US v. Kelly
| Decision Date | 25 February 1988 |
| Docket Number | No. 87 Cr. 571 (DNE).,87 Cr. 571 (DNE). |
| Citation | 680 F. Supp. 119 |
| Parties | UNITED STATES of America, v. Thomas KELLY. |
| Court | U.S. District Court — Southern District of New York |
Leonard Joy, New York City, for defendant.
The court ruled on this application from the bench during defendant's sentencing hearing. Because of the novelty of the request, the court is memorializing that ruling in the present written order.
The defendant, Thomas Kelly, is before the court for sentencing after pleading guilty to one count of distributing heroin within one-thousand feet of a school. Defendant's conviction is for a crime committed prior to November 1, 1987, the effective date of the Sentencing Act of 1986. Nevertheless, as part of the implementation of the Sentencing Guidelines, the Probation Department has been preparing Guideline calculations with its presentence investigation reports, including this defendant's report. The sample Guideline calculation for Mr. Kelly provides for a sentencing range of 12 to 18 months.
Defendant's counsel, Leonard Joy, has requested by letter that, in the event the court intends to sentence the defendant to a term of incarceration in excess of 18 months, the new Federal Sentencing Guidelines be used in determining the sentence to be imposed on Mr. Kelly. For both legal and practical reasons the application must be denied.
First, the Congress has decreed that the Federal Sentencing Guidelines promulgated by the United States Sentencing Commission shall govern the sentencing of defendants convicted of offenses committed after November 1, 1987. Mr. Kelly's offense was committed well before the November 1 effective date. One of the obvious reasons for the prospective application of the Guidelines is to avoid constitutional challenge to the system on ex post facto grounds. Mr. Joy, however, has argued that if the non-Guideline sentence would be greater than the recommended guideline sentence, which in this case the probation officer has calculated as 12-18 months, applying the guidelines would not violate the ex post facto clause of the United States Constitution.
This court has no inherent power to impose a sentence, absent legislative authorization. See United States v. Elkin, 731 F.2d 1005, 1010 (2d Cir.), cert. denied, 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1984). Section 2 of the Sentencing Act of 1987, as amended, provides that the Act and, thus the Guidelines promulgated under the Act, "shall apply only to offenses committed after the taking effect of this chapter." Sentencing Act of 1987 § 2, Pub.L. No. 100-182, 101 Stat. 1266 (Dec. 7, 1987). The effective date of the statute is...
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U.S. v. Stewart
...he could receive under the new scheme is less than that to which he would be entitled under the old. 3 See also United States v. Kelly, 680 F.Supp. 119, 121 (S.D.N.Y.1988). Had Stewart considered these provisions of the Act instead of focusing solely on the length of the sentence suggested ......
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Feller v. US
...the effective date of the sentencing guidelines, he falls within the ambit of the new statutory sentencing scheme. In United States v. Kelly, 680 F.Supp. 119 (S.D.N.Y.1988), a defendant pled guilty to one count of heroin distribution. The criminal activity took place prior to November 1, 19......
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U.S. v. Polk, 89-5449
...States. v. Haines, 855 F.2d 199, 201 (5th Cir.1988); United States v. Rewald, 835 F.2d 215, 216 (9th Cir.1988); United States v. Kelly, 680 F.Supp. 119, 120-21 (S.D.N.Y.1988), and consistent with our previous unpublished opinions, we hold that the Guidelines do not apply to offenses committ......
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U.S. v. Starnes
...States v. Haines, 855 F.2d 199, 201 (5th Cir.1988); United States v. Rewald, 835 F.2d 215, 216 (9th Cir.1988); United States v. Kelly, 680 F.Supp. 119, 120-21 (S.D.N.Y.1988), we hold that the guidelines do not apply to offenses committed prior to November 1, 1987. Consequently, Starnes' cla......