Doward v. United States, 142 F. Supp. 2d 169 (D.N.H. 2001)

John R. Doward, Coleman, FL, pro se.

Peter E. Papps, U.S. Attorney's Office, Concord, NH, for U.S.

BARBADORO, Chief Judge.

John Doward seeks relief pursuant to 28 U.S.C. § 2255. He argues that the court improperly enhanced his statutory maximum sentence pursuant to 18 U.S.C. § 924(e). His claims depend upon the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

I assume without deciding that: (1) Doward's claims are not barred by the statute of limitations that governs § 2255 motions because he filed his motion within one year of "the date on which the right asserted was initially recognized by the Supreme Court ... and made retroactively applicable to cases on collateral review," 28 U.S.C. § 2255; and (2) Doward can establish "cause and prejudice" that excuses his failure to raise his claims on direct appeal. See Sustache-Rivera v. United States, 221 F.3d 8, 17-18 (1st Cir. 2000), cert. denied, ___ U.S. ___, 121 S. Ct. 1364, 149 L. Ed. 2d 292 (2001). Nevertheless, I reject *170 Doward's claims because they are defective on their merits.

The Supreme Court held in Apprendi 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." 120 S. Ct. at 2362-63 (emphasis added). The Court did not overrule its prior decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), which held that, where provided by statute, a judge may enhance a defendant's sentence based upon prior convictions which have not been presented to a jury and proved to the jury's satisfaction beyond a reasonable doubt. See id. at 239-48, 118 S. Ct. 1219; see also Apprendi, 120 S. Ct. at 2362 (declining to revisit the validity of Almendarez-Torres). Therefore, as both the Tenth and the Eleventh Circuit Courts of Appeal have recognized, an enhancement of a statutory maximum sentence based on 18 U.S.C. § 924(e) that results from prior convictions is governed by Almendarez-Torres rather than Apprendi. See United States v. Thomas, 242 F.3d 1028, 1034-35 (11th Cir.2001); United States v. Dorris, 236 F.3d 582, 587-88 (10th Cir.2000).

I enhanced Doward's sentence pursuant to 18 U.S.C. § 924(e) based upon several prior convictions. Under prevailing Supreme Court precedent, the applicability of this enhancement is a matter for the judge rather than the jury. Petition dismissed.

SO ORDERED.