United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-1291

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Deshaun Raffles Murphy, *

*

Petitioner - Appellee, *

* Appeals from the United States

v. * District Court for the

* District of Minnesota.

United States of America, *

*

Respondent - Appellant. *

__________

No. 01-1415

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Deshaun Raffles Murphy, *

*

Petitioner - Cross-Appellant, *

*

v. *

*

United States of America, *

*

Respondent - Cross-Appellee. *

Submitted: October 2, 2001

Filed: October 12, 2001

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Before LOKEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
1

 Murphy was convicted of conspiracy to distribute and possess with intent to

distribute cocaine base; use of a minor to assist in conspiracy to distribute and possess

with intent to distribute cocaine base; aiding and abetting possession with intent to

distribute cocaine base; and aiding and abetting the use or carrying of a firearm

during and in relation to a drug trafficking crime. See 18 U.S.C. §§ 2, 924(c); 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 861(a)(1).

-2-

___________

JOHN R. GIBSON, Circuit Judge.

The United States appeals from an order of the district court partially granting

Deshaun Murphy’s petition under 28 U.S.C. § 2255 (Supp. IV 1998) for collateral

relief from his sentence. The district court held that Murphy’s 1996 sentence for drug

trafficking offenses violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because

the issues of drug quantity and type were not submitted to the jury at his trial. Since

this court recently determined in United States v. Moss, 252 F.3d 993 (8th Cir. 2001),

that Apprendi does not apply retroactively on collateral review, we reverse the district

court’s order, vacate Murphy’s sentence, and remand for reimposition of his original

sentence. 

I.

Murphy was convicted on June 21, 1996, of multiple counts arising from a

conspiracy to traffic in crack cocaine.1

 The district court found that Murphy was

responsible for between 500 and 1500 grams of crack cocaine and sentenced him to

300 months of imprisonment on three drug counts and a consecutive term of sixty

months on a related firearms count. This court affirmed Murphy’s conviction and

sentence on appeal, United States v. Davis, 154 F.3d 772 (8th Cir. 1998), cert. denied,

525 U.S. 1169 (1999).
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Murphy then filed an initial Section 2255 petition arguing that his sentence

violated his Fifth and Sixth Amendment rights. Citing dicta in Jones v. United States,

526 U.S. 227 (1999), Murphy argued that the district court acted unconstitutionally

by using drug type and quantity to increase his punishment above the statutory

maximum despite the absence of jury findings on those issues. After Murphy filed

his petition, the U.S. Supreme Court decided Apprendi, which converted Jones’s dicta

into a constitutional rule: any fact (except a prior conviction) that increases the

penalty for a crime above the statutory maximum must be proved to a jury beyond a

reasonable doubt. 530 U.S. at 490. 

The district court held the portion of Murphy’s sentence attributable to drug

quantity and type unconstitutional under Apprendi and resentenced him accordingly.

See United States v. Murphy, 109 F. Supp. 2d 1059, 1065 (D. Minn. 2000). While

noting that new rules of constitutional law are normally not retroactive on collateral

review, Teague v. Lane, 489 U.S. 288 (1989), the district court concluded that

Apprendi fell under the narrow Teague exception for watershed rules of procedure

implicating the fundamental fairness and accuracy of a criminal proceeding, and

could therefore be applied retroactively. Murphy, 109 F. Supp. 2d at 1063-64. The

government appealed. 

While this case was pending before us, another panel of this court decided

Moss, which held that Apprendi may not be applied retroactively to initial Section

2255 petitions, the precise issue in this case. Moss, 252 F.3d at 1000. We agree with

the government that Moss is fatal to Murphy’s claim for relief under Apprendi and

disposes of this appeal. Absent rehearing en banc or contrary word from the Supreme

Court, we are bound by the Moss panel’s decision. See United States v. Reynolds,

116 F.3d 328, 329 (8th Cir. 1997). Accordingly, we reverse the district court’s order

granting Murphy partial relief from his sentence, vacate his current sentence, and

remand for restoration of the original sentence.
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II.

Murphy cross-appeals a later order of the district court that effectively took

away what his Apprendi victory had gained. Upon the government’s motion for

reconsideration, the district court restored Murphy’s overall punishment to its

previous length by applying Murphy’s remaining sentences consecutively, pursuant

to U.S.S.G. § 5G1.2(d). Murphy argues that this second resentencing was improper

because the government’s motion was untimely. Our resolution of the Apprendi issue

has led us to vacate the reduced sentence whose upward adjustment Murphy is

appealing, so his cross-appeal is moot.

***

We reverse the order of the district court, vacate Murphy’s sentence, and

remand to the district court for restoration of his original sentence. Murphy’s crossappeal is dismissed as moot.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.