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UNITED STATES v. LOPEZ

August 24, 1984

UNITED STATES OF AMERICA, against HERIBERTO LOPEZ, Defendant.


The opinion of the court was delivered by: KRAM

MEMORANDUM OPINION AND ORDER

SHIRLEY WOHL KRAM, U.S.D.J.

 Court: "Do you understand that the maximum penalty under Count 1 is 15 years and a $25,000 fine plus a special parole?"

 Lopez: "Yes"

 Court: "And do you understand that the maximum under the second count is the same?"

 Lopez: "Yes"

 * * *

 Court: "[That] indicates a total of 30 years, $50,000 in fines and 6 years in special parole."

 Court: "Do you understand that . . . you might, on the basis of your guilty plea, receive up to the maximum sentence that I described to you earlier?"

 Lopez: "Yes"

 The above-captioned case is now before the Court upon defendant's motion for a reduction in the sentence imposed, pursuant to Fed. R. Crim. P. 35, on the grounds that that sentence was constitutionally impermissible. For the reasons stated below, the motion is DENIED.

 Lopez pleaded guilty to two counts of a three count indictment. On the first count, Lopez admitted conspiring with others to distribute, and possess with intent to distribute, heroin. 21 U.S.C. §§ 812, 841(a)(1), and (b)(1)(A). On the second count, Lopez admitted to selling an undercover agent five glassine envelopes of heroin for $50. Lopez allegedly sold an additional five glassine envelopes of heroin to a second undercover agent for $50. *fn1" The two undercover agents, testifying at the trial of a co-defendant, testified that, in addition to those two sales, they witnessed Lopez selling heroin to several other purchasers.

 Lopez had been arrested several times prior to his arrest on the instant offenses. In spite of several arrests for sale or possession of narcotics and drug paraphernalia, and one arrest for burglary and criminal mischief, Lopez never served a sentence.

 Lopez admitted to being a heroin user, and to having a $100 a day habit. At the time of his arrest Lopez was unemployed. Apparently, Lopez was sustaining his habit ...


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