FILED
United States Court of Appeals
Tenth Circuit
January 6, 2009
PUBLISH
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-3293
GARY JACK HOLLIS, JR.,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. Nos. 01-CV-3103-JAR
& 98-CR-40024-JAR)
Submitted on the briefs: *
Melanie S. Morgan, Morgan Pilate LLC, Olathe, Kansas, for
Defendant-Appellant.
Eric F. Melgren, United States Attorney, James A. Brown, Assistant United States
Attorney, Topeka, Kansas, for Plaintiff-Appellee.
Before O’BRIEN, McCONNELL and TYMKOVICH, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
TYMKOVICH, Circuit Judge.
We granted a certificate of appealability (COA) to determine whether the
district court erred in dismissing Gary Jack Hollis’s claim that his criminal
sentence should be vacated pursuant to 28 U.S.C. § 2255. He claims that his
appellate attorney provided constitutionally ineffective assistance of counsel by
failing to contest his sentence under the holding of Apprendi v. New Jersey,
530 U.S. 466 (2000). Having considered this issue in light of the entire record,
we affirm. 1
I.
In 1998, a federal jury found Mr. Hollis guilty of one count of conspiring to
manufacture methamphetamine, in violation of 21 U.S.C. § 846, and two counts
of manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a). After
making factual findings on drug quantity, the district court imposed a sentence of
262 months of imprisonment for each of the three counts, with the terms running
1
Mr. Hollis also argues that the district court improperly found that his trial
counsel did not override his desire to testify at trial. Because the record shows
that the district court held an evidentiary hearing and made a supported
determination, we conclude that Mr. Hollis has not “made a substantial showing
of the denial of a constitutional right” on this issue. We therefore deny COA as
to this claim. See 28 U.S.C. § 2253(c)(2).
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concurrently. Mr. Hollis appealed his conviction and this court affirmed. United
States v Hollis, No. 99-3233, 2000 WL 235250, at **1-2 (10th Cir. Mar. 2, 2000).
Mr. Hollis filed a petition for certiorari in the United States Supreme Court.
While the petition was pending, the Court issued its Apprendi opinion, holding in
the context of a state sentencing scheme “that any fact increasing the penalty for a
crime beyond the statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt.” United States v. Hill, 539 F.3d 1213, 1215 (10th Cir.
2008) (citing Apprendi, 530 U.S. at 490). Mr. Hollis wrote a letter to his
appellate counsel suggesting that the certiorari petition should be supplemented
with an Apprendi issue. Counsel advised him that he could pursue a later § 2255
motion on the issue and did not amend the petition. The Supreme Court denied
certiorari review on October 2, 2002, Hollis v. United States, 531 U.S. 854
(2000), making his conviction final.
Mr. Hollis then filed his § 2255 motion to vacate, set aside, or correct
his sentence. 2 The district court determined that Mr. Hollis was procedurally
barred from raising an Apprendi claim and therefore denied § 2255 relief. This
appeal followed.
2
Mr. Hollis filed his § 2255 motion in 2001 and the district court initially
denied relief in 2002. This court remanded the matter in 2004 to the district court
for determinations on issues relating to ineffective assistance of counsel. The
present appeal concerns the district court’s adverse ruling on remand.
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II.
Mr. Hollis’s three concurrent 262-month sentences were based on the
district court’s determination of the quantity of drugs involved in his offenses.
“Guided by the rationale of Apprendi, we have held that the quantity of drugs [in]
an offense under 21 U.S.C. § 841 is an essential element that must be charged in
an indictment, submitted to a jury, and proven beyond a reasonable doubt if that
fact exposes the defendant to a heightened maximum sentence.” United States v.
Lott, 310 F.3d 1231, 1238-39 (10th Cir. 2002) (internal quotations and footnote
omitted). Absent applicability of enhancements based on drug quantities, the
statutory maximum sentence for each of Mr. Hollis’s offenses was 240 months.
