United States v. Mackins , 282 F. App'x 249 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4955
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALONZO MACKINS, JR.,
Defendant - Appellant.
No. 06-7581
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
ALONZO MACKINS, JR.,
Defendant - Appellee.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (3:97-cr-00022; 3:04-cv-00510)
Submitted: October 31, 2007 Decided: June 20, 2008
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
No. 06-4955 dismissed; No. 06-7581 vacated and remanded by
unpublished per curiam opinion.
Richard B. Fennell, Jon P. Carroll, JAMES, MCELROY & DIEHL, P.A.,
Charlotte, North Carolina, for Alonzo Mackins, Jr. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina, Amy E.
Ray, Assistant United States Attorney, Asheville, North Carolina,
for the United States.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Alonzo Mackins (“Mackins”) was charged with four other
individuals, including his brother, Willie Mackins (“Willie”), with
one count of conspiracy to possess with intent to distribute
cocaine, cocaine base, heroin, and marijuana in violation of 21
U.S.C. § 846 (2000) and with one count of conspiracy to commit
money laundering in violation of 18 U.S.C. § 1956(h) (2000). The
Government filed an information pursuant to 21 U.S.C.A. § 841(b)
(West 1999 & Supp. 2007), alleging that the conspiracy involved in
excess of 1.5 kilograms of cocaine base, in excess of five
kilograms of cocaine, and in excess of one kilogram of cocaine.
Mackins was found guilty by a jury and the district court sentenced
him to life imprisonment on the drug conspiracy offense and 240
months on the money laundering conspiracy offense. Although
Mackins objected to the presentence report calculation of drug
quantity, he did not object to the failure of the jury to find drug
quantity. However, Willie argued at sentencing that the district
court’s attribution of drug quantity violated his constitutional
rights based on Apprendi v. New Jersey, 530 U.S. 466 (2000),
predecessor case law.
Mackins appealed and challenged his sentence under Apprendi,
arguing that the district court erred in using specific drug
quantities to determine his sentence when no such quantities were
charged in the indictment or found by the jury, and without a
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finding of a specific drug quantity Mackins could only be subject
to a statutory maximum sentence of twenty-years.1 The district
court sentenced him to life imprisonment based on its attribution
of drug quantity. This court found that the district court plainly
erred in enhancing Mackins’ sentence above the statutory maximum
based on the findings of the jury. However, we declined to notice
the error, concluding it did not “seriously affect the fairness,
integrity, or public reputation of judicial proceedings” to warrant
notice because the record revealed “that the conspiracy charged
here indisputably involved quantities of cocaine and cocaine base
far in excess of the minimum amounts necessary to sustain the
sentence[] pursuant to 21 U.S.C.A. § 841(b)(1)(A).” United
States v. Mackins, 315 F.3d 399, 408 (4th Cir. 2003).
Mackins filed a 28 U.S.C. § 2255 (2000) motion asserting
several claims, including that his trial counsel rendered
ineffective assistance when he failed to object to the district
court’s determination of drug quantity that enhanced his sentence
beyond the statutory maximum applicable for the quantity of drugs
cited in the indictment. He also argued that his counsel was
ineffective by failing to interview witnesses that would have
provided exculpatory evidence regarding whether Government
1
The statutory maximum without regard to drug quantity was
twenty years. However, due to Mackins’ prior felony drug
conviction, he would have been subject to a maximum sentence of
thirty years. See 21 U.S.C.A. § 841(b)(1)(C).
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witnesses were improperly coached and testified falsely against
him. On January 4, 2006, the district court dismissed all of
Mackins’ claims, with the exception of whether counsel’s
representation was constitutionally ineffective based on his
failure to object to the district court’s finding on drug quantity
based on Apprendi predecessor law and, if so, whether United
States v. Booker, 543 U.S. 220 (2005), applied to Mackins’
sentence. The district court held an evidentiary hearing on this
claim.
The district court determined that counsel did not provide
ineffective assistance of counsel because he was not aware that
Willie’s counsel raised Apprendi precursor arguments. However, the
district court held that Mackins was still entitled to relief under
Apprendi because the court was “unable to divine any difference
between the Petitioner’s case and that of [United States v. Hughes,
401 F.3d 540 (4th Cir. 2005)].” The district court rejected the
Government’s contention that this court’s decision on the Apprendi
error was the law of the case and instead found that the Hughes
case conflicted with the court’s prior opinion and therefore
merited extraordinary relief due to a “complete miscarriage of
justice.” The district court also held that even if Mackins was
not entitled to relief on the ineffective assistance of counsel at
sentencing claim, he would still be entitled to relief because his
sentence resulted in a substantive Sixth Amendment violation and
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also was “the result of a non-constitutional error which involves
‘a fundamental defect which inherently results in a complete
miscarriage of justice’ or is ‘inconsistent with the rudimentary
demands of fair procedure.’” The district court vacated Mackins’
life sentence and entered an amended judgment reducing Mackins’
sentence to 360 months. The Government filed a timely appeal of
the amended judgment. Mackins filed a timely appeal of the order
dismissing the remaining § 2255 claims.
