US v. Preston

• Decision Date: 31 May 1990
• Docket Number: Crim. No. 87-00085.
• Citation: 739 F. Supp. 294
• Parties: UNITED STATES of America, Plaintiff, v. Sinclair PRESTON and Ben Johnson, Defendants.
• Court: U.S. District Court — Western District of Virginia

739 F. Supp. 294

UNITED STATES of America, Plaintiff, v. Sinclair PRESTON and Ben Johnson, Defendants.

Crim. No. 87-00085.

United States District Court, W.D. Virginia, Abingdon Division.

May 31, 1990.

Thomas J. Bondurant, Jr., Asst. U.S. Atty., Roanoke, Va., for plaintiff.

C. Randall Lowe, Abingdon, Va. and Donald E. Earls, Norton, Va., for Preston.

Emmitt F. Yeary, Abingdon, Va., for Johnson.

MEMORANDUM OPINION AND ORDER

GLEN M. WILLIAMS, Senior District Judge.

This case is before the court on a motion by the defendants to have the court reduce their sentences pursuant to Rule 35 of the Federal Rules of Criminal Procedure.

FACTUAL AND PROCEDURAL BACKGROUND

On November 18, 1987, the defendants were convicted of conspiring to distribute cocaine and aiding and abetting the distribution of cocaine. Those offenses were committed in the Spring of 1987. On January 28, 1988, the defendants were sentenced to ten years in prison, with no eligibility for parole, and five years of supervised release. The convictions were appealed to the Court of Appeals for the Fourth Circuit which affirmed them. The resulting mandate from the Court of Appeals was received by this court and filed on March 16, 1989. Mr. Johnson and Mr. Preston filed their Rule 35 motions on June 2, 1989 and June 14, 1989, respectively.

ANALYSIS

I. Jurisdiction of the Court

Rule 35 of the Federal Rules of Criminal Procedure provides that "a motion to reduce a sentence may be made ... within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment.... The court shall determine the motion within a reasonable time." Both the defendants' motions to reduce their sentences were made within 120 days of the receipt of the mandate issued by the Fourth Circuit Court of Appeals upon its affirmance of the convictions of the defendants. Therefore, the court has jurisdiction to hear and rule upon these motions.

II. Effective Date of Sentencing Provisions

The defendants argue that this court erroneously applied a provision of the Narcotics Penalties and Enforcement Act of 1986, Pub.L. 99-570, Tit. I, Subtit. A, 100 Stat. 3207-2 (1986) hereinafter "Act", to the offenses for which they were convicted. They assert that the sentencing provisions and the prohibition against probation, parole or suspension of a sentence contained in the Act do not apply to offenses which were committed before November 1, 1987. Thus, the issue is one of statutory construction — what is the effective date of these provisions?

Description of Statute

The Act is divided into nine sections, including one section which simply sets forth the title of the act. Of the remaining eight sections, four of them contain an effective date tied to the effective date of 18 U.S.C. § 3583 hereinafter "Supervised Release Act", and four of them contain no effective date. The defendants were sentenced under section 1002 of the Act, which amended section 401(b)(1) of the Controlled Substances Act, 21 U.S.C. 841(b)(1). Section 1002 requires that if a sentence of imprisonment is imposed, it must be for a certain minimum number of years with no parole, probation or suspension of the sentence; it contains no effective date.¹ Section 1007 of the Act allows the court limited authority to reduce prison sentences below the mandatory minimum.² Its effective date was explicitly tied to the effective date of the Supervised Release Act, which resulted in an effective date of November 1, 1987.³

Neither the United States Supreme Court nor the Fourth Circuit has specifically addressed when the sentencing provisions of section 1002 became effective. Thus, there is no controlling authority on this issue.

Construction of a Statute

The goal of statutory construction of a federal law is to determine the intent of Congress. E.g., Alabama v. Tennessee Valley Auth., 636 F.2d 1061, 1066 (5th Cir.1981), cert. denied, 454 U.S. 837, 102 S.Ct. 142, 70 L.Ed.2d 118 (1981). The starting point for discerning congressional intent is the language of the statute itself. Matala v. Consolidation Coal Co., 647 F.2d 427, 429 (4th Cir.1981). However, as noted above, section 1002 does not mention when it becomes effective. Where the text fails to address an issue pertinent to decision, an ambiguity exists.⁴ United States v. Veon, 538 F.Supp. 237, 243 (E.D.Cal. 1982). See also Busic v. United States, 446 U.S. 398, 407, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).

