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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff/Respondent,

vs.

Aquileo Melchor-Zaragoza,

Defendant/Movant. 

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No. CR 01- 017 PHX-JAT

 CV 04-2766 PHX-JAT (LOA)

REPORT AND RECOMMENDATION

This matter arises on Movant's Motion to Vacate, Set Aside or Correct Sentence

by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (document # 290). Movant has

also filed a memorandum in support of his Motion (document # 291). The Government filed

a Response to the Motion (document # 298) to which Movant has replied. (document #

304). 

BACKGROUND

On June 26, 2001, Movant was charged with: (1) Conspiracy to Commit

Hostage Taking (18 U.S.C. §§ 371 and 1203); (2) Hostage Taking (18 U.S.C. §§ 1203 and

2); (3) Conspiracy to Harbor Illegal Aliens (8 U.S.C. §§ 1324(a)(1)(A)(iii) and

(a)(1)(A)(v)(I)); (4) Harboring Illegal Aliens (8 U.S.C. §§ 1324(a)(1)(A)(iii) and

(a)(1)(A)(v)(II)); (5) Possession or Use of a Firearm in a Crime of Violence (18 U.S.C. §§

924(c) and 2); and (6) Re-entry After Deportation (8 U.S.C. § 1326(a) enhanced by (b)(1)). 

(document # 30) After a jury trial, on March 20, 2002, Movant was convicted of counts one

through five. (Respondents' Exh. B) Movant had previously pleaded guilty to the count six

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1

 After Movant filed his motion citing United States v. Ameline, 376 F.3d 967 (9th Cir. 2004),

the Ninth Circuit amended its opinion and superseded on rehearing in United States v. Ameline, ___

F.3d___, 2005 WL 350811 (9th Cir., Feb. 9, 2005) and granted rehearing en banc by United States v

Ameline, ___ F.3d ___, 2005 WL 612710 (9th Cir., March 11, 2005). This order vacated the previous

opinion which Movant cites and directed that the panel opinion may not be cited as precedent in any

court of the Ninth Circuit, except to the extent that it may be adopted by the en banc court. See, 2005

WL 612710. Thus, Movant's citations to Ameline as it was decided in 2004 does not state any ground

for relief. 

After Movant's conviction was final and after he filed the pending § 2255 motion and his Reply,

on June 1, 2005, the Ninth Circuit decided United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005). 

In Ameline, the court held that "when [the court of appeals] is faced with an unpreserved Booker error

that may have affected a defendant's substantial rights, and the record is insufficiently clear to conduct

a complete plain error analysis, a limited remand to the district court is appropriate for the purpose of

ascertaining whether the sentence imposed would have been materially different had the district court

known that the sentencing guidelines were advisory" if so, there is plain error requiring resentencing

if defendant so desires, and if not, there is no plain error and the original sentence is merely subject to

review for reasonableness. Id. at 1075-75. In view of the consistency of the appellate court decisions

cited at pages 3-10 of this Report and Recommendation which hold that Blakely and Booker do not

apply retroactively on collateral review, the Court concludes that Ameline, which is based on those

cases, does not apply retroactively on collateral review. The Ninth Circuit has only held that the

procedure set forth in Ameline applies to cases pending on direct review at the time that Ameline was

decided on June 1, 2005. 

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of the superseding indictment, Re-entry After Deportation. On June 10, 2002, the Court

sentenced the Movant as follows: 327 months for counts one and two; 120 months for

counts three, four, and six (to be served concurrently with counts one and two); and 84

months for count five (to be served consecutive to counts one through four, and six). The

Court also sentenced Movant to five years of supervised release for counts one, two, and

five, and three years of supervised release for counts three, four, and six. A $600 special

assessment was also ordered. (document # 202) Movant appealed and the Ninth Circuit

Court of Appeals affirmed Movant's convictions and sentences on January 5, 2004. 

Thereafter, Movant filed the pending § 2255 Motion raising the following nine

claims: (1) Sentencing enhancements violated his due process and Sixth Amendment rights

as set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 124 S.

Ct. 2531 (2004) and United States v. Ameline, 376 F. 3d 967 (9th Cir. 2004)1

; (2) the District

Court violated his Due Process and his Sixth Amendment rights by imposing a two-level

increase for vulnerable victim; (3) counsel was ineffective in failing to argue that the court

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could not increase his sentence based on facts not charged in the indictment or found by the

jury; (4) the rulings of Apprendi, Blakely, and Ameline should apply retroactively to this

case; (5) Count One contained five or more charges in violation of Movant's Fifth and Sixth

Amendment rights; (6) the Fifth and Sixth Amendment were violated because Movant was

charged with multiple conspiracies for a single scheme or plan; (7) the jury instructions

broadened the scope of the indictment in violation of Fifth Amendment; (8) the Fifth and

Sixth Amendment were violated because Movant was charged with both the possession and

brandishing elements of 18 U.S.C. § 924(c); and (9) trial and appellate counsel were

ineffective in failing to argue the merits of claims five through eight, in regard to the

duplicitous and multiplicitous charges of the indictment.

ANALYSIS

I. Claims Under Apprendi, Blakely, and Ameline (Claims 1, 2 and 4)

In his first claim, Movant asserts that his sentence was improperly increased

based on facts neither charged in the indictment, submitted to a jury, nor proven beyond a

reasonable doubt. Movant's second claim asserts that his constitutional rights were violated

when the court imposed a two-level vulnerable victim enhancement, and the facts upon

which the enhancement were based were neither charged in the indictment, found by a jury,

nor admitted by Movant. Movant cites Blakely, Apprendi, and Ameline in support of both

claims. (document # 291 at i) In claim four, Movant asserts that Blakely and Apprendi

should be applied retroactively to his case. In his Reply, Movant expands grounds 1, 2, and

4 to include a claim based on United States v. Booker, 125 S.Ct. 738 (2005) which was

decided after Movant filed his § 2255 motion. The Court will address these related claims

below.

A. Apprendi Claim

Apprendi was decided in 2000, while Movant's criminal proceedings were on

going. Because Apprendi was decided before Movant's conviction became final, its holding

applies to Movant's case. Movant, however, is not entitled to relief under Apprendi. 

Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the

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penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt." 530 U.S. at 490. Apprendi, however, did not apply

to the Federal Sentencing Guidelines. United States v. Hernandez-Guardado, 228 F.3d

1017, 1026-27 (9th Cir. 2000). As the Eleventh Circuit explained, 

While Apprendi was silent on the issue, its inapplicability to the Sentencing

Guidelines follows from its holding. A factual finding under the Guidelines

determine the sentence within the statutory range rather than outside it. 

Because Apprendi only addresses facts that increase the penalty for a crime

beyond the statutory maximum, it does not apply to those findings that merely

cause the guideline range to shift within the statutory range. 

United States v. Sanchez, 269 F.3d 1250, 1262 (11th Cir. 2001)(en banc). See, United States

v. Guardado, 228 F.3d 1017, 1026-27 (9th Cir. 2000)(affirming a two-level enhancement

based on a finding under a preponderance of the evidence standard that defendant recklessly

created a substantial risk of death and serious bodily injury where the district court did not

exceed the maximum penalty for the offense charge and therefore did not violate Apprendi.)

Here Movant challenges several sentencing enhancements: (1) enhancement

under U.S.S.G. 3D1.2(b), § 3D1.4, and 1B1.2(d).

1. Number of Victims/Sentence on Count One Conspiracy to Commit Hostage

Taking (U.S.S.G. § 1B1.2(d) and § 3D1.2(b), § 3D1.4)

Movant claims that U.S.S.G. § 1B1.2(d), conspiracy to commit more than one

offense, 

did not apply because the superseding indictment alleged only one victim in the "body" of

the charging document and alleged "many victims" in the overt acts section. (document #

291 at 8-9) Similary, Movant claims that "there should only be one group count under

U.S.S.G. § 3D1.2(b) and § 3D1.4, instead of 23 . . . ." (Id. at 9-10)

In essence, Movant claims that the district court violated Apprendi in

determining the number of victims and basing Movant's sentence upon the determination

that there were 23 victims when that information was neither charged in the indictment nor

found beyond a reasonable doubt by the jury. Movant was sentenced to 327 months

imprisonment on Count I based on the determination that there were 23 victims.

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Count I stated that Movant and others "did knowingly and intentionally conspire

and agree together to seize and detain and continue to detain another person . . . ." 

(document # 30 at 2) The "Overt Acts" section of Count I stated that "[o]n or about March

23, 2000, Noe Perez-Valtierra, Jorge Camacho-Sanchez, and Apolinar Valtierra-Guerrera,

and 20 other illegal aliens were kidnaped at gun point by the defendant and others . . . ." 

(document # 30 at 2) The jury instruction specific to Count I directed the jury that:

The defendant is charged in Count I of the superseding indictment with 

conspiracy to commit hostage taking . . . in order for a defendant to be 

found guilty of this charge, the government must prove each of the 

following elements beyond a reasonable:

First, beginning on or about March 23, 2000, and ending on or about March

25, 2000, there was an agreement between two or more person to commit 

the crime of hostage taking as charged in the superseding indictment;

Second, the defendant became a member of the conspiracy knowing at least

one of its objects and intending to help accomplish it; and 

Third, one of the members of the conspiracy performed at least one overt

act for the purpose of carrying out the conspiracy, with all of you agreeing

on a particular overt act that you find was committed.

(document # 160 at No. 23; Respondents' Exh. A at 142-43) The jury found Movant guilty

as to Count I. (Respondents' Exh. B at 4; 

The superseding indictment alleges 23 victims and the evidence at trial

established that more than 200 persons were seized and detained by the group to which

Movant belonged. (document # 179-183) In his § 2255 Motion, Movant does not claim that

fewer than 23 victims were involved in the conspiracy. Movant does not dispute the facts

upon which the enhancement was premised. Rather, he asserts that the government had to

prove the number of victims under the "clear and convincing" standard. (Id.)

 Because the superseding indictment alleged 23 victims, and the jury found

Movant guilty beyond a reasonable doubt of the charges in Count I which alleged 23

victims, there was no Apprendi violation in sentencing Movant on the basis of 23 victims. 

2. Vulnerable Victim Enhancement

Movant next challenges the vulnerable victim enhancement under U.S.S.G §

3A1.1(b)(1). (document # 291 at 9-10) Movant claims that all of the victims were

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"vulnerable" because of their non-resident status and that their status was taken into account

in determining the base offense level of Hostage Taking. Therefore, Movant claims that

applying the adjustment for vulnerable victim pursuant to U.S.S.G § 3A1.1(b) amounts to 

"double counting." Movant raised this same claim in his objections to the PSR. (document

# 186 at 4) The Court rejected Movant's claim. (document # 231 at 16) Although Movant

bases his challenge to the vulnerable victim enhancement on Apprendi, he does not allege

what would amount to an Apprendi violation. Moreover, Movant concedes that all of the

victims were vulnerable. Accordingly, Movant's Apprendi challenge to the vulnerable victim

enhancement fails.

A. Blakely Claim

Movant also challenges his sentence under Blakely. As an initial matter,

Respondent asserts that Movant's Blakely claim is procedurally defaulted because Movant

did not raise this claim on direct appeal. The Court need not decide this procedural issue

because Movant's claim under Blakely lacks merit. 

In Blakely, the Supreme Court extended the rule of Apprendi to judicial factfinding in the sentencing phase. Here, Movant argues that his sentence violates Blakely

because "aggravating facts" were not found beyond a reasonable doubt by a jury. 542 U.S.

296 (2004). Because Blakely was decided after Movant's conviction became final, the Court

must determine whether it applies retroactively on collateral review. 

1. Legal Standard

In Teague v. Lane, 489 U.S. 288, 310 (1989), the Supreme Court held that "new

constitutional rules of criminal procedure will not be applicable to those cases which have

become final before the new rules are announced." Id. at 310. A case announces a new rule

"if the result was not dictated by precedent existing at the time the defendant's conviction

became final." Id.

Two exceptions exist to Teague's prohibition against the application of "new

rules" of criminal procedure to cases in which the conviction has already become final. 

First, a new rule applies retroactively if it places "certain kinds of primary, private individual

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conduct beyond the power of the criminal law-making authorities to proscribe." Teague,

489 U.S. at 311. Second, a new rule of criminal procedure applies retroactively if it

constitutes a "watershed rule[] of criminal procedure implicating the fundamental fairness

and accuracy of the criminal proceeding." Saffle v. Parks, 494 U.S. 484, 495 (1990). The

Supreme Court has noted that "[t]his class of rules is extremely narrow." Schriro v.

