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UNITED STATES v. SMITH

March 3, 1992

UNITED STATES OF AMERICA, Plaintiff, against MARVIN SMITH, Defendant.


The opinion of the court was delivered by: KIMBA M. WOOD

MEMORANDUM OPINION AND ORDER

 WOOD, D.J.

 Defendant is to be sentenced under 21 U.S.C. § 845a(a) ["§ 845a(a)"]. The Government urges this Court to adopt an interpretation of § 845a(a) that requires the Court to sentence a defendant to a term of imprisonment. Defendant maintains that, given the plain meaning of the statute, a prison term is not required. For the reasons stated below, this Court concludes that § 845a(a) does require prison term of at least one year.

 DISCUSSION

 Section 845a(a) states that:

 Any person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising [a school or other center for youth] is . . . punishable by a term of imprisonment, or a fine, or both, up to twice that authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a term of imprisonment under this subection shall not be less than one year. The mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of marihuana.

 21 U.S.C. § 845a(a), repealed by 21 U.S.C. § 860 (emphasis added).

 It can be argued, in support of defendant's view, that § 845a(a) is entirely disjunctive, permitting a court to impose only a fine. The language supporting this interpretation is the first italicized phrase, "a term of imprisonment, or a fine, or both." The Government points the Court to the second italicized phrase, "a term of imprisonment under this subsection shall not be less than one year," and the phrase "the mandatory minimum sentencing provisions of this paragraph." It argues that these phrases indicate that there is a mandatory minimum prison sentence of one year under this subsection. *fn1"

 The Second Circuit has not considered this challenge to the Government's interpretation of § 845a(a). In support of defendant is the decision of the Eighth Circuit in United States v. Williams, 942 F.2d 526 (8th Cir. 1991), which held that § 845a(a) does not impose a minimum prison term. That result was also reached by the two district courts to address the issue. United States v. Concepcion, 721 F. Supp. 493, 495 (S.D.N.Y. 1989) (Sweet, D.J.); United States v. Fernandez, 749 F. Supp. 683 (E.D. Pa. 1990) (Hutton, D.J.). *fn2"

 The Government argues, however, that the Second Circuit's opinion in United States v. Detrich, 940 F.2d 37 (2d Cir. 1991), cert. denied, 117 L. Ed. 2d 475, 60 U.S.L.W. 3580, 112 S. Ct. 1242 (1992), controls in this case, and that the analysis in Detrich implies that § 845a(a) should be interpreted to impose a mandatory prison term. The Government also argues that the analysis in the three decisions supporting defendant's position is defective, and that a proper analysis would read § 845a(a) to impose a mandatory prison term, even apart from the controlling precedent of Detrich.

 This Court agrees with both prongs of the Government's argument.

 I.

 Detrich concerned the interpretation of § 960(b)(2) of 21 U.S.C. That section states that a person convicted of importing more than one hundred grams of heroin into the United States:

 shall be sentenced to a term of imprisonment of not less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not less than twenty years and not more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18, or $ 2,000,000, if ...


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