ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE
The United States Magistrate Judge filed with the court on September4, 2002, with copies to the parties, her Recommended Decision on Motionto Vacate, Set Aside or Correct Sentence filed under 28 U.S.C. § 2255.The defendant was granted an extension of time until October 15, 2002, tofile an objection to the Recommended Decision. No objection has beenfiled. The Magistrate Judge notified the parties that failure to objectwould waive their right to de novo review and appeal.
I have reviewed and considered the Recommended Decision, together withtheentire record; I have made a de novo determination of all mattersadjudicated by the Recommended Decision; and I concur with therecommendations of the United States Magistrate Judge for the reasons setforth in her Recommended Decision, and determine that no furtherproceeding is necessary.
It is therefore ORDERED that the Recommended Decision of the MagistrateJudge is hereby ADOPTED. The defendant's motion to vacate, set aside orcorrect his sentence is DENIED.
RECOMMENDED DECISION ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
This matter is before the court on Kieu Minh Nguyen's motion tovacate, set aside, or correct sentence filed pursuant to28 U.S.C. § 2255. (Docket No. 45.) Nguyen is serving a 109 monthsentence for a violation of 18 U.S.C. § 1951(a), a federal statutewhich prohibits a robbery or a conspiracy to rob where the robberyobstructs, delays, or affects commerce. Nguyen and four others wereinvolved in an attempt to steal cash receipts from a business by the nameof "Nail Time," located in Portland, Maine. Nguyen pursued anunsuccessful appeal to the First Circuit Court of Appeals. In the hopesof obtaining habeas corpus relief he now asserts two grounds bothtethered to a theory that the sentencing judge made findings applying atoo lenient burden of proof. The United States has filed a responseseeking summary dismissal. (Docket No. 49.) I conclude that Nguyen'sgrounds are foreclosed by First Circuit precedent and I recommend thatthe Court DENY Nguyen habeas relief.
Nguyen was convicted by a jury for violating 18 U.S.C. § 1951(a)which provides:
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years[.]
18 U.S.C. § 1951(a) (emphasis added). The jury acquitted him on asecond count that charged that Nguyen carried and used a firearm duringand in relation to a violent crime in contravention of18 U.S.C. § 924(c)(1), (3) and 18 U.S.C. § 2.
Nguyen was sentenced on July 10, 2000. There were severalsentence-related contests. The Court applied three sentencing guidelinesthat increased Nguyen's sentence from the base level of twenty, with asentence range of thirty-three to forty-one months. By a preponderance ofthe evidence the Court concluded that the possession of a firearm by oneof the other four participants was foreseeable by Nguyen and the courtapplied a five-level increase. The Court found that the amount of losscaused by the robbery was $11,852, triggering a one-level enhancement.The Court also found that Nguyen was the leader or organizer of the crimethat involved five or more participants, a determination that led to anadditional four-level enhancement. Consequently the total offense levelwas thirty, establishing a guideline sentence range of ninety-seven to121 months.
Nguyen's principal argument in his timely 28 U.S.C. § 2255petition1 is thatthe ten-step increase resulting from these threeenhancements imposed by the judge applying a preponderance of theevidence standard so increased his sentence that his Fourteenth Amendmentdue process rights were violated. He contends that in instances where theenhanced portions of the sentence, "the tail," so outstrip the base-levelsentencing range, that it "wags the dog," a higher standard of proof thana preponderance is required, viz, clear and convincing evidence. Insupport of this argument Nguyen relies primarily on United States v.Kikumura, 918 F.2d 1084 (3d Cir. 1999) and McMillan v. Pennsylvania,477 U.S. 79 (1986).2
The United States argues that this habeas attack is foreclosed becauseNguyen failed to mount this challenge prior to sentencing, atsentencing, and in his direct appeal; instead his attorneys repeatedlyconceded that a preponderance of the evidence standard was appropriate.It also argues that the precedent cited by Nguyen is not on point andthat it is settled in the First Circuit that in the wake of Apprendi v.New Jersey, 530 U.S. 466 (2000) facts found vis-à-vis sentencingenhancements, other than facts that result in a sentence that exceedsthat statutory maximum, need only be proven by a preponderance of theevidence.3
With respect to the United States' argument that Nguyen's first groundis defaulted this conclusion does not resolve this petition becauseNguyen's second ground asserts that his attorneys at all phases of thiscriminal proceeding including on appeal were ineffective because they didnot raise this challenge. This is the type of claim that is cognizable ina 28 U.S.C. § 2255 petition even if not earlier raised.
