United States of America v. Damon Meadows

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-3597
UNITED STATES OF AMERICA
v.
DAMON MEADOWS,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 93-cr-00040-09)
District Judge: Hon. Stewart Dalzell
Submitted Under Third Circuit LAR 34.1(a)
September 2, 2003
Before: SLOVITER, NYGAARD and ROTH, Circuit Judges
(Filed: September 18, 2003)
OPINION OF THE COURT

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SLOVITER, Circuit Judge.
Appellant Damon Meadows appeals his sentence, requesting that we remand to the
District Court for resentencing. We dismiss his appeal for lack of jurisdiction.
I.
BACKGROUND
Inasmuch as the parties are familiar with the factual and procedural background of
this case, we refer only to those facts as are pertinent to the issue under consideration. On
March 29, 1993, a federal grand jury in the Eastern District of Pennsylvania returned a
superseding indictment charging Meadows with conspiracy, in violation of 21 U.S.C. §
846, to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine
base (“crack”) in violation of 21 U.S.C. § 841(a)(1). The indictment charged Meadows
with involvement in the “Keith Ellis Organization,” which sold large quantities of cocaine
and crack in South Philadelphia.
After trial, a jury found Meadows guilty of the charges. Thereafter, the District
Court found by a preponderance of the evidence that Meadows’ offense involved 18.285
kilograms of crack cocaine, yielding an offense level of 42. The court then added two
levels for distribution within 1,000 feet of a school pursuant to U.S.S.G. § 2D1.2; two
levels for possession of a firearm in relation to the offense of conviction pursuant to
U.S.S.G. § 2D1.1(b); and two levels for obstruction of justice pursuant to U.S.S.G. §
3C1.1. The total offense level of 48 dictated a mandatory life sentence, which the district

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1 In relevant part, 18 U.S.C. § 3582(c)(2) reads: “The court may not modify a term
of imprisonment once it has been imposed except that . . . in the case of a defendant who
has been sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.”
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court imposed.
Meadows filed a direct appeal, challenging both his conviction and sentence. We
affirmed both. See United States v. Meadows, 52 F.3d 318 (3d Cir.) (table), cert. denied,
516 U.S. 890 (1995). Thereafter, Meadows filed a motion pursuant to 28 U.S.C. § 2255
to vacate, set aside, or correct his sentence. In that motion, Meadows made various
claims, alleging an error in a jury instruction and raising ineffective assistance of counsel
claims as to trial, Meadows’ plea of not guilty, and sentencing. The District Court denied
these claims, but nonetheless granted M eadows partial relief. Specifically, pursuant to its
power under 18 U.S.C. § 3582(c)(2), the District Court adjusted Meadows’ sentence
based on a retroactive guideline amendment reducing the highest based offense level from
42 to 38.1 Furthermore, the court found that it had erred in applying a two-level
enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1. The court,
however, rejected Meadows’ challenge to the two-level enhancement for distribution in a
school zone. On December 19, 1997, the court vacated Meadows’ original sentence and
resentenced him to 480 months in prison and a $10,000 fine. See United States v.
Meadows, 1997 WL 835413 (E.D. Pa. 1997).
Meadows appealed the denial of his constitutional claims in his § 2255 motion but
we denied a certificate of appealability. Meadows also appealed his new sentence,

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2 In Apprendi, the Supreme Court held 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.” Id. at 490.
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specifically the application of the school zone enhancement and raised, for the first time,
claims pursuant to the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S.
466 (2000).2
As to Meadows’ challenge to the District Court’s application of the school zone
enhancement, we referred to our intervening decision in Watterson v. United States, 219
F.3d 232 (3d Cir. 2000), where we held that the fact that a conspiracy to distribute
cocaine operated within 1,000 feet of a school was irrelevant to the determination of the
base offense level pursuant to U.S.S.G. § 1B1.1(a). Thereafter, we applied Watterson and
concluded that the District Court erred in using U.S.S.G. § 2D1.2 to calculate the base
offense. United States v. Meadows, 261 F.3d 494 (3d Cir. 2001) (table).
As to Meadows’ Apprendi claims, we concluded that they could not be resolved
until this court en banc rendered its decision in United States v. Vazquez. Id. We
remanded to the District Court for resentencing in light of Watterson and the forthcoming
Vazquez opinion.
In Vazquez, this court held that alleged Apprendi violations that are not preserved
at sentencing are subject to plain error review. 271 F.3d 93, 99 (3d Cir. 2001) (en banc),
cert. denied, 536 U.S. 963 (2002). In light of Vazquez, and in accordance with this
court’s instructions, the District Court again resentenced Meadows, this time to a term of

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292 months. It further reduced his fine to $1,500.00. As to the Apprendi issue, the
Government argued that Apprendi claims could not be raised in a collateral proceeding
and that in any event, Meadows had failed to establish plain error. Failing to resolve the
first argument, the District Court concluded that Meadows had not established plain error.
Once again, Meadows appealed his sentence. This appeal is currently before us.
II.
DISCUSSION
Meadows claims that the District Court violated our mandate when it imposed a
sentence that exceeded the applicable twenty-year statutory maximum. The Government
argues that the District Court and this court lack jurisdiction to consider Meadows’
Apprendi claims and that even if jurisdiction exists, the sentencing court did not commit
plain error in failing to submit the issue of threshold drug quantity to the jury. As to
jurisdiction, the Government argues that because the basis for the District Court’s
resentencing proceeding, which Meadows now appeals, was under 18 U.S.C. §
3582(c)(2), he cannot raise an Apprendi claim.
The Government is correct in asserting that our decision in United States v.
McBride, 283 F.3d 612 (3d Cir. 2002), forecloses Meadows from raising Apprendi claims
when seeking a modification of a sentence under 18 U.S.C. § 3582(c)(2). In McBride, we
held that Apprendi does not afford relief that is being sought pursuant to § 3582(c)(2). Id.
at 615.

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3 Counsel stated: “I don’t think this is a collateral review.” The District Court
disagreed, noting that “we’re here because of a 2255.” App. at 10-11.
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In addition to being precluded from raising his Apprendi claims in a § 3582(c)(2)
motion, Meadows also cannot raise these claims in a petition pursuant to 28 U.S.C. §
2255. In a decision rendered within the last three months, we held that Apprendi does not
retroactively apply to cases on collateral review. United States v. Swinton, 333 F.3d 481
(3d Cir. 2003); see also United States v. Jenkins, 333 F.3d 151 (3d Cir. 2003).
Meadows attempts to sidestep both of these jurisdictional roadblocks by arguing
that his appeal is pursuant to neither 18 U.S.C. § 3582(c)(2) nor 28 U.S.C. § 2255 but
instead is a direct criminal appeal. We disagree. In 1995, we affirmed Meadows
conviction and sentence and thus Meadows has already exhausted his direct criminal
appeal in this case. The District Court rejected a similar argument made by counsel for
Meadows.3
Rejecting Meadows’ argument that we should construe his appeal as a direct
criminal appeal, we are left with either 18 U.S.C. § 3582(c)(2) or 28 U.S.C. § 2255 as a
basis for his current appeal, neither of which is an appropriate avenue in which to raise
Apprendi claims.
III.
CONCLUSION
For the foregoing reasons, we dismiss this appeal for lack of jurisdiction.

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/s/ Dolores K. Sloviter
Circuit Judge

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