Opinion
No. 89-10032-01.
November 8, 1989.
Benjamin Burgess, U.S. Atty., and Kim Martin, Asst. U.S. Atty., Wichita, Kan., for plaintiff.
Charles A. O'Hara, Wichita, Kan., for defendant.
MEMORANDUM AND ORDER
On July 18, 1989, the defendant entered a guilty plea on one count of knowingly possessing approximately one kilogram of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The defendant was to be sentenced on October 5, 1989; however, at the sentencing defense counsel raised the issue of whether defendant's prior state court conviction was "final" for purposes of enhancing his sentence under 21 U.S.C. § 841(b)(1)(B). The court decided not to sentence the defendant at that time, and directed the parties to submit briefs on the issue, which they have now done. The court is prepared to address the issue.
Twenty-one U.S.C. § 841(b)(1)(B) states in pertinent part:
If any person commits such a violation [of 21 U.S.C. § 841(a)], after one or more prior convictions for an offense punishable under this paragraph, or for a felony under any . . . other law of a State, . . . relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to [an enhanced sentence].
(Emphasis and brackets added). The defendant contends that he is not subject to an enhanced sentence because his prior state court conviction for conspiracy to distribute cocaine has not become final, as that phrase is used in 21 U.S.C. § 841(b)(1)(B), since an appeal of that conviction is pending in the Kansas Court of Appeals.
The Third Circuit addressed this issue in United States v. Allen, 566 F.2d 1193 (3rd Cir. 1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1491, 55 L.Ed.2d 519 (1978). The Circuit construed the phrase "have become final" found in 841(b)(1)(B) to mean that "a prior conviction is not final for purposes of recidivist sentencing while that conviction is subject to direct appellate review." 566 F.2d at 1195. The Circuit noted that prior to 1970, 26 U.S.C. § 7237 had included the phrase "previously convicted." In 1970, Congress substituted the phrase "have become final" for "previously convicted." The Circuit further noted that while the legislative history of the Comprehensive Drug Abuse and Prevention of 1970 was not very enlightening, Congress must have been aware that under the "previously convicted," language, federal courts were enhancing sentences for a prior conviction even though an appeal of the conviction was pending. The Third Circuit surmised that the change in language to "have become final" gave the courts some indication that Congress was concerned about the use of prior convictions which were pending appeal to enhance sentences. 566 F.2d at 1193. The rationale for the holding is that Congress probably wanted to avoid sending a case back to the trial court for resentencing in the event that the first conviction was overturned. The Third Circuit believed that recidivist sentencing should be limited to those cases "in which the conviction has become final, in the sense that the time for appeal has expired or a pending appeal has been disposed of." Id.
The Allen decision has been followed by at least three other circuits. In United States v. Morales, 854 F.2d 65 (5th Cir. 1988), the Fifth Circuit held:
[T]he final conviction language of § 841(b)(1)(B) applies to a conviction which is no longer subject to examination on direct appeal, including an application for certiorari to the United States Supreme Court, either because of disposition on appeal and conclusion of the appellate process, or because of the passage, without action, of the time for seeking appellate review.854 F.2d at 69. See also United States v. Lippner, 676 F.2d 456, 467 (11th Cir. 1982) (conviction not final until all avenues of appeal are exhausted); Williams v. United States, 651 F.2d 648, 649-650 (9th Circuit 1981) (direct appellate review includes certiorari, even though certiorari is discretionary).
The government does not dispute the general rule that a prior conviction is not "final" for purposes of enhancement under § 841(b)(1)(B) while a direct appeal is pending. Neither does the government dispute the fact that defendant's conviction was on appeal at the time of the sentencing on October 5, 1989, and is still pending at this time. The government contends however, that the defendant's conviction was final at the relevant time under the statute — at the time the defendant committed the instant offense.
This court is faced with a factual scenario not yet addressed by any other court. The pretrial services report reflects that the defendant was charged in state court on October 16, 1987, with conspiracy to possess cocaine with the intent to distribute. He entered a guilty plea on this charge on August 19, 1988, and was sentenced on November 2, 1988. He thereafter appealed his sentence but not his conviction. Approximately five months later, the government filed charges in the present case, alleging that on or about April 5, 1989, the defendant did knowingly possess with intent to distribute approximately I kilo of cocaine. On July 17, 1989, the defendant filed a motion in the Kansas Court of Appeals to remand his state case to the lower court so that the lower court could rule on his motion to withdraw his guilty plea. The defendant entered his guilty plea in the present case the next day, July 18, 1989.
The Kansas Court of Appeals granted defendant's motion to remand the case to the lower court on August 28, 1989. The lower state court considered the defendant's motion to withdraw his guilty plea, and overruled the motion on September 11, 1989. Sometime between September 11, 1989, and October 5, 1989, the defendant filed a new appeal, this time challenging both his sentence and his conviction.
There is one case which lends support to the government's argument that the prior conviction must be "final" at the time of the offense. In United States v. Woolbright, 645 F. Supp. 929 (E.D.Mo. 1986), the District Court noted: "By its terms § 841(b)(1) requires that a prior conviction be `final' at the time the defendant commits the predicate § 841(a) offense in order for the defendant to be subject to an enhanced penalty." 645 F. Supp. at 930. This interpretation of the statute is too narrow. It allows the court to enhance a sentence only if a direct appeal is no longer pending or the time for appeal has expired at the time of the instant offense. It would not allow the court to enhance a sentence if a prior conviction became "final" at some point after the commission of the predicate act, such as during the trial or before sentencing on the instant offense. Congress surely did not intend such a result. The court finds that if a prior conviction is "final" at the time of sentencing, then the court will enhance the sentence pursuant to 21 U.S.C. § 841(b)(1)(B). Other courts have found the relevant time when a prior conviction has become "final" for enhancement purposes to be at the time of sentencing. Lippner, 676 F.2d at 467; Williams, 651 F.2d at 649. In Allen, the court found that the conviction had to be final at the time of trial before an enhanced sentence could be imposed. 566 F.2d at 1196.
The defendant's prior state court conviction was not pending appeal at the time he committed the instant offense, but it was pending appeal at the time of sentencing. The government argues that the defendant's decision to appeal his prior state court conviction a full three months after his arrest on the federal charges is nothing more than an attempt to frustrate the federal statutory sentencing enhancement scheme. Even if this were true, the court knows of only one way to thwart such an attempt, and that is to wait until the prior conviction has become final before sentencing the defendant. This is an unacceptable solution in this case, as the time it would take for the defendant to exhaust all avenues of direct appellate review would cause an undue delay in sentencing. The court holds that the prior conviction has not become final, as that phrase has been interpreted under 21 U.S.C. § 841(b)(1)(B), and the defendant's sentence is not subject to enhancement.
IT IS THEREFORE ORDERED that defendant's sentence shall not be enhanced under 21 U.S.C. § 841(b)(1)(B).
IT IS FURTHER ORDERED that the defendant shall appear for sentencing on Friday, December 1, 1989, at 1:30 p.m.