U.S. v. Holland

• Decision Date: 06 February 1987
• Docket Number: No. 86-3027,86-3027
• Parties: UNITED STATES of America v. Rufus HOLLAND, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1215

810 F.2d 1215

258 U.S.App.D.C. 236

UNITED STATES of America v. Rufus HOLLAND, Appellant.

No. 86-3027.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 30, 1986.

Decided Feb. 6, 1987.

Appeal from the United States District Court for the District of Columbia, (Criminal No. 85-00243-01).

Timothy Beer (student counsel), with whom Nancy Louis Cook, Washington, D.C., (appointed by this Court) was on brief, for appellant.

Mary Incontro, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Thomas J. Tourish, Jr., and Robert E. McDaniel, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before MIKVA and BUCKLEY, Circuit Judges, and PARSONS, ^* Senior District Judge.

Opinion for the Court filed by Senior District Judge PARSONS.

PARSONS, Senior District Judge:

Rufus Holland was indicted and convicted under 21 U.S.C. sec. 845a of six counts of selling a controlled substance within 1,000 feet of a school. On appeal he challenges the constitutionality of that statute. We hold that the statute as applied to Holland is constitutional and affirm his conviction and sentence.

The facts that led to Holland's conviction are not disputed on appeal. On six separate occasions between March and June of 1985, he sold the narcotic dilaudid to an undercover police officer. Dilaudid is a Schedule II morphine-based drug, see 15 C.F.R. 370.10(d) (1986), that is prescribed for the treatment of moderate to severe pain. Each sale was subject to punishment under section 845a upon conviction because it took place within 1,000 feet of the Garnet-Patterson Junior High School. Before trial, Holland moved to dismiss the indictment on the ground that section 845a(a) is unconstitutional, and on October 18, 1985, this was denied. At the conclusion of a two-day jury trial in January, 1986, Holland was convicted. On March 7, 1986, he was sentenced to serve concurrently six 10-year prison terms, to be followed by a 6-year special parole term.

Holland raises three constitutional issues. He claims that section 845a violates constitutional principles of equal protection of the laws. He also claims that the statute violates due process by creating a presumption "for which there is no rational connection between the fact proved and the ultimate fact presumed." Finally, he claims a violation of due process because the statute imposes enhanced punishment upon those convicted of distributing controlled substances within the 1000-foot zone without regard to whether the accused knowingly was within that zone.

The challenged statute provides:

Sec. 845a. Distribution in or near schools

(a) Penalty

Any person who violates section 841(a)(1) of this title by distributing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school is (except as provided in subsection (b) of this section) punishable (1) by a term of imprisonment, or fine, or both up to twice that authorized by section 841(b) of this title; and (2) at least twice any special parole term authorized by section 841(b) of this title for a first offense, involving the same controlled substance and schedule.

21 U.S.C. sec. 845a(a). The sections of 21 U.S.C. incorporated by section 845a(a), 21 (a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance....

U.S.C. sec. 841(a) & (b), provide in relevant part:

(b) ... any person who violates subsection (a) of this section shall be sentenced ... to a term of imprisonment of not more than 15 years ... [and to] a special parole term of at least three years in addition to such term of imprisonment.

Thus, section 845a adds an element to the offense of section 841(a), and if that element is proved, a violator is subject to a doubling of the punishment allowable under section 841(b).

A threshold inquiry is whether it is necessary to reach the constitutional issues Holland raises. That inquiry concerns whether the sentencing judge considered section 845a in setting Holland's sentence. If not, then we would need to consider whether we could affirm Holland's sentence under section 841(b)(1)(B) without addressing the constitutional questions. See generally American Postal Workers Union, AFL-CIO v. United States Postal Service, 764 F.2d 858, 861-62 (D.C.Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 792, 88 L.Ed.2d 770 (1986).

Holland's confinement sentence of 10 years for each count is within the limits of 21 U.S.C. sec. 841(b)(1)(B). In addition, Holland's special parole term of six years could also have been imposed under section 841(b)(1)(B). We note, without expressing any opinion about it here, that this provision has been consistently interpreted in other circuits as allowing a maximum lifetime special parole term. See, e.g., United States v. Bridges, 760 F.2d 151, 153 (7th Cir.1985). However, a review of the sentence proceeding transcript indicates that the trial judge relied on the enhancement provisions of 845a in setting Holland's special parole term at six years. If 845a is unconstitutional, because the trial judge's application of it led to a longer special parole term sentence than he otherwise might have given, Holland could be entitled to resentencing under section 841(b)(1)(B). See generally United States v. Bruner, 657 F.2d 1278, 1299 (D.C.Cir.1981). Therefore, we must address the constitutional questions Holland raises.

