* The Honora ble Kathlee

n M. O’Malley , United Sta tes District Court Judge f

or the Northern District of Ohio, sitting by designation.

NOT RECOM

MENDED F OR FULL-T EXT PUBL ICATION File Name: 04a0125n.06 Filed: November 15, 2004 No. 02-1812 UNITED STATES COURT OF APPEALS FOR THE SI

XTH CIRC UIT
RANDY S. SPIRIDIG

LIOZZI, )

) Petitioner- Appellant, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT UNITED STATES OF AMERICA, ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN Responden

t-Appellee. )

Before: CL

AY and GILMAN, Circu it Judges; O ’MALLEY , District Judge. * O’MALLEY, J. Pe titioner Randy Spiridig liozzi bring s this appeal of the distr

ict court’s decision denying hispetition fo r a writ of habeas corpus, filed pursuant to 28 U.S.C. §2255, seeking to vacate, set

aside, or co

rrect his sen

tence. The p etitioner ass erts his guilty plea was defective. For the reasons s tated below , the decisio n below is AFFIRMED
.
Background
Petitioner Spiridigl io zzi was indi cted in 1997 for conspi racy to distr

ibute mari

juana, in2

violation of 21 U.S.C. §§841, 846, and 860. Section 841 outlaws distribution and possession of a controlled

substance; section 846 outlaws enga ging in a c onspiracy to distribute a

nd possess a controlled

substance; and section 860 doubles the penalties for violati on of sections 841 and 846, if the viola

tion occurs within 1,000

feet of a school. This Court has ea

rlier describ ed the consp iracy an d the charact ers central to

this case as follows: An individual n amed Mario Saenz controlled a network of distributors who imported marijuana from Mexico. * * * [One o f] Mr. Sae nz’s Michiga

n distributor s (and a subsequen

t paramou r of Mr. Spiridiglio zzi), Cindy Crowl, generally suppl

ied Toner and S piridiglioz zi with their marijuana
. * * * Ms. Crowl became an important source of information for the government af ter she pleaded guilty to drug charges and tried to secure a r educed sentence by helping the gov ernmen t build its ca se against S piridiglioz zi and Toner . In this connection she gave the government meticulous records rela ting to the quantities of drugs handled by the two men. Another participant in the conspiracy was Timothy Finney. Mr. Finney took over from Ms. Crowl after she suspended operations in order to attend colle ge. Mr. Finney operated out of a house situated near a local elementary school. United Stat

es v. McKinl

ey , 2001 WL 1110068 at *1-2 (6th Cir. Sept. 13, 2001). The last sentence in this excerpt from the McKinley opinion int roduces the

issue in this case. Spiridigliozzi insists his guilty plea was defective because the sentencing judge did not refer to 21 U.S.C. §860 at the p lea hearing, and did not c ite pro ximity to a scho ol zone as an element of the offense of conviction. Spiridigliozzi argues that this failure cont ravened Fed. R. Crim. P. 11, such that his guil

ty plea was n ot knowing ly and intell igently ma

de. A full backg

round of th

e facts surr

ounding thi s issue startswith Spirid igliozzi’s o

riginal indictmen t, which inc luded the f

ollowing allegations:3 It was furthe

r a part of the cons piracy that . . . Randy S . Spiridigli ozzi . . . and others would arrang e for the storage of marijuana in various locations, including within 1,000 feet of the real property of an elementary school in Michigan. It was furthe

r a part of th

e conspir acy that . . . Randy S. Spiridigliozzi . . . and others would, within 1,000 feet of the real property of an eleme ntary schoo l, obtain marijuana for distribution in Michigan.
Indictmentat 2. Three s uperseding indictmen

ts contained

identical language. After each of the se four indictments were issued, Spiridigliozzi signed an acknowled gment that he: (1) read the indictmentand understood its contents; and (2) understood that, if gui lty, he coul d receive a se ntence of “10 years to life, [a] $4,000,000 fine and five years supervised release.” J.A. at 78. On October 2, 1998, about three weeks after his initial indictment, Spiridigl iozzi reached a Plea Agreement with the government. The Agreeme nt provid ed that Sp iridigl iozzi’s prison t ime would “not exceed

