Appeal by the government from a judgment of conviction entered in the United States District Court for the Southern District of New York (Lasker, J.), which imposed a sentence of two years probation instead of imprisonment under 18 U.S.C. § 3147. Vacated and remanded.
Before: TIMBERS, PIERCE and MINER, Circuit Judges.
This is an appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, under which defendants were sentenced, inter alia, to two years probation under 18 U.S.C. § 3147. The government's appeal challenges this sentence contending that under § 3147 a two-year minimum term of imprisonment was mandated and that the district court erred in imposing a term of probation.
The Comprehensive Crime Control Act of 1984 provides the context for interpreting the Congressional intent embodied in the Bail Reform Act, generally, and in § 3147 specifically. Based upon this contextual foundation, we conclude that, by enacting § 3147, Congress intended to redefine the sentencing judge's authority and to limit the judge's exercise of discretion. We conclude that imprisonment was mandated and consequently, we vacate the judgment and commitment order and remand to the district court for resentencing.
The facts herein are not in dispute. On April 3, 1985, Gloria Rodriguez, the appellee, was arrested in New York City for selling cocaine to an undercover police officer. She was arraigned and then released on a personal recognizance bond.
Two weeks later, Rodriguez was arrested again in New York City, this time for selling heroin to an undercover police officer.
In each instance, she was charged with making the sale within 1000 feet of a public school.
A three count indictment was filed based on the first arrest; a two count information was filed based on the second arrest. The two cases were assigned to Judge Lasker who accepted pleas from Rodriguez as follows: plea of guilty to Count One of the indictment which charged distribution of cocaine near a public school, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), 845a, and 18 U.S.C. § 2; plea of guilty to Count Two of the information which charged possession of heroin with intent to distribute, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B)--each is a federal felony.
On July 9, 1985, Rodriguez was sentenced on each of these two charges. Rodriguez was sentenced on Count One of the indictment to a term of four months' imprisonment and six years' special parole; and on Count Two of the information imposition of sentence was suspended and she was placed on probation for two years to follow release from custody. Then, acknowledging that he found the issue "far from clear" and citing the rule of lenity, Judge Lasker concluded that the court had the power to suspend the two year minimum term of imprisonment required by Section 3147*fn1 and to impose a term of probation. He then proceeded under § 3147 to suspend imposition of sentence and to place Rodriguez on probation for a further period of two years.
Chapter I of the Comprehensive Crime Control Act of 1984 is entitled the Bail Reform Act of 1984 ("the Bail Act") and includes 18 U.S.C. § 3147. Generally, the Bail Act addresses the process by which defendants are released or detained pending trial, sentencing, or appeal. It also provides for additional penalties for failure to appear, for violation of a release condition, and, under § 3147, for committing an offense while on release.
The government contends that the district court had no power to suspend the mandatory two year minimum term of imprisonment required under 18 U.S.C. § 3147; that the language of the statute is clear and the legislative history is unambiguous and, hence, the rule of lenity does not apply; ...