See 21 U.S.C. § 841(b)(1)(C). Thus, Mr. Hollis’s sentences ran afoul of the
concepts expressed in Apprendi.
And because the Supreme Court decided Apprendi before Mr. Hollis’s
criminal judgment became final with denial of his petition for certiorari, the
Apprendi holding would have applied to his case. See Lott, 310 F.3d at 1238. 3
Mr. Hollis’s attorney, however, did not make an Apprendi argument, either in this
court or before the Supreme Court.
3
Mr. Hollis’s judgment became final before the Supreme Court decided two
additional cases that effected significant changes in sentencing procedures.
Blakely v. Washington, 542 U.S. 296, 301 (2004) (applying Apprendi to overturn
Washington State’s sentencing scheme) and United States v. Booker, 543 U.S.
220, 226-27 (2005) (relying upon Apprendi and Blakely to overturn the mandatory
application of the United States Sentencing Guidelines).
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The failure to present this issue on direct appeal, however, bars Mr. Hollis
from raising it in a § 2255 motion “unless he can show cause excusing his
procedural default and actual prejudice resulting from the errors of which he
complains, or can show that a fundamental miscarriage of justice will occur if his
claim is not addressed.” United States v. Bolden, 472 F.3d 750, 751-52 (10th Cir.
2006) (quotations omitted), cert. denied, 127 S. Ct. 2081 (2007). As cause
excusing his default, Mr. Hollis argues his appellate counsel was ineffective for
failing to assert the Apprendi claim.
We consider Mr. Hollis’s appeal through the prism of his ineffective-
assistance-of-counsel argument. The issue involves a mixed question of law and
fact that we review de novo. See United States v. Orange, 447 F.3d 792, 796
(10th Cir. 2006). To establish constitutionally ineffective assistance, Mr. Hollis
must show both that (1) counsel’s performance was deficient; and (2) the
deficient performance prejudiced him. See Strickland v. Washington, 466 U.S.
668, 687 (1984). Counsel’s performance will be deemed deficient if it fell below
an objective standard of reasonableness. See id. at 688. A demonstration of
prejudice requires a showing of a reasonable probability that, but for counsel’s
deficient performance, defendant would have received a different sentence. See
id. at 694. We need not analyze both the performance and prejudice prongs of the
Strickland test if defendant “fails to make a sufficient showing of one.” Boltz v.
Mullin, 415 F.3d 1215, 1222 (10th Cir. 2005) (quotation omitted).
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The performance of Mr. Hollis’s appellate counsel arguably was deficient,
at least to the extent he advised against supplementing the petition for certiorari
to challenge the sentence on Apprendi grounds. See Sup. Ct. R. 15.8 (stating
“[a]ny party may file a supplemental brief at any time while a petition for a writ
of certiorari is pending, calling attention to new cases, new legislation, or other
intervening matter not available at the time of the party’s last filing”). We
therefore focus on the question of whether Mr. Hollis was prejudiced by appellate
counsel’s failure to make an Apprendi argument.
III.
No Apprendi-based issue was raised in the sentencing court. If appellate
counsel successfully made the argument to this court or the Supreme Court, the
absence of a “challenge to the district court’s findings prior to or at the time of
sentencing,” meant that Mr. Hollis’s case would have been reviewed on appeal
under the rigorous plain-error standard. See United States v. Apperson, 441 F.3d
1162, 1212 (10th Cir. 2006). Establishing plain error requires a showing of
(1) error, (2) “that the error was plain, and (3) that the plain error affected his
substantial rights.” Id. (quotation omitted). “If all these conditions are met, a
court reviewing the error may exercise discretion to correct it if the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation omitted).
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Under Apprendi, the imposition of a sentence dependent upon court-
determined drug quantities amounted to plain error. United States v. Jones,
235 F.3d 1231, 1236-37 (10th Cir. 2000). This Apprendi error, however, did not
affect Mr. Hollis’s substantial rights.
