.S. at 524). Additionally, Defendant’s
constitutional claim under Apprendi would be futile and wasteful of judicial resources.
Whether Apprendi retroactively applies on collateral review is best analyzed in a case
where resolution of the Apprendi issue would actually affect the outcome of a defendant’s
§ 2255 motion. Here, we conclude Defendant would face the functional equivalent of a
life sentence even if we addressed his Apprendi claim on the merits. We therefore
decline to address Apprendi’s retroactive applicability on collateral review.6
We need not address whether Defendant can show “cause” for his procedural
default because Defendant cannot demonstrate “actual prejudice” resulting from the
Apprendi error. To demonstrate “actual prejudice,” Defendant “must convince [a court]
that ‘there is a reasonable probability’ that the result of the trial would have been
different.” Strickler v. Greene, 527 U.S. 263, 289-91 (1999). Defendant cannot show a
reasonable probability that the result would have been different because even if we
accepted Defendant’s Apprendi argument that the district court could sentence him only
6
Cf. United States v. Aguirre, No. 01-3218, 2002 WL 188972 (10th Cir. Feb. 7,
2002) (unpublished) (Apprendi is not retroactive on collateral review); McCoy v. United
States, 266 F.3d 1245, 1258 (11th Cir. 2001) (same); United States v. Moss, 252 F.3d
993, 1000-01 (8th Cir. 2001) (same); United States v. Sanders, 247 F.3d 139, 151 (4th
Cir. 2001) (same); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000) (same).
8
to a statutory maximum of twenty years on each count, Defendant would still be subject
to a life sentence.
At sentencing, Defendant conceded his accountability for 7.5 kilograms of crack
cocaine. Pursuant to U.S.S.G. § 2D1.1(c)(1), a base offense level of 38 applies where
Defendant’s convictions involve over 1.5 kilograms of crack cocaine. Defendant does
not challenge the two-level enhancement for possessing a firearm during the commission
of these offenses, or the four-level enhancement for serving as a leader or organizer.
Thus, even if we accepted Defendant’s Apprendi claim, he is nonetheless subject to a
base offense level of 44, a criminal history category of V, and a guideline sentence range
of life imprisonment. Although no single count of Defendant’s convictions could satisfy
this guideline range, U.S.S.G. § 5G1.2(d) (1995) mandates:
If the sentence imposed on the count carrying the highest statutory maximum is
less than the total punishment, then the sentence imposed on one or more of the
other counts shall run consecutively, but only to the extent necessary to produce a
combined sentence equal to the total punishment. In all other respects sentences
on all counts shall run concurrently, except to the extent otherwise required by law.
Defendant’s twenty-year sentences on the relevant counts are individually less than the
total punishment of life imprisonment. As a result, § 5G1.2(d) requires the district court
to run Defendant’s sentences on each count consecutively (“stack” the sentences) to the
extent necessary to produce a combined sentence equal to life imprisonment.7 United
7
Defendant argues § 5G1.2(d) deals with the situation where more than one group
of counts is involved and provides that the sentencing court run groups of counts
(continued...)
9
States v. Bailey, 286 F.3d 1219, 1222 (10th Cir. 2002); United States v. Price, 265 F.3d
1097, 1109 (10th Cir. 2001).
“Because § 5G1.2(d) is a mandatory provision, there is no ‘idle speculation’ as to
the sentence the district court could impose upon remand.” Price, 265 F.3d at 1109
(quoting United States v. Jones, 235 F.3d 1231, 1238 (10th Cir. 2000)). Thus, this
provision “renders moot any Apprendi error.” Id. at 1108. The district court would be
required to impose twenty-year terms on Defendant’s four drug convictions and to run
these sentences, as well as Defendant’s sentences on his other convictions, consecutively,
resulting in a total sentence of 173 years. See Bailey, 286 F.3d at 1222; Price, 265 F.3d at
1109. A 173-year sentence is the functional equivalent to life imprisonment for a thirty-
seven year old person. See United States v. Saccoccia, 58 F.3d 754, 787 n.29 (1st Cir.
1995) (“Barring a lifespan of biblical proportions, [defendant’s] time on this mortal coil
7
(...continued)
consecutively, not individual counts. Section 5G1.2(d)’s plain language, however, clearly
requires the district court to run a defendant’s counts consecutively, not groups.
Defendant also claims § 5G1.2(d) must comport with 18 U.S.C. § 3584(a) (giving
the sentencing court discretion to impose consecutive or concurrent sentences where the
defendant has been convicted on multiple counts), because § 3584(a) is a legislative
enactment and thus overrides the sentencing guidelines. In United States v. Shewmaker,
936 F.2d 1124, 1128 (10th Cir. 1991), we noted § 3584(a) is a general provision, while
§ 5G1.3 (mandating a consecutive sentence if the defendant committed the offense while
serving a term of imprisonment) is a specific provision. “[W]hen general and specific
statutory provisions apparently contradict, it is well-established that the two may exist
together, the specific provision qualifying or limiting the general.” Id. Thus, we held
§ 5G1.3’s mandatory provisions required the district court to impose consecutive
sentences. Id. Section 5G1.2(d) is likewise a specific provision that qualifies or limits
§ 3584(a).
10
will not exceed [his 360-year total sentence].”). Accordingly, the Apprendi error did not
actually prejudice Defendant, and thus his Apprendi claim is procedurally barred.
We reverse the district court’s grant of § 2255 relief and remand to the district
court with instructions to vacate the present sentence and reinstate Defendant’s original
life sentence.
REVERSED and REMANDED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
11