US v. Fernandez-Dilone

• Decision Date: 21 August 1987
• Docket Number: No. 87 Cr. 105 (DNE).,87 Cr. 105 (DNE).
• Citation: 668 F. Supp. 245
• Parties: UNITED STATES of America v. Jose Natalio FERNANDEZ-DILONE, Aquilino Hernandez, a/k/a "Tony," and Santos E. Collado, Defendants.
• Court: U.S. District Court — Southern District of New York

668 F. Supp. 245

UNITED STATES of America v. Jose Natalio FERNANDEZ-DILONE, Aquilino Hernandez, a/k/a "Tony," and Santos E. Collado, Defendants.

No. 87 Cr. 105 (DNE).

United States District Court, S.D. New York.

August 21, 1987.

Rudolph W. Giuliani, U.S. Atty. for S.D. N.Y. (Peter B. Sobol, Annmarie Levins, Asst. U.S. Attys., of counsel), for U.S.

John James Dockrey, New York City, for defendant Jose Natalio Fernandez-Dilone.

Caesar D. Cirigliano, The Legal Aid Soc., Federal Defenders Services Unit, New York City (Kevin Nathaniel Fox, Helen Cody, of counsel), for defendant Aquilino Hernandez.

Bobbi C. Sternheim, New York City, for defendant Santos E. Collado.

OPINION AND ORDER

EDELSTEIN, District Judge:

On March 23, 1987, defendant Jose Natalio Fernandez-Dilone ("Fernandez") pleaded guilty to one count of distribution of cocaine and possession of cocaine with intent to distribute, 21 U.S.C. section 841. Fernandez has moved¹ for an order holding that the October 27, 1986 amendment of the sentencing provisions of 21 U.S.C. section 841(b)(1)(B) is inapplicable to the sentence to be imposed against him. The request is denied.

BACKGROUND

In the early afternoon of January 15, 1987, defendant Aquilino Hernandez ("Hernandez"), during the course of five telephone conversations with an undercover DEA agent, negotiated terms for the sale of one kilogram of cocaine. Hernandez ultimately agreed to meet the agent at the northwest corner of 69th Street and Amsterdam Avenue in New York City. At approximately 4:30 p.m. later that day, Hernandez arrived at the pre-arranged location, reconfirmed the sale with the agent, and left. Approximately ten minutes later, Hernandez and defendants Santos E. Collado ("Collado") and Fernandez arrived at the intersection in a station wagon driven by Fernandez. When the defendants sought to consummate the sale, they were arrested. A loaded pistol and a package containing 1002.2 grams of 91 percent pure cocaine hydrochloride were later recovered from the station wagon.

On February 11, 1987, a three count indictment was filed against the defendants. The first count charged the three with conspiring to distribute cocaine and possessing cocaine with intent to distribute, 21 U.S.C. section 846. The second count charged the defendants with the substantive offense of possession of cocaine with intent to distribute, 21 U.S.C. section 812, 841(a)(1), and 841(b)(1)(B), as amended by Pub.L. No. 99-570, effective October 27, 1986, and 18 U.S.C. section 2. The third count of the indictment charged Fernandez with carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. section 924(c)(1), as amended by Pub.L. No. 99-308, 100 Stat. 449, effective November 15, 1986.

On March 17, 1987, Hernandez pleaded guilty to count one, conspiring to distribute cocaine and possess cocaine with intent to distribute.² One day later, Collado pleaded guilty to the identical count.³ On March 23, 1987, Fernandez pleaded guilty to count two, the substantive offense of distribution of cocaine and possession of cocaine with intent to distribute.⁴ The pleas of all three defendants were made pursuant to plea agreements with the government. See supra notes 2 & 3.

DISCUSSION

Section 841(a)(1) of Title 21 of the United States Code proscribes the distribution of cocaine or the possession of cocaine with intent to distribute. Violation of this section subjects the offender to the penalties authorized in 21 U.S.C. section 841(b)(1)(B). On October 27, 1986, these penalties were toughened by the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, Title I, section 1001 ("1986 Act"). Previously, the maximum punishment available under section 841(b)(1)(B) for a defendant such as Fernandez was a term of imprisonment of fifteen years and a fine of 125,000 dollars. Under section 841(b)(1)(B), as amended, Fernandez is subject to a mandatory minimum term of imprisonment of five years, a maximum term of imprisonment of forty years, and a fine of 2,000,000 dollars. See 21 U.S.C.A. section 841(b)(1)(B) (West Supp. 1987).

Defendant Fernandez requests an order of the court holding that the amendment of section 841(b)(1)(B) providing for a mandatory minimum term of imprisonment of five years is inapplicable to him. See supra note 4. Defendant makes three claims: 1) the amendment was precluded by a prior act of Congress; 2) the amendment was not promulgated and thus is an ex post facto law; and 3) application of the amendment would be violative of the Constitutional prohibition on unusual punishments. Each of these claims shall be addressed in turn.

