United States v. Kent , 93 F. App'x 460 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-6-2004
USA v. Kent
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-3443
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NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-3443
___________
UNITED STATES OF AMERICA
vs.
JEROME KENT a/k/a/ JAMES WILLIAMS
Jerome Kent, Appellant
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 98-cr-00136-7)
District Judge: The Honorable Sylvia H. Rambo
___________
Submitted Under Third Circuit LAR 34.1(a)
January 26, 2004
BEFORE: NYGAARD, FUENTES, and STAPLETON, Circuit Judges.
(Filed April 6, 2004)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Jerome Kent challenges the District Court’s partial denial of his 28 U.S.C. §
2255 motion. In particular, Kent claims that (1) the District Court erred by failing to find
an Apprendi violation in his sentence, (2) the trial court constructively amended his
indictment and (3) he received ineffective assistance of counsel. We agree with the
District Court on each of these issues and will affirm.
I.
The facts of this matter are well known to the parties, for whom we write
exclusively, and we thus recount them only briefly. Kent was charged with being
involved in the unlawful distribution of and criminal conspiracy to distribute in excess of
fifty grams of crack cocaine. 21 U.S.C. §§ 841(a)(1) and 846. The jury returned a
general verdict of guilty and did not determine the type or quantity of controlled
substance at issue.
At sentencing, the Court adopted the findings of the presentence report that
Kent was involved in the distribution of between 150 and 500 grams of crack cocaine.
Given Kent’s circumstances, the sentencing guidelines for this amount of crack cocaine
called for a sentence of between 324 and 393 months in prison. The Court sentenced
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Kent to 324 months. Kent then filed a 28 U.S.C. § 2255 motion challenging his sentence.
The District Court initially granted that motion in part and denied it in part in order to
resentence Kent under United States Sentencing Guideline (“U.S.S.G.”) § 5G1.2(d). On
Kent’s Rule 60(b) motion, the Court determined that, because the government had filed
an information regarding prior convictions pursuant to 21 U.S.C. § 851(a)(1), Kent’s
sentence was within the statutory limit and no resentencing was required. The Court also
adjusted the supervised-release period downward to six years.
In this appeal Kent raises three issues. Taken verbatim from his brief, they
are:
(1) that trial counsel was ineffective for failing to make a request under
the Jencks Act for Andre White’s prior statements;
(2) that [Kent’s] sentence violates the rule announced in Apprendi v.
New Jersey, 530 U.S. 466 (2000), because it was based on the
District Court’s finding of drug quantity under the preponderance of
the evidence standard; and
(3) that the District Court constructively amended the indictment when it
instructed the jury that it could find him guilty without making
findings as to drug identity and drug quantity.
Appellant’s Brief at 2.
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We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we exercise
plenary review over the District Court’s denial of Kent’s motion under § 2255. United
States v. Jenkins, 333 F.3d 151, 153 (3d Cir. 2003). We may affirm that denial on any
ground supported by the record. Id. We will address Kent’s Apprendi issue first, then his
constructive amendment claim, and finally his ineffective assistance of counsel argument.
II.
A.
Under Apprendi, any fact that increases a defendant’s sentence beyond the
statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.
530 U.S. at 490. Kent argues that because the amount and identity of drugs involved in
his case were not submitted to the jury, his sentence exceeds the catch-all maximum of
one year, and Apprendi is violated. The government concedes that the jury was not asked
to specifically determine the identity or quantity of the drugs involved in this case.
However, the government contends that the jury’s failure to determine the identity of the
drugs was harmless error and that no Apprendi violation occurred with respect to drug
quantity because Kent was sentenced below the statutory maximum.
Under the harmless error analysis applicable to Apprendi, we must
determine whether “it appears beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.” Neder v. United States, 527 U.S. 1, 15 (1999)
(internal quotations omitted). The District Court determined that because the government
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filed an information pursuant to 21 U.S.C. § 851, Kent’s sentence of twenty-seven years
was within the statutory maximum of thirty years under 21 U.S.C. § 841(b)(1)(C). We
agree with this conclusion.
