123 F. Supp. 920 | S.D.N.Y. | 1954
The issue presented by this motion to reduce a sentence is whether the Boggs Act,
The defendant was convicted upon a two-count indictment charging (1) conspiracy to violate the narcotics laws and (2) the sale of narcotics in violation of Sections 173 and 174 of Title 21 U.S.C.A. The offenses were committed from January 1951 to March 1951; the trial was had in February 1952, and in March 1952, the defendant was sentenced as a first offender to a term of five years on the conspiracy count and ten years on the substantive count to run concurrently. At the time the offenses were committed the statute
Prior to the Boggs Act the penalty provisions for narcotics violations were contained in various sections of the United States Code. Section 2(c) of the Narcotic Drugs Import and Export Act,
“That section 2(c) of the Narcotic Drugs Import and Export Act, as amended (U.S.C.,- title 21, sec. 174), is amended to read as follows; ‘ [A first offender] shall be fined not more than $2,000 and imprisoned not less than two or more than five years. For a second offense, the offender shall be fined not more than $2,000 and imprisoned not less than five or more than ten years. For a third or subsequent offense, the offender shall be fined not more than $2,000 and imprisoned not less than ten or more than twenty years. Up*922 on conviction for a second or subsequent offense, the imposition or execution of sentence shall not be suspended and probation shall not be granted ’ ” ,'
Sections 2, 3, and 4 amend various sections of the Internal Revenue Code to conform the penalties (relating principally to marijuana convictions) to the amended 2(c) of the Narcotics Act. Section 5 states that Section 2(f) of the Narcotic Drugs Import and Export Act, Sections 200-200b of Title 21 Ú.S.C., and Sections 2557(b) (5), (6), and (7) of the Internal Revenue Code “are hereby repealed”. Section 6 contains the saving clause.
Defendant urges that neither that clause nor the general saving statute
cannot a^ree- :t is wel1 settled that absent a contrary Congressional intent an amendment operating as a Substitute for an earlier statute falls within the purview of the general saving statute.
“The purpose of the bill is to make more stringent and more uniform the penalties which would be imposed upon persons violating the Federal narcotic and marihuana laws.”
So determined was Congress that the penalty provisions would be rigidly applied, particularly in view of the alarming increase in drug addiction amongst the yoúthfül,' that it curtailed judicial discretion by denying power to suspend the imposition or execution of sentence or to grant probation with respect to second and third offenders.
In view of the mandatory minimum terms of imprisonment in the instance of recidivists any attempt to impose them for violations committed prior to the effective date of the Boggs Act would run afoul of the constitutional prohibition against ex post facto laws
Accordingly, defendant’s position must rest on the proposition that Congress in the case of first offenders intended the new act to be retroactive but in the case of recidivists, prospective— a dichotomy of legislation not very likely in the light of the avowed purpose to make more stringent the terms of imprisonment for violators of the narcotics and marijuana laws. In recasting these laws Congress not only intended to increase certain penalty provisions, but also to make uniform the sentences applicable to various grades of offenders. To effect this purpose Section 174 of Title 21 U.S.C.A. was used in the instance of narcotic offenses and Section 2557(b) (1) of the Internal Revenue Code was availed of to provide the same penalty for marijuana offenders.
Accordingly, old Section 174 of Title 21 U.S.C.,
The motion is denied.
Settle order on notice.
. 65 Stat. 767, 21 U.S.C.A. § 174.
. 21 U.S.C.A. § 174, Narcotic Drugs Import and Export Act, approved May 26, 1922, 42 Stat. 596.
. Effective November 2,1951.
. 42 Stat. 596.
. 50 Stat. 627.
. 53 Stat. 274.
. 1 U.S.O.A. § 109.
. Hertz v. Woodman, 218 U.S. 205, 30 S.Ct. 621, 54 L.Ed. 1001; Great Northern R. Co. v. United States, 208 U.S. 452, 28 S.Ct. 313, 52 L.Ed. 567; United States v. Kirby, 2 Cir., 176 F.2d 101; United States v. Marachowsky, 7 Cir., 213 F.2d 235; Lovely v. United States, 4 Cir., 175 F.2d 312.
. Lowe v. United States Smelting, Refining & Mining Co., 9 Cir., 175 F.2d 486; National Labor Relations Board v. National Garment Co., 8 Cir., 166 F.2d 233; National Labor Relations Board v. Mylan-Sparta Co., 6 Cir., 166 F.2d 485. See also, Morehead v. Hunter, 10 Cir., 198 F.2d 52.
. S.R. 1051, United States Code Congressional and Administrative Service, , 82nd Cong., .1st Sess. 1951, p. 2602.
. Lindsey v. State of Washington, 301 U.S. 397, 57. S.Ct. 797, 81 L.Ed. 1182.
. United States v. Delaware & Hudson Co., 213 U.S. 366, 407-408, 29 S.Ct. 527, 53 L.Ed. 836.
. See S.R. 1051, United States Code Congressional and Administrative Service, Vol. 2, 82nd Cong., 1st Sess. 1951, p. 2603.
. Section 2(c) of the Narcotic Drugs Import and Export Act.
. 50 Stat. 627.
. See Committee on Ways and Means, H. R. No. 635, 82nd Cong., 1st Sess., June 21st, 1951; Committee on Finance, S.R. No. 1051, 82nd Cong., 1st Sess., October 19th, 1951.
. Great Northern R. Co. v. United States, 208 U.S. 452, 465, 28 S.Ct. 313, 52 L.Ed. 567; De La Rama S.S. Co. v. United States, 344 U.S. 386, 73 S.Ct. 381, 97 L.Ed. 422; United States v. Carter, 5 Cir., 171 F.2d 530.