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Randy Horton v. United States
Citations: 244 F.3d 546; 2001 U.S. App. LEXIS 5108; 2001 WL 294314Docket: 98-3481
Court: Court of Appeals for the Seventh Circuit; March 28, 2001; Federal Appellate Court
Randy Horton, the petitioner-appellant, was convicted in 1994 by a federal jury for conspiracy to distribute cocaine and for two counts of distributing cocaine base. He was sentenced to life imprisonment for the conspiracy conviction under 21 U.S.C. § 846 and received concurrent 40-year sentences for the distribution convictions under 21 U.S.C. § 841(a)(1). Horton did not appeal the conviction directly but appealed his sentence, which was affirmed by the Seventh Circuit in 1996. After a failed petition for certiorari to the Supreme Court in 1997, Horton filed a motion under 28 U.S.C. § 2255 in 1998, arguing that the jury instructions on the conspiracy charge led to an ambiguous and unconstitutional verdict. The trial court had instructed the jury that the government did not need to prove the exact amount of cocaine involved, only that measurable amounts were associated with the conspiracy and distribution charges. The denial of Horton’s motion is the subject of this appeal. Horton contends that the jury's general verdict of guilty on the section 846 conspiracy charge is ambiguous because the jury instruction's phrase "measurable amounts of cocaine or cocaine base" suggests that jurors may have held differing views on the type of drug involved—some believing it was cocaine, while others believed it was cocaine base. He argues this lack of unanimity violates his constitutional right to a jury verdict, citing the Supreme Court's ruling in Edwards v. United States as supportive of his position. The government responded to Horton's amended sec. 2255 motion, asserting three grounds for denial: 1) the motion was untimely, filed over one year after the conviction became final; 2) the jury instruction claim was procedurally defaulted as it was not raised in his direct appeal; and 3) the Edwards decision actually undermined Horton's claims. The district court accepted the government's late response, denied Horton's motion on the merits, and later denied his motion for reconsideration, prompting Horton to appeal. The appeal raises two main issues: the timeliness of Horton's sec. 2255 motion and whether the type of drug in a sec. 846 conspiracy is a jury-determined element of the offense. Horton filed his motion on April 23, 1998, which was one day late according to the AEDPA's one-year filing requirement after his conviction became final following the Supreme Court's denial of certiorari. Horton argues that his conviction was not final until after the 25-day period for filing a motion for reconsideration with the Supreme Court had expired, asserting that his motion was therefore timely. The district court did not address the timeliness issue, but the government raised it, emphasizing its procedural significance under the AEDPA. A defendant's conviction is deemed 'final' when the petition for certiorari is denied, as established in United States v. Marcello, 212 F.3d 1005 (7th Cir. 2000). This finality is not altered by the 25-day period allowed for rehearing petitions. The Fifth and Tenth Circuits support this conclusion, affirming that the denial of certiorari marks the end of the appeal process unless an order from the Supreme Court or a Justice explicitly suspends it. Supreme Court Rule 16.3 clarifies that the denial is effective immediately upon entry, regardless of any rehearing petition filed. Horton argues that the precedent set in Gendron v. United States, 154 F.3d 672 (7th Cir. 1998), indicates his conviction remained non-final until after the rehearing period. However, this interpretation misapplies the distinction between the effects of rehearing petitions in appellate courts versus the Supreme Court. In appellate courts, a rehearing petition stays the mandate, whereas a rehearing petition at the Supreme Court does not affect the finality of the conviction upon denial of certiorari. Thus, the rulings in Marcello, Thomas, and Willis consistently establish that the denial of certiorari renders a conviction final under 28 U.S.C. § 2255 para. 6(1). The key distinction regarding finality under section 2255 paragraph 6(1) is that a petition for rehearing before the court of appeals delays the case's closure, while a petition before the Supreme Court does not. Based on Gendron's holding, Horton's conviction became 'final' when the Supreme Court denied certiorari on April 21, 1997, as no further actions were required from any court after that point. Consequently, Horton's section 2255 motion, filed on April 23, 1998, was untimely and was rightly dismissed by the district court. On the merits, Horton contended that the jury instructions were constitutionally flawed as they allowed conviction based on 'measurable amounts of cocaine or cocaine base' distributed in the conspiracy. The determination of whether the type of drug is an element of the offense or a sentencing factor is critical. An offense element requires indictment and proof beyond a reasonable doubt, while a sentencing factor does not. The Supreme Court's affirmation in United States v. Edwards indicated that the disputed jury instructions were constitutionally valid, confirming that the type of drug is a sentencing factor to be assessed by the judge rather than an offense element. As such, Horton's argument regarding jury unanimity on the drug type does not hold, aligning with the precedent set in Edwards and Hardin that the type of drug is not an element of the crime. The Supreme Court affirmed that the determination of drug type—whether cocaine or crack—is a sentencing factor, not an element of the offense. This was established in Edwards v. United States, where the Court clarified that the judge must assess the type of controlled substances involved, independent of the jury's beliefs. For a fact to increase a penalty beyond the statutory maximum, it must be submitted to a jury and proved beyond a reasonable doubt, as outlined in Apprendi v. New Jersey. Apprendi emphasized that the critical inquiry is whether a finding subjects the defendant to greater punishment than the jury's verdict permits. In this context, the jury's understanding of the drug type is significant only if it affects the maximum penalty for the conspiracy, which must adhere to statutory limits. The district court determined that Horton conspired to distribute over five kilograms of cocaine and more than 50 grams of cocaine base, both of which independently lead to a life imprisonment maximum under 21 U.S.C. § 841(b)(1)(A). Since Horton possessed enough drugs to invoke this penalty provision, his sentence did not exceed the statutory maximum, validating the classification of drug type as a sentencing factor for judicial determination. Although Horton could have raised an Apprendi claim if he had contested the drug quantity, he did not appeal the judge's finding on this matter, thereby forfeiting that argument. Apprendi reserves the term "sentencing factor" for circumstances that may influence a sentence within the jury-approved range, distinct from a "sentence enhancement," which increases a sentence beyond statutory limits. Thus, Horton’s failure to contest the quantity renders any potential Apprendi issue moot. The judgment of the district court is affirmed due to the reasons outlined, with Horton’s remaining arguments deemed meritless. The case, initially decided on June 29, 2000, was revisited following the Supreme Court's decision in Apprendi v. New Jersey, which, while relevant, did not alter the final outcome. Horton contends that the government waived its timeliness argument on appeal due to a late response to his Section 2255 motion. However, under Rule 6(b) of the Federal Rules of Civil Procedure, a district court can accept late filings based on excusable neglect, and the court did not abuse its discretion in this instance. Consequently, Horton's waiver argument is rejected. Additionally, under 21 U.S.C. § 846, individuals conspiring to commit an offense face the same penalties as those prescribed for the intended offense.