U.S. v. Arango-Montoya

• Decision Date: 08 August 1995
• Docket Number: ARANGO-MONTOY,D,No. 94-2913,94-2913
• Citation: 61 F.3d 1331
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis Enriqueefendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1331

61 F.3d 1331

UNITED STATES of America, Plaintiff-Appellee, v. Luis Enrique ARANGO-MONTOYA, Defendant-Appellant.

No. 94-2913.

United States Court of Appeals, Seventh Circuit.

Argued July 7, 1995.

Decided Aug. 8, 1995.

Barry Rand Elden, Asst. U.S. Atty., Philip Guentert (argued), Criminal Receiving, Appellate Div., Chicago, IL, for U.S.

Joseph R. Lopez (argued), Chicago, IL, for Luis Enrique Arango-Montoya.

Before POSNER, Chief Judge, and BAUER and KANNE, Circuit Judges.

PER CURIAM.

Luis Enrique Arango-Montoya pleaded guilty to violating 21 U.S.C. Sec. 846 by conspiring to intentionally possess with the intent to distribute 749 grams of cocaine. Arango-Montoya

was sentenced to a ten-year term of imprisonment to be followed by an eight-year term of supervised release. Arango-Montoya appeals the district court's finding that he was subject to a ten-year mandatory minimum sentence pursuant to 21 U.S.C. Sec. 841(b)(1)(B)(ii)(II). For the following reasons, the judgment of the district court is affirmed.

PROCEDURAL HISTORY

From June to August of 1991, Arango-Montoya was part of a drug distribution conspiracy. As a result of his involvement in this conspiracy, on October 27, 1993, Arango-Montoya was one of three defendants indicted for conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 846 (Count I), and two counts of possession of cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (Counts II and III). On March 10, 1994, the government filed an information notifying the district court and Arango-Montoya that under 21 U.S.C. Sec. 841(b)(1)(B)(ii)(II), the mandatory minimum sentence that Arango-Montoya faced could be enhanced from a term of five years' imprisonment to a term of ten years' imprisonment because of a 1986 Illinois state conviction for a felony drug offense, unlawful possession of a controlled substance, Ill.Rev.Stat. ch. 56 1/2, para. 1402(b) (1971) (current version at Ill.Ann.Stat. ch. 720, para. 570/402(c) (Smith-Hurd 1991)).

Arango-Montoya pleaded guilty to Count I, and the government dismissed Counts II and III, on May 3, 1994. As part of his plea agreement, Arango-Montoya admitted that he was responsible for the distribution of a total of 749 grams of cocaine. In the plea agreement, the government stated its position that because of the prior 1986 state conviction for possession of a controlled substance, Arango-Montoya's mandatory minimum for the instant offense was ten years' imprisonment. However, the plea agreement also provided that Arango-Montoya did not agree with this position and that both Arango-Montoya and the government reserved the right to argue their respective positions at sentencing. On July 21, 1994, Arango-Montoya filed an opposition to the enhancement of his mandatory minimum sentence based on his prior conviction arguing that the prior conviction was the result of an involuntary guilty plea (i.e., that he had not been informed of his right to a trial by jury). Arango-Montoya additionally filed a supplementary pleading arguing that although 21 U.S.C. Sec. 851(e) prevented him from collaterally attacking his prior state conviction (because, as of the time of the filing of the government's information, the prior conviction was more than five years old), Sec. 851(e) was unconstitutional and therefore should not prevent him from challenging his prior conviction. The district court denied Arango-Montoya's request to exclude the prior conviction for sentencing purposes. Accordingly, although with a total offense level of 26 and a criminal history category of I the applicable Sentencing Guidelines range was 63 to 78 months' imprisonment, Arango-Montoya was sentenced to the statutory minimum of ten years' (120 months') imprisonment. The district court also imposed an eight-year term of supervised release to follow his term of imprisonment. This timely appeal follows.

ISSUES

Arango-Montoya challenges the district court's finding that he was subject to a ten-year mandatory minimum sentence pursuant to 21 U.S.C. Sec. 841(b)(1)(B)(ii)(II). Specifically, he maintains that (1) the language of 21 U.S.C. Sec. 851(e) which bars any collateral attack of a defendant's prior conviction when it occurs more than five years before the date of the information alleging the prior conviction is unconstitutional because (a) it deprives a defendant of his liberty interest in having only a valid prior conviction enhance his current sentence, (b) it is arbitrary in violation of the Due Process Clause of the Fifth Amendment, and (c) since a prior sentence which serves to double the mandatory minimum under 21 U.S.C. Sec. 841(b)(1)(B)(ii)(II) is considered an element of the offense, it unconstitutionally lowers the government's burden of proof; and (2) notwithstanding the validity of Sec. 851(e), the district court erred in failing to follow the procedural dictates of Sec. 851(b) and (c).

DISCUSSION

Arango-Montoya was convicted for violating 21 U.S.C. Sec. 846 by conspiring to possess with the intent to distribute 749 grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Accordingly, the district court applied the following sentencing provision:

(b) Penalties

Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows:

* * * * * *

(B) In the case of a violation of subsection (a) of this section involving--

* * * * * *

(ii) 500 grams or more of a mixture or substance containing a detectable amount of--

* * * * * *

(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;

* * * * * *

such person shall be sentenced to a term of imprisonment which may not be less than 5 years.... If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years....

21 U.S.C. Sec. 841(b)(1)(B)(ii)(II). The procedures to be followed in enhancing a sentence imposed under Sec. 841 with a prior conviction are as follows:

(a) Information filed by United States Attorney

(1) No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon....

* * * * * *

(b) Affirmation or denial of previous conviction

If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

(c) Denial; written response; hearing

(1) If the person denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the United States attorney. The court shall hold a hearing to determine any issues raised by the response which would except the person from increased punishment. The failure of the United States attorney to include in the information the complete criminal record of the person or any facts in addition to the convictions to be relied upon shall not constitute grounds for invalidating the notice given in the information required by subsection (a)(1) of this section. The hearing shall be before the court without a jury and either party may introduce evidence. Except as otherwise provided in paragraph (2) of this subsection, the United States attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. At the request of either party, the court shall enter findings of fact and conclusions of law.

(2) A person claiming that a conviction alleged in the information was obtained in violation of the Constitution of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof by a preponderance of the evidence on any issue of fact raised by the response. Any challenge to a prior conviction, not raised by response to the information before an increased sentence is imposed in reliance thereon, shall be waived unless good cause be shown for failure to make a timely challenge.

* * * * * *

(e) Statute of limitations

No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such information.

21 U.S.C. Sec. 851.

Since Arango-Montoya had a prior state felony conviction for possession of a controlled substance, the district court found that he was subject to a ten-year mandatory minimum sentence under Sec. 841(b). Moreover, since his prior conviction occurred more than five years before the filing of the government's information, the district court found that Sec. 851(e) barred Arango-Montoya from challenging the validity of his prior conviction.

Arango-Montoya first argues that Sec. 851(e)'s prohibition on collaterally attacking a prior conviction at sentencing is unconstitutional because it deprives a defendant of his liberty interest in having only a valid prior conviction enhance his sentence. Indeed, this court has held that a defendant has a constitutional right to at least some type of collateral challenge to a prior conviction at sentencing....