U.S. v. Shaw

• Decision Date: 03 January 1991
• Docket Number: No. 90-8238,90-8238
• Citation: 920 F.2d 1225
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randall Hoyt SHAW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1225

920 F.2d 1225

UNITED STATES of America, Plaintiff-Appellee, v. Randall Hoyt SHAW, Defendant-Appellant.

No. 90-8238.

United States Court of Appeals, Fifth Circuit.

Jan. 3, 1991.

Brian Pollard, Waco, Tex. (Court-appointed), for defendant-appellant.

LeRoy Morgan Jahn, Philip Police and Krista L.S. Leinenkugel, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, GARZA and DAVIS, Circuit Judges.

CLARK, Chief Judge:

I.

Randall Shaw appeals his conviction and sentence for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. Sec. 841. We affirm in all respects except as to the sentence of 72 months imprisonment. That sentence is vacated and the cause is remanded with directions to impose a sentence of 71 months imprisonment.

II.

On November 3, 1989 the Waco Police Department learned that two individuals were distributing amphetamines from room 46 of the Astro Motel in Waco, Texas. The police officers obtained a warrant in State court. Room 46 had been rented by Randall Shaw. When officers in the special operations unit entered the room Shaw was in the room with Pam Brunson. Brunson was by the bed and Shaw was sitting at a table located by the bed, working with a knife on various items spread out on the table. Numerous quantities of methamphetamine, cash, and drug distribution paraphernalia were found on and beside the table. One of the officers heard Brunson tell Shaw, "Tell them everything is yours. I can't afford to go down again." A stun gun was found in the car outside Shaw's room.

Shaw was initially charged with a state offense but was later indicted in federal court for possession with intent to distribute more than 100 grams of a substance containing methamphetamine, in violation of 21 U.S.C. Sec. 841(a)(1). A jury found Shaw guilty as charged. Shaw was sentenced under 21 U.S.C. Sec. 841(b)(1)(B)(viii). Orally, the trial judge imposed a sentence of 71 months imprisonment (along with a fine and period of supervised release) but the court's written judgment fixed Shaw's imprisonment at 72 months.

III.

Shaw raises eight claims on appeal. First, he claims that he was convicted of violating a statute which is unconstitutional because it includes two inconsistent penalty schemes for the same offense. Second, Shaw argues that the search warrant issued and executed by State officials is not sufficient to support the introduction of evidence in federal court. Third, he claims that evidence should have been excluded because the government failed to establish an adequate chain of custody. Fourth, Shaw asserts that there was insufficient evidence to convict him. Fifth, he argues that the district court erred in not granting him a continuance when an important witness became unavailable. Sixth, the district court erred in not allowing Shaw to post bond pending appeal. Seventh, Shaw claims that the district court erred in sentencing him under a version of the Sentencing Guidelines that became effective only two days before he was arrested. Finally, Shaw claims the district court erred in imposing a different sentence in its written judgment from that imposed at the sentencing hearing. Only Shaw's eighth claim has merit.

A. Inconsistent Penalty Scheme

Shaw complains that the district court erred by not dismissing his indictment since the statute under which he was indicted was unconstitutional. In particular he urges that 21 U.S.C. Sec. 841 violates his Fifth Amendment due process right because it provides two "inconsistent" and "irreconcilable" penalty schemes for the same offense. He further argues that the penalty provisions are "void for vagueness." Under the current version of Sec. 841, different mandatory minimum sentences are provided for a person convicted of possessing "100 grams or more of a mixture or substance containing a detectable amount of methamphetamine." Subsection (b)(1)(A)(viii) provides a prison term of from not less than 10 years to life imprisonment while subsection (b)(1)(B)(viii) provides a prison term of not less than five years or more than forty years. ¹ Shaw was convicted of possessing 117.84 grams of a substance containing methamphetamine. Thus he falls squarely within the ambit of both sentencing provisions.

The government acknowledges that these two sentencing provisions are inconsistent when viewed in isolation. However, the government argues, citing extensive examples, that when viewed in the context of the statute as a whole and in relation to the overall penalty scheme provided for controlled substances and the legislative history of the statute, the inconsistency appears to be a clerical or drafting error. The government maintains that subsection (b)(1)(A)(viii) was intended to apply to higher quantities and purer mixtures of methamphetamine.