[the] mi ddle of the

guideline ra

nge that the c ourt finds t

o be applica

ble, subjec t to the mandat ory minimum o f 60 mo nths.” J.A . at 87. Atta ched to the P

lea Agreem

ent were sentencing worksheets, which referred to penalties of 5-40 years. Later that same day, the district court held a hearing to accept S piridiglioz zi’s guilty p lea . Notably , this colloq uy occurred

well before the Supreme Court had decided Apprendi v. New Jersey , 530 U.S. 466 (2000). As a general matter, the district c ourt

did a thorou gh job of en suring there was a factu al basis for

Spiridiglio zzi’s guilty plea

under then-applicable law. Not having any reason t

o do so, how ever, the dis trict court didnot ask Spir

idigliozzi specifical ly about dru g amounts , nor whether there was a factual bas is to conclude he had arran ged to store o r obtain marijuana

within 1,00 0 feet of a s chool. The district court did, however, explain repeatedly and in detail to Spiridigl iozzi that: (1) he faced a likely range of incarceration of five years minimum to forty years maximum; and (2) he faced the possibility of4

life in prison, if the ultimate drug amount calculation warranted it
. Spiridiglio zzi asked the district court question s about th is prospe ct, and ul tima tely expressed s atisfaction that he unde

rstood his sentencing position. The Probation Department subsequent ly issued a p

re-sentence

investigati on report

(“PSR”), which contained the following conclusions and reco mmenda tions: (1) Sp iridigliozzi

was r esponsibl e for 232 kilos of marijuana, producing a base offense level of 26; (2) it was appropriate to add one level, because some of the marijuana was distributed within 1,000 feet of a school; (3) it was als o appropriate

to add two p oints for po ssession of a firearm , because Sp iridigliozzi hadthreatened two co-conspira

to rs (Finney and

Crowl) with

a sawed-of

f shotgun, believing th

ey might b e working w ith the government; (4) Spiridiglio zzi should not receive any reduction for acceptance of responsibilit y, because his urine had

tested positive for marijuana after entry of his plea; (5) Spiridiglio zzi’s total offense level, accordingly, was 29; (6) Spiridig liozzi had a c riminal history category I; and (7) the applicable

sentencing

guideline ra

nge was 87- 108 month s, yielding a “midpoi nt” of 97.5 months. Before sentencing, Spiridigliozzi filed a written objection to two aspects of t he PSR. Fi

rst, he o bject ed to the addition of one point for distribution of marijuana near a school, stati ng: “The presentence

report is devoid of a

ny factual a

llegations i ndicating th at defenda nt provided

marijuana to Tim Finney for distribution. A nexus between Mr. Finney and defendant is required a s it was Mr. Finney’s home that

is alleged to be within 1000 feet of a protected zone (i.e. school).” J.A. at 439. The Probation D epartment responded

to this objection in writing: “According to Cindy Crowl, the defendantreceived one pound of marijuana from Tim Finney while she and the defendant were at Mr. Finney’s house the day she was arrested.” Id. Second, Sp iridigliozzi denied having poss essed5

a firearm in

connection

with the dru g offense , and challe nged the proprie ty of the tw o additiona l points for having displ ayed a sawed -off shotg un. The Pro

bation Depa

rtment res ponded to th

is objection in writing, as well. At the sentencing hearing, Spiridiglio zzi orally rai sed two add itional issues: Spiridiglio zzi disagree d with the co nclusion in the PSR tha

t he was not e ntitled to a downward

adjustmen

t to his off

ense level for acceptance of responsibility, and he also asserted he was entitled to a downward adjustment for minimal participation in the conspiracy. At the sentencing hearing, the district court first asked Spiridigl iozzi about the two writ ten objections. With regar

d to the scho ol zone issu e, the follo wing discus sion occurre d: Defense C ounsel: I would first of all indica

te that with r

egards toan objection I h ad filed with regard to a lack of a nexus between this Defendant

and the school zone, which resulted in a one level increase. My client has acknowledged having received one pound of mariju ana from

that home

at or near the end of t

his conspiracy. The Court: That’s the Finney home, I think? Defense C ounsel: It is, Your Honor. The Court: Which wa s across fro m a school ? Defense C ounsel: A protected zone. The Court: All right. Defense Counsel: And I would sim ply indicate to t

he Court tha

t it’s simply my intention to argue how

that may affect sentencing within the range. The Court: But the points th at were sugg ested to be assesse d are correctly assessed? Defense C ounsel: Correct.6