EQUAL PROTECTION

Holland claims that section 845a violates equal protection principles because the classification it creates is both so overinclusive and so underinclusive that it fails to effectuate rationally the intent of the statute. It is over-inclusive, he argues, because it can apply to drug transactions between adults that take place within private dwellings proximate to schools and to those that occur during times when schools are not in session. And it is underinclusive because it does not apply to drug transactions that occur on or near other areas, such as nonschool playgrounds and recreation centers, which pose equal or greater dangers to the children who frequent them at all times of the year and at potentially any hour of the day or night.

Standard of review

Holland has effectively conceded, as he must, that section 845a is not subject to heightened scrutiny in the equal protection analysis. See United States v. Batchelder, 442 U.S. 114, 123-25 & 125 n. 9, 99 S.Ct. 2198, 2203-05, & 2205 n. 9, 60 L.Ed.2d 755 (1979) (implicitly applying "rational basis" test to an equal protection challenge of a statute allowing two different prison sentences for the same offense); United States v. Cohen, 733 F.2d 128, 132-36 (D.C.Cir.1984) (applying "rational basis" test in analyzing equal protection problem concerning the civil commitment of criminal defendants acquitted by reason of insanity). The focus in the equal protection challenge here is not upon the deprivation of liberty by confinement in prison, but upon the activities leading to that confinement. Cohen, 733 F.2d at 133. The statute does not proscribe activities that are legally protected, much less "fundamental," id., nor has it been shown to involve any legally cognizable "suspect" class. Id. at 134-35. Thus, the classification must be upheld if "any state of facts rationally justifying it is demonstrated to or perceived by the court[ ]." United States v. Maryland Savings-Share Insurance Corp., 400 U.S. 4, 6, 91 S.Ct. 16, 27 L.Ed.2d 4 (1970); see Jones v. Helms, 452 U.S. 412, 425-26, 101 S.Ct. 2434, 2443-44, 69 L.Ed.2d 118 (1981). If section 845a rationally effectuates Congress' purpose for its enactment, it will survive an equal protection challenge.

Legislative purpose of section 845a

Though this case presents the first challenge of section 845a in this Circuit, it already has been considered and upheld in several cases in the Second Circuit. Those cases examined at some length Congress' purpose in passing the statute. In United States v. Falu, 776 F.2d 46, 48-50 (2nd Cir.1985), the court reviewed the legislative history of the statute, and particularly the statements of Senator Paula Hawkins, who sponsored the bill. The court in Falu concluded that section 845a was intended to " 'send a signal to drug dealers that we will not tolerate their presence near our schools,' 130 Cong.Rec. S559 (daily ed. January 31, 1984) (statement of Sen. Hawkins)...." Id. at 48. The Court also stated that

Congress sought to create a drug-free zone around schools; whether it chose to do so directly or indirectly is not particularly relevant ... the provision was designed to "deter drug distribution in and around schools," including transactions which "take place in remote outdoor areas, at local hangouts, or at nearby homes or apartments," thereby helping to "eliminate outside negative influences" around schools.

Id. at 50 (quoting 130 Cong.Rec. S559, supra ). In United States v. Jones, the court concluded that the statute was introduced to help reduce drug use by children by "threatening pushers who approach our children near schools with stiff penalties." 779 F.2d 121, 123 (2nd Cir.1985) (quoting 130 Cong.Rec. S559, supra ), cert. denied, --- U.S. ----, 106 S.Ct. 1236, 89 L.Ed.2d 344 (1986). In United States v. Agilar, the court stated that "Congress wanted to lessen the risk that drugs would be readily available to school children. It is surely rational to achieve that goal by increasing penalties for those who sell drugs near schools." 779 F.2d 123, 125 (2nd Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1385, 89 L.Ed.2d 609 (1986). See also United States v. Dixon, 619 F.Supp. 1399, 1400 (S.D.N.Y.1985); United States v. Cunningham, 615 F.Supp. 519, 520 (S.D.N.Y.1985); United States v. Nieves, 608 F.Supp. 1147, 1149-50 (S.D.N.Y....