When an appellant claims that the district court incorrectly applied constitutional standards, we review the claim de novo. American Civil Liberties Union v. State of Mississippi, 911 F.2d 1066, 1069 (5th Cir.1990). Since Shaw argues that the district court failed to declare the sentencing provisions of Sec. 841 unconstitutional, we likewise review his claim de novo.

"It is a fundamental tenet of due process that '[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes' " United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 2203, 60 L.Ed.2d 755 (1979) (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939)). The courts have long held that statutes, which fail to give notice to "persons of normal intelligence" that their intended actions are illegal, violate due process. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). Likewise, sentencing provisions may violate due process "if they do not state with sufficient clarity the consequences of violating a given criminal statute." Batchelder, 442 U.S. at 123, 99 S.Ct. at 2203. However, equally applicable or overlapping sentencing provisions satisfy the notice requirements of the Due Process Clause so long as they clearly define the "conduct prohibited and the punishment authorized." Id.

In this case one applicable provision mandates a term of imprisonment of not less than ten years, Sec. 841(b)(1)(A)(viii), while the other applicable sentencing provision allows imposition of a sentence of as little as five years imprisonment. While these provisions are facially inconsistent, they unambiguously give notice that possession of more than 100 grams of a substance containing methamphetamine will result in incarceration for at least five years. We need not examine the merits of Shaw's due process claim since it is evident from the record that Shaw lacks standing to assert it.

Shaw moved to dismiss his indictment based on the same due process claim in the district court that he presses here. In denying Shaw's motion to dismiss, the district court noted that both subsection (b)(1)(A)(viii) and (b)(1)(B)(viii) were applicable and that any ambiguity in criminal statutes have long been resolved against the imposition of harsher punishment and in favor of lenity. See Hughey v. United States, --- U.S. ----, 110 S.Ct. 1979, 1985, 109 L.Ed.2d 408 (1990); Simpson v. United States, 435 U.S. 6, 14-15, 98 S.Ct. 909, 913-914, 55 L.Ed.2d 70 (1978). In sentencing Shaw the district court applied the "rule of lenity" and sentenced Shaw under the less severe provision, subsection (b)(1)(B)(viii), to six years imprisonment. Although this sentence is below the ten-year minimum sentence required by subsection (b)(1)(A)(viii), Shaw was not harmed by being sentenced under the less severe penalty provision.

In order for a cause of action to constitute a "case or controversy" under Art. III of the U.S. Constitution the person raising an issue for consideration in a court of the United States must have standing to bring the claim. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). The primary component of standing is that the litigant seeking action by the court have an " 'injury in fact' resulting from the action which they seek to have the court adjudicate." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. 454 U.S. 464, 473, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982). Shaw has no such injury. The decision of the district court to avoid any ambiguity in the sentencing provisions by assessing Shaw's prison term under the less severe provision and below the lowest possible prison term of the more penal statute foreclosed any allegation that an ambiguity or inconsistency in the provisions worked to prejudice Shaw's due process rights.

Nor, as Shaw argues, can potential problems for notice to others provide the standing necessary for Shaw to maintain this claim. "[T]he plaintiff must generally assert his own legal rights and interests and cannot rest his claim on the legal rights and interests of third parties." Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. at 2205. He was not injured by an ambiguity in the sentencing provisions at issue and cannot raise the issue on appeal.

B. The Search Warrant

Shaw claims that the district court erred in denying his motion to suppress all evidence seized in the motel room pursuant to a warrant issued by State authorities. He argues that a warrant issued by State authorities and executed by State authorities cannot support the introduction of evidence in federal court if it does not comply with the Fed.R.Crim.P. 41--the Rule governing procedure for issuing and executing a search warrant by federal authorities. He is mistaken.

This court's holding in United States v. McKeever, 905 F.2d 829 (5th Cir.1990) (en banc) is dispositive of Shaw's claim. There, we held that Fed.R.Crim.P. 41 applies only...