1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GABRIEL NATHAN SMITH, §

No. 30867-177, §

Defendant-Movant, § 

§

v. § No.3:03-CR-0300-K

§(No.3:05-CV-0783-K)

UNITED STATES OF AMERICA, § 

Plaintiff-Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in

implementation thereof, the subject cause has previously been referred to the United States

Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as

evidenced by his signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type Case: Gabriel Nathan Smith (“Smith” or “Movant”) has filed a motion to set aside,

vacate, or correct his sentence pursuant to 28 U.S.C. § 2255. Respondent is the United States of

America.

Statement of the Case: Pursuant to a plea agreement on January 8, 2004, Movant pled

guilty to conspiracy to possesses with intent to distribute and to distribute methamphetamine, as

charged in count one of the indictment, and to being a felon in possession of a firearm, as alleged

in count seven. He was sentenced on April 29, 2004 to 135 months in the penitentiary on count

one and 120 months on count seven, with the sentences to run concurrently, followed by a four

year term of supervised release. Smith did not appeal, and therefore his conviction became final

on May 16, 2004. See Fed. R. App. P. 4(B)(1)(A)(i).

 

 Case 3:03-cr-00300-K Document 69 Filed 08/16/05 Page 1 of 4 PageID 173
1

The date on which he presumptively placed his motion in the prison main system. See

Spotville v. Cain, 149 F.3d 374, 378 (5th Cir.1998)(per curiam).

2

Although the Fifth Circuit has not yet expressly addressed a Booker claim in the context

of an initial § 2255 motion, but see In re Elwood, 408 F.3d 211 (5th Cir. 2005), in which the

Fifth Circuit refused to grant leave to a habeas petitioner to file a successive § 2255 motion

predicated on the Booker decision, in accordance with the Supreme Court’s statement in Booker,

each court of appeal which has addressed this issue has refused to consider a Booker claim

asserted in a collateral attack (28 U.S.C. §§ 2254 and 55). E.g,, United States v. Bellamy, 411

F.3d 1182 (10th Cir. 2005); Lloyd v. United States, 407 F.3d 608 (3rd Cir. 2005); Cirilo-Muñoz

v. United States, 404 F.3d 527 (1st Cir. 2005); Humphress v. United States, 398 F.3d 855 (6th

Cir. 2005); McReynolds v. United States, 397 F.3d 479 (7th Cir.),cert denied __ U.S. __, 125

S.Ct. 2559 (2005); Green v. United States, 397 F.3d 101 (2nd Cir. 2005); In re Anderson, 396

F.3d 1336 (11th Cir. 2005); see also Rosales v. United States, 2005 WL 840122 (N.D. Tex.

Apr.11, 2005); Arvizo-Pena v. Medellin, 2005 WL 734996 (N.D. Tex. Mar. 31, 2005); United

States v. Jordan, 2005 WL 598449 (N.D. Tex. Mar. 10, 2005).

2

Movant filed his § 2255 motion on April 18, 2005.1

 Respondent filed its response in

opposition on July 11, 2005. Smith filed a reply on August 12, 2005.

Findings and Conclusions: In his first ground for relief Smith alleges that the District

Court violated his rights under the Fifth and Sixth Amendments in determining the amount of

methamphetamine for which he was responsible - in excess of the amount stipulated in the plea

agreement, and in finding that he possessed a firearm during the commission of the offense - by

a preponderance of the evidence in lieu of proof beyond a reasonable doubt.

Although Smith cites no authority in support of this ground, it appears that he relies on

the Supreme Court’s recent opinion in United States v. Booker, __ U.S. __, 125 S.Ct. 738, 756

(2005). However, Booker applies only to cases on direct appeal, id. at 769, and is not available

to prisoners collaterally attacking their convictions.2

In his second ground for relief, Movant asserts that he was denied effective assistance of

counsel because his attorney failed to object to the District Court’s standard of proof in finding

 

 Case 3:03-cr-00300-K Document 69 Filed 08/16/05 Page 2 of 4 PageID 174
3

the facts referred to in his first ground. An attorney’s conduct is governed by the standards set

out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). There is a strong

presumption that an attorney’s conduct falls within the broad range of reasonable professional

assistance required under the Sixth Amendment. Id. at 690, 104 S.Ct at 2065. To overcome this

presumption a habeas movant must establish that the attorney’s conduct was constitutionally

deficient (cause) and that but for such unprofessional errors the result probably would have been

different (prejudice). Failure to prove either prong of the two part test forecloses relief. Id at

698, 104 S.Ct. at 2069.

Smith has cited no case law specifically holding that he was entitled to have the exact

amount of methamphetamine at issue or the possession of a firearm during the commission of the

offense proved beyond a reasonable doubt. At the time Movant was sentenced the law in the

Fifth Circuit did not require proof beyond a reasonable doubt of factual determinations made by

the sentencing court when applying the sentencing guidelines, so long as the sentence imposed

did not exceed the statutory maximum sentence authorized by the offense to which the defendant

plead guilty or which was authorized by the jury’s verdict upon a plea of not guilty. See, e.g.,

United States v. Clinton, 256 F.3d 311, 314 (5th Cir. 2001). The fact that Booker has changed

the proof which is now required does not demonstrate that Smith’s attorney’s representation was

constitutionally deficient. “The determination whether the performance of counsel was deficient

is based upon the law as it existed at the time of trial.” Lucas v. Johnson, 132 F.3d 1069, 1078

(5th Cir. 1998)(citing Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838 (1993)); see also

Ogan v. Cockrell, 297 F.3d 349, 360 (5th Cir.), cert denied 537 U.S. 1040, 123 S.Ct. 582

(2002) and Means v. Johnson, 138 F.3D 1007, 1012 (5th Cir. 1988). In light of the law at the

 

 Case 3:03-cr-00300-K Document 69 Filed 08/16/05 Page 3 of 4 PageID 175
3

Since a habeas movant muse establish both “cause” and “prejudice,” it is unnecessary to

address the “prejudice” prong. See Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696

(2001).

4

time of Smith’s sentencing, there was no basis for objecting to the District Court’s findings made

by a preponderance of the evidence and therefore he cannot satisfy the “cause” prong of the

Strickland test.3

RECOMMENDATION:

For the foregoing reasons it is recommended that the District Court deny the Smith’s 28

U.S.C. § 2255 motion.

A copy of this recommendation will be served on Movant and on counsel for the

government.

Signed this 16th day of August, 2005.

__________________________

Wm. F. Sanderson, Jr.

United States Magistrate Judge 

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten (10) days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir.

1996)(en banc), a party’s failure to file written objections to these proposed findings of fact and

conclusions of law within such ten (10) day period may bar a de novo determination by the

district judge of any finding of fact and conclusion of law and shall bar such party, except upon

grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court. 

 

 Case 3:03-cr-00300-K Document 69 Filed 08/16/05 Page 4 of 4 PageID 176