The Court: So any objection is withdrawn in that regard? Defense C ounsel: Correct. J.A. at 264. Spirid

igliozzi waspresent during this discu ssion. “[W ]hen a stipu

lation to a cr

ucial fact is entered into the record in open cou rt in the presenc e of the defendant, and is agreed to by defendant ’s acknowledged counsel , the trial court may rea sonably ass ume that th e defenda nt is
aware of the content of

the stipulat

ion and agre ed to it throu gh his or her attorney.” United Stat

es v. Ferreboeuf

, 632 F.2d 8 32, 836 (9th

Cir. 1980). The dis trict court then turned to the question of whether it was appropr iate to impose two additional points beca

use Spiridiglio zzi had

used a sawed-off shotgun. To support its position, the government called Cindy Crowl, Spi ridigliozzi’ s ex-girlfri end. Crowl testified th at she had tw ice
seen Spiridigliozzi with a firearm: once, he “held a sawed-off shotgun i n her presen ce while inquiring whether she

was ‘snitch

ing,’” and a

nother tim

e, “believing Mr. Finney to have giv en information to the authorities, [he] set off with his shotgun to find F inney. (The

search prov ed
u nsuccessf

ul. )” McKinley , 2001 WL 1110068 at

*6. In respo nse, Spirid

igliozzi too

k the witnes s stand, seeking to c ontradict Crowl’s testimony on the shotgun issue. D uring Spirid igliozzi’s own tes timony, however, he made it cl ear there wasample reas on for his e arlier withd rawal of the sentencing

objection re garding the

school zone

enhancem

ent: Q. And the marijuana, the pound of marijuana you received from Cindy on the day of arres t, you did re ceive that w ithin Tim F inney’s hou se, correct? A. Actually, Cindy carri ed it out to th e car and I got it fr om her car a t my address. Q. The car –

i t was brough

t to the car? Yo

u were in the

car at Tim F

inney’s house?1 Ultimately, the district court (and this Court, on direct appe al) found that Spiridigl iozz i

had, in fact, used a firearm in connection with the drug offense. See McKinley , 2001 WL 1110068 at *6 (affirming on direct appeal Spiridigliozzi’s sent encing en hancement under U.S.S.G. §2D1.1(b) (1)).

7 A. Yes . . . . J.A. at 319. In ot

her words, S piridiglioz zi testified under oath t

hat he and Crowl drove together to Finney’s house, he waited in the car while Crowl picked up a pound of marijuana, they then drove tog ether to Spiridigliozzi’s house, and Spiridigliozzi took physi cal possession of the poun d o f marijuana
. 1 Following the presentation of evidence at the sentencin g hearing, t he district co

urt conclud

ed that none of Sp iridigliozzi ’s sentencin g objectio ns were we ll-taken. A lthough Sp iridigliozzi

had withdrawn his objection to the additi on of one p oint for pro ximity to a school zone , his counsel

did suggest that the district court should use its discre tion to mitigat e the effec tthis additio nal point ha d on the ultim

ate sentence . Specific ally, couns el argued: With regards to the one point that he also received for having distributed marijuana within a school zone, which eq uates to about an additional year for this fellow, I would ask that you

consider tha

t his receipt o f one poun d of marij uana appear ed to be quite accidental on the final da ys of this co nspiracy an d that, in terms of the evils the statute was d

esigned to prohibit

and punish p eople for, this is a rathe r odd way to include Mr . Spiridigli ozzi in that. J.A. at 348. The district court disagreed: I can easily

