Blastos v. United States

2002 DNH 031

• Court: District Court, D. New Hampshire
• Decided: January 30, 2002
• Docket: CV-02-039-M
• Status: Published

Opinion

Blastos v. United States CV-02-039-M 01/30/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Alexander Blastos, Petitioner

v. Civil No. 02-039-M Opinion No. 2002 DNH 031 United States of America, Respondent

O R D E R

Petitioner seeks relief under 28 U.S.C. § 2255 from his wire

fraud conviction and sentence on two grounds: 1) his sentence was

improperly enhanced by factors determined by the sentencing

judge, by a preponderance of the evidence, rather than by the

jury, beyond a reasonable doubt, as allegedly required by the

Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466

(2000); and 2) defense counsel's assistance was constitutionally

defective in that he failed to raise the Apprendi issue at trial

or on appeal.

Neither claim has merit. Petitioner simply misreads the law

of this circuit. Petitioner's sentence did not exceed the

statutory maximum for the offense of conviction. And, as the

court of appeals for this circuit has reiterated, Apprendi is not

applicable to cases such as this: We heretofore have concluded, and today reaffirm, that Apprendi does not apply to findings by the sentencing judge, under a preponderance-of-the-evidence standard, that elevate a defendant's guideline sentencing range (and, thus, his ultimate sentence), so long as the imposed sentence does not outstrip the default statutory maximum. See United states v. Caba, 241 F.3d 98, 101 (1st Cir. 2001) ("Apprendi simply does not apply to guideline findings.").

United States v. Gomez, 255 F.3d 31, 40 (1st Cir. 2001) .

Accordingly, petitioner's sentence was not imposed in

violation of the Apprendi rule, and, consequently, defense

counsel's representation was obviously not ineffective, since

defense counsel is not obligated to raise issues of no legal

mer i t .

Because the petition, files, and records of the case

conclusively show that petitioner is entitled to no relief, the

petition for post-conviction relief is hereby denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge January 30, 2002

cc: United States Attorney Alexander Blastos, pro se