US v. Buckley, Crim. No. 84-00008-04-B.

• Decision Date: 16 September 1987
• Docket Number: Crim. No. 84-00008-04-B.
• Citation: 670 F. Supp. 1056
• Parties: UNITED STATES of America v. David Kennedy BUCKLEY.
• Court: U.S. District Court — District of Maine

670 F. Supp. 1056

UNITED STATES of America v. David Kennedy BUCKLEY.

Crim. No. 84-00008-04-B.

United States District Court, D. Maine.

September 16, 1987.

William H. Browder, Asst. U.S. Atty., Portland, Me., for U.S.

David Buckley, pro se.

MEMORANDUM OF DECISION AND ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE (28 U.S.C. § 2255)

GENE CARTER, District Judge.

David Kennedy Buckley, who is currently confined in the Federal Correctional Institution at Petersburg, Virginia, has filed with this Court a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255.

An examination of the motion satisfies the Court that it is without merit and that Movant is not entitled to relief. Movant was charged in a two-count indictment with conspiracy to possess with intent to distribute marijuana under 21 U.S.C. § 846 (Count I), and with possession with intent to distribute marijuana and aiding and abetting under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count II). On June 29, 1984, Movant entered a plea of guilty to Count I of the indictment and was eventually sentenced thereon by this Court to a term of five (5) years imprisonment. At the time of sentencing, Count II was dismissed on the motion of the United States Attorney.

Movant now challenges the judgment of conviction and alleges ineffective assistance of counsel for the reason that his counsel failed to advise him that Congress had directed the United States Sentencing Commission to promulgate sentencing guidelines which would reflect, among other things,

"the general inappropriateness of imposing consecutive terms of imprisonment for an offense of conspiring to commit an offense or soliciting commission of an offense and for an offense that was the sole object of the conspiracy or solicitation."

See 28 U.S.C. § 994(l)(2). Movant asserts that he has been prejudiced due to his counsel's failure to inform him of the above-cited congressional directive and because his guilty plea was obtained "under an erroneous assumption" that he could have received consecutive sentences on Counts I and II.

Whatever the effect of 28 U.S.C. § 994(l)(2) may ultimately be, it is clear that it can have no effect upon the legality of the inducement of Movant's guilty plea entered on June 29, 1984. The plea was entered more than three months before the effective date of the statute in question (October 12, 1984). 18 U.S.C. § 3551. Moreover, the specific guideline cited still has not taken effect and will not take effect until November 1, 1987. Id. The guideline does not declare the law in existence at, or prior to, the time of the entry of this Movant's guilty plea. Id. Movant's counsel, in advising him of his maximum exposures to sentence, did not misrepresent those exposures by failing to predict the content of a subsequent congressional act, regardless of the act's effect.

Indeed, independent research and analysis establishes that under the law as of July 29, 1984, Movant was in fact exposed to imposition of separate and cumulative sentences if found guilty of both conspiracy to possess with intent to distribute marijuana (Count I) and the underlying substantive offense of possession of marijuana with intent to distribute (Count II).

The United States Supreme Court dealt in Callanan v. United States, 364 U.S. 587, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961), with a challenge to consecutive sentencing¹ on convictions under the Hobbs Anti-Racketeering Act, 18 U.S.C. § 1951, for conspiracy and for the underlying substantive offense which was the purpose of the conspiracy. The Court first dispatched any infirmity in the sentencing format based upon the common law doctrine of merger of the lesser offense into the greater. Id. at 589-90, 81 S.Ct. at 322-23.² The Court then dealt with the issue of whether the Congress, in enacting the statute separately defining the two offenses in question, manifested any intent that they should not be the subject of cumulative punishment. The Court found no such intent to have existed. It reasoned as follows:

The distinctiveness between a substantive offense and a conspiracy to commit is a postulate of our law. `It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. Over the years, this distinction has been applied in various situations. For example, in Clune v. United States, 159 U.S. 590 16 S.Ct. 125, 40 L.Ed. 269, the Court upheld a two-year sentence for conspiracy over the objection that the crime which was the object of the unlawful agreement could only be punished by a $100 fine. The same result was reached when, as in the present case, both offenses were described within the same statute. In Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 46 L.Ed. 236, cumulative sentences for conspiracy to defraud and fraud were upheld. `Cumulative sentences,' the Court pronounced, `are not cumulative punishments, and a single sentence for several offenses, in excess of that prescribed for one offense, may be authorized by statute.'

This settled principle derives from the reason of things in dealing with socially reprehensible conduct: collective criminal agreement — partnership in crime — presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.

Callanan, 364 U.S. at 593-94, 81 S.Ct. at 325 (citations omitted). The Court concluded that Congress clearly intended, in enacting the statute there in question, "to maintain a long-established distinction between offenses essentially different; a distinction whose practical importance in the criminal law is not easily over-estimated." Id. at 594, 81 S.Ct. at 325. The Court said that because "this is an ordinary case of a defendant convicted of violating two separate provisions of a statute, whereby Congress defined two historically distinctive crimes composed of differing components," the trial judge was authorized to impose separate sentences. Id. at 597, 81 S.Ct. at 327.

The significance of Callanan is two-fold: (1) it disposes of any argument that the merger doctrine precludes cumulative sentencing on convictions for conspiracy and the underlying substantive offense, and (2) it establishes that the test of the legality of such sentencing is whether the Congress, in defining two distinctive offense, manifested an intent that they not be punished cumulatively.

Fourteen years later, the Court decided in Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), a challenge to cumulative sentencing³ for convictions for violating a federal gambling statute, 18 U.S.C. § 1955, and for an illegal conspiracy for such purpose under the general conspiracy statute, 18 U.S.C. § 371. The Court reaffirmed its Callanan holding on the nonapplicability of the common law doctrine of merger to such offenses:

Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes. Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act. Unlike some crimes that arise in the single transaction the conspiracy to commit an offense and the subsequent commission of that crime normally do not merge into a single punishable act. Thus it is well recognized that in most cases separate sentences can be imposed for the conspiracy to do an act and for the subsequent accomplishment of that end.

Iannelli, 420 U.S. at 777-78, 95 S.Ct. at 1289-90 (citations omitted). The Court then passed to a consideration of Congress's intent in enacting 18 U.S.C. § 1955 vis-a-vis preclusion of separate punishments for violation of that section and of the general conspiracy statute for conspiring to do so. The Court concluded:

Had Congress intended to foreclose the possibility of prosecuting conspiracy offenses under § 371 by merging them into prosecutions under § 1955, we think it would have so indicated explicitly. It chose instead to define the substantive offense punished by § 1955 in a manner that fails specifically to invoke the concerns which underlie the law of conspiracy.

Id. at 789, 95 S.Ct. at 1296. Thus the Court found no impediment to the separate cumulative sentences imposed.

The Court next came, in Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), to apply its rationale to the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801, et seq., under the provisions of which the movant was charged, convicted, and sentenced. In that case, the defendants were convicted of two conspiracy offenses: one to import marijuana in violation of 21 U.S.C. § 963, and the other to distribute marijuana in violation of 21 U.S.C. § 846 (the same section under which Movant was convicted and sentenced in this case). The Court framed the issue as "whether consecutive sentences may be imposed when conviction under those statutes arise from participation in a single conspiracy." Id. at 336, 101 S.Ct. at 1141. The answer to that question was to be determined, the Court concluded, by application of the test articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):

The applicable rule is that

...