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U.S. v. RESTREPO
October 3, 2005.
UNITED STATES OF AMERICA, Respondent,
ALBA D. RESTREPO, Petitioner.
The opinion of the court was delivered by: THOMAS HOGAN, Chief Judge, District
Pending before the Court is Petitioner Alba D. Restropo's
Motion to Vacate, Set Aside or Correct Sentence pursuant to
28 U.S.C. § 2255. Upon consideration of the parties' submissions and
the entire record, the Court will deny petitioner's motion.
On July 21, 1992, petitioner and her co-defendants were found
guilty of conspiracy to distribute and possess with intent to
distribute illegal drugs. Petitioner was also found guilty of
four substantive drug counts, interstate travel in aid of
racketeering, and use of a telephone to facilitate the drug
conspiracy. Petitioner was sentenced to a term of imprisonment of
360 months followed by five years of supervised release, pursuant
to 21 U.S.C. § 841(b)(1)(A). The Court of Appeals for the
District of Columbia Circuit affirmed the convictions and
sentence on July 26, 1996. See United States v. Williams-Davis,
90 F.3d 490 (D.C. Cir. 1996). The United States Supreme Court
denied petitioner's application for a writ of certiorari on
February 18, 1997. Restrepo v. United States, 519 U.S. 1129
(1997). Petitioner filed the instant motion on June 27, 2001. II. DISCUSSION
Petitioner claims that the sentence imposed is contrary to the
rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000).
In Apprendi, the Supreme Court held that "[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt." Id. at 490.
The Supreme Court subsequently applied Apprendi to invalidate a
death sentence. See Ring v. Arizona, 536 U.S. 584 (2002).
Petitioner asserts that the specific drug quantity (5 kilograms
of cocaine or more) was neither alleged in the indictment nor
submitted to a jury and proven beyond a reasonable doubt. She
therefore seeks to be resentenced in accordance with
21 U.S.C. § 841 (b)(1)(A), based upon the lowest quantity available in the
Drug Quantity Table rather than the 5 kilograms or more of
cocaine for which she was originally sentenced. See
Petitioner's Motion at 5, 11.
These proceedings are limited by the following provision:
[a] 1-year period of limitation shall apply to a
motion under this section. The limitation period
shall run from the latest of . . . (1) the date on
which the judgment of conviction becomes final; . . .
[or] (3) the date on which the right asserted was
initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on
28 U.S.C. § 2255 ¶ 6. Apprendi was decided nearly three years
after petitioner's conviction became final. The Supreme Court has
determined that the Ring decision (an Apprendi progeny)
"announced a new procedural rule that does not apply
retroactively to cases already final on direct review." Schriro
v. Summerlin, 542 U.S. 348
___, 124 S.Ct. 2519
, 2526 (2004).
"[A] fortiori Apprendi does not apply retroactively on habeas
review." Blakely v. Washington, 542 U.S. 296
124 S.Ct. 2531
, 2549 (2004) (O'CONNOR, J. dissenting) (citation and
parenthesis omitted). Petitioner's untimely motion establishes no basis for relief
under § 2255 and therefore is denied. A separate order
accompanies this Memorandum Opinion.
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