held in connection with Shore's sentencing, the submissions of Shore and the government as set forth in papers in support of and in opposition to this petition. Based on section 4A1.3 of the sentencing guidelines and the relevant case law, it is the Court's view that it had the discretion to depart laterally to criminal history category IV and that it followed the proper procedure for doing so. Accordingly, the Court declines to vacate or set aside Shore's sentence on the basis that it was imposed as a result of abuse of the Court's discretion.
Shore next argues that the Court's departure under 4A1.3 violated his Fourteenth Amendment rights to equal protection under the law. Shore cites cases from other circuits for the proposition that non-similar outdated convictions support a departure under 4A1.3 only if they are distinguished by their numerosity and dangerousness. See e.g., United States v. Aymelek, 926 F.2d 64 (1st Cir. 1991); United States v. Rusher, 966 F.2d 868, (4th Cir. 1992); United States v. Goff, 907 F.2d 1441 (4th Cir. 1990). While Shore's analysis of these cases is accurate, he cites to no Second Circuit cases that similarly restrict the sentencing court's discretion under 4A1.3. The Second Circuit has commented on the unresolved split of authority among the circuits as to the application of departures under that section. See Diaz-Collado, 981 F.2d at 643 ("The circuits are split on the availability of nonsimilar outdated convictions as a basis for departures from the Guidelines.").
The fact that other courts have exercised their discretion under 4A1.3 in a manner different from this Court does not mean that Shore has been deprived of equal protection under the law. In fact the Second Circuit has commented that "once it has been established that certain circumstances may warrant a departure, the district court has "wide discretion" in determining whether to depart." United States v. Bauers, 47 F.3d 535, 538 (2d Cir. 1995) (citing United States v. Colon, 905 F.2d 580, 584 (2d Cir. 1990).
Shore also argues that by imposing the maximum sentence under category IV, namely, 27 months, the Court treated Shore differently than other defendants who had more extensive outdated criminal activity. See e.g., Diaz-Collado, 981 F.2d at 644 ("Moreover, the district court's departure had the effect of increasing Diaz-Collado's sentence from 33 to 37 months. We do not find this four-month increase 'unreasonable'"). This argument is unsupported, as it is a matter of the Court's discretion to impose a sentence within the guideline range for the defendant's criminal history category. See e.g., Bauers, 47 F.3d at 539 (affirming district court's departure from category IV, where the sentencing range was twenty-one to twenty-seven months to category VI, where the sentencing range was twenty seven months to thirty-three months, and also affirming the district court's imposition of a sentence of thirty-three months). Having determined that the total picture of Shore's conduct was adequately addressed by a criminal history category of IV, this Court sentenced Shore to twenty-seven months incarceration, a sentence that is within the guideline range of twenty-one to twenty-seven months for an offense level of twelve. Imposition of a sentence that is the maximum within the guideline range does not deprive a defendant of equal protection under the laws simply because other courts have sentenced other defendants to terms of imprisonment that are less than the maximum allowable within the guideline range. Departures are measured by a standard of reasonableness in light of the circumstances of the case. See United States v. Thomas, 6 F.3d 960, 967 (2d Cir. 1995) (citing United States v. Williams, 503 U.S. 193, 112 S. Ct. 1112, 117 L. Ed. 2d 341 (1992)).
The Alleged invalidity of Shore's Lebanese conviction
Shore's final argument is that the Court erred in considered his 1969 Lebanese conviction because it was constitutionally invalid and factually not reliable evidence of past criminal activity that would support an upward departure. The Court notes that Shore did not argue that this conviction was constitutionally infirm at any time prior to this petition.
However, Shore now contends that because he has raised a question as to the constitutional validity of the foreign conviction, an evidentiary hearing should be conducted so that the Court may exercise informed discretion with regard to upward departure. See United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972). In Tucker, the Supreme Court upheld the Court of Appeals decision remanding a case for reconsideration by the district court of a sentence that had been imposed with explicit consideration of two prior convictions that were later conclusively determined to be constitutionally invalid. Shore argues that constitutional invalidity should be determined as follows: "the testimony of the defendant, as well as others, might be taken at evidentiary hearing. . . . Alternatively, given the passage of time or the nature of the state court records, inferential evidence may be necessary to present the constitutional issues. . . ." United States v. Newman, 912 F.2d 1119, 1122 (9th Cir. 1990) (citations omitted).
Annexed to the petition is Shore's own affidavit regarding the events in 1969 in Lebanon, in which he admits possessing and using hashish. The affidavit also states that Shore's Fourth Amendments rights and his rights to a speedy arraignment and representatipn by counsel were violated by Lebanese officials. Shore contends that the testimony he would give regarding the events surrounding his arrest and conviction, as well as the fact that he has no other drug related convictions, would support an inference that the Lebanese conviction was constitutionally invalid.
The commentary to Section 4A1.2 addresses the use of invalid convictions, stating that "sentences resulting from convictions that a defendant shows to have been previously ruled constitutionally invalid are not to be counted. Nonetheless, the criminal conduct underlying any conviction that is not counted in the criminal history score may be considered pursuant to § 4A1.3. " Commentary to § 4A1.2 n.6 (1992 Guidelines Manual) (emphasis supplied). In United States v. Soliman, 889 F.2d 441 (2d Cir. 1989), where a defendant challenged the district court's upward departure under § 4A1.3 based on a foreign offense, the Second Circuit commented on the precise issue that is raised here by Shore as follows:
[The defendant] nevertheless, argues that the Supreme Court's decision in United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972), prohibits reliance by a trial judge on a constitutionally defective conviction in sentencing a defendant. In Tucker, the Supreme Court concluded that a defendant must be resentenced when the judge was unaware of the constitutional defects in a prior conviction relied upon in sentencing. The Supreme Court reasoned that the "case might have been different if the sentencing judge had known that at least two of the respondent's previous convictions had been unconstitutionally obtained." Id. at 448, 92 S. Ct. at 592 (emphasis supplied [by the Second Circuit]).