*1 investigate competency West’s regarding filing petition federal habeas America, UNITED STATES
similarly scope within Plaintiff-Appellee, § 848(q)(4)(B) interpreted by the Su- And, preme Court McFarland. as in RAMIREZ, Sr., Jose Defendant- McFarland, only if the stay of West’s exe- Appellant. cution can is continued West’s No. 98-6130. counseled habeas corpus petition under § 848(q)(4)(B) protected. be Appeals, States Court of
Sixth Circuit. IV. Argued Oct. 2000. sum, I In conclude that the district Decided and Filed Feb. 2001. grant court’s decision to stay of execu- Rehearing En Banc Denied tion until June 2001 did not constitute April an abuse of discretion. To determine oth- erwise would create an avenue which
incompetent may defendants waive then- rights to federal habeas relief without judicial determination of whether such knowing,
waiver was intelligent, compe- tent, voluntary. Moreover, the dis- granted
trict court stay only, limited giving defense counsel until June investigate to West’s competence, a date which in essence is coterminous with the upon
date one-year West’s period filing corpus federal habeas petition expire. will Bell attempts to argue that the State will significantly be up- harmed our
holding stay of execution. argu- Such
ments, however, are exaggerated. As above, stay
noted granted to defense short, counsel was providing counsel with only three months which to an conduct Moreover, investigation. I find it difficult to believe that unduly State will be
prejudiced by a stay three-month for an
investigation of competency West’s waive any federal proceeding, habeas af-
ter the state court proceedings have tak-
en fourteen to conclude. For the above, reasons stated I would affirm the district court’s decision stay West’s ex-
ecution so that competency his to waive federal habeas relief may investigated.
349 (briefed), Assistant United States Attor- TN, Nashville, ney, Appellee. for SILER, Before: MERRITT and Circuit SARGUS, Judge.* Judges; District MERRITT, J., the opinion delivered of D.J., court, SARGUS, joined.
OPINION
MERRITT, Judge. Circuit published opinion This sets forth the as to defendant Jose ruling court’s Ra- claim, mirez Sr.’s that his is final sentence light v. unconstitutional 466, 2348, 530 U.S. S.Ct. (2000). For reasons below, reverse his set forth we remand court and it to the district for re- sentencing proceedings consistent with opinion. Ra- concerning Our decision Angel mirez Angui- Sr. and co-defendant ano’s other can be found in the appeals for case no. unpublished opinion 98-5605. I. law, current criminal a de
Under fendant’s to notice indictment of by jury, trial charged, proof the crime doubt, beyond a reasonable and confronta particu tion witnesses turn whether as an categorized lar conduct is “element merely sentencing “a offense” or as See, e.g., factor.” Castillo United 2090, U.S. (2000) (holding that the L.Ed.2d 94 use in the “machinegun” commission of separate, of a violent crime is an element factor), crime, sentencing not a aggravated Gaudin, United States v. Gulley, (argued Gerald L. Jr. (1995) 132 L.Ed.2d S.Ct. briefed), Baker, Oldham, Gulley, Repass & (a criminal is entitled to “a defendant TN, Knoxville, Appellant. guilty every determination that is [he] with which (argued L. Marcus element of the crime he Jonathan briefed), doubt”), Department charged, beyond a reasonable United States Of Justice, Section, Pennsylvania, Divi- McMillan v. Appellate Criminal (1986) (af- sion, DC, L.Ed.2d 67 Washington, Robert C. Anderson * Ohio, Jr., by designation. Sargus, sitting The Honorable Edmund P. Judge for the Southern District District Pennsylvania requiring statute The indictment
firming
against
the defendant
sentencing
only
general
factors need
be estab
him in
language
preponderance
lished
of the evi
first count with a conspiracy to distribute
dence). Following Congress’s creation of
cocaine
in the second
an
count with
attempt
Guidelines and the
to possess
the U.S.
cocaine with the intent
*3
in
Supreme Court’s decisions Mistret
to distribute.
specified
U.S.
Neither count
the
361,
109 S.Ct.
amount of cocaine
any
ta v. United
involved or
other
(1989)
(affirming
regarding
drug
L.Ed.2d
the
facts
the
crime. After a
trial,
Echols,
constitutionality
jury
of the U.S.
