prior felony drug offense has become final, such person shall be sentenced
to a term of imprisonment which may not be less than 20 years and not
more than life imprisonment." 21 U.S.C. § 841(b)(1)(A). It is not
disputed that the drug violations for which Bull was convicted in
December 1999 are among the crimes covered by that section.
What is disputed is whether Bull's prior drug offense qualifies as a
felony within the meaning of this statute. As the basis for the sentence
enhancement, the government relies on a prior conviction on one count of
cocaine possession that was entered against Bull in the Circuit Court for
Prince George's County, Maryland on September 23, 1987. As punishment for
that prior offense, Bull was sentenced to eighteen months in prison,
although the sentence was ultimately suspended as to all but 136 days.
According to Bull, such an offense qualifies as a misdemeanor, not a
felony, under Maryland law, and the government does not dispute this
assertion. See generally Aff. of Roberto Rionda, dated June 5, 2000.
At the time of Bull's conviction in 1987, the enhancement mandated by
Section 841 applied only if the prior offense qualified as a felony
pursuant to state law. See United States v. Glover, 153 F.3d 749, 757
(D.C. Cir. 1998) (citing 21 U.S.C. § 841(b)(1)(A) (1988)). On
September 13, 1994, however, Congress amended the law to define the term
"felony drug offense" as "an offense that is punishable by imprisonment
for more than one year under any law of the United States or of a State
. . . that prohibits or restricts conduct relating to narcotic drugs."
21 U.S.C. § 802(44); see Glover, 153 F.3d at 757. As a result,
although Bull's prior offense would not have qualified as a felony for
enhancement purposes at the time his state conviction was entered in
1987, the prior offense plainly does qualify him for such an enhancement
with respect to the federal convictions entered in December 1999.
Bull contends that this result violates the Ex Post Facto Clause of the
U.S. Constitution insofar as it effectuates a retroactive increase in the
penalty for his offenses. See, e.g., Miller v. Florida, 482 U.S. 423,
430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987). Bull's contention must
be rejected. The U.S. Court of Appeals for the Second Circuit and other
circuit courts have consistently held that "an enhanced sentence `is not
to be viewed as either a new jeopardy or additional penalty for the early
crimes. It is a stiffened penalty for the latest crime, which is
considered to be an aggravated offense because a repetitive one.'"
Covington v. Sullivan, 823 F.2d 37, 39-40 (2d Cir. 1987) (quoting Gryger
v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948));
see Glover, 153 F.3d at 757 (collecting circuit cases). Accordingly,
"`[a]s long as the second offense occurs after passage of the
punishment-enhancing statute, . . . there is no retroactivity problem.'"
United States v. Meeks, 25 F.3d 1117, 1120 (2d Cir. 1994) (quoting United
States v. Panebianco, 543 F.2d 447, 453 n. 4 (2d Cir. 1976)).
Bull further argues, however, that retroactivity problems persist
because he was charged for offense conduct that began in 1994, whereas
the statutory definition of "felony drug offense" was not amended until
September 13, 1994. This contention must also be rejected. With respect
to the conspiracy count, "`[i]t is well-settled that when a statute is
concerned with a continuing offense [such as conspiracy], the Ex Post
Facto clause is not violated by application of a statute to an enterprise
that began prior to, but continued after, the effective date of the
statute.'" United States v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999)
(quoting United States v. Harris, 79 F.3d 223, 229 (2d Cir. 1996)).
Here, the indictment specifically charged that the narcotics conspiracy
lasted from in or about 1994 until June 1999. Moreover, with respect to
the substantive count, the indictment charged that
the crime — possession with intent to distribute a controlled
substance — took place in August 1997. As the order of this Court
denying Bull's Rule 29 motion makes clear, the jury was presented with
sufficient evidence demonstrating that the conspiracy continued after
September 13, 1994, and that the substantive offense also took place
after that date. See United States v. Bull, No. 98 Cr. 1297(SHS), slip
op., at 2-3 (S.D.N.Y. Feb. 4, 2000).
Because Michael William Bull's motion raises only legal questions and
does not turn on disputed issues of fact, this Court need not conduct an
evidentiary hearing pursuant to 21 U.S.C. § 851(c). See United States
v. Arango-Montoya, 61 F.3d 1331, 1339 (7th Cir. 1995). Accordingly,
Bull's motion for a hearing on the government's requested sentencing
enhancement is hereby denied.
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