Summerlin, 124 S.Ct. 2519, 2523 (2004). 

Teague applies only to procedural rules, and not to substantive rules deciding the

meaning or scope of a criminal statute. Bousley, 523 U.S. at 620. A rule is substantive

rather than procedural if "it alters the range of conduct or the class of persons that the law

punishes." Summerlin, 124 S.Ct. at 2523. By contrast, "rules the regulate only the manner

of determining the defendant's culpability are procedural." Id. Thus, when a defendant

seeks to benefit from a judicial opinion issued after a defendant's conviction, the court must

first determine whether the opinion announces a new rule of criminal procedure or whether

the rule is substantive. Id. If the court determines that the rule is procedural, then the court

conducts a three-step Teague analysis. See, Beard v. Banks, 124 S.Ct. 2504, 2511 (2004). 

First, the court must determine the date on which the defendant's conviction became final. 

Beard, 124 S.Ct. at 2510. Second, the court must "survey the legal landscape as it then

existed" and determine whether the court considering the defendant's claim at the time the

conviction became final "would have felt compelled by the existing precedent to conclude

that the rule [he] seeks was required by the Constitution." Caspari v. Bohlen, 510 U.S. 383,

390 (1994). Finally, the court must decide whether the rule which the defendant seeks to

invoke falls within "one of the two narrow exceptions to the nonretroactivity principle." Id. 

2. Teague Analysis of Blakely

Respondent asserts a Teague argument in opposition to Movant's claim for relief

based on Blakely. The Court, therefore, must determine whether Blakely applies

retroactively on collateral review. Blakely was an expansion of the rule announced in

Apprendi that "other 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

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proved beyond a reasonable doubt." In Ring v. Arizona, 536 US. 584, 592-93 (2002), the

Supreme Court applied the rule announced in Apprendi to require that a jury, rather than a

judge, determine the existence of any aggravating factor required to authorize the imposition

of the death penalty under the relevant state sentencing scheme. 

Thereafter, in Blakely, the Supreme Court extended the rule announced in 

Apprendi and Ring to invalidate an upward departure under the Washington state sentencing

guidelines that was imposed on the basis of facts found by the judge at sentencing, even

though the sentence was lower than that statutory maximum for the crime. The Court held

that the sentence violated the Sixth Amendment because the sentence was imposed based on

facts that were "neither admitted by [the defendant] nor found by a jury." Blakely, 124 S.Ct.

at 2531. The Court defined the phrase "statutory maximum" to mean "the maximum

sentence a judge may impose solely on the basis of facts reflected in the jury verdict or

admitted by the defendant." Id. 

The Supreme Court has held that its decision in Ring, Blakely's predecessor, was

"properly classified as procedural." Summerlin, 124 S.Ct. at 2523. Similar to the holding in

Ring, the holding in Blakely did not alter the range of conduct made criminal by Washington

law, and "rested entirely on the Sixth Amendment's jury-trial guarantee, a provision that has

nothing to do with the range of conduct a State may criminalize." Id. Instead, Blakely and

Ring, "altered the range of permissible methods for determining [a defendant's punishment],

requiring that a jury rather than a judge find the essential facts bearing on punishment." Id.

As the Court stated in Schriro, "[r]ules that allocate decisionmaking authority in this fashion

are prototypical procedural rules . . . ." Id. Further, all of the courts of appeals to address

the issue have held that Apprendi, the progenitor of both Ring and Blakely, announced a rule

of criminal procedure, not a substantive rule. See, United States v. Swinton, 333 F.3d 481,

488-89 (3d Cir. 2003)(citing cases). Thus, Blakely, like Ring and Apprendi, announced a

rule of criminal procedure and this Court must conduct a Teague analysis to determine

whether this rule applies to Movant's case on collateral review. 

1. Whether Blakely announced a New Rule of Criminal Procedure

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Having determined that Blakely announced a procedural rule, the Court must

determine whether Blakely announced a "new" rule of criminal procedure. To make that

determination, the court must: (1) ascertain when Movant's conviction became final, and (2)

review the legal landscape existing at the time Movant's conviction became final and decide

whether the rule Movant seeks "was dictated by then-existing precedent." Beard, 124 S.Ct.

at 2511.

Movant's conviction became final on April 5, 2004, when the time for filing his

appeal expired. Clay v. United States, 537 U.S. 2004 (conviction becomes final when

Supreme Court "affirms a conviction on the merits on direct review or denies a petition for

writ of certiorari, or when the time for filing a certiorari petition expires.") Thus, the Court

must survey the legal landscape as of April 5, 2004 to determine whether the holding in

Blakely was dictated by the precedent existing at the time. 

A review of the legal landscape as on April 5, 2004 demonstrates that a district

court judge was not prohibited by the then-existing precedent, from determining facts that

increased the available sentence under the Sentencing Guidelines without exceeding the

statutory maximum sentence. All federal appellate courts to consider this issue after

Apprendi was decided but before the Supreme Court issued its decision in Blakely, upheld

the application of the Sentencing Guidelines against Apprendi challenges. See, United States

v. Kelly, 2005 WL 1801668, * 2 (D.OR, July 21, 2005)(stating that before Blakely, every

federal court of appeals had held that Apprendi was not applicable to Guidelines calculations

made within the statutory maximum); United States v. Samuel, 296 F.3d 1169, 1172

(D.C.Cir. 2002)(stating that "[t]his court and the other courts of appeals have held that

Apprendi's rule does not apply to offense characteristics that enhance a defendant's sentence

under the Sentencing Guidelines, but that do not increase the sentence above the statutory

maximum for the offense of conviction."); United States v. Fields, 251 F.3d 1041, 1043-44

(D.C.Cir. 2001)("Apprendi does not apply to enhancements under the Sentencing Guidelines

when the resulting sentence remains within the statutory maximum."); In re Sealed Case,

246 F.3d 696, 698 (D.C.Cir. 2001)(stating that considering the "Apprendi Court's explicit

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endorsement" of sentence enhancements within statutory limits, "it is hard to see how the

Court could have intended to mandate the heightened standard for application of the

Guidelines' enhancement instructions when the resulting sentence remains within the

statutory maximum."); United States v. Hernandez-Guardado, 228 F.3d 1017, 1027 (9th Cir.

2000); Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004)(stating that "before

Blakely was decided, every federal court of appeals had held that Apprendi did not apply to

guidelines calculations made within the statutory maximum.")

