U.S. v. Jenkins

Citation866 F.2d 331
Decision Date19 January 1989
Docket NumberNo. 88-1830,88-1830
PartiesUNITED STATES of America, Petitioner, v. The Honorable Bruce S. JENKINS, United States District Court for the District of Utah, Respondent, Derek Aragon Mendes, Defendant-Real Party in Interest.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Maury S. Epner (Brent D. Ward, U.S. Atty., and Bruce C. Lubeck, Asst. U.S. Atty., Salt Lake City, Utah, with him on the briefs), Dept. of Justice, Washington, D.C., for petitioner.

Ronald J. Yengich of Yengich, Rich, Xaiz & Metos, Salt Lake City, Utah, for defendant-real party in interest.

Before MOORE, BARRETT, and TACHA, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

The government seeks a writ of mandamus ordering the District Court of the District of Utah to impose the mandatory enhanced sentence provided by 21 U.S.C. Sec. 841(b)(1)(B). The respondent court has chosen not to reply to the petition. Instead, the court has filed a letter stating: "The record demonstrates the reasons for the action taken." As the real party in interest, defendant Derek Aragon Mendes responds to the petition, urging the government's proper remedy is a direct appeal and asserting the trial court did not abuse its discretion in refusing to invoke Sec. 841(b)(1)(B). The issues we consider are whether mandamus is a proper remedy, and, if so, whether it should issue in this case to correct the sentence. Concluding both questions must be answered affirmatively, we issue the writ.

Defendant Mendes was convicted on one count of conspiracy, 21 U.S.C. Sec. 846; one count of possession with intent to distribute controlled substances, 21 U.S.C. Sec. 841(a)(1); and one count of aiding and abetting, 18 U.S.C. Sec. 2. The convictions arose from a search predicated upon informant disclosures and subsequent seizures of controlled substances made in an apartment rented by Mr. Mendes and occupied by him at the time of the seizures.

When the apartment was searched, Mr. Mendes was discovered seated at a kitchen table. On the table in front of him was .3 gram of cocaine, a rolled-up twenty dollar bill, and a razor blade. In another location in the apartment, agents discovered and seized about 800 grams of almost pure cocaine, 125 grams of heroin, a scale, and a handgun. Also found with those items was $30,000 in cash which Mr. Mendes later admitted belonged to him.

Mr. Mendes was convicted of possession with intent to distribute approximately eight ounces of heroin and twenty-four ounces of cocaine. At sentencing, the government requested the court impose sentence on this count under 21 U.S.C. Sec. 841(b)(1)(B), which states that persons with one or more prior narcotics convictions, who possess with intent to distribute:

(i) 100 grams or more of a mixture or substance containing a detectable amount of heroin;

(ii) 500 grams or more of a mixture or substance containing a detectable amount of ... (II) cocaine....

....

such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years ... a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, or $2,000,000 if the defendant is an individual ... or both.

(Emphasis added.)

Throughout the sentencing hearing, in colloquy with the prosecutor, the trial court expressed several substantial concerns over the statute and why it should not be applied. However, after delineating these concerns, the court concluded only one applied to this case. 1 The court was troubled by the agreement between the government and the defendant that led to giving a "no quantity" instruction. As a result, the court concluded Sec. 841(b)(1)(B) could not be invoked because the jury had made no finding of the quantity of the controlled substance possessed by Mr. Mendes. The court stated:

I should point out that the instruction given ... told this jury: The evidence need not establish that the amount or quantity of heroin or cocaine was as alleged in the indictment, but only that a measurable amount of heroin or cocaine was in fact the subject of the acts charged in the indictment. The actual amount involved is not important....

Now, that instruction accurately states the law, it seems to me, with respect to the substantive offense. It seems to me the defendant cannot be sentenced under the enhancement provisions without a finding as to the quantities involved.... [I]t seems to me this court is in no position to substitute its judgment for the judgment of the jury. Where, as here, the jury finds the defendant guilty of possession, it does not specifically say what quantity of drug or drugs the defendant possessed, and has been instructed it doesn't matter, and the evidence is susceptible of different interpretations, which it seems to me that it did, some requiring enhancement and others not, the court should not have to guess which quantity the jury implicitly found.

