537 U.S. 1152 | SCOTUS | 2003
Dissenting Opinion
dissenting.
Five Members of this Court have previously expressed their disapproval of vacating and remanding a Court of Appeals deci
I
On February 20, 1998, a police officer stopped petitioner’s truck for a traffic violation and noticed a gun magazine on the dashboard. When asked if he had any weapons in the vehicle, petitioner produced a handgun. The officer then arrested petitioner and took him to the police station, where crack cocaine was discovered in his socks. An ensuing indictment charged petitioner with one count of possession of cocaine base with intent to distribute in violation of 21 U. S. C. § 841(a)(1),
The jury acquitted petitioner of possession with intent to distribute but convicted him of the lesser included offense of simple possession. The jury also returned a guilty verdict on the § 924(c) charge. The District Court imposed a 63-month sentence for the 21 U. S. C. § 844(a) offense and a consecutive 60-month sentence under 18 U. S. C. § 924(e). The Fifth Circuit affirmed on direct appeal. See United States v. Price, 180 F. 3d 266, cert. denied, 528 U. S. 944 (1999).
The Fifth Circuit refused, however, to grant habeas relief as to petitioner’s 18 U. S. C. § 924(c) conviction, rejecting petitioner’s contention that his 21 U. S. C. § 844(a) conviction could not serve as a “drug trafficking crime” under 18 U. S. C. § 924(c) because it was not a felony offense. See § 924(c)(2) (“For purposes of this subsection, the term ‘drug trafficking crime’ means any felony punishable under the Controlled Substances Act, the Controlled Substances Import and Export Act, or the Maritime Drug Law Enforcement Act” (emphasis added; citations omitted)). As petitioner saw matters, the maximum prison sentence he could receive under 21 U. S. C. § 844(a) was one year. § 844(a) (“Any person who violates this subsection may be sentenced to a term of
Petitioner now seeks review of the Fifth Circuit’s denial of habeas relief with respect to his § 924(c) conviction. In his petition for certiorari, petitioner argues that the maximum punishment for his 21 U. S. C. § 844(a) offense was one year because the Government did not file a notice, in advance of trial, that it would seek to rely on petitioner’s prior drug convictions to obtain an increased punishment. See § 851(a)(1);
II
This Court has no grounds on which to set aside the Fifth Circuit’s judgment, sinee the Government has not conceded error in that judgment — and indeed insists that it is correct. Moreover, even a cursory evaluation of petitioner’s contentions reveals that the Fifth Circuit’s judgment was entirely correct. Petitioner cannot establish a Strickland claim with respect to his 18 U. S. C. § 924(c) conviction because that conviction was proper.
The jury found petitioner guilty, beyond a reasonable doubt, of having committed a drug trafficking crime while using or carrying a firearm. The trial court had instructed the jury:
“‘A “drug trafficking crime” means any felony punishable under the Controlled Substances Act. Possession with intent to distribute cocaine base and possession of more than five grams of cocaine base are both felony offenses.’” Brief in Opposition 4.
This instruction correctly stated the law. Simple possession of more than five grams of cocaine base is a felony because it is punishable by a mandatory minimum sentence of five years of imprisonment (even without any prior convictions). See § 924(c)(2); 21 U. S. C. § 844(a). And there was ample evidence to support a finding that petitioner committed such a felony while using or carrying a firearm: He stipulated that the amount of cocaine base seized by the police was 6.7 grams.
The fact (noted by the Fifth Circuit) that petitioner was not convicted of possession of more than five grams of cocaine base is not relevant to his 18 U. S. C. § 924(c) conviction. Section 924(c) does not require that the defendant be convicted of the underlying “drug trafficking crime,” but merely that he be found beyond a reasonable doubt to have committed such a crime while using or carrying a firearm. Young v. United States, 124 F. 3d 794, 800 (CA7 1997). Since he was so found (the § 924(c) conviction must have been based on the simple-possession instruction, since the jury acquitted petitioner of the separate 21 U. S. C. §841 charge of possession with intent to distribute), and since there was ample
* * *
For the foregoing reasons I respectfully dissent from today’s judgment and would deny the petition for certiorari.
Section 841(a)(1) provides:
“Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
“to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”
Section 924(c)(1)(A) imposes penalties on “any person who, during and in relation to any crime of violence or drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm . .. .”
Section 844(a) provides:
“It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this
The court was referring to the sentence beginning with the word “Notwithstanding.” This is actually the fourth sentence of § 844(a), but my discussion will accept the Court of Appeals’ math.
Section 851(a)(1) provides:
“No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. Upon a showing by the United States attorney that facts regarding prior convictions could not with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of obtaining such facts. Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.”
Lead Opinion
C. A. 5th Cir. Motion of petitioner for leave to proceed informa pauperis granted. Certiorari granted, judgment vacated, and ease remanded for further consideration in light of United States v. LaBonte, 520 U. S. 751, 759-760 (1997), and the Solicitor General’s acknowledgment that the Court of Appeals “erred in concluding that petitioner’s drug possession offense qualified as a predicate felony” under 18 U. S. C. § 924(c) in the absence of notice under 21 U. S. C. § 851(a). Brief in Opposition 12.
Dissenting Opinion
dissenting.
For the reasons Justice Scalia explains in his dissent from today’s judgment, ante, at 1157 and this page, in my view, our holding in United States v. LaBonte, 520 U. S. 751 (1997), has no bearing upon the question whether the petitioner received ineffective assistance of counsel and does not suggest a result different from that reached by the Court of Appeals. For this reason, I too dissent from the judgment of the Court and would deny the petition for certiorari.