United States v. Ford, Lonnie M. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 99-3781
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LONNIE M. FORD, also known as
LONNIE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana,
Hammond Division.
No. 97 CR 168—James T. Moody, Judge.
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SUBMITTED AUGUST 6, 2004—DECIDED SEPTEMBER 3, 2004
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Before EASTERBROOK, RIPPLE and ROVNER, Circuit Judges.
PER CURIAM. Lonnie Ford asks us to recall the mandate in
his direct criminal appeal. The facts regarding Mr. Ford’s
conviction are detailed in our prior opinions. United States
v. Stott, 245 F.3d 890 (7th Cir. 2001), and United States v.
Stott, Nos. 99-2962, 99-3588, 99-3781, 2001 WL 706932 (7th
Cir. June 22, 2001) (unpublished order) (substituting
language of the original opinion following consideration of
Mr. Ford’s petition for rehearing). We therefore shall set
2 No. 99-3781
forth only those facts that are pertinent to Mr. Ford’s present
motion.
In 1999, Mr. Ford appealed his criminal convictions for
possession with intent to distribute cocaine and cocaine base
and for carrying a firearm during and in relation to the
conspiracy to possess with intent to distribute. Following
oral argument, Mr. Ford filed a motion arguing that the
then-newly-decided Apprendi v. New Jersey, 530 U.S. 466(2000), rendered invalid his sentence of 360 months’ impris-
onment. We rejected that argument when we affirmed Mr.
Ford’s conviction and sentence, Stott, 245 F.3d at 915, and
again in our corrected opinion following consideration of
Mr. Ford’s petition for rehearing, Stott, 2001 WL 706932, at
*1-2. Mr. Ford argued that the statutory maximum sentence
for possession of cocaine, without reference to quantity, is
twenty years. Because the jury did not find him guilty of
possessing a specific amount of cocaine, he asserted that he
could be sentenced only to twenty years under Apprendi.
Stott, 2001 WL 706932, at *1. He further argued that the
government failed to establish that the substance at issue
was crack cocaine and therefore his sentence could not be
justified as an enhanced penalty for possession of crack. Id.As a result of his failure to raise any Apprendi-type argu-
ment in the district court, we reviewed Mr. Ford’s argu-
ments for plain error and held that he failed to demonstrate
that any error affected the fairness, integrity, or public
reputation of the judicial proceedings because there was
overwhelming evidence establishing the amount of crack
cocaine. Id. The charge against Mr. Ford was based on a
single transaction involving an undisputed amount of
cocaine base, and the jury had to accept this amount in
order to convict Mr. Ford of the charge. Id. In addition, we
held that it was clear beyond a reasonable doubt based on
the trial testimony that a rational jury would find that the
substance involved was crack cocaine for purposes of 21
No. 99-3781 3
U.S.C. § 841. Id. at *2.
In his motion, Mr. Ford argues that we should recall our
mandate in light of Blakely v. Washington, 124 S. Ct. 2531(2004), and United States v. Booker, 375 F.3d 508 (7th Cir.
2004), cert. granted, 2004 WL 1713654 (Aug. 2, 2004).
Mr. Ford believes that Blakely casts his prior Apprendi
argument in a different light and demonstrates that his
sentence was in violation of his Sixth Amendment rights. He
asserts that the court has the authority to recall the mandate
in the interests of justice.
Mr. Ford, however, has failed to set forth any reason to
justify recalling the mandate in his direct criminal appeal
that was issued three years ago. Following his direct appeal,
he filed a motion pursuant to 28 U.S.C. § 2255, which the
district court dismissed with prejudice. Ford v. United States,
02-CV-00404 (N. D. Ind. Oct. 29, 2002). He did not seek
permission to take an appeal from this decision.
We have held that motions to recall the mandate in a
direct criminal appeal cannot be used to avoid the succes-
sive petition restrictions of 28 U.S.C. § 2255. United States v.
Prevatte, 300 F.3d 792, 796-97 (7th Cir. 2002) (citing
Gray-Bey v. United States, 209 F.3d 986, 988 (7th Cir. 2000)).
See also Calderon v. Thompson, 523 U.S. 538, 553-54 (1998).
Accordingly, it is proper to recall the mandate only if we
would authorize a second or successive collateral attack
under 28 U.S.C. § 2244(b) and § 2255 ¶8. That is not the case
here. Even if the Supreme Court announced a new constitu-
tional rule in Blakely and Mr. Ford’s sentence violates that
rule, Mr. Ford’s proposed claim is premature. As we
explained in Simpson v. United States, 376 F.3d 679 (7th Cir.
2004), the Supreme Court has not made the Blakely rule
applicable to cases on collateral review as required by §
2244(b)(2)(A) and § 2255 ¶8(2).
4 No. 99-3781
Accordingly, Mr. Ford’s motion to recall the mandate is
denied. However, should the Supreme Court announce that
Blakely applies retroactively to cases on collateral review,
Mr. Ford can file an application for leave to file a successive
collateral attack in accordance with the Simpson decision.
DENIED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-3-04