The legal landscape of criminal-sentencing procedures shifted during
Mr. Hollis’s long trek through the federal courts. As relevant to this case, the
changes are particularly evident in the application of U.S.S.G. § 5G1.2
(Sentencing on Multiple Counts of Conviction). Section 5G1.2 states that
multiple sentences are to be run consecutively to the extent necessary to reach a
combined sentence equal to the total guideline sentence. At the time of
Mr. Hollis’s sentencing, there was no Tenth Circuit authority on whether the
provision was mandatory or discretionary. See United States v. Price, 265 F.3d
1097, 1109 (10th Cir. 2001). In Price, this court resolved the issue and
determined that application of § 5G1.2(d) was mandatory. Id. Later, the Supreme
Court held that the mandatory application of any sentencing guideline to
judge-found facts (other than a prior conviction) violates the Sixth Amendment,
thereby making the guidelines advisory. United States v. Booker, 543 U.S. 220
(2005). The holding of Booker, however, is not retroactive and is not applicable
to Mr. Hollis’s § 2255 proceeding. See United States v. Bellamy, 411 F.3d 1182,
1188 (10th Cir. 2005).
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In denying Mr. Hollis’s § 2255 motion, the district court applied the
pre-Booker, but post-Price, rule that the stacking provision of § 5G1.2(d) was
mandatory. Determining that the sentencing court would have been required to
impose consecutive sentences to the extent necessary to achieve the total
guideline punishment, it concluded that Mr. Hollis’s substantial rights were not
affected by the Apprendi error. The district court’s decision is consistent with
this court’s pre-Booker cases. “[O]n resentencing a district court must look to the
version of the sentencing guidelines in effect at the time of [the] first sentencing.”
United States v. Andrews, 447 F.3d 806, 812 (10th Cir. 2006) (citing 18 U.S.C.
§ 3742(g)(1)). Although the sentencing court imposed Mr. Hollis’s sentence
without mentioning § 5G1.2(d), at a time when the law was unsettled as to the
mandatory or advisory nature of the provision, subsequent cases resolved the
question and addressed this situation. See Price, 265 F.3d at 1108-09 (holding
stacking provision of § 5G1.2 mandatory and declining to notice Apprendi error
where, on remand, the total punishment would have remained the same); see also
Lott, 310 F.3d at 1242-43 (applying Price holding and reasoning to conclude that
Apprendi error did not affect defendant’s substantial rights). We further note
that, in multiple-count cases to which Booker applies, § 5G1.2(d) “is no longer
mandatory, but a sentence consistent with it carries a badge of reasonableness
we are bound to consider.” United States v. Eversole, 487 F.3d 1024, 1033
(6th Cir.), cert. denied, 128 S. Ct. 649 (2007).
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Our affirmance, however, does not rely solely on the district court’s
rationale. See United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994)
(“We are free to affirm a district court decision on any grounds for which there is
a record sufficient to permit conclusions of law.”) (quotation omitted). A review
of the record indicates that there could be no reasonable doubt as to the quantity
of drugs involved in Mr. Hollis’s offenses. Indeed, at sentencing, Mr. Hollis
withdrew his challenge to the judge-determined quantities and he did not object to
the district court’s proposed sentence. On appeal, he did not raise any issues
related to drug quantities. Hollis, 2000 WL 235250, at *1. Without an indication
of factual error, there is no inference that a jury determination of drug quantity
would result in a changed sentence.
Finally, “a plain error,” even one “affecting substantial rights does not,
without more,” demonstrate a serious effect on “the fairness, integrity or public
reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 736-37
(1993). Otherwise the discretionary component of plain-error review “would be
illusory.” Id. at 737. Under the circumstances of Mr. Hollis’s case, we cannot
say that the Apprendi error had any bearing on the integrity or fairness of
judicial proceedings.
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In sum, we determine that Mr. Hollis has failed to demonstrate that his
appellate attorney’s deficiency resulted in the prejudice necessary to excuse the
procedural default of his Apprendi claim. We therefore AFFIRM the district
court’s denial of Mr. Hollis’s § 2255 motion.
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