imagine some school zone assessmen t enhancem

ents being im

posed in questionab le circumsta

nces. A thousand foot

zone exte nds to nearly a quarter of a mileand I think th at there ma y be so me ve ry reasonable questions raised about notice. * * * This is n ot one of th ose cases. I me an, this is bl atant. If ever ther e was a case for a school zone enhancement to be applied, t his is the one. * * * [B]eing across the street in f

ull view, there’s just no

doubt that a

ny sensible

person would understand that he’s within the ambit of a school with all that impl ies, the coming8

and going of children and so forth. J.A. at 351. Ag ain, th is colloquy occurred in S piridiglioz zi’s presenc e. The distr ict court the

n accepted all of the recommendations and conclusions contained in the PSR, yielding a sentencing guideline range of 87-108 months. Th e district c ourt chose to impose a term of incarceration of “90 months, higher than the minimum of the guideline range but somew hat less than

the mid-po int.” J.A. a

t 352. Of c ourse, this sentence was far bel ow what Sp iridigliozzi hadbeen told

could be his

maximu m sentenc e of life in prison, and also far below what he had been told was his likely maximum sentence (given the expected dr

ug quantity

involved) o f 40 years. Spiridiglio zzi filed a direct appeal, “contend[ing] that he should have been given a n opportunit

y to withdraw hi s guilty plea once the acceptance- of-respon sibility credit was withdrawn, ” and also arguing

“that the cou

rt e rred in fin ding that he intimidated Ms. Crowl with a firearm.” McKinley , 2001 WL 1110068 at *5. This Court found Spiridigliozzi’s arguments withou t merit
. Spiridiglio zzi then filed a timely motion for relief under 28 U.S.C. §2255, raising three grounds for relief. The district

court denied

the petition , and also

denied a cert

ificate of appealability as to all three grounds. S piridiglioz zi applied to this court for a certificat e of appeal ability, and

we granted the application in part. The sole issue we allowed Spiridigliozzi to pursue in this appea l “whether [his] guilty plea w as defectiv e because the district court judge neither referred to 21 U.S.C. §860 at the plea hearing , nor cited p roximity to a school z one as an

element of the offense of conviction.”
Analysis2 In their brief s, the partie s refer incorrectly to Rule 11(f), and not Rule 11(b)(3). Rule 11 was a mended m

ost recently on D ecember 1 , 2002, at w hich time t

he subparts of the rule w ere “reorganiz ed as part of th e general res tyling of th

e Crimina l Rules.” A dvisory Co mmittee Notes, 2002 Amendments. Pursuant to this reorg anization, R

ule 11(f) w as recast as Rule 11(b)(3), while Rule 11(c) was recast as Rule 11(b)(1). Before the 2002 a m endment, Rule 11(f) stated: “Notwithstanding the acceptance of a plea of guilty, the court sho

uld not ente

r ajudgment

upon such plea without making such i nquiry as shall satisf y it that there

is a factual

basis for th

e plea.” Cas e law discussing

Rule 11 prio

r to its 2002 a

mendme nt re m ains apposite: the 2002 changes we

re generally “i ntended to b e stylistic on ly.” Adviso

ry Comm ittee Notes t

o 2002 Am

endments
.
9 Rule 11(b)(3) of the Federal Rules of Criminal P

rocedure is t

itled “Deter

mining the Factual Basis for a Plea , ” and instructs district courts that, “ [b]efore entering judgment on a guilty plea, the court must deter

mine that t

here is a fac tual basis for the plea.” 2 “The requirement that a sentencing court must satis fy itself th at

a sufficie nt factual b asis supports the guilty plea is not a requirement of the Constit

ution, but r

ather a requi

rement cre ated by rulesand statutes .” United St ates v . Tunning , 69 F.3d 107, 111 (6th Cir. 1995). “The purpose of this requirement is to ensur e th e accuracy of the ple a through some evidence th at a defend ant actually committ ed the off ense.” Id.. (quoting United States v. Ke iswetter , 860 F.2d 992, 995 (10th Cir. 1988), modified as to remedy , 866 F.2d 1301 (10th

