Appeal from the April 19, 1989, judgment of the District Court for the Northern District of New York (Con. G. Cholakis, Judge) seeking review of the sentences imposed on the defendants. Government contends that Sentencing Guidelines apply to continuing offenses that begin before and end after the effective date of the Guidelines. Reversed in part, sentences vacated, and case remanded for proceedings consistent with this opinion.
Newman, Pratt, and Mahoney, Circuit Judges.
Jon O. Newman, Circuit Judge:
This appeal presents the issue of whether district courts must apply the Sentencing Guidelines with respect to so-called "straddle crimes" -- continuing offenses begun before November 1, 1987, when the Guidelines went into effect, and continuing after that date. The United States appeals from the April 19, 1989, judgment of the District Court for the Northern District of New York (Con. G. Cholakis, Judge). The Government seeks review only of the sentences imposed on the defendants. Count 1 of a two-count indictment charged George Story, Curtis Jones, and two other defendants with conspiring to distribute in excess of five kilograms of cocaine from July 1, 1983, through April 7, 1988, in violation of 21 U.S.C. § 846 (1982). Count two charged Story with possession with intent to distribute one-half kilogram of cocaine, in violation of 21 U.S.C. § 841(a)(1) (1982). After Jones's guilty plea and Story's trial, the Court sentenced both under pre-Guidelines law. The Government asserts that the Court was required to sentence under the Guidelines. We agree and vacate both sentences. We remand with instructions to resentence Story pursuant to the Guidelines and to give Jones the option of either being resentenced under the Guidelines or withdrawing his guilty plea.
At Story's trial, the Government presented evidence that Story and Jones committed acts in furtherance of the conspiracy both before and after November 1, 1987. One witness testified that in 1983 he made a cocaine purchase in Florida for Story and arranged for the drug to be transported back to New York, where Story used and sold it. Other witnesses testified that on various occasions between 1983 and 1986, Story gave or sold them small amounts of cocaine and approached them about buying and transporting cocaine for him. During the same period, Jones made frequent trips to New York and allegedly brought small amounts of cocaine with him and had discussions with Story about arranging cocaine purchases in Florida.
A major part of the Government's case, however, focused on Story's and Jones's role in a failed cocaine transaction in late 1987. In October 1987, a government informant, Steven Sabo, approached Story about arranging a two-kilogram cocaine purchase. Sabo then had preliminary discussions in New York with Story and Jones. On November 12, 1987, Sabo met with Story at Story's house, at which time he increased the amount of the planned purchase to ten kilograms. Sabo also testified about a second meeting at Story's house on November 24, where Story agreed, for a fee, to hold funds for the purchase. Thereafter, Sabo dealt mainly with Jones. Sabo and an agent of the Drug Enforcement Administration ("DEA") posing as Sabo's "backer" traveled to Florida, had numerous conversations with Jones and the two other defendants, and taped many of these conversations, which were later introduced as evidence at Story's trial. After attempts to complete the deal failed because of suspicions about Sabo's "backer" (the DEA agent), Story, Jones, and the others were indicted in April 1988.
The first count of the indictment charged all four defendants with conspiring to distribute in excess of five kilograms of cocaine.*fn1 The second count charged Story alone with possessing and distributing one-half kilogram of cocaine in 1983. Jones pled guilty to the conspiracy count. At the plea allocution, the District Judge stated that, for purposes of sentencing, he would view the case as a pre-Guidelines case if there were evidence that Jones had participated in the conspiracy before November 1, 1987. During the course of the plea proceeding, Jones acknowledged pre-November 1 conduct. Story pled not guilty and was subsequently convicted by a jury on count 1 and acquitted on count 2. In a special verdict, the jury found that the amount of cocaine that Story had conspired to distribute was greater than 500 grams but less than five kilograms.*fn2
At the sentencing hearing, the Court, exercising what it viewed as its discretion to apply pre-Guidelines law, sentenced Story to four years' imprisonment and Jones to four years' imprisonment and a $25,000 fine.
I. Appellate Jurisdiction
The Government's right to appeal a non-Guidelines sentence imposed for a "straddle crime" appears to be an issue of first impression. Appellees contend that jurisdiction is lacking because, with exceptions not here pertinent, the entire Sentencing Reform Act of 1984, which contains the provision granting the Government a limited right to appeal sentences,*fn3 applies only to offenses committed after November 1, 1987. However, whether appellees' offenses were committed after that date for purposes of the Guidelines is the issue on the merits. Thus, in order to decide whether the Government may appeal, we must decide the merits of the Government's claim. Doing so is simply an instance of a court's exercising jurisdiction to determine its jurisdiction, which it may always do. See United States v. United Mine Workers, 330 U.S. 258, 289-95, 91 L. Ed. 884, 67 S. Ct. 677 (1947). We have done so specifically in the context of sentencing provisions where the issues of jurisdiction and the merits were identical. See United States v. De Simone, 468 F.2d 1196, 1200 (2d Cir. 1972), cert. denied, 410 U.S. 989, 93 S. Ct. 1499, 36 L. Ed. 2d 188 (1973). Because we conclude on the merits, infra, that a continuing offense conspiracy is "committed" after the effective date, at least where acts in furtherance of the conspiracy occur after that date, we hold that the Government may appeal sentences imposed under pre-Guidelines law in such cases.
Appellees further contend that even if the Government may appeal sentences imposed for "straddle crimes," that appeal is limited to instances in which a district court has imposed an incorrect Guidelines sentence. Though a refusal to apply the Guidelines where the law requires their use is probably not "an incorrect application of the sentencing guidelines," 18 U.S.C. § 3742(b)(2), a sentence resulting from such a refusal is one that has been imposed "in violation of law." Id. at § 3742(b)(1). Such a sentence is illegal in the same sense as any ...