Ineffective assistance of counsel claims are reviewed under Stricklandv. Washington, 466 U.S. 668 (1984) and its well-worn two prong analysis.Nguyen must demonstrate that his attorneys' representation wasdeficient, id. at 687, and, that, but for this deficiency the outcome ofhis sentencing would have been different. Id. A failure to show prejudicewill suffice to defeat a particular claim, without reference to the levelof counsel's performance. Id.
Nguyen fails on the prejudice prong because his first § 2255 groundhas no merit. Nguyen's sentence did not exceed the twenty-year statutorymaximum contained within the four corners of18 U.S.C. § 1951(a).First Circuit precedent dictates that the Fourteenth Amendment DueProcess Clause requires the application of only a preponderance of theevidence standard for facts underlying sentencing enhancements that donot result in a sentence that exceeds the statutory maximum for the crimeof conviction. In United States v. Eirby, 262 F.3d 31 (1st Cir. 2001),the First Circuit stated: "Still, Apprendi does not call for fullabrogation of our prior practice. In particular, the Apprendi doctrineoffers no advantage to a defendant who is sentenced to a term less thanthe otherwise applicable statutory maximum." 262 F.3d at 27. "[W]hen adefendant is sentenced to less than the default statutory maximum," thePanel declared, "Apprendi is irrelevant." Id. "In such circumstances,judicial determination of drug quantity under apreponderance-of-the-evidence standard remains a viable option." Id. TheFirst Circuit recently reiterated this conclusion in United States v.Piccolo, 282 F.3d 41 (1st Cir. 2002), addressing a challenge to a "leaderor organizer" four-level enhancement. 282 F.3d at 43-44.
The tail wagging metaphor relied on by Nguyen stems from the SupremeCourt's McMillan decision. Therein the Court rejected the defendant'sargument that the Government should have to prove beyond a reasonabledoubt that the defendant visibly possessed a firearm during thecommission of the underlying offense before he could be subject to amandatory minimum sentence of five years. 477 U.S. at 81-82, 84. The tailwagging metaphor was contained in the following dicta:
The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. Petitioners' claim that visible possession under the Pennsylvania statute is `really' an element of the offenses for which they are being punished — that Pennsylvania has in effect defined a new set of upgraded felonies — would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment.
Id. at 88.
The Third Circuit in Kikumura, responding in part to the McMillansuggestion that the claim had "superficial appeal," did conclude that aclear-and-convincing standard was appropriate when a single sentencingdeparture, based on a finding of whether there was an intent to kill,resulted in an increase of the sentence from the base offense level ofabout thirty months to the upward departure of about thirty years. 918F.2d at 1098-1102. The Third Circuit concluded that, given the extent ofthe departure before it, the clear and convincing standard was "implicitin the statutory requirement that a sentencing court `find' certainconsiderations in order to justify a departure," id. at 1102 (quoting18 U.S.C. § 3553(b)), but it reserved judgment on the question ofwhether the elevated standard was "implicit in the due process clauseitself," id.
The First Circuit has at least twice remarked on the holding of theThird Circuit Kikumura, both times hesitating to embrace it. In UnitedStates v. Lombard, 102 F.3d 1 (1st Cir. 1996) the Panel noted Kikumura'selevated standard and stated that it was "premised on a reading of theguidelines informed by due process concerns and has been much discussedbut generally not followed." 102 F.3d at 4. In Lindia the First Circuitdeclined to express an opinion on Kikumura, distinguishing its case fromthe enhancement involved in Kikumura. 82 F.3d at 1161 n. 6. See footnote3 for a discussion of the viability of Lindia. Other circuits have goneto greater lengths in distancing their cases from Kikumura. See, e.g.,United States v. Cordoba-Murgas, 233 F.3d 704,709 (2d Cir. 2000); UnitedStates v. Rodriguez, 67 F.3d 1312, 1322-23 (7th Cir. 1995).