After review of the legal landscape that existed when Movant's conviction

became final, the Court concludes that Blakely announced a new rule of criminal procedure

because there was no binding precedent at the time Movant's conviction became final that

required the court to direct the jury to make findings, beyond a reasonable doubt, concerning

the appropriate sentencing guideline range, provided the resulting sentence was within the

statutory maximum. 

2. Whether Blakely Fits within either of the Teague Exceptions

The Court must next determine whether the Blakely rule fits within an exception

to the rule that new rules of criminal procedural do not apply retroactively. As discussed

above, retroactive effect is only given to new rules of criminal procedure that: (1) place

"certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to prescribe," or (2) constitute "watershed rules of criminal procedure

implicating the fundamental fairness and accuracy of the criminal proceeding." Teague, 489

U.S. at 311. Here, the first exception does not apply because the rule announced in Blakely

did not place any kind of conduct beyond the reach of the criminal law. 

Second, in view of the Supreme Court's decision in Summerlin, 124 S.Ct. at

2523, Blakely does not fit within the second exception because it does not constitute the type

of watershed rule that implicates either fundamental fairness or accuracy to such a degree to

be "implicit in the concept of ordered liberty." Graham v. Collins, 506 U.S. 461, 478

(1993). To the contrary, in Summerlin, the Supreme Court rejected the argument that Ring

constituted a watershed rule of criminal procedure, even though Ring, like Blakely,

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prohibited the enhancement of a sentence beyond the statutory maximum unless a jury found

the facts authorizing the enhancement beyond a reasonable doubt. Summerlin, 124 S.Ct. at

2524-26. In finding that Ring did not constitute a watershed rule, the Court noted that the

relevant issue is whether judicial fact-finding so "'seriously diminishe[s]' accuracy that there

is an 'impermissibly large risk' of punishing conduct that the law does not reach." Id. at

2525 (quoting Teague, 489 U.S. at 312-313). The Court found it "implausible" that "judicial

factfinding so seriously diminishe[s] accuracy as to produce an impermissibly large risk of

injustice." Id. Thus, because the Supreme Court has rejected the argument that Ring

constitutes a watershed rule of criminal procedure, and because Ring is the immediate

predecessor to Blakely and because its reasoning is indistinguishable from Blakely, Blakely

does not constitute a watershed rule of criminal procedure that may be applied retroactively

on collateral review. See, Cook, 386 F.3d at 950 (Blakely not retroactively applicable to

case involving a successive § 2255 motion); United States v. Sanchez-Cervantes, 282 F.3d

664, 671 (9th Cir. 2000)(Apprendi is not retroactively applicable to § 2255 cases on

collateral review). 

Indeed all courts that have considered the question have held that the extension

of the Apprendi rule announced in Blakely does not apply retroactively to cases on collateral

review. See, United State v. Quintero-Araujo, 343 F.Supp.2d 935, 942 (D.Idaho 2004);

United States v. Stoltz, 325 F.Supp.2d 982, 987 (D.Minn. 2004); Orchard v. United States,

332 F.Supp.2d 275, 277 (D.Me. 2004); Concepcion v. United States, 328 F.Supp.2d 372,

374 (E.D.N.Y. 2004); Tisdale v. United States, 2004 WL 2782725, * 7 (D.Kan. Sept. 22,

2004); United States v. Stancell, 346 F.Supp.2d 204 (D. D.C. 2004). This Court agrees with

the reasoning of these cases and similarly finds Blakely nonretroactive in this case where

Movant's conviction was final before Blakely was announced.

 Because Blakely does not apply retroactively to this case on collateral review,

Movant's challenge to the sentencing enhancement under the rule announced in Blakely

fails. 

C. Booker Claim

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Movant further claims that his sentencing enhancements violated the rule

announced in Booker. In Booker, the Supreme Court applied the rule of Blakely to the

United States Sentencing Guidelines and held that the Guidelines, as written, violate the

Sixth Amendment principles articulated in Blakely. United States v. Booker, 543 U.S. ___,

125 S.Ct. 738, 749-56 (2005). The Supreme Court severed and excised the provision

making the Guidelines mandatory and declared the Guidelines advisory. Id. Booker was

not decided until January 12, 2005 well after Movant's conviction and sentence were final. 

Movant's claim based on Booker fails because that case does not apply

retroactively on collateral review. Booker reiterates the ruling stated in Apprendi and

Blakely 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.'" Booker, 543 U.S. ____, 125 S.Ct. at 746 (quoting

Apprendi, 530 U.S. at 490). To determine whether Booker applies retroactively on

collateral review, the court must engage in a multi-step analysis. First, the court must

determine whether Booker announced a new rule. A "case announces a new rule if the result

was not dictated by precedent existing at the time the defendant's conviction became final." 

Teague v. Lane, 489 U.S. 288, 301 (1989)

Here, Movant's conviction became final in April of 2004. Booker was issued on

January 12, 2005. Booker, is a new rule for the purposes of this case because at the time

Movant's conviction became final, there was no precedent suggesting that the federal courts

should consider the Sentencing Guidelines advisory. 

Second, the court must determine whether the new rule is procedural or

substantive. A rule is substantive if it alters the course of conduct or the class of persons

that the law punishes. Schriro v. Summerlin, 542 U.S. 348 (2004). On the other hand,

"rules that regulate only the manner of determining the defendant's culpability are

procedural." The rule announced in Booker is procedural because it only regulates the

manner of determining a defendant's sentence. See, United States v. Brown, 2005 WL

1463531, * 2 (D.Alaska 2005).

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 New procedural rules generally do not apply retroactively. Retroactive effect is

only given to "watershed rules of criminal procedure" implicating the fundamental fairness

and accuracy of the criminal proceeding. Summerlin, 542 U.S. 348. In Booker, the

Supreme Court stated that Booker applies "to all cases on direct review" but did not mention

collateral review. 125 S.Ct. at 769. Every court that has considered whether Booker applies

retroactively to cases on collateral review had held that it does not. See, United States v.

Brown, 2005 WL 1463531, * 3 (D. Alaska, April 28, 2005); United States v. Green, 2005

WL 237204, * 1 (2d Cir., Feb. 2, 2005); Humphress v. United States, 398 F.3d 855, 860(6th

Cir. 2005)(in the context of an initial § 2255, holding that Booker does not apply

retroactively on collateral review); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.