I. Invalidity Due to Previous Act of Congress

Defendant argues that the 1986 amendment of 21 U.S.C. section 841 was precluded by prior act of Congress. Section 841 was previously amended by the Sentencing Reform Act of 1984 ("1984 Act"). That amendment included the repeal of section 841's provision for the imposition of terms of special parole. See Pub.L. No. 98-473, Title II, sections 224(a), 235, 98 Stat. 1837, 2030-31 (1984). The effect of this repeal, however, was not immediate. "In the same legislation (Public Law 98-473, Title II, c. II) it was provided that ... the repeal of Special Parole provisions ... would not become effective before November 1, 1987 (36 months after Public Law 98-473 was enacted)."⁵ Defendant's Mem. at 3. The delay in the amendment's effective date also takes into account the extensive alterations in sentencing procedures envisioned by the 1984 Act. The 1984 Act provides that sentencing shall be made pursuant to detailed sentencing guidelines. In the event that the United States Sentencing Commission and the General Accounting Office fail to deliver these sentencing guidelines to Congress in a timely fashion, the 1984 Act provides for further adjournment of the effective date of the repeal of section 841's special parole provisions.

As the 1984 Act speaks of sweeping sentencing reforms, and directly affects the sentencing provisions of section 841, defendant argues that Congress precluded itself from further altering section 841 until after the full implementation of the 1984 Act. Defendant, however, has provided no citation to either the plain language or legislative history of the 1984 Act which demonstrates this was indeed the intent of Congress. Furthermore, even if this court was to accept defendant's proposition, there has been no showing of any reason why Congress could not have simply reconsidered its earlier decision.

In fact, in adopting the 1986 Act, Congress was apparently aware of the interplay of that Act and the 1984 Act. Among the professed goals of the Sentencing Reform Act was the promotion of certainty and uniformity in sentencing. See S.Rep. No. 98-225, 98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3220-22. By establishing a mandatory minimum sentence, the 1986 Act aids in the realization of that goal.⁶

The 1986 Act, however, comports with more than just the spirit of the 1984 Act. The effective date of the 1986 Act is, in part, directly linked with the Sentencing Reform Act. The institution of supervised release, by the terms of the 1986 Act, will not occur until 18 U.S.C. section 3583 becomes effective. See Pub.L. No. 99-570, Title I, section 1004(b). 18 U.S.C. section 3583, which provides for supervised release after imprisonment, is part of the Sentencing Reform Act of 1984.

Thus, it is clear that Congress was aware of the interplay between the 1984 and 1986 Acts. Congress, however, chose not to limit the effectiveness of the amendment of 21 U.S.C. section 841 through any reference to the 1984 Act. This court rejects the proposition that Congress in 1984 intended to preclude any further amendment of section 841 until after full implementation of the Sentencing Reform Act. Nevertheless, if that had indeed been the intent of Congress, the 1986 Act constitutes a rejection of that earlier decision. Accordingly, defendant's claim that the 1986 amendment of 21 U.S.C. section 841 is invalid per prior act of Congress is rejected.

II. Invalid as Not Promulgated and Thus Ex Post Facto

Defendant claims that the Anti-Drug Abuse Act of 1986 had not yet been promulgated prior to the date of his arrest. Therefore, defendant concludes that the Act is violative of the Constitutional prohibition on ex post facto laws. See U.S. Const. art. I, sec. 9, cl. 3. Defendant's claim that the 1986 Act was not promulgated is falacious. The 1986 Act, Public Law No. 99-570, was passed by Congress on October 17, 1986, as publicly reflected in the Congressional Record, 132 Cong.Rec. H11220 (daily ed. October 17, 1986). As the defendant concedes, the complete text of the law was promptly printed in the Congressional Record. President Reagan, in turn, publicly signed the Act into law on October 27, 1986; and the Act was reprinted in the United States Code, Congressional and Administrative News in December 1986. See 1986 U.S.Code Cong. & Admin. News Public Law No. 99-570, 100 Stat. 3207. Clearly, the Act had been promulgated before January 15, 1987, the date on which Fernandez violated 21 U.S.C. section 841.

An ex post facto law is one which either a) imposes punishment for an act not punishable at the time it was committed, or b) imposes a greater punishment than that which was authorized at the time the crime was committed. Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981); Louis Vuitton S.A. v. Spencer Handbags Corp., 765 F.2d 966, 971-72 (2d Cir.1985). This is not the case here. Accordingly, this court rejects defendant's claim that the 1986 amendment of 21 U.S.C. section 841 constitutes an ex post facto law.

Defendant concedes that ignorance of the law is no defense. Nevertheless, Fernandez, in discussing ex post facto laws, argues that given the recent vintage of section 841's mandatory minimum term of imprisonment, it would be unfair to impose that mandatory penalty in the instant...