District Judge
in a well-
Guidelines)
McMillan,
U.S.
reasoned statement based on the sentenc-
ing
applicable,
106 S.Ct.
there
rules then
sentenced the
judicial
significant
has been a
amount of
defendant to mandatory
a
minimum sen-
concerning when certain
years
confusion
facts
tence of 20
he
found the
should be considered an “element of the
quantity
greater
of cocaine involved was
they
case,
and when
should be consid
kilograms
offense”
than 5
this
10 kilo-
—in
See,
“sentencing factors.”
e.g., grams
ered mere
that
prior
the defendant had a
—and
Castillo,
at 2092 (noting
drug
the dis
conviction.1
applicable drug
The
(21
841(b)(1)(A))
among the
agreement
Ap
§
U.S. Courts of
statute
provides
U.S.C.
peals
question
posses
the
of whether
mandatory
for a
minimum
machinegun
of a
should be
years
sion
considered
if the offense involves 5 kilograms or
sentencing
factor or an element of a more of cocaine and the defendant has a
offense).
separate,
In
aggravated
the re
prior drug conviction.
in
The statute
(§ 841(b)(1)(B))
Apprendi
cent case of
v. New
530 next subsection
provides
facts to be established as elements of the offense. The in before us this [If court] had determined that it had direct criminal appeal any legal is how basis for a depar- downward case, applies to the increases in penal various ture in this it would have done so. ties, particularly mandatory pen The court does not believe that alties, imposed by multi-layered sec imposed harsh sentence in this case tions and drug justice, subsections of the federal meets the demands of but it does put statute set in 21 U.S.C. 841. requirements Congress. meet the previously 1. Ramirez had probation been convicted of He was sentenced to three Transportation Sale or of a Controlled days Sub- on the condition that the first Angeles, Superior stance in spent county jail. Los CA in Court. of increased progression drug statute’s the defendant In penalties mandatory minimum based a firearms offense only pled guilty drugs possessed. on the part quantity for an unlawful of a firearm (possession recently decided this issue maximum sen- We which carried purpose) Flowal, F.3d 2000 WL judge, trial The state years. of ten tence Dec.11, 2000), drug Cir. however, Jersey statute on 1808565 a New followed Court, opinion in an. case which the the de- factors” and sentenced “sentencing Wiseman, A. held that “be Judge Thomas judge the trial years because fendant to 20 drugs determined the had cause the amount of the defendant a fact that found as statutory punishment, appropriate of “racial purpose firearm for the used the law, weight should have determined Jersey per As intimidation.” In a reasonable doubt.” drugs beyond only to be needed “sentencing factor” *4 argument response government’s to the judicial finding the-govern- that on a based in does imposed this case penalty a that “the by preponder- this fact proved ment had Court, statutory maxi ‘prescribed the not exceed Supreme The of the evidence. ance ” mum,’ that there Stevens, Judge stated held Wiseman opinion by Justice in a clear in penalty difference based un- is a substantial illegal resulting sentence that the moves when a statute drug quantities because this Due Process Clause der the 20 penalty maximum of penalty the from a the crime to finding transformed judicial mandatory mini to a years or 30 or life plead guilty (pos- the defendant had which a length same firearm), penalty mum of the greater a crime a into session of intimidation) the mandatory under (use life sentence “is not racial a firearm for of signifi This difference is provision. latter sentencing. The Court of purposes for judge’s in because the trial in- cant this case significant points, a number of made drugs weight of the of determination cluding: im in terms of away any discretion took in an indict- charged 1. The offense Floival, 2000 a shorter sentence.” posing “cer- must be stated with sufficient ment at 4. WL 1808565 “that can so there tainty precision” and judgment no doubt as to be in stating point of the same way Another is con- given if the defendant should be that say is to language of (quoting from J. Id. at 2356 victed.” facts that increase “the of assessment Archbold, Pleading and Evidence which a penalties to range of prescribed 1862)). (15th ed. Criminal Cases such as exposed,” is criminal defendant con- prior the fact of a mini- mandatory 2. “Other than of moving the scale up viction, pen- sentences, fact that increases any range the full mum invokes prescribed beyond a crime for “el- alty required for protections constitutional be submitted statutory maximum