2005); United States v. Leonard, 2005 WL 139183, at * 1 (10th Cir., Jan. 24, 2005); Varela

v. United States, 400 F.3d 864, 868 (11th Cir. 2005)(in the context of an initial § 2255,

holding that Booker falls into the category of new rules of criminal procedure that are not

retroactively applicable on collateral review); Guzman v. United States, 404 F.3d 139, 141

(2d Cir. 2005)(Booker not applicable on collateral review where defendant's conviction was

final as of January 12, 2005, the date Booker issued); Hewett v. United States, ___

F.Supp.2d ___, 2005 WL 133116, * 4 (D.H., May 20, 2005)("Every federal court of appeals

to address the question of whether Blakely or Booker are retroactive to initial cases on

collateral review . . . has held that they are not."); United States v. Wrenn, 2005 WL

1389060, * 2 (D.Or., May 10, 2005)(same).

Because Booker does not apply retroactively on collateral review, Movant's

Booker claim fails. 

II. Duplicity of Counts One and Two (Claim 5)

In his fifth claim for relief, Movant asserts that Count One and Two of the

Superseding Indictment are duplicitous because Count One contained five or more possible

charges and Count Two entwines "conspires and attempts" with "aiding and abetting." 

(document # 291 at 34-37)

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Count One of the Superseding Indictment charges Movant with Conspiracy to

Take Hostages and sets forth the elements of that offense. Although the hostage taking

statute includes an "attempt" provision, the Superseding Indictment does not include the

word "attempt." Specifically, Count One charged that:

On or about March 23, 2000 through or about March 25, 2000 in the District of

Arizona or elsewhere, defendant AQUILEO MELCHOR-ZARAGOZA . . . and

others known and unknown to the Grand Jury, did knowingly and intentionally

conspire and agree together to seize and detain and continue to detain another person

in order to compel a third person to do an act, to wit: pay money, as an explicit and

implicit condition for the release of said person seized and detained. . . . In violation

of Title 18 United States Code, Sections 371 and 1203. 

(Document # 30 at 1-2) 

Title 18 U.S.C. § 371 is the general conspiracy statute, and 18 U.S.C. § 1203 is

the hostage taking statute. Movant claims that the language of §1203 indicates that Count

One contained duplicitous charges. 

Section 1203 provides that :

(a) except as provided in subsection (b) of this section, whoever, whether inside 

or outside the United States, seizes or detains and threatens to kill, to injure, 

or continue to detain another person in order to compel a third person 

or governmental organization to do or abstain from doing any act as an explicit 

or implicit condition for the release of the person detained, or attempts, or

 conspires to do so, shall be punished by imprisonment. 

18 U.S.C. § 1203(a) (emphasis added). Because Count One alleges conspiracy in violation

of 18 U.S.C. § 371 and also alleges conspiracy to commit a crime under § 1203, and § 1203

contains its own conspiracy and attempt provisions, Movant claims that Count One actually

charged him with "conspiracy, attempt, attempting to conspire, conspiring to attempt, or

conspiring to conspire." (document # 291 at 35) Movant further claims that "attempting to

conspire" and "conspiring to conspire" are not federal offenses. (document # 291 at 35) 

Movant also claims that the prosecutor admitted on the record that after the indictment was

filed she realized she did not have to charge Movant under the general conspiracy statute, §

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2

 There is no evidence in the record supporting Movant's assertion that the prosecutor stated

that she did not need to charge Movant under 18 U.S.C. § 371 in view of the conspiracy language

contained in 18 U.S.C. § 1203. 

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371, because § 1203 contains its own conspiracy language.2 (See document # 291 at 34-35)

( Movant does not give sufficient citation to locate this admission in the record). Movant

claims that because the jury used general verdict forms, there is no way of knowing which of

these statutes the jury convicted him of violating, and that it is possible that he was

convicted of a nonexistent federal offense. 

Contrary to Movant's assertion, the jury returned a specific verdict form, not a

general form as Movant suggests. The jury's verdict reads: "We, the jury, find the

defendant, Aquileo Melchor-Zaragoza, as to Count 1: Conspiracy to Commit Hostage

Taking: Guilty. We, the jury, find the defendant, Aquileo Melchor-Zaragoza, as to Count 2:

Hostage Taking: Guilty." (Document # 149). The verdict did not mention attempt. Movant

was convicted of Conspiracy to Commit Hostage Taking as charged in Count One and

Hostage Taking as charged in Count Two, both of which are valid federal offenses. 

Movant further claims that Count Two is duplicitous because it entwines the

"conspires and attempts" language from 18 U.S.C. § 1203 with the "aiding or abetting"

language of 18 U.S.C. § 2. The Court finds no validity in this argument. Count Two of the

Superseding Indictment charges that:

On or about March 23, 2000, in the District of Arizona and elsewhere, defendants

AQUILEO MELCHOR-ZARAGOZA . . . and others known and unknown to the

Grand Jury, did knowingly and intentionally seize and detain, as well as aid and abet,

and continue to detain Noe Perez-Valtierra, Jorge Camacho-Sanchez, and Apolinar

Valtierra-Guerrera in order to compel others to do an act, to wit: pay money as an

explicit and implicit condition for the release of the persons seized and detained. In

violation of Title 18 United States Code, Sections 1203 and 2. 

(Document # 30 at 2-3).

Title 18 U.S.C. § 2 provides that " [w]hoever commits an offense against the

United States or aids, abets, counsels, commands, induces or procures its commission, is

punishable as a principal." 18 U.S.C. § 2(a). Citing this section in Count Two does not

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render the count duplicitous, rather it clarifies that Movant could be charged under 18 U.S.C.

§1203 as a principal even if he only aided and abetted the hostage taking. 

In view of the clear text of the indictment and the verdict, the distinctions

between Counts One and Two are clear, and there is no basis to conclude that Movant was

convicted of a nonexistent federal offense or faced duplicitous charges. Accordingly,

Movant's fifth claim for relief fails. 

III. Multiple Conspiracy Charges (Claim Six)

In his sixth claim for relief Movant claims that the Government violated his Fifth

and Sixth Amendment rights by dividing a single conspiracy to effect a common scheme or

plan into five separate conspiracies. Under Movant's theory, Count One alleges two

conspiracies (under18 U.S.C. §§ 371 and 1203); Count Two alleges one (under 18 U.S.C.

