No. CR90-0082-04-T | D.R.I. | Feb 1, 1991
MEMORANDUM AND ORDER
This matter is before the Court on Luis Naranjo’s motion to have the cocaine he is charged with possessing re-weighed. For reasons hereinafter stated, the motion is denied but without prejudice to the defendant’s right to contest the weight for purposes of sentencing in the event that he chooses to enter a guilty plea.
BACKGROUND
Naranjo is one of seven defendants charged with conspiracy and possession with intent to distribute 500 grams or more of cocaine in violation of Title 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846. The defendant was arraigned on August 10, 1990, and under the terms of the pretrial order, the time for raising defenses and objections expired on August 22, 1990.
The government asserts that the weight of the cocaine is 500.4 grams; and, therefore, that the defendant, if convicted, is subject to the mandatory minimum sentence of five years imprisonment provided by Title 21 U.S.C. § 841(b)(1)(B) for drug trafficking crimes involving 500 grams or more of cocaine. Naranjo has expressed a desire to plead guilty but is understandably interested in determining whether the weight reported by the government is accurate since a discrepancy of only half a gram could appreciably reduce his likely sentence. Accordingly, he filed the instant motion to have the cocaine re-weighed.
The government objects on the ground that the motion is not timely, and, in any event, the precise weight of the cocaine is not relevant to a determination of guilt or innocence. In so doing, it concedes that a motion to re-weigh may be appropriate in connection with any ensuing sentencing hearing if the defendant is convicted.
DISCUSSION
Title 21 U.S.C. § 841(a) prohibits the distribution of any amount of a controlled
The fact that the indictment against Nar-anjo refers to the quantity of cocaine as being 500 grams or more serves only to put the defendant on notice that the enhanced penalty provisions of § 841(b) may apply. It is otherwise immaterial because quantity is not an element of the offense. See Campuzano, 905 F.2d 677" court="2d Cir." date_filed="1990-06-11" href="https://app.midpage.ai/document/united-states-v-dalmiro-eduardo-campuzano-and-john-jario-rios-543091?utm_source=webapp" opinion_id="543091">905 F.2d at 679; see also United States v. Ruiz, 905 F.2d 499" court="1st Cir." date_filed="1990-06-05" href="https://app.midpage.ai/document/united-states-v-fausto-d-ruiz-543063?utm_source=webapp" opinion_id="543063">905 F.2d 499 (1st Cir.1990); United States v. McHugh, 769 F.2d 860" court="1st Cir." date_filed="1985-08-08" href="https://app.midpage.ai/document/united-states-v-james-mchugh-456325?utm_source=webapp" opinion_id="456325">769 F.2d 860 (1st Cir.1985). Consequently, the quantity of cocaine in the defendant’s possession is not critical for purposes of trial or entry of a guilty plea. It becomes important only for purposes of sentencing. See United States v. Zuleta-Alvarez, 922 F.2d 33" court="1st Cir." date_filed="1991-02-21" href="https://app.midpage.ai/document/united-states-v-john-jairo-zuleta-alvarez-553331?utm_source=webapp" opinion_id="553331">922 F.2d 33 (1st Cir.1990). At that time it may be contested especially if the defendant chose to plead and therefore had no opportunity to cross-examine any government witnesses with respect to the amount of cocaine involved.
CONCLUSION
For all of the foregoing reasons, the defendant’s motion is DENIED without prejudice to his right to challenge the quantity of cocaine at issue during any sentencing proceeding if he elects to enter a guilty plea.