US v. Monocchi, 3:92-CR-41 (JAC).

• Decision Date: 02 November 1993
• Docket Number: No. 3:92-CR-41 (JAC).,3:92-CR-41 (JAC).
• Citation: 836 F. Supp. 79
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Edward MONOCCHI and Robert Sicignano.

836 F. Supp. 79

UNITED STATES of America v. Edward MONOCCHI and Robert Sicignano.

No. 3:92-CR-41 (JAC).

United States District Court, D. Connecticut.

November 2, 1993.

Alex V. Hernandez, Asst. U.S. Atty., New Haven, CT, for Government.

Richard A. Reeve, Asst. Federal Public Defender, New Haven, CT, for defendant Edward Monocchi.

Timothy P. Pothin, New Haven, CT, for defendant Robert Sicignano.

RULING ON DEFENDANTS' MOTION TO DETERMINE APPLICABILITY OF MANDATORY MINIMUM SENTENCING PROVISIONS

JOSÉ A. CABRANES, Chief Judge:

The question presented is whether the mandatory minimum sentencing provisions of 21 U.S.C. § 841(b)(1)(B)¹ may apply to a conspiracy charge when no single substantive distribution with which the defendants have been charged involves 500 grams or more of cocaine, and whether that question is ripe for decision before the defendants have been found guilty of the conspiracy charge either by a jury or by virtue of a plea of guilty.

Pending before the court is Edward Monocchi's Motion to Determine Applicability of Mandatory Minimum Sentencing Provisions (filed Dec. 31, 1992), which was adopted on October 7, 1993 by Robert Sicignano, and on which the court held oral argument on October 20, 1993.

BACKGROUND

Count One of the First Superseding Indictment (the "Indictment")² charges the defendants with a single count of conspiracy to possess with intent to distribute and to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 846³ and 841(a)(1).⁴ The conspiracy, which allegedly occurred between June 25, 1991 and June 5, 1992, includes other narcotics distribution charges pending against the defendants. These narcotics offenses charge the defendants with possession of cocaine with intent to distribute and distribution of cocaine in violation of § 841(a)(1). None of the substantive offenses involved an amount of 500 grams or more of cocaine; rather, these offenses were aggregated to reach the 500 gram or more amount charged in the conspiracy count.

DISCUSSION

Inasmuch as the defendants' motion raises issues involving sentencing, the threshold question is whether this motion, presented in advance of a finding of guilty, is ripe for decision.

I.

In determining whether a matter is ripe for decision, a court looks to (1) "the fitness of the issue for review," and (2) "the hardship to the parties of withholding consideration." In re Drexel Burnham Lambert Group Inc., 995 F.2d 1138, 1146 (2d Cir.1993) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). See also AMSAT Cable Ltd. and Stamford Apartments Co. v. Cablevision of Connecticut Limited Partnership, et al., 6 F.3d 867, 872 (2d Cir.1993) ("We look, first, to whether the issue is fit for review and, second, to the hardship to the parties of withholding review.") A court should resolve this two-step inquiry "pragmatically." In re Drexel Burnham Lambert Group Inc., 995 F.2d at 1146.

First, the defendants argue that their motion is "fit for review" because the amount of cocaine involved in the conspiracy count is an essential element of that count. See Defendants' Memorandum in Support of Motion to Determine Applicability of Mandatory Minimum Sentencing Provisions (filed Dec. 31, 1992) at 1. The Government counters that the amount of cocaine which is the subject of the count of conviction is not an element of the offense, and need not even be alleged in the indictment. Because the basis on which the defendants seek review of their motion is incorrect, the Government rejects the defendants' claim that their motion is ripe for decision. See Government's Response to Defendant's "Motion to Determine Applicability of Mandatory Minimum Sentencing Provisions" (filed Jan. 7, 1993) at 4-5.

The court agrees with the Government that the quantity of narcotics involved in a count of conviction is not an element of the offense. See United States v. Pico, 2 F.3d 472, 475 (2d Cir.1993) (citing United States v. Campuzano, 905 F.2d 677, 679 (2d Cir.), cert. denied, 498 U.S. 947, 111 S.Ct. 363, 112 L.Ed.2d 326 (1990)). As a result, the quantity of narcotics need not be stated in the indictment. Id. Therefore, the defendants' claim that the court must determine how much cocaine is attributable to them because that amount is an essential element of the offense must fail.