§1203); Count Three alleges one (under 8 U.S.C. § 1324); and Count Four alleges a fifth

conspiracy (under 8 U.S.C. § 1324), leading to a "multiplicitous scenario," where there is a

"danger" of punishing Movant multiple times for the same conduct. (Document # 291 at 39)

Contrary to Movant's assertion, the Superseding Indictment does not improperly cast one

conspiracy as multiple conspiracies. (See document # 30). The Superseding Indictment

charged Movant with violating two separate conspiracy statutes: Conspiracy to Commit

Hostage taking in violation of 18 U.S.C. §§ 371 and 1203 (count one) and Conspiracy to

Harbor Illegal Aliens in violation io 8 U.S.C. § 1324(a)(1)(A)(iii) (count three). 

"It is well settled that a single transaction can give rise to distinct offenses under

separate statutes without violating the Double Jeopardy Clause. This is true though the

'single transaction' is an agreement or conspiracy." American Tobacco Co. v. United States,

328 U.S.781 (1946). In Albernaz v. United States, 450 U.S. 333 (1981), the Supreme Court

upheld consecutive sentences for two conspiracy charges arising from a single agreement or

conspiracy having dual objectives. The Court held that because the conspiracy violated two

different statutes, the two different charges – conspiracy to import marijuana in violation of

21 U.S.C. § 963 and conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 -

were not multiplicitous. Id. at 140-41. The Court stated that when Congress has created two

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separate offenses that applied to a single multi-objective conspiracy, the issue is whether

Congress intended that separate punishment be imposed for each offense. 450 U.S. at 337. 

In the absence of clear Congressional intent, the Court applied the rule of Blockburger v.

United States, 284 U.S. 299 (1932). Albernaz, 450 U.S. at 337. "Under Blockburger,

Congress is deemed to have intended multiple punishments if each offense required proof of

a fact the other does not." U.S. v. Alerta, 96 F.3d 1230, 1237 (9th Cir. 1996)(citing 284 U.S.

at 304), overruled on other grounds, United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000). 

"The applicable rule is that where the same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact which the other does

not." Blockburger, 284 US at 304. 

Here, Movant was charged with, and convicted of, Conspiracy to Take Hostages

in violation of 18 U.S.C. § 1203, and Conspiracy to Harbor Undocumented Aliens in

violation of 8 U.S.C. § 1324. (Respondents' Exh. A, B) Title 18 U.S.C. § 1203 and 8

U.S.C. § 1324 have separate elements and require proof of distinct facts, as can be

demonstrated by the text of the statutes, as well as by the jury instructions given at Movant's

trial: 

The defendant is charged in Count 1 of the superseding indictment with conspiracy to

commit hostage taking in relation violation of Section 1203 of Title 18 of the United

States Code. In order for defendant to be found guilty of this charge, the Government

must prove each of the following elements beyond a reasonable doubt:

First, beginning on or about March 23, 2000, and ending on or about March 25,

2000, there was an agreement between two or more persons to commit the crime of

Hostage Taking as charged in the superseding indictment; 

Second, the defendant became a member of the conspiracy knowing of at least

one of its objects and intending to help accomplish it; and 

Third, one of the members of the conspiracy performed at least one overt act for

the purpose of carrying out the conspiracy, with all of you agreeing on a particular

overt act that you find was committed. 

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An overt act does not itself have to be unlawful. A lawful act may be an element

of a conspiracy if it was done for the purpose of carrying out the conspiracy. The

government is not required to prove that the defendant personally did one of the overt

act. 

(Document # 160 at No. 23.)

The court further instructed the jury that:

 The defendant is charged in Count 3 of the superseding indictment with Conspiracy 

 to Harbor Aliens in violation of Section 1324(a)(1)(A)(v)(I) of Title 8 of the United 

 States Code. In order for a defendant to be found guilty of these charges, the

government must prove each of the following elements beyond a reasonable doubt:

 First beginning on or about March 23, 2000, and ending on or about March 25, 2000, 

 there was an agreement between two or more persons to commit the crime of harboring 

 illegal aliens; 

 Second, the defendant became a member of the conspiracy knowing at least one of

its objects and intending to help accomplish it. 

(Document # 160 at No. 28) 

The Defendant is charged in Count 4 of the superseding indictment with 

concealing, harboring and shielding from detection of certain aliens in 

violation of Section 1324(a)(1)(A)(iii) of Title 8 of the United States

Code. In order for the defendant to be found guilty of this charge, the 

Government must prove each of the following elements beyond a reasonable

doubt:

First, that one or more of the people harbored were aliens;

Second, that these aliens were not lawfully in the Unite States; 

Third, that defendant knew or acted in reckless disregard of the fact that

these aliens were not lawfully in the United States; 

And fourth, the defendant concealed, harbored or shielded from detection

these aliens for the purpose of avoiding these aliens' detection by immigration

authorities.

An alien is a person who is not a natural-born or naturalized citizen of the

United States. An alien is not lawfully in this country if the person was not

duly admitted by an Immigration Officer. 

(Respondents' Exh. B at 148-49) 

Although Movant's claim relies in part on the decisions of Launius v. United

States, 575 F.2d 770 (9th Cir. 1978), and Alerta v. United States, 96 F.3d 1230 (9th Cir.

1996), overruled on other grounds, his case is distinguishable from both of these cases. In

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Launius, the court deemed multiplicitous two counts of conspiracy arising from the same

drug smuggling venture. 575 F.2d at 771. However, each of the conspiracy counts alleged a

violation of the same statute. Id. Unlike Lanius, in the instant case, the two conspiracy

charges were brought under different statutes. 

Movant also relies on Alerta. In Alerta, the defendant was charged with a

general violation of a conspiracy statute, 18 U.S.C. §371, and with a specific charge of

conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846. 96 F.3d at 1239. 

 Unlike Alerta, Movant's case does not involve one general charge and one specific charge

which overlap. Rather, Movant was specifically charged with Conspiracy to Commit

Hostage Taking in Count One (in violation of 18 U.S.C. §§ 1203 and 371) and with

Conspiracy to Harbor Illegal Aliens in Count Two (in violation of 8 U.S.C. § 1324). Each

count charged a violation of a different statute with different elements. In view of the

foregoing, Movant's sixth claim for relief fails. 