Legislative history should be used as a guide to resolve an ambiguity. E.g., Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). However, there is no reported legislative history of the Act that is helpful in this regard. See 1986 U.S. Code Cong. & Admin.News 5393 (no Senate or House Report was submitted with this legislation). When a statute is ambiguous and the legislative history does not resolve the ambiguity, then a court must turn to the canons of construction for assistance.

Canons of Construction

The Government argues that the issue is resolved by the rule of construction that when a date of effectiveness is not expressly provided, the statute should become effective upon enactment.⁵ This is, indeed, a well-established canon of construction. E.g., United States v. York, 830 F.2d 885, 892 (8th Cir.1987), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988).

Although the early opinions of the United States Supreme Court setting forth the rule were unclear whether it was a rule of law or a rule of construction, see, e.g., Matthews v. Zane, 20 U.S. (7 Wheat) 164, 211, 5 L.Ed. 425 (1822), both the First and the Ninth Circuits have made clear that they regard the rule as a rule of construction. United States v. Ferryman, 897 F.2d 584 (1st Cir.1990); United States v. Shaffer, 789 F.2d 682, 686 (9th Cir.1986). This court concludes that this is the better view and that therefore the rule may be trumped in a specific case by another rule of construction which application more closely reflects the intent of Congress.

The Fourth Circuit has addressed the issue of when another provision contained in section 1002, the supervised release requirement, see n. 1, supra, became effective. United States v. Whitehead, 849 F.2d 849, 860 (4th Cir.1988), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988). The court cited United States v. Byrd, 837 F.2d 179 (5th Cir.1988), as support for its holding that the effective date was not the date of enactment. 849 F.2d at 860. The court in Byrd refused to apply the rule of construction that in the absence of an express date of effectiveness the provision is effective on the date of enactment. 837 F.2d 179. Instead, the court concluded, based on the relationship between the supervised release provisions in section 1002 and 1004 and the congressional history of an earlier act, that the date of effectiveness for the supervised release provisions should be that of section 1004 rather than the date of enactment.⁶ Id. at 181, n. 8. It should be noted that there is no reference in section 1002 to section 1004 or vice versa. However, the court concluded that its interpretation resulted in a "more logical arrangement." Id.

A court, in construing a statutory provision, is to construe the statute as a whole. United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984). In construing the statute as a whole, it is to strive to avoid a construction producing arbitrary, capricious, or senseless distinctions, or an unequal operation of the statute. 73 Am.Jur.2d Statutes § 261 (1974). See also C.I.R. v. Asphalt Products Co., Inc., 482 U.S. 117, 121, 107 S.Ct. 2275, 2278, 96 L.Ed.2d 97 (1987) (judicial perception that a particular result would be unreasonable may enter into construction of ambiguous statutory provisions); Bechtel Const., Inc. v. United Broth. of Carpenters & Joiners of America, 812 F.2d 1220, 1225 (9th Cir.1987) (court should avoid construction establishing illogical, unjust, or capricious statutory scheme); Evcco Leasing Corp. v. Ace Trucking Co., 828 F.2d 188, 195 (3rd Cir.1987) (statutes must be interpreted to receive sensible construction, so as not to lead to injustice and oppression).

The rule's rationale is that the court should assume, in the absence of clear evidence to the contrary, that Congress does not intend for any statute to contain arbitrary or capricious distinctions. The Fifth Circuit in Byrd, noting the "confusing statutory draftsmanship" of the Act, avoided a construction producing the illogical result of the supervised release provisions of section 1002 becoming effective before the supervised release provisions mandated in the other sections of the Act became effective. 837 F.2d at 181.

Government's Construction of Statute Produces Arbitrary Hardship

Under the law existing prior to the effective date of the Act, there was no requirement that a sentence of imprisonment be for a minimum number of years for the offenses committed by the defendants. See 21 U.S.C. § 841(b) (Supp. II 1984). If the date of enactment, October 27, 1986, is assumed to be the effective date for section 1002, then a window of hardship was created for the short period of time between October 27, 1986 and November 1, 1987 in which a defendant is subject to a prison term for a mandatory minimum number of years, while not enjoying the possibility of benefiting from the exception to the mandatory minimum contained in section 1007, see n. 2, supra.

It is irrelevant whether the particular defendants would have been able to take advantage of section 1007 to achieve a lower sentence. The pertinent issue is the construction of the statute, not its application to a particular defendant or defendants.

It may often occur that Congress increases the penalty for a crime and then subsequently concludes that that penalty is too harsh and therefore reduces it somewhat, thus intentionally creating an intermediate period in which the penalty is harsher than that...