United States of America v. Robert J. Fritz

BPS-297 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-2641
________________
UNITED STATES OF AMERICA
v.
ROBERT J. FRITZ,
Appellant
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On Appeal From the United States District Court
For the Middle District of Pennsylvania
(M.D. Pa. Crim. No. 99-cr-00042-MM)
District Judge: Honorable Malcolm Muir
_______________________________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
July 8, 2005
Before: RENDELL, FISHER AND VANANTWERPEN, Circuit Judges.
(Filed: July 26, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Robert L. Fritz appeals from the order of the District Court for the Middle District
of Pennsylvania denying his § 2255 motion.
In 2000, Fritz was convicted by a jury in the Middle District of Pennsylvania of

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conspiracy to possess with intent to deliver controlled substances, including heroin,
cocaine, and more than fifty (50) grams of crack cocaine, and of possession with intent to
deliver crack cocaine resulting in the death of a female, in violation of 21 U.S.C. §§ 846
and 841(a)(1). He was sentenced to a term of 360 months imprisonment. This Court
affirmed. See United States v.Fritz, C.A. No. 00-4120 (3d Cir. January 28, 2002). The
Supreme Court denied certiorari on October 7, 2002.
On October 3, 2003, Fritz filed a timely § 2255 motion claiming ineffectiveness of
counsel and misconduct by the Government attorney at trial, and challenging the
enhancement of his sentence based on judicial findings of drug type and quantity, Fritz’s
role in the offense, the use of a minor in the commission of the offense, and possession of
a firearm during the commission of the offense. Upon consideration of the filings, the
District Court denied the § 2255 motion on its merits. By order entered April 23, 2004,
the District Court denied the § 2255 motion and declined to issue a certificate of
appealability. Fritz timely appealed. Fritz filed a request for a certificate of appealability
on all of the § 2255 claims and, for the first time, raised Blakely v. Washington, 124 S.Ct.
2531 (2004) to attack the sentence enhancements imposed under the Federal Sentencing
Guidelines. We granted a certificate of appealability on the Blakely claim only.
We have jurisdiction to consider this appeal under 28 U.S.C. §§ 1291 and 2255.
We exercise plenary review over the District Court’s order denying § 2255 relief. United
States v. Jenkins, 333 F.3d 151, 153 (3d Cir. 2003). In April 2005, we stayed Fritz’s

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appeal pending our decision in Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005) and
granted his motion for appointment of counsel. After Lloyd was decided in May 2005,
we issued an order lifting the stay. We notified the parties that it was possible that we
would take summary action in light of Lloyd and that we would reconsider appointment
of counsel under I.O.P. 10.3.2. The parties have responded and the matter is ready for
disposition. We will also address Fritz’s pro se motion to expand the certificate of
appealability filed in February 2005, requesting that we revisit all of the claims raised in
his § 2255 motion.
I.
The Blakely Claim
Fritz contends that the District Court wrongly adjusted his base offense level
upward by five points based on the court’s factual findings made pursuant to the Federal
Sentencing Guidelines. Fritz argues that his sentence was imposed in violation of
Blakely. Of course, now, the argument is governed by the Supreme Court’s decision in
United States v. Booker, 125 S.Ct. 738 (2005). This Court has held that the new rule
announced in Booker, which applied the Blakely rule to the Federal Sentencing
Guidelines, is not retroactively applicable to cases on collateral review. See Lloyd v.
United States, 407 F.3d 608 (3d Cir. 2005). Fritz’s conviction became final in October
2002, well before Blakely or Booker were decided, and thus, the new rule announced in
these cases is not applicable to Fritz’s § 2255 claim. Fritz opposes summary action,
distinguishing Lloyd on its facts and procedural history and requesting that we reconsider

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Lloyd in light of what the Supreme Court may decide on the question of retroactivity. We
find Fritz’s arguments unpersuasive. Our decision in Lloyd resolves the threshhold
question of retroactivity in this case. Accordingly, we will summarily affirm the District
Court’s denial of Fritz’s collateral challenge to the sentence enhancements. In light of the
foregoing, we see no need to appoint counsel.
II.
Motion to Expand the Certificate of Appealability
Fritz requests that the certificate of appealability be expanded to include the
remaining claims in his § 2255 motion. By granting a certificate of appealability on the
Blakely claim only, we denied a certificate of appealability on the remaining § 2255
claims. Fritz has offered no reason sufficient to revisit the decision, and we find none on
the record.
III.
Because precedent set forth in Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005)
warrants it, we will summarily affirm the District Court’s judgment. See Third Circuit
LAR 27.4 and I.O.P. 10.6. Fritz’s application to expand the certificate of appealability to
include the remaining claims in his § 2255 motion is denied.

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