IV. Constructive Amendment as Related to Claims Five and Six (Claim 7)

In his seventh claim for relief Movant argues that because of the alleged

duplicitous offenses charged in Count One (as discussed in claim five) and the multiplicitous

conspiracy charges (as discussed in claim six), the indictment was constructively amended in

violation of the Fifth and Sixth Amendment. Because this claim relies on the theories

advanced in claims five and six, and the Court has concluded that these claims lack merit,

Movant's seventh claim also fails. / / /

/ / /

/ / /

V. Terminology of the Firearms Charge in Count Five (Claim 8)

In his eighth claim for relief, Movant claims that Count Five of the Indictment,

which charges a violation of 8 U.S.C. § 924(c), is incorrectly charged and that the jury

instructions amended the Indictment. (document # 291 at 45) 

Title 18 U.S.C. § 924(c) applies to "any person who, during and in relation to

any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in

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furtherance of any such crime, possesses a firearm." 18 U.S.C. § 924(c)(1)(A) (1998)

(emphasis added). Movant claims that this language refers to two separate and distinct

offenses: (1) using or carrying a firearm during and in relation to a crime of violence, and

(2) possessing a firearm in furtherance of a crime of violence. Movant claims that Count

Five of the Superceding Indictment, as well as the jury instructions and verdict form, “mismatched" or "cross-matched” the elements of these two offenses and, therefore, the

distinction between the offenses was not clear to the jury, and that his sentence under Count

Five should be vacated. (document # 291 at 43)

In support of his argument, Movant relies on United States v. Combs, 369 F.3d 925,

934 (6th Cir. 2004), which held that an indictment that mixed elements of the "during and in

relation to" clause and the "in furtherance of" clause of 18 U.S.C. § 924(c) could not be

reasonably construed to charge a crime under federal law. In Combs, the indictment charged

the defendant with "possess[ing] a firearm during and in relation to" the crime. Id. at 934. 

The Sixth Circuit held that "[i]ndicting Combs based on the conduct from the § 924(c)

'possession' offense in conjunction with the standard of participation (during and in relation)

from the other 'use' offense results in a failure to charge him with any codified federal

crime." Id. (emphasis in original). 

Count Five of Movant's Superseding Indictment (document # 30) states that: 

On or about March 23, 2000, in the District of Arizona, defendants . . . did possess, 

carry, and brandish a firearm, to wit, a semi-automatic pistol, during and in relation 

to a crime of violence, that is, Hostage Taking as alleged in Count Two, a felony 

crime prosecutable in a Court of the United States.

In violation of Title 18, United States Code, Sections 924(c) and 2.

(document # 30) Movant claims that, like Combs, by using the terms of the two clauses

interchangeably, the indictment was incorrectly charged. The indictment's language does

not exactly match that of the statute, charging possession "during and in relation to" the

crime, as opposed to "in furtherance of" the crime. Although Combs is similar to Movant's

case, the Ninth Circuit does not share the views of the Sixth Circuit on this matter. 

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The jury instructions stated that Movant was, “charged with possessing, carrying, or

brandishing a firearm during and in relation to hostage taking, or possessing a firearm in

furtherance of hostage taking, in violation of 924(c) of Title 18 of the United States Code.” 

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Movant may challenge an allegedly defective indictment at any time, but because he

does so at this late stage, the Court liberally construes the indictment in favor of its validity. 

Id. The Ninth Circuit has held that, "[w]hen the sufficiency of the indictment is challenged

after trial it is only required that 'the necessary facts appear in any form or by fair

construction can be found within the terms of the indictment.'" Id. at 1317 (quoting

Kaneshiro v. United States, 445 F.2d 1266, 1269 (9th Cir. 1971)) (emphasis added in James). 

If an indictment refers to the statute under which the defendant is charged, and that statute

clearly details the elements of the offense charged, this reference may be sufficient to cure

the defects of the indictment. See, e.g., United States v. Ruelas, 106 F.3d 1416 (9th Cir.

1997) ( ruling that an indictment referring to 18 U.S.C. § 924(c), using the terms "use or

carry" in the heading, and alleging possession of a weapon during the offense, included

sufficient information to be valid); but see, Givens v. Housewright, 786 F.2d 1378, 1381 (9th

Cir. 1986) (deciding indictment was not sufficient when it referred to a statute that simply

defined the degrees of murder, but not the specific murder charge facing the defendant). In

Movant's case, the indictment plainly listed both the possession and carrying acts, the during

and in relation to standard, and made reference to 18 U.S.C. §924(c), which clearly lists the

elements of the offense. The terms of the indictment together with the reference to the

statute provided the necessary facts. Under this standard, the indictment was sufficiently

clear and valid. 

Movant also claims that the jury instructions3

 in regard to 18 U.S.C. § 924(c)

constructively amended the indictment by adding a new charge. The jury instructions not

only included possession in the "during and relation to" clause, but also added the

"possession in furtherance" language that had not appeared in the text of the indictment. 

Movant claims that this additional language added a new charge of possession in furtherance

of the crime. Contrary to Movant's claims, possession in furtherance of the crime was not a

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The verdict stated, 

Possession or Use of A Fire Arm in Relation to a Crime of Violence, guilty. If found

guilty of Possession, we further find the defendant guilty of Use of a Firearm in Relation

to a Crime of Violence, guilty of Carrying a Firearm in Relation to a Crime of Violence,

and guilty of Brandishing a Firearm in Relation to a Crime of Violence.

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new charge, but rather it was a part of the originally indicted firearms charge under 18

U.S.C. § 924(c), the text of which could have been found in the referenced statute. 

Finally, Movant claims that because of the variations in the possession offense

language, the verdict4

 was not sufficiently clear to determine what the jury found in relation

to Count Five. This Court disagrees. Regardless of any discrepancy in the possession

language, the jury found Movant guilty of possession or use of a firearm in relation to a

crime of violence and the jury further found Movant guilty of use, carrying, brandishing a

firearm in relation to a crime of violence. (Respondents' Exh. B at 4-5). The verdict does

not include the language "possession in furtherance of a crime of violence" as Movant

claims. Movant is correct that in instructing the jury, the court stated that "the defendant

used, possessed, carried, or brandished a firearm in furtherance of hostage taking." 

(Respondents' Exh. B at 151) However, because the jury found Movant guilty of the more

serious crime of using, carrying, or brandishing a firearm in relation to a crime of violence,

Movant suffered no prejudice as a result of the wording of the instructions. 

Because the indictment was sufficiently charged, the jury instructions did not amend

the indictment, and the jury found Movant guilty of the offense under Count Five, therefore,

Movant's eighth claim fails. 

