a compelling government interest." 15 F.3d at 915-16. According to the Court in Davis, the government interests cited in Cirillo and Williams -- albeit reasonable -- were not "compelling." 15 F.3d at 916.
Contrary to the Ninth Circuit's analysis, criminal statutes that provide for enhanced punishment need not be subjected to such strict scrutiny. See, e.g., United States v. Agilar, 612 F. Supp. 889, 890 (S.D.N.Y. 1985) (statute providing enhanced penalties upon conviction for selling narcotics within 1,000 feet of school "must only satisfy a test of rationality"). For that reason, in Custis v. United States, U.S. , 114 S. Ct. 1732 (1994), the Supreme Court rebuffed a constitutional challenge to a provision of the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e), which provides for enhancement of the sentence of a firearms possessor who "has three previous convictions . . . for a violent felony or a serious drug offense." The Supreme Court in Custis cited several justifications for the statutory bar upheld in that case: "ease of administration" and "the interest in promoting finality of judgments," particularly those based on guilty pleas. 114 S. Ct. at 1732.
After interpreting the ACCA provision to bar all collateral attacks on prior convictions (114 S. Ct. at 1732), the Supreme Court rejected the defendant's claim that the statute was constitutionally infirm. Id. The Court concluded that, with the sole exception of convictions improperly obtained without counsel, a defendant in a federal sentencing proceeding has no constitutional right to collaterally attack a prior conviction used for sentence enhancement purposes under the ACCA. Consequently, none of Custis' challenges to his prior convictions -- including his claim that "his guilty plea was not knowing and intelligent" -- were cognizable under the ACCA, inasmuch as "none of these alleged constitutional violations rises to the level of a jurisdictional defect resulting from the failure to appoint counsel at all." 114 S. Ct. at 1732.
The Court's broad rationale applies with equal force to all statutory provisions authorizing sentence enhancement based on prior convictions. Accordingly, in United States v. Jones, 27 F.3d 50, 1994 U.S. App. LEXIS 15139 (2d Cir. June 17, 1994), the Second Circuit rejected a constitutional challenge to an analogous sentence enhancement provision in the Sentencing Guidelines, USSG § 4B1.1; relying on Custis, the Second Circuit declared that the Supreme Court's "independent constitutional ruling applies whether sentence enhancement is imposed pursuant to the ACCA, the Sentencing Guidelines (as in the instant case), or any other statutory scheme providing for sentence enhancement on the basis of prior felony convictions. " 1994 U.S. App. LEXIS 15139 at 7 (emphasis supplied).
Consistent with the Courts' decisions in Custis and Jones, Congress, in enacting 21 U.S.C. § 851(e), could have precluded collateral challenges to all prior convictions -- whatever their age -- except claims based on deprivation of counsel. It therefore follows that the less restrictive five-year time limit embodied in section 851(e) is constitutionally permissible.
II. The Validity of Fernandez's Prior Conviction
Even if section 851(e) were not a bar to defendant's motion, Fernandez's challenge to his 1982 conviction should nevertheless fail on the merits. When viewed in its entirety, the record demonstrates that Judge Davis adequately informed Fernandez of the charge against him and ascertained the existence of a factual basis for the plea. Accordingly, Fernandez has not established the invalidity of his prior conviction.
Defendant contends that his 1982 guilty plea "was not knowing and voluntary because the defendant was not informed of the nature of the charge." (11/16/93 Letter, at p. 1.) Specifically, defendant faults Judge Davis for having failed to make further inquiry after Fernandez first answered "no" when asked if he had been an aider and abettor and then responded affirmatively when the Court rephrased the question. (See id. at p. 2.) Defendant contends that the plea minutes pose "substantial concerns that the defendant pleaded guilty under the mistaken notion that his mere presence aboard the ship was sufficient to render him guilty." (Id. at p. 3.)
Defendant's argument is based on a selective review of the transcript of the 1982 plea proceeding. Properly viewed in its entirety, the plea transcript establishes the following: Fernandez admitted to all the facts recited in the prosecutor's proffer, which included Fernandez's post-arrest admission that he had acted as crewman on a ship that he knew was transporting marijuana. (Plea Tr. 11.) The plea transcript further shows that in accordance with Fed. R. Crim. P. 11, Judge Davis enumerated the rights that Fernandez was relinquishing in entering his plea, explained the alternatives to a plea of guilty, and determined that the plea was not induced by any threats or promises. (Plea Tr. 5-10.)
The linchpin of defendant's challenge is his initial response of "no" when first asked if he "aided and abetted in violation of the Act." (Id. at 12.) However, when Fernandez's own attorney then asked the Court merely "to repeat the question that was asked" (id. at 13), Judge Davis then clarified that Fernandez would be permitted to plead guilty if he either possessed 30,000 pounds of marijuana with intent to distribute it or, if he did not possess the drugs, if he aided and abetted those who did. (Id.) In response to Judge Davis' clarification and follow-up questions, Fernandez acknowledged his complicity and pleaded guilty to Count Three. (Id. at 13-14.)
The record therefore reflects that Fernandez's 1982 guilty plea was knowingly and voluntarily made. Notwithstanding Fernandez's momentary confusion when first confronted with the government's aiding and abetting theory, Judge Davis had before him sufficient uncontested (indeed acknowledged) facts from which to conclude that Fernandez was liable as an aider and abettor. Having ascertained that Fernandez had discussed Count Three with his attorney (Plea Tr. 5; see id. at 14), Judge Davis was not required to deliver "the equivalent of a jury charge" on each element of the offense. United States v. Saft, 558 F.2d 1073, 1079 (2d Cir. 1977)
A review of the Second Circuit's decision in United States v. Lora, 895 F.2d 878 (2d Cir. 1990), confirms the validity of Fernandez's guilty plea. In Lora, the defendant pleaded guilty to laundering of monetary instruments, in violation of 18 U.S.C. §§ 1956(a)(1)(B) and 2. On direct appeal from his conviction, Lora claimed that the district court had not been provided with a factual basis for the plea and had failed to ensure that Lora understood the nature of the charges against him. In support of his challenge, Lora cited statements by him during the plea proceeding, to the effect that he should have known that the money he was handling had been derived from illegal sources. See 895 F.2d at 879. Claiming that a "reckless" mental state would not support a money-laundering conviction, Lora moved in the Court of Appeals to withdraw his plea. Id. at 880 & n.2.
The Second Circuit rejected Lora's challenge to his conviction. In language equally applicable to the present case, the Court of Appeals concluded that Lora had been adequately informed of the nature of the charges and that a factual basis for the plea had been laid:
While the colloquy at issue does, if viewed in isolation, arguably show that the defendant was uncertain of the charges against him, the record discloses that overall the court obtained Lora's clear acknowledgement that he understood the allegations and agreed to the factual basis for the plea. . . .
Most importantly, Lora and his counsel stipulated in open court to the factual proffer that set forth defendant's illegal conduct and intent. The factual statement recounted Lora's extensive involvement in the money laundering scheme as well as conduct and statements from which a jury could easily infer that Lora knew the money involved was from unlawful activity and knew the transaction was designed to conceal the identity of the transacting parties. . . . Lora expressly acknowledged the truth of these allegations.