Cir. 1989) (en banc)). See United S tates v. Mahe r , 108 F.3d 1 513, 1524 ( 2d Cir. 1997) (the court m

ust “assure itself

simply tha

t the conduc t to which th

e defendan

t admits is in fact
an offense u

nder the stat

utory provi sion under

which he is p leading gui lty”). “This step – matching the facts to the legal elements of the charged

crime – is d

esigned to ‘p

rotect a def

endant who

is in the position of

pleading vo luntarily wi

th an unders t and ing of the nature of the charge but without realizing that his cond

uct does not

actually fa

ll within the

charge.’” United Stat

es v. Smith , 160 F.3d 117, 121 (2d Cir. 1998) (quoting McCarthy v. United States , 394 U.S. 459, 467 (1969), and Fed. R. Crim. P. 11 Advisory Committee notes)).3 See footnote 2, infra
.
10

We have noted that Criminal Rule 11(b)(3) (formerly Rule 11(f)) “does not provide any guidance concern ing the steps a district court should take to ensure that a factual basis exists.” United States v. Baez , 87 F.3d 805, 809 (6th Cir.), cert. denied , 519 U.S. 973 (1996). Accordingly, this Court has provided its own guidance to district courts . In Tunning , we explained:

The ideal mean s to establis h the fact ual basis for a guilty plea is for the district court to ask the defendant to state, in the defendant’s own words, w hat t he defendantdid that he believes constitutes the crime to wh ich he is p leading guilty. So long as the district cou rt ensures that the def

endant’s sta

tement inc ludes condu ct

– and m ental state if necessary – that satisfy every element of the offense, the r e s hould be no question

concerning

the suffic iency of the factual ba sis for the g uilty plea. This “ideal” method is by no means the only meth od, howeve r. “We reco gnize that the district c ourt may d

etermine t

he e xistence of the Rule

11(f) fact

ual basis from a number of sources, including a statement on the record from the government prosecutorsas well as a st atement f rom the defendant.” [ United States v. Goldberg , 862 F.2d 101, 105 (6th Cir. 1988).] And, of course, it is po ssible that w itnesses may be called to state the factual basis with the defendant providi ng confirmation. Tunning , 69 F.3d at 112. See also United States v. Williams , 176 F.3d 301, 313-14 (6th Cir. 1999) (reviewing cases where

a sufficie nt factual b asis for a gu

ilty plea wasfound, despite extr emely littl e discussion

with the def

endant). Importantly, the focus o f Rule 11(b )(3) is diff erent from

that of Rul e 11(b)(1) (f

ormerly R ule 11(c)(1)). 3 Rule 11(b)(1) “focuses on the defendant and his understanding of the proceedings and his rights .” United Stat

es v. Smith , 160 F.3d 1 17, 121 n.1 (2d Cir. 199 8) (empha sis in origin al). Rule 11(b)(1) helps ensure that t he defenda

nt’s choice to plead guilty or nolo contendere is knowing, intelligent, and voluntary, by requiring the district court to “inform the defendant of, and determine that the defend ant understa

nds,” a long

list of criti cal subjects , such as his ri ght to a trial by jury.11

Fed. R. Crim. P. 11(b)(1)
. One of the critical subjects the district court must ensure t he defendant understands is “the nature of each charge to wh ich the def endant is ple ading.” Rule 11(b)(1)( G). This is because “a

guilty plea i s an admis sion of all t he elemen

ts of a formal criminal charge.” McCarthy , 394 U.S. at 466. In contrast, Rule 11(b)( 3) “focuse s on the judge and his or her assessment that the facts of the case fit the

elements o f the crim

e.” Smith , 160 F.3d at 121 n.1 (emphasis in original). The judge “may look to answers provided by counsel for the defense and government, the presentence report, ‘or. . . whatever means is appropriate in a specific case’ – so long as the factual basis is put on the record.” Id. at 121 (quoting Maher , 108 F.3d a t 1524). This distinction

between Rules 11(b)(3) and 11(b)(1)(G) is important because the scope of what this Court m

ay consider , when reviewing wheth er the distric t court com plied with it s obliga tions, is not the sam e for each rule. Certainl y, “Rule 11 (b)(1)(G)’s requireme nt that a defendantunderstand