Though he does not frame it as such, Nguyen's argument concerning aclear and convincing evidence standard at sentencing does pull on thesame due process theme that animated Apprendi. This is not a promisingassociation for Nguyen for two reasons. First, to the extent that Nguyencould rely on Apprendi principals to advance his case the First Circuitrejected Nguyen's Apprendi challenge to his indictment on direct appeal.It stated:
Nguyen argues that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the facts underlying a potential sentencing enhancement should have been pled in the indictment. We decline to rule on whether Apprendi requires such facts to be pled in the indictment, for Apprendi does not apply here in any event, as Nguyen's sentence did not exceed the 20-year statutory maximum.
United States v. Nguyen, 246 F.3d 52, 56 (1st Cir. 2001). The samereasoning applies to the challenged sentence enhancements: Nguyen'sultimate sentence did not exceed 18 U.S.C. § 1951(a)'s twenty-yearstatutory maximum.
Second, to the extent that Nguyen seeks to distinguish his due processargument from the due process theory of Apprendi, I note that in McMillanthe Supreme Court expressly rejected an argument that if the enhancementwas not treated as an element of the crime to be proven beyond areasonable doubt (ala Apprendi) it should at least be proven by clear andconvincing evidence. The McMillan Court stated:
Having concluded that States may treat "visible possession of a firearm" as a sentencing consideration rather than an element of a particular offense, we now turn to petitioners' subsidiary claim that due process nonetheless requires that visible possession be proved by at least clear and convincing evidence. Like the court below, we have little difficulty concluding that in this case the preponderance standard satisfies due process. Indeed, it would be extraordinary if the Due Process Clause as understood in Patterson [v. New York, 432 U.S. 197 (1977)] plainly sanctioned Pennsylvania's scheme, while the same Clause explained in some other line of less clearly relevant cases imposed more stringent requirements. There is, after all, only one Due Process Clause in the Fourteenth Amendment. Furthermore, petitioners do not and could not claim that a sentencing court may never rely on a particular fact in passing sentence without finding that fact by "clear and convincing evidence." Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all. See Williams v. New York, 337 U.S. 241 (1949). Pennsylvania has deemed a particular fact relevant and prescribed a particular burden of proof. We see nothing in Pennsylvania's scheme that would warrant constitutionalizing burdens of proof at sentencing.
477 U.S. at 91-92.
Based upon my reading of the above precedents I conclude that Nguyen'sfirst ground has no merit regardless of whether it was defaulted andbecause of this lack of merit it cannot support a conclusion that Nguyenwas prejudiced by his attorneys' failure to pursue the challenge in priorproceedings.
Based upon the foregoing, I recommend that the court DENY Nguyen's18 U.S.C. § 2255 petition as neither of his two grounds has merit.
1. The United States concedes that this petition is timely.
2. Nguyen also cites United States v. Gonzalez-Vazquez, 34 F.3d 19(1st Cit. 1994) a case addressing a weapons enhancement and rejecting achallenge similar to Nguyen's. 34 F.3d at 25-26. The Panel declared: "Asentence is a sentence. Conversely, an enhancement is an enhancement— here, two levels, regardless of the BOL — and theincremental effect of the enhancement on any particular sentence is theproduct of the interaction of a myriad of factors. The increase in theensuing sentence, whatever the duration, neither alters the enhancement'sfundamental character nor bears on whether the facts underlying it mustbe established by a different quantum of proof." Id. at 26.
3. While the United States cites United States v. Lindia, 82 F.3d 1154,1160 (1st Cir. 1996) in support of this proposition, the First Circuitrecognized in United States v. Eirby, 262 F.3d 31, 36-37 (1st Cir. 2001)that "Apprendi requires some rethinking of [the Lindia] approach." 262F.3d at 36. Lindia was a 18 U.S.C. § 841(b)(1) drug weight case. Inthe wake of Apprendi the Eirby Panel recognized that "a finding of drugquantity which increases a defendant's sentence beyond the otherwiseapplicable statutory maximum must be proved to the jury beyond areasonable doubt," id., and that, consequently, the Lindia "notion thatthe quantity determinations demanded by section 841(b)(1) are merelysentencing factors is no longer completely true," id. at 36-37.