UNITED STATES оf America, Appellee, v. Dale Marvin WARREN, Appellant.
No. 96-4139.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 9, 1997. Decided July 13, 1998.
149 F.3d 825
The appellant Turner asks us to address two other questions. First, he asks us to hold that the partnership-agreement amendment, the one that purported to authorize a majority of limited partners to apprоve a conflict of interest on the part of the general partner, is invalid, because it was not supported by a unanimous vote of the limited partners. We decline to address this issue. Ferguson does not assert this amendment аs a defense. Accordingly, whether the amendment is valid or not is immaterial to this case. In addition, Turner asks that a constructive trust be imposed on the land, which is now the property of Huntington Ridge. This is an issue of remedy, and can be addrеssed by the District Court if and when Ferguson is found liable.
For the reasons given in this opinion, the judgment of the District Court is reversed, and the cause remanded for further proceedings consistent with this opinion.
John William Simon, Jefferson City, MO, argued, for Apрellant.
Cynthia Jean Hyde, Assistant United States Attorney, Springfield, MO, argued (Stephen L. Hill, Jr., on the brief), for Appellee.
Before FAGG, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
In this
I. BACKGROUND
Warren was convicted of one count of conspiracy to manufacture and distribute methamphetamine and phenyl-2-propanone (P2P) and three counts of manufacturing methamphetamine or P2P in violation of
Warren then filed this
On appeal, Warren contends that he was improperly resentenced. He contends: (1) the mandatory minimum statute does not apply to one of the counts against him; and (2) that the rule of lenity requirеs that he should have been sentenced to a five-year rather than a ten-year mandatory minimum sentence because of ambiguity in the statute. The government also seeks a remand. It contends that it erroneously urged the district court to resentence Warren to the 120-month mandatory minimum sentence and seeks reinstatement of Warren‘s 151-month sentence. The government seeks to adduce evidence that, although it failed to prove at trial that the substance Warren manufactured was d-meth, the manufacturing process that it proved he used would always produce d-meth.
II. DISCUSSION
In order to demonstrate ineffective assistance of counsel in connection with these sеntencing issues, Warren must show: (1) that counsel‘s performance was deficient; and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We find that Warren cannot prove that counsel‘s performance prejudiced him.
Warren was convicted of three substantive counts of manufacturing methamphetamine and one count of conspiracy to manufacture and distribute methamphetamine. Although one count of manufaсturing methamphetamine predated the date on which methamphetamine was added to the list of drugs covered by the mandatory minimum statute,
Warren argues that, because there was a typographical error in the statute at the time of his offense, the rule of lenity requires that this action be remandеd so that he can be resentenced to a five-year—instead of a ten-year—mandatory minimum sentence. Under our present sentencing scheme, punishment for a drug trafficking offense is dependent upon the quantity of the сontrolled substance involved. See Chapman v. United States, 500 U.S. 453, 460, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). Congress has thus set mandatory minimum sentences corresponding to the weight of mixtures or substances containing the drugs. See id. at 460-61. It intended the penalties for drug trafficking to be graduated according to the weight of the drugs whether they are found pure or mixed. See id. In keeping with the theme of graduated penalties based on quantities, the section at issue was structured to provide, first, a five-year mandatory minimum for a lesser quantity of both pure and mixed methamphetamine and, then, a ten-year mandatory minimum for a larger quantity. See
At the time of Warren‘s offense, because of a typographical error, the same amount of a quantity of a mixture—100 grаms—was listed as triggering both the five-year and the ten-year mandatory minimum sentences.2
Warren‘s argument is unavailing. The rule of lenity is a rule of narrow construction “rooted in the concern of thе law for individual rights, and in the belief that fair warning should be accorded as to what conduct is criminal and punishable by deprivation of liberty or property.” Huddleston v. United States, 415 U.S. 814, 831, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974). Although penal laws are to be construed strictly, they should not be construed so strictly as to defeat the obvious intention of the legislature. See id.
It is true that the rule of lenity generally requires that doubts be resolved in favor of a defendant where there is ambiguity in a criminal statute. See United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). The rule of lenity, howevеr, is not applicable unless there is a “grievous ambiguity or uncertainty in the language and structure” of the statute. Huddleston, 415 U.S at 831. Lenity is reserved for those situations in which a reasonable doubt persists about a statute‘s intended scope even after resort to the language, structure, legislative history, and motivating policies of the statute. See Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990). It will be invoked only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended. See Muscarello v. United States, 524 U.S. 125, 138, 118 S.Ct. 1911, 1919, 141 L.Ed.2d 111 (1998). Lenity is not appropriate in those cases where a defendant is convicted of violating two separate provisions of a statute and Congress has “authorize[d] for each of [those] two offеnses what may seem to some to be harsh punishment.” See Callanan v. United States, 364 U.S. 587, 597, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961). Thus, the rule of lenity does not “automatically permit[ ] a defendant to win.” Muscarello, 524 U.S. at 139.
We perceive no grievous ambiguity or uncertainty in the language and structure of the statute. The stаtute in question clearly proscribes Warren‘s conduct. It accorded him fair warning that he faced the sanction of incarceration for at least ten years for manufacturing more than 100 grams of a mixture containing methamphetamine. As noted, our entire drug offense sentencing scheme is premised on drug quantity. Here, the evidence showed that Warren was involved in the manufacture of 32 kilograms (32,000 grams) of methamphetamine. Under the circumstancеs, we cannot find that Warren was short of notice that he was eligible for a long sentence. We find no “absurd or glaringly unjust” result. See Chapman, 500 U.S. at 463. Thus we will not “blindly incant the rule of lenity to ‘destroy the spirit and force of the law which the legislature intended to [and did] enact.‘” Huddleston, 415 U.S. at 832 (quoting American Tobacco Co. v. Werckmeister, 207 U.S. 284, 293, 28 S.Ct. 72, 52 L.Ed. 208 (1907) (alteration in original)).
Although we summarily denied the government‘s motion for a remand, it again seeks a remand in its brief on the merits.3 It seeks to adduce evidence that Warren‘s manufacturing process would always have resulted in d-meth. The government did not present this argument or evidence to the district court. We will not generally consider issues that were not presented to the district court in the first instance. See First Bank Investors’ Trust v. Tarkio College, 129 F.3d 471, 477 (8th Cir. 1997). The district court concluded that the statutory minimum of 120 months was grеater than the applicable Guideline range, given the concession by the government that it had not proved that the substance was d-meth. We are not inclined to disturb that finding and decline to revisit the l-meth/d-meth issue.
III. CONCLUSION
We have reviewed Warren‘s other arguments and find them lacking in merit. Accordingly, Warren‘s sentence is affirmed.
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.
Because the plain meaning of
I would therefore vacate the sentence imposed in this case and remand to the district court for resentencing. I would affirm the district court‘s judgment in all other respects.