the essenti al e lements of the crime i s integrally

related to Ru

le 11(b)(3)’ s requirementthat the district cou rt determ ine that the p lea has a fac tual basis.” United Stat es v. Valdez , 362 F.3d 90 3, 909 (6th C ir. 2004). But, when a ssessing wh ether a distri ct court dete

rmined correctly that there was a factual basis for the plea, pursuant to Rule 11 (b)(3), th is Court may examine the entire record, including proceedings that occurr ed after the plea colloquy. See McCarthy , 394 U.S. at 462 (“the colloquy at the sentencing hearing demonstr ated that the

judge had satisfied himse lf by an exa mi nation of th e presentenc e report that

the plea had

a factual ba sis”) (emphasisadded); Smith , 160 F.3d at 121 (exam

ining the fa

ctual basis f

or the plea asdiscussed

in4 I ndeed, “[t ]he distric t court’s obl

igations un der [Rule 1 1(b)(3)] co ntinue until it has entere d judgment
. If it decides there was no factual basis for a guilty plea after accepting it , the court should vacatethe plea and

enter a plea o f not guilty on behalf of the defend ant.” Smith , 160 F.3d at 121 (emphasisadded).

12 “the presentence

report”). 4 When asse ss i ng whether a district court determined correctly that the defend antunderstood

the elemen

ts of the cri mes with w

hich he is ch arged, purs uant t o Rul e 11(b)(1)(G ), however, this Court is limited to examination of the plea colloquy and what came before. This limit

ation is im

posed becau se a defend ant’s guilty plea can no t be knowing and intelli gentif one or more of the elements of his alleged crime are made clear to him only after h e enters his pl ea. Turning to the ultimate question in this case, we first con clude easily

that the dist

rict court didnot violate

Rule 11(b)( 3), which re quires a dist rict court to satisfy itself that there is a sufficient factual basis to support the gu ilty plea. It is true that, during the p lea colloquy itself , the distric t court did not elicit from Sp iridigliozzi or the gover

nment the

factual bas is to conclu de tha t Spiridiglio zzi had arranged to store or obtain m arijuana within 1,000 feet of a school. But the district court certain

ly obtained

this factual

basis from the presentence report, where the connection between Sp iridiglioz zi and Finney’s house was explained. And even the slightest shred of doubt
was removed

during the sentencing hearing, when: (1) Spiridigliozzi wit hdrew his objection to the addition of one point for distribution of marijuana near a schoo l, conceding t he point was“correctly assessed;” and (2) Spiridigliozzi testified under oath to having waited in his car at F

inney’s hom

e,
across the street from a school, while Crowl obtained for him a pound of mariju an a from Finney. Conceivably, this conclus ion could end the Court’ s analysis. S piridig liozzi ref ers in his13

appellate brief only to Rule 11(f) – the predecessor to Rule 11(b)(3) – and not to Rule 11(b)(1) (or its predecesso

r, Rule 11(c )(1)). To the

extent Spiri digliozzi’s appeal chall enges only the conclusion that the district court did not obtain a sufficient factual basis to support the guilty pl ea, his appe al clearly fails. Because Rules 11(b)(3) and 11(b)(1 ) are “integra lly related, ” however, we also examine the separate question of whether Spiridigliozzi was fairly apprised of the elements of the crime with which he was charged, before he pleaded guilty. Valdez , 362 F.3d at 909. As an initial m

atter, we note that nei

ther the United States S upreme Co urt nor this C ircuit has ever made clear whether 21 U.S.C. §860 (discussing proximity to a school) des cribes a sentencing factorthat

enhances penalties for violating 21 U.S.C. §§841 and 846, or instead desc ribes
a separate of

fense. The

governme

nt insists th at §860 is m

erel y a sentencin g factor. U nder this approach, the government argues, Spiridigliozzi’s position is simply not cognizable. See Grant v. United States , 72 F .3d 503 (6th Cir. 1996), cert. denied , 517 U.S. 1200 (1996) (holding a §2255 petitio ner could not ob tain collater al relief on

