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December 9, 1994


Jack B. Weinstein, Senior United States District Judge

The opinion of the court was delivered by: JACK B. WEINSTEIN

Jack B. Weinstein, Senior United States District Judge:

 This case raises two interesting "law of the case" questions. First, after the court of appeals has vacated a sentence and remanded for imposition of a specified mandatory minimum prison term, does a superseding act of Congress relieve the district court of its duty to impose that term? Second, if at the original sentencing and on appeal the issue of proper application of the Federal Sentencing Guidelines was not raised, may the district court, on remand, impose a Guidelines sentence below the term required by the mandate? The answer to both questions is "yes." As indicated below, the application of the "law of the case" doctrine and the Guidelines requires this court to impose not the ten-year prison term specified by the court of appeals but a sentence of time served, thirty months.


 Before her arrest on drug possession charges, Caroline Ekwunoh had full responsibility for the support and care of her three children. She was steadily employed, selling clothes and working part-time as a home attendant.

 On June 15, 1991, Ms. Ekwunoh, at the request of her boyfriend, met a courier at Kennedy Airport. The courier, who turned out to be a DEA informant, handed her an attache case containing 1,013 grams of heroin. Ms. Ekwunoh placed the case in the trunk of a car without examining its contents. She was then arrested.

 Ms. Ekwunoh pled guilty to a single count of possessing heroin with intent to distribute, in violation of 21 U.S.C. § 841(a). At the sentencing hearing she testified that, based on past dealings, she believed the attache case would contain no more than 400 grams of heroin. She was at all times a candid and credible witness. Her testimony was consistent with the facts in this and many other cases observed by the trial judge.

 On the basis of the defendant's testimony, and the court's knowledge of the drug trade within the Eastern District of New York, the court found that Ms. Ekwunoh did not know that the case contained more than 400 grams of heroin; that she believed it would contain no more than 400 grams; and that this belief was reasonable for a person in her position. Mindful of the importance of mens rea to individual defendants and the criminal justice system, the court attributed to Ms. Ekwunoh the quantity of drugs she had believed she had possessed. See United States v. Cordoba-Hincapie, 825 F. Supp. 485 (E.D.N.Y. 1993).

 At the time of sentencing, the minimum penalty for possession of more than one kilogram of cocaine was ten years imprisonment, without possibility of parole. 21 U.S.C. § 841(b). A similar offense involving between 100 grams and one kilogram carried a five-year minimum sentence. Id. The court sentenced Ms. Ekwunoh to five years imprisonment, followed by five years supervised release. United States v. Ekwunoh, 813 F. Supp. 168 (E.D.N.Y. 1993). The government appealed.

 The court of appeals considered only one issue: "Whether the district court improperly refused to impose the 10-year mandatory minimum sentence for possession of more than one kilogram of heroin." United States v. Ekwunoh, 12 F.3d 368, 369-70 (2d Cir. 1993). Though split on whether the issue was one of fact or law, the court of appeals determined that Ms. Ekwunoh should be sentenced for the full amount of heroin in her possession. Id. at 371. It ordered "the sentence . . . vacated, and the matter . . . remanded for resentencing consistent with" its opinion. Id.

 Upon remand, the government indicated it was willing to stipulate to a shorter sentence. Ms. Ekwunoh petitioned the court of appeals to amend its mandate, based upon what appeared to be a concession by the government that a ten-year sentence was too harsh. See Ekwunoh, 888 F. Supp. at 368, (withholding resentencing pending decision on petition to amend the mandate, at request of both defense and prosecuting attorneys). The court of appeals denied the petition.

 On September 13, 1994, Congress enacted the Violent Crime Control and Law Enforcement Act of 1994. H.R. 3355, 103rd Cong., 2d Sess. (1994). It contains a "safety valve" provision, effective ten days after passage, limiting application of the statutory minimums to the most serious drug offenders. Id. § 80001(a), codified at 18 U.S.C. § 3553(f). The provision permits courts to sentence non-violent drug offenders with minimal criminal histories, who are not organizers and who cooperate with the government, to Guidelines, rather than mandatory minimum, terms. It applies if

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence of credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to ...

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