Although Mr. Mendes had a previous narcotics conviction, the trial court refused to apply the enhanced sentence provision. Instead, it sentenced the defendant to concurrent forty month terms of imprisonment on each of the three counts.

Given these circumstances, the seminal question we must answer is whether this case is proper for a mandamus remedy. Recognizing that mandamus is appropriate only when there are no other adequate means to attain the relief requested, Journal Publishing Co. v. Mechem, 801 F.2d 1233 (10th Cir.1986), the government urges neither a direct appeal nor Fed.R.Crim.P. 35(a) provides it a vehicle for relief. Because the criminal acts involved in this case were committed before November 1, 1987, the government argues the remedy established by 18 U.S.C. Sec. 3742(b)(1) 2 is unavailable. The government further contends that filing a Rule 35(a) 3 motion would be "utterly fruitless" because the trial court was exposed to the government's position throughout the lengthy sentencing hearing. Thus, the government urges that mandamus is warranted because the trial court's refusal to apply Sec. 841(b)(1)(B) constitutes a "judicial usurpation of power or a clear abuse of discretion." United States v. West, 672 F.2d 796, 799 (10th Cir.), cert. denied, 457 U.S. 1133, 102 S.Ct. 2959, 73 L.Ed.2d 1350 (1982).

Mr. Mendes responds that either Rule 35(a) or 18 U.S.C. Sec. 3742 is a proper avenue for the government to contest the validity of the sentence. Thus, he argues, since the government followed neither, it has failed to satisfy the first requirement for mandamus relief.

The government is correct that the provisions of the Sentencing Reform Act are inapposite; hence, direct appeal of the sentence is unavailable. The Act took effect on November 1, 1987. Pub.L. No. 98-473, Sec. 235, 98 Stat. 2031, as amended by Act of December 26, 1985, Pub.L. No. 99-217, Sec. 4, 99 Stat. 1728. The sentencing provisions of the Act are limited to cases in which the crime was committed after the effective date. Pub.L. No. 100-182 Sec. 2(a), 101 Stat. 1266. We believe the appeal provided by Sec. 3742(b)(1), which is designed to review those sentences, must therefore be confined to cases in which the Act is invoked. Hence, Sec. 3742 does not apply to a case in which the crime was committed, as here, before November 1, 1987. See also United States v. Horak, 833 F.2d 1235, n. 12 (7th Cir.1987).

The real issue is whether the government should be required to pursue Rule 35(a) before attempting to invoke the mandamus jurisdiction of this court. 4 Doubtless, this avenue is proper, but does that mean mandamus cannot be invoked until the government files the motion and has it denied? We think not. One purpose behind the limitation of the mandamus remedy to cases in which no other recourse is available is to protect against preemptive use of this prerogative remedy. 52 Am.Jur.2d Mandamus Secs. 31, 46 (1970). That purpose has been satisfied in this case because the question was thoroughly presented and argued at length at the sentencing hearing. The district court has fully considered the issues and declined to respond to the order to show cause in this case. As a consequence, requiring the government to raise the issue again in light of the trial court's unreserved conclusions would be both a mechanistic ritual and a wasteful kowtow to form over substance. Consequently, within the perimeter of this case, we conclude no remedy other than mandamus is available to the government. We also believe that the problem raised in this petition is new and important, further justifying the exercise of mandamus jurisdiction. Journal Publishing, 801 F.2d at 1235.

The next question is whether the enhancement provisions of Sec. 841(b)(1)(B) depend upon a jury finding of the quantities specified in the statute. The trial court concluded that enhancement could not be invoked without such a finding because of the disparity between the quantity of substance located on the table in front of Mr. Mendes at the time of his arrest and the quantities of substance located elsewhere in the apartment. Mr. Mendes argues that analysis is proper because previously we have said that quantity is a critical element of the offense of possession with intent to distribute. United States v. Crockett, 812 F.2d 626, 629 (10th Cir.1987). Defendant's reliance is misplaced, however, because Crockett is inapposite.

The question in Crockett was whether the requisite quantity must be alleged and proved at trial before an enhanced penalty can be imposed. We held, in that context, quantity was a critical element which must be set out in the indictment, and failure to do so was a bar to an enhanced sentence. That is not the substance of this case, however, because the requisite quantity was both alleged in the indictment and proved at trial.

The trial court's concern here was over the effect of the so-called "no quantity" instruction. The court...

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