On September 28, 1998, the government put Kent on notice that it intended
to seek an enhanced sentence under 21 U.S.C. § 841 based on his two prior drug
convictions that occurred in 1996 and 1989. Under § 841(b)(1)(C), a person convicted of
distribution of a Schedule II controlled substance may be sentenced to up to thirty years
imprisonment if that person “commit[ted] such a violation after a prior conviction for a
felony drug offense [had] become final.” In order to seek the enhancement of a sentence
based on a prior conviction, the government must file an information pursuant to 21
U.S.C. § 851. That information must identify the convictions on which the government
will rely in seeking the enhancement. If the government files such an information, the
Court must, before sentencing but after conviction, inquire of the defendant whether he
admits that he has been previously convicted as identified in the government’s
information. 21 U.S.C. § 851(b). A person may not challenge the validity of any
conviction that occurred more than five years before the date on which the government
filed its information. 21 U.S.C. § 851(e)
At sentencing, Kent challenged the 1996 conviction but admitted that the
1989 charges “appeared” to result in a conviction. App. at 22. Rather than engage in the
inquiry required under § 851, the District Court and government agreed to treat the § 851
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information as moot because the drug identity and quantity, as determined by the Court
during sentencing, increased Kent’s statutory maximum beyond the thirty years provided
in § 841(b)(1)(C). The government, however, did not withdraw the § 851 information
but simply agreed to treat it as moot.
We agree with the District Court that, based on the government’s § 851
information, the statutory maximum applicable to Kent was thirty years. Even though the
District Court committed error by not conducting the inquiry required under § 851, that
error was harmless. Kent’s counsel admitted that there “appeared” to be a 1989 felony
conviction. Further, that conviction was identified in the pre-sentence report and Kent
did not challenge this part of that report. Given the admitted existence of this conviction,
Kent could not challenge its underlying validity because it was entered more than five
years before the government filed is § 851 information. 21 U.S.C. § 851(e). Regardless
of the validity of the 1996 conviction, the existence of the 1989 conviction results in
Kent’s statutory maximum being increased to thirty years under § 841(b)(1)(C). His
sentence of 27 years was within that statutory maximum and there is no Apprendi
violation.
B.
Kent argues next that the District Court constructively amended his
indictment by referring to a controlled substance “such as crack cocaine or cocaine” twice
during its jury charge. In United States v. Lewis, this Court was presented with a nearly
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identical factual situation. 113 F.3d 487, 492-93 (3d Cir. 1997). In Lewis, the defendant
was indicted for distributing in excess of five grams of cocaine base. Id. at 492. The trial
court, however, instructed the jury that it could find Lewis guilty regardless of whether it
found that he distributed cocaine base or cocaine powder. Id. On appeal, the Court held
that this variance between the indictment and the charge did not require that the Court
vacate Lewis’s conviction because none of his substantial rights were prejudiced. Id.This holding is on point and controlling in this case.
As described above, Kent was sentenced within the applicable statutory
maximum regardless of what Schedule II controlled substance he was convicted of
distributing. Therefore, as in Lewis, the variance between his indictment and the trial
judge’s charge did not prejudice any substantial right. Id. at 492-93.
C.
Finally, Kent argues that he received ineffective assistance of counsel
because his attorney did not obtain the prior statements of Andre White, a witness called
by the government at sentencing, and, as a result, elicited incriminating testimony from
White. In order to succeed on this argument, Kent must establish that his attorney’s
actions were deficient and that those deficiencies prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 693 (1984). Even if his attorney’s failure to obtain any of
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White’s previous statements was deficient,1 Kent has not shown that such a failure
prejudiced his defense. In fact, the record shows that Kent’s attorney cross-examined
White in an attempt to discredit him, and successfully elicited admissions that he was in
jail for a drug offense and had previously failed a polygraph test in connection with his
own trial. While it is true, as Kent insists, that his counsel’s examination of White
elicited an answer including the fact that Kent was carrying a gun and that this might have
been avoided had counsel been provided with a Jencks Act statement, there was no
prejudice because the fact that Kent had a gun was previously disclosed by White on
direct examination.
III.
For the foregoing reasons, we will affirm the District Court’s partial denial
of Kent’s 28 U.S.C. § 2255 motion.
1 The government argues, and the District Court accepted, that White did not
testify before the grand jury and was simply interviewed by federal agents. While that
interview was placed in a report, the government claim s that it was not subject to
disclosure under the Jencks A ct. See United States v. Ramos, 27 F.3d 65, 69-70 (3d
Cir. 1994) (explaining that the Jencks Act only requires the disclosure of transcripts of
grand jury testim ony, signed or adopted statements, or a sub stantially verbatim
recording, transcription or contemporaneous mem orialization of a witness’ oral
statement). W e need not decide whether any prior statem ent of W hite falls w ithin
these disclosure rules because K ent has failed to sho w any prejudice based on his
attorney’s failure to request such a statem ent.
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