Second, the defendants argue that their motion is "fit for review" because Rule 11(c)(1) of the Federal Rules of Criminal Procedure requires the court to advise them of "the mandatory minimum penalty provided by law," before accepting their guilty pleas.⁵ Defendants frequently invoke Rule 11(c)(1) after they have pled guilty, as a ground for challenging their sentences on appeal. See e.g., United States v. Pico, 2 F.3d at 475 (defendant challenged his sentence on appeal, claiming that the notice provided to him pursuant to Rule 11(c)(1) was deficient); United States v. Fernandez, 877 F.2d 1138, 1139 (2d Cir.1989) (same); United States v. Salva, 902 F.2d 483, 484 (7th Cir.1990) (same). In this case, the defendants merely ask that the court determine whether the mandatory minimum sentence may apply before they enter into plea discussions or agreements. See Defendants' Memorandum in Support of Motion for Continuance and Ruling on Mandatory Minimum Before Plea or Trial (filed Sept. 10, 1993) ("Defendants' Memorandum in Support of Motion for Continuance") at 3-4.

While this may appear to be an unusual request, it has been discussed with approval in a case involving a dispute over the applicable Sentencing Guidelines range. In United States v. Salva, 902 F.2d at 488, the Court of Appeals for the Seventh Circuit recognized that, under certain circumstances, it may be appropriate under Rule 11(c)(1) for a district court to defer its decision to accept or reject a plea until there has been an opportunity to review the presentence report and inform the defendant of the applicable Sentencing Guidelines range.⁶ The Salva court reasoned that "defendants will be able to make more intelligent choices about whether to accept a plea bargain if they have as good an idea as possible of the likely Guidelines result." Id.

It seems clear that defendants are also more likely to make intelligent choices about pleading guilty if they have as good an idea as possible of whether a statutory minimum sentence is applicable. Rule 11(c)(1) reflects the importance of apprising defendants of the minimum sentence that may be imposed. The purpose of Rule 11(c)(1) is to insure that a defendant is aware of the range of punishments to which he is subject, and that he is making an informed plea. See United States v. Fernandez, 877 F.2d at 1143 (citing Coleman v. Alabama, 827 F.2d 1469, 1473 (11th Cir.1987), and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)).

At oral argument in the instant case, the Government questioned whether Rule 11(c)(1) applies at this time because the defendants have not yet decided to plead guilty, and the court is not in a position to accept or reject their guilty pleas. Rule 11(c)(1) does not appear to restrict when the court's notice that a mandatory minimum sentence applies may be provided to the defendant. See United States v. Pico, 2 F.3d at 475 (Rule 11(c)(1) was satisfied by notice that the ten-year mandatory minimum sentence applied which was provided in the plea agreement signed by the defendant, and provided by the defendant's attorney, in addition to the notice provided by the court at a hearing prior to accepting the defendant's guilty plea). Furthermore, the court finds that the purpose of Rule 11(c)(1) will be served by resolving the defendants' motion at this time because the resolution is likely to make fully comprehensible any subsequent guilty pleas. Viewing the ripeness inquiry "pragmatically," as we have been enjoined to do, see In re Drexel Burnham Lambert Group Inc., 995 F.2d at 1146, the court finds that the defendants' motion is indeed "fit for review."

Furthermore, the court finds that withholding consideration of the issue presented by the defendants' motion would produce hardship for the defendants — thus satisfying the second prong of the ripeness inquiry. If the court were to refuse to act on the defendants' motion, they would be left to negotiate their pleas amidst uncertainty. As the defendants have described the situation, they would effectively be playing a game of "Russian Roulette": it is possible that they might be pleading to a mandatory minimum sentence, but it is also possible that they would not face such a mandatory minimum term. See Defendants' Memorandum in Support of Motion for Continuance at 2. The court can readily avoid this difficult situation by addressing the question raised by the defendants' motion.

Accordingly, applying pragmatically the two-step ripeness test enunciated by our Court of Appeals, the court finds that the defendants' motion is ripe for decision.

II.

The question on the merits presented by the defendants' motion is whether the mandatory minimum sentencing provisions of 21 U.S.C. § 841(b)(1)(B) may apply to a conspiracy charge when no single substantive distribution with which the defendants have been charged involves 500 grams or more of cocaine.

The parties agree that the following statutory sections are relevant to this issue: Under 21 U.S.C. § 846, conspiracy is "subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy."⁷ In narcotics distribution cases, the language of the conspiracy statute directs a court to § 841. Section 841(a) defines substantive narcotics offenses and prohibits anyone from knowingly or intentionally manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense a controlled substance.⁸ Section 841(b)(1)...