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October 11, 1994

UNITED STATES, Plaintiff, against MIGUEL FERNANDEZ, a/k/a "Cesar Lemos," Defendant.

The opinion of the court was delivered by: ROANNE L. MANN


 Following a trial by jury before the Honorable Edward R. Korman, the defendant Miguel Fernandez, a/k/a "Cesar Lemos" ("defendant" or "Fernandez"), was found guilty on Count One of Indictment 92 CR 565, charging him with conspiring to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii)(II), and 18 U.S.C. § 3551 et seq. Prior to trial, the government had filed an information, pursuant to 21 U.S.C. § 851(a)(1), stating its intention to seek increased punishment by reason of Fernandez's prior conviction, to wit, a 1982 conviction in the Southern District of Florida, for possession of marijuana with intent to distribute it.

 Following the jury's verdict of guilty in the present case, defendant moved to have his 1982 conviction disregarded for sentencing purposes, on the ground that the guilty plea underlying his prior conviction was not knowing and voluntary. By order dated July 22, 1994, the Honorable Edward R. Korman referred this matter to the undersigned for a report and recommendation regarding the validity of defendant's prior conviction.

 For the reasons set forth below, it is the recommendation of this Court that defendant's motion to disregard his prior conviction for sentencing purposes be denied. First, pursuant to 21 U.S.C. § 851(e), Fernandez is barred from challenging the validity of his 1982 conviction, as it occurred more than five years prior to the filing of the government's section 851(a) information; contrary to Fernandez's claim, the five-year time limit in section 851(a) is constitutionally permissible. Second, even if his challenge were not barred by section 851(e), Fernandez has failed to establish the invalidity of his 1982 guilty plea. Accordingly, for either of these two independent reasons, Fernandez's challenge to his prior conviction should be rejected.


 Defendant's prior conviction was entered on the basis of his plea of guilty on July 12, 1982, before the Honorable Edward B. Davis, United States District Judge for the Southern District of Florida. Defendant, who was charged in that action as "Cesar Agudelo Lemos," acknowledged at the plea proceeding that he had received a copy of the indictment and had discussed the charges with his attorney, with whom he was satisfied. (Transcript of Change of Plea Proceedings in United States v. Casey and Agudelo Lemos, No. 82-85-CR-Davis, June 18, 1982 [hereinafter "Plea Tr."] at pp. 4-5, 14 *fn1" ). After reviewing on the record the rights of the two co-defendants and the consequences of their pleading guilty, the Court asked the prosecutor to summarize the government's evidence. (Plea Tr. 10). Before the government did so, both the prosecutor and Fernandez's counsel agreed that this was a "stipulated proffer." (Id.)

 The prosecutor then explained that on February 2, 1982, Coast Guard officers boarded a vessel in international waters and immediately detected the odor of marijuana; discovered 30,000 pounds of marijuana on board, some of it in plain view in the engine room; arrested "Agudelo Lemos" [Fernandez] and co-defendant Clarence Casey, who were on board the vessel; and obtained a post-arrest statement from Fernandez, who "stated that he was a crewman on the vessel and he knew the ship had marijuana on it." (Id. at 10-11.) When expressly asked by the Court if he agreed with the prosecutor's summary of the evidence, defendant responded: "Yes." (Id. at 11.)

 The Court then read aloud a portion of the indictment, which alleged that the defendants "knowingly and intentionally possessed with intent to distribute approximately 30,000 pounds of marijuana . . . ." (Id. at 12.) When co-defendant Casey indicated that he had not understood what was read, his attorney interjected that the charge included aiding and abetting. (Id.) After asking Casey "did you do that?," the Court then made the same inquiry of Fernandez, who initially replied: "No." (Id.) However, Fernandez's attorney then asked the Court to repeat the question. (Id. at 13.) Thereupon, the Court asked whether Fernandez "knowingly and intentionally possessed with the intent to distribute approximately 30,000 pounds of marijuana," or, "if you didn't possess with intent to distribute it, you aided and abetted those who did possess with the intent to distribute." (Id.) Fernandez then stated both that he understood the Court's inquiry (id.) and that he definitely did those acts. (Id.) He then pleaded guilty to Count Three of the indictment, and acknowledged that there was no equivocation on his part. (Id. at 14.)

 Judge Davis accepted Fernandez's plea, having concluded (inter alia) that defendant was "alert and intelligent," that he understood the "nature of the charge" against him, that he had the "advice and counsel of a competent lawyer," and that the government's proffer "contains all the elements of the crimes charged in Count III of the indictment." (Id.)


 I. The Constitutionality of 21 U.S.C. § 851(e)

 Pursuant to 21 U.S.C. § 851(e), "no person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction." Fernandez's 1982 conviction occurred approximately ten years prior to the filing of the section 851 information in this case. Faced with this statutory bar to his challenge, Fernandez contends that the five-year statute of limitations embodied in section 851(e) is unconstitutional. Having reviewed the relevant caselaw, this Court cannot agree.

 The identical argument was rejected by the late Judge Edward Weinfeld in Cirillo v. United States, 666 F. Supp. 613 (S.D.N.Y. 1987). After recounting the justifications for the five-year time bar, Judge Weinfeld concluded: "Section 851(e) is wholly reasonable, both to effectuate the legitimate purposes of enhanced sentencing for recidivists, and to eliminate a host of practical problems with respect to ancient records absent such a provision." 666 F. Supp. at 616. The reasoning in Cirillo was later followed by the Eleventh Circuit in United States v. Williams, 954 F.2d 668, 673 ...

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