a claim tha

t the trial cou

rt erroneous ly applied th

e Sentencing Guidelines when it failed to make an explicit f actual find

ing as to the scope of

criminal
ac tivity). Without a

ctually deci ding this iss ue, we will a ssume tha t§860 does d

escribe a sep ara t e offense, and not me

rely a sentencing enhanc ement, as several of o ur sister appellate courts have held. See e.g., U

nited States

v. Flaharty , 295 F.3d 182, 193 (2d Cir. 2002), cert. denied , 537 U.S. 936 (2002) (“Section 860 describes an offense whose pertinent elements a re (a) the performance of cert ain acts that are prohibited by 21 U.S.C. §841(a)(1), and (b) the proximity of those acts t o a sch ool”); Un ited States v . Gonzalez -Rodriguez , 239 F.3d 9 48, 952 (8th Cir. 2001) ( “[C]ong

ress intended that §841 and §860 be sep arate offe nses”); United Stat

es v. Kakati

n , 214 F.3d 1049, (9th5 Given the trend of recent Supreme Court case law, we beli eve this is lik ely the corre ct assumption.

14 Cir. 2000), cert. denied , 531 U.S. 911 (2000) ( “this circuit (and several other circuits) al ready have held that Congress in tended

that §841 and §860 be separate s ubstantive o ffenses”) (emphasisin original; reciting cas es). 5 Even with this assumption, however, we conclude Spiridigliozzi has not shown he is entitled to a

ny relief f or violation

of Rule 11 (b)(1)(G). The nub of Spiridigliozzi’s argument is that he did not know the full natur

e of the con spiracy charge against

him when he pleaded guilty because, during the plea colloquy itself, the district cou rt
never explicitly in

formed him of an essential

element of

§860 – the p

roximity o f his acts to

a school. In the particular circumstances of this case, however, Spir idigliozzi’s argument is unavailing, because it is clear tha

t: (1) he knew a

bout this ele

ment of § 860 from

other source s before

he pleaded guilty; and (2) he ad

mitted to t

he underlyi ng facts at s entencing, making it c lear that his substantial rights were not affected. As noted above, Spiridigliozzi received indictment documents fou r separ ate times (the original and three superseding), charging him with violation of §860. Each indictment alleged that he “arrange[d] for the storage of marijuana in various locations, including within 1,000 feet of the real property of

an elemen

tary school in Michigan,” and also alleged that he “would, within 1,000 feet of the real p

roperty of a

n elementa

ry school, obtain marih

uana for distribution in Michigan.” After receiving each of

these four indictmen

ts, Spiridig liozzi signe d an acknowl edgment t hat he had read the docum

ent and unde

rstood its co ntents. At

the plea coll oquy, Spir

idigliozzi a

cknowledg ed several times that he had discussed his case with his attorney. J.A. at 368-69, 391-92.15

This Court has repeatedly noted that, “[w]here the crime is easily understood, . . . a reading of the indictment, or even a summary of the charges in the indictment and an a dmiss ion by the defendant , is sufficien

t to establish

a factual ba sis under Rule 11.” United States v. Edgecomb , 910 F.2d 1309, 1313 (6th Cir.19 90); ( quoting United Stat es v. Van Bu ren , 804 F.2d 888, 892 (6 th Cir.1986))
. And, we have ruled that “cons pira cy to posses s cocaine with intent to d istribute is a simple crime.” United Stat

es v. Ferguson , 1997 WL

764471 at * 3-4 (6th

Cir. Dec. 3, 1997) (citing Edgecomb , 910 F.2d at

1313). W

e harbor no d

oubt that, a

t the time th

e district cou

rt accepted h

is plea, Spiridigliozzi fully understood he was charg ed with “arra ng[ing] f or the storag e of marij uana” and “obtaining marijuana for distribution” “within 1,000 feet of . . . an elementary school. ” Spiridiglio zzi acknowledged fourdifferent times that

he had read and und

erstood thes e allegation s, which were couched in simple, easily-understood language. Further, there can be n o doubt that Spiridiglio zzi’s substa