V. Ineffective Assistance of Counsel (Claims 3 and 9)

1. Failure of Counsel to Raise Claims Five Through Eight (Claim 9) 

In his ninth claim, Movant asserts that trial and appellate counsel rendered ineffective

assistance by failing to object to, preserve, or appeal the issues of duplicitous charging and

constructive amendments presented in claims five through eight of Movant's § 2255 Motion. 

In order to prove a claim of ineffective assistance of counsel, Movant must demonstrate that

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(1) counsel's performance was unreasonable under prevailing professional standards; and (2)

he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 688-692 (1984). If

Movant cannot establish the prejudice aspect of the Strickland analysis, there is no need to

examine the performance prong. Id. at 697. In examining an ineffective assistance of

counsel claim the court will "strongly presume that counsel's conduct was within the wide

range of reasonable assistance, and that he exercised acceptable professional judgement in

all significant decisions made." Id. at 689. 

To establish prejudice under the Strickland test, Movant must establish a "reasonable

probability that but for counsel's unprofessional errors, the result would have been

different." Id. at 694. In this case, Movant claims he was prejudiced because if counsel had

pursued the issues he raised in claims five through eight of his § 2255Motion, his sentence

would have been shorter, his special assessment would have been reduced, and his case

would have been a 'dead-bang' winner." (Document # 304 at 40). However, as

demonstrated in sections two through four above, Movant's arguments in claims 5-8 lacked

merit. Therefore, there is no reasonable probability "sufficient to undermine confidence in

the outcome" as required Strickland. Strickland, 466 U.S. at 694. Because the claims were

invalid, the outcome of his conviction or sentencing would not have changed had counsel

raised them at trial or appeal. Movant fails to demonstrate that but for counsel's alleged

error the result would have been different. 

The Ninth Circuit considered a similar situation in Baumann v. United States, 692

F.2d 565 (9th Cir. 1982). In Baumann, the movant claimed that his indictment was invalid

due to multiplicitous and duplicitous charges, and that counsel was ineffective in not

challenging the indictment. The Court decided that the movant "could not conceivably be

prejudiced by his counsel's failure to move for dismissal of any of the counts of the

indictment because, as the district court concluded, they were not defective as a matter of

law." Id. at 572. Like Baumann, because Movant's claim of ineffective assistance is based

on a legally invalid theory, Movant cannot have been prejudiced by his counsel's decisions. 

"The failure to raise a meritless legal argument does not constitute ineffective assistance of

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counsel." Id. It was well within counsel's professional discretion to not pursue the

arguments asserted in Movant's fifth through eighth claims. 

By failing to show prejudice, Movant has failed to establish a claim of ineffective

assistance of counsel.

2. Failure to pursue an Apprendi Claim (Claim 3)

In his third claim, Movant argues that trial counsel was ineffective in failing to pursue

a claim under Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that "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." Apprendi, 530 U.S. at 490. 

Movant claims that trial counsel failed to argue an Apprendi violation during sentencing and

failed to preserve an Apprendi issue for appeal. Movant contends that:

It is clear that counsel could have but did not investigate case law such as Apprendi v.

New Jersey, and the multitude of cases that developed as a direct result of the U.S.

Supreme Court's decision in Apprendi. Counsel could have, and should have, known

that Apprendi changed what used to be viewed as "sentencing factors" to elements of

the offense that must now, instead of being found by the sentencing judge by a

preponderance of the evidence standard, be submitted to the jury and proven beyond

a reasonable doubt. 

(document # 291 at 23-24 (internal citation omitted)). 

Movant's claim fails because the record indicates that trial counsel did raise the

Apprendi issue with the Court on more than one occasion. Movant's counsel filed a Motion

Re: Apprendi and Requirement of Necessary Elements for Count 5 of Indictment (document

# 82) on February 4, 2002. This Motion argued that due to the ruling in Apprendi as well as

McMillan v. Pennsylvania, 477 U.S. 79, 87-88 (1986), the issue of whether the defendant

brandished a weapon under 18 U.S.C. 924(c) should be presented to the jury, because if

found to be true, it would increase the statutory maximum sentence from five years to seven

years. (Document # 82 at 1-2). Counsel also brought to the Court's attention United States

v. Harris, 243 F.3d 806 (4th Cir. 2001), attaching a copy of the 4th Circuit opinion to his

Motion. (Id. at exhibit A). At the time, the United States Supreme Court had granted

certiorari in Harris as to the issue of whether a statute that increases the mandatory minimum

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is an issue that should be given to a jury for proof beyond a reasonable doubt. At the

Motion Hearing before the Honorable James A. Teilborg on March 11, 2002, Movant's

counsel referred to the aforementioned Motion, and again asked that the issue of brandishing

under 18 U.S.C. § 924(c) be presented to the jury for proof beyond a reasonable doubt, in

accordance with Apprendi, and the pending Harris case. Contrary to Movant's assertion,

counsel did research the applicable case law applying the rule announced in Apprendi and

raised an Apprendi claim to the district court. Counsel pursued an Apprendi claim, in other

words, he took the very action which Movant asserts counsel was ineffective in failing to

take. Because counsel did pursue an Apprendi claim, Movant's claim of ineffective

assistance of counsel based on counsel's failure to pursue an Apprendi claim fails.

In accordance with the foregoing,

IT IS HEREBY RECOMMENDED that Movant's Motion to Vacate, Set Aside or

Correct Sentence pursuant to 28 U.S.C. § 2255 (document #290) be DENIED. 

This recommendation is not an order that is immediately appealable to the Ninth

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 

Appellate Procedure, should not be filed until entry of the District Court=s judgment. The

parties shall have ten days from the date of service of a copy of this recommendation within

which to file specific written objections with the Court. See, 28 U.S.C. ' 636(b)(1); Rules

72, 6(a), 6(e), Federal Rules of Civil Procedure. Thereafter, the parties have ten days within

which to file a response to the objections. Failure timely to file objections to the Magistrate

Judge's Report and Recommendation may result in the acceptance of the Report and

Recommendation by the District Court without further review. See United States v. ReynaTapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual

determinations of the Magistrate Judge will be considered a waiver of a party=s right to

appellate review of the findings of fact in an order or judgment entered pursuant to the

Magistrate Judge=s recommendation. See, Rule 72, Federal Rules of Civil Procedure.

DATED this 29th day of August, 2005.

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