must of the crime.” ements beyond a reason- jury, explained reasoning Apprendi The able doubt.” Mat 2362-63. to the applicable is by Judge Wiseman legisla- “It is unconstitutional believed Judge Here Echols instant case. jury the assess- remove from the ture to Ap- existing prior under the law that pre- increase the ment of facts that mere- drug weight was and Floival prendi penalties to which range scribed finding that a factor and ly sentencing at exposed.” Id. defendant criminal minimum sen- 20-year required 10 kilos v. United (quoting from Jones no tence, view is Apprendi, this but under 526 U.S. S.Ct. factors, oth- Aggravating longer possible. added). (1999)) (emphasis L.Ed.2d conviction, that increase prior than a er mini- nonmandatory from a penalty in the before us narrow The minimum mandatory to a mum sentence dis case is whether the instant sentence, greater to a from a lesser or triggered by are cussed sentence, 2000) Nov.27, are now minimum elements of Cir. (holding defendant’s proved. the crime to sentence was not invalid under Apprendi perspective, this means practical From a because he received a sentence less than guilty that when a defendant is found the maximum penalty); United 841(a)(1), § violating Corrado, 21 U.S.C. he must be 227 F.3d 841(b)(1)(C) Cir.2000) § sentenced under U.S.C. (holding Apprendi trig- is not jury beyond has found unless the a reason- gered when defendants were sentenced possessed able doubt defendant prescribed within the maximum terms be- required the minimum amounts factoring fore in any enhancing provi- 841(b)(1)(A) 841(b)(1)(B).2 sions). § § Be- cause in this case the government did not The case that is similar to our case at charge attempt or to prove to the a bar is Pennsylvania, McMillan v. quantity of drugs permit that would a 79, we remand this case which involved a sentencing practice state to the District Court with instructions to Pennsylvania whereby persons convict- sentence the defendant under 21 U.S.C. ed of certain subject felonies would be 841(b)(1)(C) and in accordance with the mandatory penalty five Guidelines. found, imprisonment if the court a pre- ponderance evidence, of the per- that the *5 SILER, 352-53), (pp. J. delivered a visibly possessed son a firearm in the
separate concurring opinion. committing course of specified one of those SILER, 81-82, felonies. Id. at Judge, Circuit concurring.
The Court found that procedure such a did CONCURRENCE not violate the Constitution. When the Apprendi dissent in question raised the as I because, concur in the decision after to whether the Apprendi decision over- case, argument the oral in this another McMillan, ruled Apprendi, 120 S.Ct. at panel Flowal, decided United v. States 2385-86, majority opinion categorically (6th Cir.2000). Therefore, F.3d 932 we stated: cannot overrule the decision of another panel. We do not Sec’y See Salmi v. overrule McMillan. Health and We lim- Serv., (6th it holding Human its F.2d cases that do not Cir. involve 1985). Nevertheless, imposition I write this concur more severe statutory rence to than the whether maximum for v. the of- by fense established jury’s verdict-a limitation identified in far-reaching the McMillan case, opinion as we determine itself. following Flowal. at Id. 2361 n. 13. Apprendi did not concern a Two other circuits have held that as in the case at bar. Apprendi rule does not apply to the deter- holding
Its
is:
mination
quantity
drugs
order to
than
prior conviction,
Other
the fact of a
trigger
statutory
minimum sentences.
any fact that
penalty
increases the
Keith,
See United States v.
230 F.3d
crime beyond
prescribed
statutory
(5th Cir.2000)
curiam) (“we
(per
hold
maximum
jury,
must be submitted
ato
that a fact used in sentencing that does not
proved beyond
a reasonable doubt.
penalty beyond
increase a
statutory
Id. at 2362-63. See United States v. Mu- maximum
alleged
need not be
in the indict-
noz,
(6th
233 F.3d
Aguayo-Delgado, Cir.2000) miniraums, (“Those [statutory] within they are 841(b)(1)(C) §by without range authorized quantity, permissible are drug reference to and McMillan even under not quantity drug where the or found in the indictment jury....”). WATERS,
Kathryn Plaintiff- M. Appellant, MORRISTOWN, CITY OF TENNES SEE; Shuck, individually E. Merlin capacity
and in as a Mor his official City ristown Alderman/Morristown Jerry Graham, Councilman; individu *6 ally capacity as and in his official the Morristown
Lieutenant Police Department, Defendants-Appellees.
No. 00-5019. Appeals, United States Court Sixth Circuit. 31, 2001. Argued Jan. and Filed Feb. Decided