States v. Baptiste-Calixce ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
Nos. 01-1321
01-1573
UNITED STATES,
Appellee,
v.
JEAN BAPTISTE-CALIXCE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Jean Baptiste-Calixce on brief pro se.
Gretchen Leah Witt, United States Attorney, and Peter E.
Papps, Assistant U.S. Attorney, on Motion for Summary
Disposition for appellee.
September 28, 2001
Per Curiam. These consolidated appeals by Jean
Baptiste-Calixce are from the district court’s denial of his
post-appeal motions for relief from his 168-month prison
sentence. In 1998, Calixce was convicted following a jury
trial of possessing with intent to distribute cocaine and
cocaine base. The indictment referenced 21 U.S.C. § 841(a),
but not § 841(b), and did not refer to any specific drug
quantity. At sentencing, the court adopted the probation
department’s finding regarding drug quantity, and the
applicable guideline sentencing range based on that
quantity. On direct appeal, Calixce did not challenge his
indictment or sentence, but argued only that the district
court had erred in denying his pre-trial suppression motion.
This court affirmed Calixce’s conviction in an unpublished
opinion dated April 2, 1999.
Almost two years later, Calixce filed two motions
in district court. The first one was a motion to amend his
prison sentence pursuant to 18 U.S.C. § 3582(c)(2). The
second one was a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(1) and for review of his sentence pursuant to 18
U.S.C. § 3742. The district court denied both motions. We
agree with the district court that Calixce has failed to
show that he is entitled to the relief that he sought in
these motions.
I. Appeal No. 01-1321: Appeal from Motion to Amend
Sentence
Under 18 U.S.C. § 3582, the district court may
reduce a defendant’s sentence “in the case of a defendant
who has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission.” In this case, Calixce claims that
Amendment 591 to the United States Sentencing Guidelines,
effective November 1, 2000, lowered the sentencing range on
which his sentence was based. Specifically, he refers to
the amendment to U.S.S.G. § 1B1.1(a).
Calixce seems to argue that, Amendment 591 altered
the sentencing guidelines by requiring that a sentence may
only be based on factors that are specified in the
indictment. A review of the sentencing guidelines before
and after Amendment 591 took effect belies Calixce’s
interpretation. Both the pre- and post-amendment guidelines
refer to the “offense conduct charged in the count of
indictment” as the basis for determining the appropriate
“offense guideline section.” And both the pre- and post-
amendment guidelines provide that the applicable “offense
-3-
guideline range” should be determined “in accordance with §
1B1.3 (Relevant Conduct).” U.S.S.G. § 1B1.2(b). The
background notes to §1B1.3 (both pre- and post- amendment)
specifically provide that
[c]onduct that is not formally charged
or is not an element of the offense of
conviction may enter into the
determination of the applicable
guideline sentencing range.
§1B1.3, comment. (backg’d.)(Nov. 2000).
The amendment on which Calixce relies did not lower
the sentencing range on which his sentence was based.
Therefore, the district court did not abuse its discretion
in denying him relief under 18 U.S.C. §3582(c)(1)(B). The
denial of that motion is affirmed.
II. Appeal No. 01-1573: Motion to Dismiss for Want
of Jurisdiction and for Review of Sentence under 18 U.S.C.
§ 3742In this motion, Calixce argued that his indictment,
conviction and sentence are unconstitutional under Apprendi
v. New Jersey, 530 U.S. 466 (2000). He contended that
because the indictment failed to specify a drug quantity (as
required by Apprendi), it was a nullity and the district
court lacked jurisdiction over the case. In the
alternative, Calixce argued in his motion, as he does in his
-4-
brief on appeal, that he is entitled to be resentenced based
upon the lowest possible quantity of cocaine under the
guidelines.
The time for Calixce to appeal his sentence
pursuant to § 3742 has long since expired. See Fed.R.App.P.
4(b). Moreover, Calixce filed a timely appeal from his
sentence in which he did not include the present challenge
to the district court’s jurisdiction. This court has held
that
an objection that an indictment fails to
state an essential element of an offense
“shall be noticed by the court at any
time during the pendency of the
proceedings.” Fed.R.Crim.P. 12(b)(2).
This means that the defendant may raise
the objection for the first time on
appeal or that this court may raise the
issue sua sponte.
United States v. Mojica-Baez, 229 F.3d 292, 309 (1 st Cir.
2000)(emphasis added), cert. denied, __ U.S. __, 121 S.Ct.
2215 (2001). Because the pendency of the proceedings in
Calixce’s case had already passed when he filed this motion,
however, he is not entitled to relief pursuant to
Fed.R.Crim.P. 12(b)(2). Instead, the appropriate form in
which to raise the Apprendi issue would be a motion pursuant
to 28 U.S.C. § 2255. This court has not yet decided the
question whether Apprendi applies retroactively to cases on
-5-
collateral review, an issue on which courts are divided. See
United States v. Clark, __ F.3d. __, 2001 WL 845193 (5 th
Cir., July 26, 2001) (Circuit Judge Parker, dissenting). We
need not reach that question, however, because Calixce’s
only reference to § 2255 in his filings in the district
court or this court was in an objection to the government’s
suggestion that of one of his motions might be construed as
pursuant to § 2255. In any event, this court has recognized
the right of a petitioner to “have his motion decided as he
had framed it.” See Raineri v. United States, 233 F.3d 96,
100 (1st Cir. 2000).
Calixce is not entitled to the relief he sought
pursuant to Rule 12(b) or 18 U.S.C. § 3742. Therefore, the
district court’s denial of that motion is affirmed.
Calixce’s motion in opposition to consolidation of
these appeals is denied.
-6-