ntial rights w ere n ot af

fected by the district cou

rt’s omiss ion. As not

ed above, S piridiglioz zi’s counsel told the dist

rict court at sentencing that Spir idiglio zzi had “a cknowled ged havin g receiv ed one pou nd of mariju ana from” “the Finney hom

e,” which w as “across f

rom a scho ol.” J.A. a

t 264. Spiri digliozzi then tes tifi ed under oath and admitted to driving with Crowl to Finney’s house to pick up a pound of mariju ana. There is simply n o factual ba sis whatsoever to argue t hat, when Spirid

igliozzi ple aded guilty , he did notknow the f

ull nature of th

e crimes of

which he wa s accused, o r that he did

not actually

commit those crim

es. Over 30 years ago, this Court n oted that, asregards the p rocedure fo llowed

by district c ourts during Rule 11 criminal hearings, “[m]atters of reality, and not mere ritual, should be controlling.”6 Spiridiglio zzi did not raise any contemporaneous objection to the plea proceedings, so any

alleged error must be reviewed under a plain error standard. United States v. Vonn , 535 U.S. 55, 59 (2002).

16 Kennedy v. United St

ates , 397 F.2d 1 6, 17 (6th C ir. 1968); see McCarthy , 394 U. S. at 467 n.20 (quoting this languag e with appro val). The f acts demo nstrate the “

reality” in

this case is that Spiridiglio zzi “has not demonstrated the existence of a fundam ental defec t which inhe

rently resul

ts in a complete

miscarriag e of justice , or an omi ssion incon sistent with the rudimentary demands of fair procedure. ” United Stat

es v. Todar

o , 982 F.2d 1025, 1030 (6th Cir. 1993) (citing Hill v. United States , 368 U.S. 424, 428 (1962)) (denying relief to a § 2255 petitio ner who claim

ed that the di strict
c ourt failed to co mply with

Rule 11). S piridiglioz zi has not est ablished pla

in erro r, as he has no t shown that any error by the district court affected his “substantial right s.” Fed. R. Crim. P. 52(b) 6 United States v. Thomas , 11 F.3d 620, 630 (6th Cir. 1993). Finally, we note that the Supreme Court decided Blakely v. Washington , 124 S. Ct. 25 31 (2004), after Spiri digliozzi f iled this app eal. Noneth

eless, the C ourt has reviewed th is appeal with Blakely in mind, a

nd conclude s that Blakely does not provide any ground for relief. As noted ab ove, Spiridiglio zzi admitted

under oath a

tsentencing

that he went

with Crowl

to Finney’shouse, whi ch
was across the st

reet from an elemen

tary school, to pick up a pound of marijuana
. See United S

tates
v. Koch , 383 F.3d 43 6, 440-41 (6th Cir. Aug . 26, 2004) (“the ‘statut ory maxim

um’ for Appren d i purposes is the maximum sentence a judge may impo se solely on the basis of

the facts reflected in the jury verdict

or admitted by the defendant ”) (quoting Blakely , 124 S. Ct. at 253 7) (empha sis added); see also McK

inley , 2001 WL

1110068 at

*5 (findin g meritles s the Apprendi claim on direct appealof Spiridigliozzi’s co-defendant, Toner, because “the maximum penalty for the . . . offen se,17

under 21 U.S.C. §860, is 10

years,” whi ch exceeded

the sentence

Toner (and Spiridiglio zzi) actually received). In addition, like the Suprem e Court’s de cision in Apprendi, it is unlikely Blakely would apply retroactively to matters addressed via 28 U.S.C. §2255. See In re Clemmons , 259 F.3d 489, 492 (6th Cir. 20 01) (“[w] hile this cou rt has applie d Apprendi to cases on d irect appeal , we have not applied its new rule r

etroactively

to cases on collatera

l review”); In re Dean , 375 F.3d 1287, 1290 (11th Cir. 2004) (“[the §2255 petitioner] cannot show that the Supreme Court has made [the Blakely ] decision ret

roactive to c ases already

final on dir

ect review”)
. Accordingly, the dist

r ict court’s d

ecision den

ying Spirid

igliozzi reli ef under §2 255 is AFFIRMED
.