Mackins appeals from the dismissal of his 28 U.S.C. § 2255claim that counsel rendered ineffective assistance by failing to
interview witnesses who could impeach the credibility of government
witnesses. An appeal may not be taken to this court from the final
order in a § 2255 proceeding unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)
(2000). A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that his
constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). We have independently reviewed the
record and conclude that Mackins has not made the requisite
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showing. Accordingly, we deny a certificate of appealability and
dismiss Mackins’ appeal of the district court’s order denying in
part § 2255 relief.
The district court determined that although Mackins did not
receive ineffective assistance of counsel,2 the Apprendi error
violated his Sixth Amendment right to a jury trial on drug
quantity. It further held that Mackins would also be entitled to
relief under § 2255 because, although the error was
non-constitutional and non-jurisdictional, it constituted a
fundamental defect which resulted in a complete miscarriage of
justice. The Government contends on appeal that the district court
erred because this court’s opinion on direct appeal constitutes the
law of the case on the Apprendi error and no exception applies to
disturb this court’s previous holding, Mackins is procedurally
defaulted from raising a Sixth Amendment claim, and Mackins is not
entitled to relief based on a non-constitutional claim analysis as
utilized by the district court because the claim is constitutional
in nature and even if the non-constitutional analysis did apply,
because this court found no plain error requiring notice, a
complete miscarriage of justice did not result.
The district court applied the law of the case doctrine in
analyzing the Apprendi claim. Generally, “‘the doctrine [of the
law of the case] posits that when a court decides upon a rule of
2
Mackins does not contest this holding.
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law, that decision should continue to govern the same issues in
subsequent stages in the same case.’” United States v. Aramony,
166 F.3d 655, 661 (4th Cir. 1999) (quoting Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 815-16 (1988)). The law of
the case must be applied:
“in all subsequent proceedings in the same case in the
trial court or on a later appeal . . . unless: (1) a
subsequent trial produces substantially different
evidence, (2) controlling authority has since made a
contrary decision of law applicable to the issue, or
(3) the prior decision was clearly erroneous and would
work manifest injustice.”
Id. (quoting Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th
Cir. 1988)); see Invention Submission Corp. v. Dudas, 413 F.3d 411,
414-15 (4th Cir. 2005) (discussing “mandate rule,” which “is a more
powerful version of the law of the case doctrine and is based on
the principle that an inferior tribunal is bound to honor the
mandate of a superior court within a single judicial system,” and
exceptions to rule) (internal quotation marks and citation
omitted), cert. denied, 126 S. Ct. 1024 (2006).
Here, the district court relied on the second and third
exceptions to the law of the case doctrine. We believe that the
Apprendi claim would be best addressed by our precedent dealing
with § 2255 instead of the law of the case doctrine. See, e.g.,
Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976)
(defendant cannot relitigate issues previously rejected on direct
appeal); United States v. Roane, 378 F.3d 382, 396 n.7 (4th Cir.
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2004) (“Because the Defendants have not pointed to any change in
the law that warrants our reconsideration of these claims, we agree
with the district court that they cannot relitigate these
issues.”).
The district court’s rationale for granting relief and
reducing Mackins’ sentence relies entirely on its determination
that Hughes dictates an application of law directly in conflict
with our prior decision in Mackins’ direct appeal. The district
court held that our previous decision was clearly erroneous in
light of Hughes, therefore requiring a different result on
collateral review. In so holding, the district court erred.
In Hughes, we held that the defendant demonstrated that the
district court erred in enhancing his sentence under the then
mandatory Sentencing Guidelines based on facts not found by a jury
beyond a reasonable doubt, and that the error affected his
substantial rights. We noticed the error because the sentence
imposed was four times higher than that which would have been
proper based only on the quantity found by the jury and there was
no indication as to how the district court would have sentenced the
defendant under an advisory Guidelines scheme. Hughes, 401 F.3d at
555-56. In Hughes, we remanded for resentencing, without
addressing the evidence supporting the enhancement or whether that
evidence was overwhelming or uncontroverted.
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A year later in United States v. Smith, 441 F.3d 254, 272-73
(4th Cir. 2006), we held that overwhelming and uncontroverted
evidence supporting an enhancement negates noticing plain Booker
error.3 We reasoned that although the Sixth Amendment requires
that the jury, rather than the judge, find drug quantity since the
evidence of drug quantity was overwhelming and uncontroverted, upon
finding the defendant guilty of the offenses, unquestionably the
jury also found that the offenses involved the quantity charged in
the indictment. Id. at 272-73. In Smith, we specifically cited
United States v. Cotton, 535 U.S. 625, 632-34 (2002), in which the
Supreme Court held that when the evidence of a sentencing factor is
overwhelming and essentially uncontroverted, there is no basis for
noticing plain Booker error.
The district court relied upon the dissent in Smith in
reaching its decision that Hughes changed our plain error analysis.
It did not discuss the majority holding in Smith -- a holding that
directly conflicted with its contention that, had we decided
Mackins’ direct appeal applying the Hughes plain error review
standard, we would have noticed the error. In sum, because the
district court erred in finding that Hughes changed this circuit’s
plain error analysis, Mackins cannot demonstrate a change in the
law warranting our reconsideration of the issue. See Roane, 378
3
Smith issued before the district court entered its order
granting sentencing relief on the Apprendi claim and it was cited
by the district court.
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F.3d at 396 n.7. We therefore vacate the amended criminal judgment
and remand for the district court to reimpose the original life
sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
No. 06-4955 DISMISSED
No. 06-7581 VACATED AND REMANDED
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