No. 90-7210 | SCOTUS | May 28, 1991
Lead Opinion
C. A. 3d Cir. Certiorari denied.
Dissenting Opinion
dissenting.
This case presents the question whether drug conspiracy convictions must be vacated on double jeopardy grounds in light of an additional conviction for engaging in a continuing criminal enterprise. I would grant certiorari to resolve the confusion that this question has caused among the Courts of Appeals.
Petitioner Carlos Fernandez was convicted on one count of conspiring to distribute and possess cocaine, 21 U. S. C. § 841(a)(1); one count of conspiring to import cocaine, § 952(a); one count of engaging in a continuing criminal enterprise (CCE), § 848; and five counts of using a telephone to facilitate a drug offense, § 843(b). On appeal, Fernandez argued that the District Court should have vacated his conspiracy convictions to prevent cumulative punishment since these were predicate offenses for his continuing criminal enterprise conviction. The Court of Appeals rejected Fernandez’ claim and affirmed. 916 F.2d 125" date_filed="1990-10-18" court="3rd Cir." case_name="United States v. Carlos Eduardo Fernandez. Appeal of Carlos Fernandez">916 F. 2d 125 (CA3 1990). As the court acknowledged, its holding is inconsistent with the decisions of other Courts of Appeals. Id., at 128-129. The majority to have considered the issue require the vacation of a drug conspiracy conviction when it is a predicate to a CCE conviction. See, e. g., United States v. Rivera, 900 F.2d 1462" date_filed="1990-04-04" court="10th Cir." case_name="United States v. Luis Anthony Rivera">900 F. 2d 1462, 1478 (CA10 1990); United States v. Hernandez-Escarsega, 886 F.2d 1560" date_filed="1989-10-04" court="9th Cir." case_name="United States v. Donaciano Hernandez-Escarsega">886 F. 2d 1560, 1582 (CA9 1989); United States v. Possick, 849 F.2d 332" date_filed="1988-06-15" court="8th Cir." case_name="United States v. Kenneth A. Possick, A/K/A Kenneth Roberts">849 F. 2d 332, 341 (CA8 1988). The Court of Appeals for the Second Circuit has adopted a somewhat different approach, “combining” the convictions without vacating those on the lesser counts and then imposing a single sentence. United States v. Aiello, 771 F.2d 621" date_filed="1985-08-07" court="2d Cir." case_name="United States v. Andrea Aiello, A/K/A "Antonio Aiello", Francesca Bartolotta, Lorenzo Scaduto">771 F. 2d 621, 632-635 (1985). Conversely, the Court of Appeals for the Seventh Circuit not only permits predicate conspiracy convictions to stand, but goes beyond the Third Circuit in letting stand concurrent sentences. United States v. Bond, 847 F.2d 1233" date_filed="1988-05-16" court="7th Cir." case_name="United States v. Earl Dean Bond, Alan Lowell Hampton, Sammie Lee Lewis, and Randy Lee Bond">847 F. 2d 1233, 1238-1239 (1988).
This evident disarray among the Courts of Appeals calls for a grant of certiorari.