U.S. v. Detrich
| Citation | 940 F.2d 37 |
| Decision Date | 29 July 1991 |
| Docket Number | No. 1768,D,1768 |
| Parties | UNITED STATES of America, Appellee, v. Robert Ernest DETRICH, Ahmad Shah Nusraty, Mohammed Dawood Nusraty, Defendants, Robert Ernest Detrich, Defendant-Appellant. ocket 91-1084. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
John Rogers Carroll, Philadelphia, Pa., (Carroll & Carroll, of counsel), for defendant-appellant.
Jerome C. Roth, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Susan Corkery, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.
John A. Paul, Harrisonburg, Va., for amicus curiae.
Before WINTER, ALTIMARI and MAHONEY, Circuit Judges.
This is an appeal from a denial of a pro se motion for a correction of sentence pursuant
to former Fed.R.Crim.P. 35(a). A question exists as to the timeliness of this appeal. We do not address this question because we treat appellant's motion as having been brought under 28 U.S.C. Sec. 2255. We reach the merits and affirm.
Dr. Robert Ernest Detrich was convicted in the Eastern District of New York of importing over one-hundred grams of heroin into the United States in violation of 21 U.S.C. Secs. 952(a), 960(a)(1) and 960(b)(2)(A) (1988) and sentenced under 21 U.S.C. Sec. 960(b)(2) (1988) to five years in prison. It is clear in the record that Judge Korman believed that the prison term was a mandatory minimum sentence over which he had no discretion. On April 9, 1990, appellant filed a pro se motion seeking a correction of his sentence under former Fed.R.Crim.P. 35(a). In an order dated September 26, 1990 and entered October 1, 1990, the district court denied appellant's motion. Appellant was imprisoned at the time and claims to have received no notice of that denial until December 6, 1990. Appellant also avers that on November 5, 1990, he inquired by letter to the district court about the status of his motion and stated his intention to appeal if it was denied. On December 12, 1990, appellant filed a notice of appeal of the denial of his Rule 35 motion.
Fed.R.App.P. 4(b) requires that "[i]n a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after entry of ... the judgment or order appealed from." The rule also allows the district court, "[u]pon a showing of excusable neglect ... [to] extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision."
Appellant neither filed within the ten-day period nor explicitly requested that the district court grant a thirty-day extension. According to his affidavit, appellant sent a letter dated November 5, 1990 to the district court inquiring about the status of his motion and expressing an intent to appeal. This letter was sent after expiration of the ten-day period prescribed by Rule 4(b) for filing a notice of appeal. However, the letter was mailed within the additional thirty-day period during which the district court might have extended the time, had an express request been made.
The appeal may thus be untimely. Under Fed.R.App.P. 26, a court of appeals "may not enlarge the time for filing a notice of appeal." See also United States v. Myers, 692 F.2d 861, 863 (2d Cir.1982) (); Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir.1975) (), overruled on other grounds by Campos v. LeFevre, 825 F.2d 671 (2d Cir.1987), cert. denied, 484 U.S. 1014, 108 S.Ct. 718, 98 L.Ed.2d 667 (1988).
Nonetheless, the pleadings of a pro se inmate are to be construed liberally. United States v. Eatinger, 902 F.2d 1383, 1385 (9th Cir.1990). We might, therefore, treat the November 5 letter as a request for an extension and remand the matter to the district court for a finding concerning excusable neglect. That step seems unnecessary, however, because appellant argues both that the statute does not provide for a mandatory minimum prison sentence and that, if it does, the provision violates due process because it gives insufficient notice of its terms. Given the due process claim, we can treat his application to the district court as a motion under 28 U.S.C. Sec. 2255 (1988). See United States v. Young, 936 F.2d 1050 (9th Cir.1991) (); see also United States v. Coke, 404 F.2d 836, 847 (2d Cir.1968) () (Friendly, J.).
Treating appellant's motion as one under Section 2255 causes his notice of appeal to be governed by Rule 11 of the Rules Governing Section 2255 Proceedings. Rule 11 sets as the time for appeal the standard fixed by Rule 4(a) of the Federal Rules of Appellate Procedure. Rule 4(a)(1) states that "if the United States ... is a party, the notice of appeal may be filed ... within 60 days after [entry of the order appealed from]." We conclude that appellant's November 5, 1990 letter to the district court, before he was represented by counsel, constituted a notice of appeal substantially in compliance with the requirements of Fed.R.App.P. 3(c), and his appeal from a denial of a Section 2255 motion is therefore timely. Because appellant's due process claim requires that we determine precisely what the statute provides before addressing its constitutionality, we can address all of his claims on appeal. We thus turn to the merits.
Section 960(b)(2) of 21 U.S.C. provides that a person convicted of importing more than one-hundred grams of heroin into the United States
shall be sentenced to a term of imprisonment of not less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not less than twenty years and not more than life, 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 $5,000,000 if the defendant is other than an individual, or both.
As noted, the district court believed that it was bound to impose a mandatory prison sentence of at least five years. Appellant argues that the district court had the option under Section 960(b)(2) of sentencing him only to a fine. He argues that the language of the statute calling for "a term of imprisonment of not less than 5 years ..., a fine ..., or both" (emphasis added) should be read as entirely disjunctive, allowing the district judge to impose (1) a prison sentence of a minimum of five years; (2) or a fine; (3) or both.
Although this portion of the statute could have been more artfully drafted, the structure of Section 960(b)(2) makes it readily apparent that the district court...
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U.S. v. Hebshie
...clause, thus requiring a minimum five-year term of imprisonment. We are persuaded by the Second Circuit's reasoning in United States v. Detrich, 940 F.2d 37 (2d Cir.1991), in which the court construed similar language found in 21 U.S.C. § 960(b)(2). "Although this portion of the statute cou......
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U.S. v. Pabon-Cruz, Docket No. 03-1457.
...The Government nonetheless contends that our decisions in United States v. James, 239 F.3d 120 (2d Cir.2000) and United States v. Detrich, 940 F.2d 37 (2d Cir.1991) dictate our decision in this case. We disagree. In James, we construed 18 U.S.C. § 1959(a)(1), which provided that individuals......
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Castro v. United States
...to place it within a different legal category. See, e. g., Raineri v. United States, 233 F. 3d 96, 100 (CA1 2000); United States v. Detrich, 940 F. 2d 37, 38 (CA2 1991); United States v. Miller, 197 F. 3d 644, 648 (CA3 1999); Raines v. United States, 423 F. 2d 526, 528, n. 1 (CA4 1970); Uni......
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United States v. Pabon-Cruz, No. 03-1457 (Fed. 2nd Cir. 1/6/2005)
...The Government nonetheless contends that our decisions in United States v. James, 239 F.3d 120 (2d Cir. 2000) and United States v. Detrich, 940 F.2d 37 (2d Cir. 1991) dictate our decision in this case. We disagree. In James, we construed 18 U.S.C. § 1959(a)(1), which provided that individua......