UNITED STATES OF AMERICA vs. ROBERT SIMS: a/k/a MOHAMMED; a/k/a MO Robert Sims v. United States, 516 U.S. 137 1995 . The District Court denied all claims associated…

NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-1610
UNITED STATES OF AMERICA
vs.
ROBERT SIMS:
a/k/a MOHAMMED; a/k/a MO
Robert Sims,
Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 92-cr-00671-2)
District Judge: The Honorable Lowell A. Reed, Jr.
Submitted Under Third Circuit LAR 34.1(a)
September 9, 2002
BEFORE: NYGAARD, ROTH, and WEIS, Circuit Judges.
(Filed: September 18, 2002)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
This is a sentencing appeal. Defendant Robert Sims was convicted on 17
counts stemming from his involvement in a large-scale drug trafficking organization in
1994. He was sentenced to multiple life sentences, to run concurrently, and an additional
40 years to run consecutively. On direct appeal, we affirmed the convictions and
sentence.
In 1997, Sims filed a pro se motion under 28 U.S.C 2255 to vacate, set
aside, or correct his sentence, alleging ineffective assistance at trial and arguing that his
conviction for carrying and using a firearm in connection with drug trafficking should be
set aside under Bailey v. United States, 516 U.S. 137 (1995). The District Court denied
all claims associated with ineffective assistance of counsel but vacated the firearm
conviction. Additionally, the District Court vacated two convictions of conspiracy

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pursuant to Rutledge v. United States, 517 U.S. 292 (1996), and ordered Sims resentenced
on several drug-related convictions because those counts actually involved cocaine rather
than cocaine base. Ultimately, the District Court resentenced Sims to 360 months to run
concurrently for each of nine counts (as well as five other shorter concurrent sentences)
and an additional 10 years to run consecutively for violation of 18 U.S.C. 924(c).
This latest appeal followed. Sims alleges that the District Court committed
error in reappointing his trial counsel as counsel for resentencing and that his new
sentence violated the rule set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), by
basing a sentence on a drug weight not found by a jury. For reasons discussed below,
both arguments fail.
The District Court reappointed Sims’ original counsel for purposes of
resentencing and Sims moved for appointment of new counsel. The District Court denied
the motion, finding that no meritorious allegations of ineffectiveness from the earlier trial
remained and that counsel in question could adequately represent Sims. We agree. Our
primary concern is a potential conflict of interest between attorney and client. A detailed
review of the record demonstrates that counsel zealously represented Sims at resentencing
and had no true conflict of interest. Furthermore, we note that Sims’ protestations over
the effectiveness of his original counsel do not amount to a Constitutional violation. The
Supreme Court has stated that "[i]f counsel is a reasonably effective advocate, he meets
constitutional standards irrespective of his client’s evaluation of his performance."
United States v. Cronic, 466 U.S. 648, 657 n.21 (1984).
Sims’ remaining contention is that, absent a finding by a jury of a specific
drug quantity, the statutory maximum for his crimes should be 20 years, pursuant to 21
U.S.C. 841(b)(1)(C). He claims that his sentence of 360 months violates the rule
announced in Apprendi by exceeding the statutory maximum based on an element not
proven to a jury. Sims is incorrect. Among other crimes, he was convicted of distributing
cocaine within 1,000 feet of a school. 21 U.S.C. 860. This crime carries a maximum
statutory sentence of 40 years, irrespective of the drug quantity. Sims’ sentence therefore
did not exceed the statutory maximum and Apprendi is not triggered.
Furthermore, Sims’ argument that Apprendi should apply is untimely. Sims
did not make an Apprendi claim until after the disposition of his first habeas petition
when he filed a motion for correction of sentence pursuant to Federal Rule of Criminal
Procedure 35(a). He again repeated this argument in a motion to dismiss the indictment.
In denying both motions, the District Court properly recognized that Sims’ efforts to
amend his original petition were impermissible attempts to present a successive habeas
petition without approval from this Court. As we explained in United States v. Duffus,
174 F.3d 333 (3d Cir. 1999), cert. denied, 528 U.S. 866 (1999), once the statute of
limitations for the original petition has run "an amendment to introduce the new theory
into the case...is simply not acceptable." Id. at 338.
For these reasons, the judgment of the District Court will be affirmed.
_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-1610
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UNITED STATES OF AMERICA
vs.
ROBERT SIMS:
a/k/a MOHAMMED; a/k/a MO
Robert Sims,
Appellant.
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 92-cr-00671-2)
District Judge: The Honorable Lowell A. Reed, Jr.
___________
Submitted Under Third Circuit LAR 34.1(a)
September 9, 2002
BEFORE: NYGAARD, ROTH, and WEIS, Circuit Judges.
___________
JUDGMENT
___________
This cause came to be considered on the record from the United States
District Court for the Eastern District of Pennsylvania and was submitted pursuant to
Third Circuit LAR 34.1(a) on September 9, 2002.
On consideration whereof, it is now here ORDERED AND ADJUDGED by
this Court that the judgment of the said District Court entered on March 7, 2001, be, and
the same is hereby, affirmed.
All of the above in accordance with the opinion of this Court.
ATTEST:
_________________________________
Acting Clerk
Dated: 18 September 200

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