U.S. v. Smith, 81-2210
Decision Date | 25 March 1983 |
Docket Number | No. 81-2210,81-2210 |
Citation | 703 F.2d 627 |
Parties | UNITED STATES of America v. Milton Charles SMITH, aka "Creep," aka "Shaw," aka "Short," Appellant. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C.Criminal No. 77-00726).
George D. Baker, Washington, D.C. (appointed by this court), Washington, D.C., with whom John J. McMackin, Jr., Washington, D.C. (appointed by this court) was on the brief, for appellant.
Louis M. Fischer, Atty., Dept. of Justice, Washington, D.C., of the bar of the Supreme Court of the United States, pro hac vice, by special leave of court, with whom Stanley S. Harris, U.S. Atty., and Michael W. Farrell, Charles J. Harkins, Jr., and Daniel S. Seikaly, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.
Before WRIGHT and WALD, Circuit Judges, and BONSAL, * Senior District Judge.
Opinion for the court PER CURIAM.
This appeal arises from the conviction of Milton Charles Smith in the United States District Court for engaging in a continuing criminal enterprise, 21 U.S.C. Sec. 848 (1976); conspiracy to distribute a controlled substance, 21 U.S.C. Sec. 846 (1976); possession with intent to distribute a controlled substance, 21 U.S.C. Sec. 841(a) (1976); and traveling in interstate commerce with intent to distribute a controlled substance, 18 U.S.C. Sec. 1952 (1976). The District Court sentenced Smith to a cumulative term of imprisonment of not less than 15 years and not more than 30 years. On direct appeal this court affirmed his conviction. United States v. Gantt, 617 F.2d 831 (D.C.Cir.1980).
Subsequently, appellant filed a motion under 28 U.S.C. Sec. 2255 (1976) to vacate his conviction and sentence. He contended, among other things, that his conviction and sentence on separate counts for violating both 21 U.S.C. Sec. 846 and 21 U.S.C. Sec. 848 violated his constitutional rights under the Double Jeopardy Clause. The District Court denied his motion. This appeal followed.
The government concedes that the sentence imposed upon appellant is defective. It acknowledges that the District Court erroneously imposed sentences on both the greater offense (21 U.S.C. Sec. 848) and the lesser included offense (21 U.S.C. Sec. 846). The government also acknowledges that the District Court's imposition of a 15- to 30-year sentence violates 18 U.S.C. Sec. 4205(b)(1) (1976), which requires that a minimum sentence not exceed one-third of the maximum imposed.
Under ...
To continue reading
Request your trial-
US v. Fuentes
...U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); United States v. Burt, 765 F.2d 1364, 1368 (9th Cir.1985); United States v. Smith, 703 F.2d 627, 628 (D.C.Cir.1983) (per curiam); United States v. Michel, 588 F.2d 986, 1001 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32......
-
U.S. v. Young
...of Sperling II, which has been followed by numerous courts, e.g., United States v. Graziano, 710 F.2d at 699; United States v. Smith, 703 F.2d 627, 628 (D.C.Cir.1983); United States v. Samuelson, 697 F.2d 255, 259 (8th Cir.1983); United States v. Smith, 690 F.2d 748, 750 (9th Cir.1982), cer......
-
US v. Williams-Davis
...105 S.Ct. 180, 83 L.Ed.2d 114 (1984), and cert. denied, 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717 (1985); United States v. Smith, 703 F.2d 627, 628 (D.C.Cir. 1983) (per curiam). Curiously, the government's opposition brief ignores the decisions of the courts of appeals on this subject. ......
-
U.S. v. Moya-Gomez
...F.2d 1429, 1436 n. 15 (11th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v. Smith, 703 F.2d 627, 628 (D.C.Cir.1983) (per curiam); cf. Ball v. United States, 470 U.S. 856, 864, 105 S.Ct. 1668, 1673, 84 L.Ed.2d 740 (1985) (where Congress did not......
-
Changing the tide of double jeopardy in the context of the continuing criminal enterprise.
...1985) (holding that findings of guilt for CCE and conspiracy must be combined and entered as a single conviction); United States v. Smith, 703 F.2d 627 (D.C. Cir. 1983) (per curiam) (holding that courts may enter only one judgment on convictions for CCE and (89) Fernandez v. United States, ......