Consecutive Life Terms Affirmed
U.S. v. Huskey, --- F.3d ----, 2007 WL 2702447 (10th Cir. Sept. 18, 2007)
Defendant, who pleaded guilty to 2 counts of trafficking over 50 grams of meth and was sentenced to 2 consecutive life terms under 21 U.S.C. § 841(b)(1)(A), challenged his sentence on 3 grounds: one of his priors should not have been counted as a previous drug felony; mandatory minimum sentences conflict with the statutory command to trial judges to consider the factors set out in 18 U.S.C. § 3553(a) in arriving at their sentencing decisions; and the sentence is cruel and unusual punishment in violation of the 8th Amendment.
1. Not plain error to determine Defendant’s prior Kansas attempted cocaine possession is a countable prior drug conviction even though the attempt statute was general and applied to any felony offense and not just drug offenses. The 10th avoids deciding it was error to count it and rules that even if it was, under the 2d plain error prong, any error was not obvious.
2. Section 3553(a) and 21 U.S.C. § 841(b)(1)(A) are not in conflict. Sec. 3553 (a) does not apply to mandatory sentences, as made clear by § 3551(a), which states that the sentencing laws of that chapter (including section 3553) apply “except as otherwise specifically provided....”.
3. Citing Harmelin v. Michigan, 501 U.S. 957 (1991), which found no constitutional infirmity where a first offender in a drug case was sentenced to life without parole for possession of more than 650 grams of cocaine, the 10th rejects Defendant’s 8th Amendment argument.
Defendant, who pleaded guilty to 2 counts of trafficking over 50 grams of meth and was sentenced to 2 consecutive life terms under 21 U.S.C. § 841(b)(1)(A), challenged his sentence on 3 grounds: one of his priors should not have been counted as a previous drug felony; mandatory minimum sentences conflict with the statutory command to trial judges to consider the factors set out in 18 U.S.C. § 3553(a) in arriving at their sentencing decisions; and the sentence is cruel and unusual punishment in violation of the 8th Amendment.
1. Not plain error to determine Defendant’s prior Kansas attempted cocaine possession is a countable prior drug conviction even though the attempt statute was general and applied to any felony offense and not just drug offenses. The 10th avoids deciding it was error to count it and rules that even if it was, under the 2d plain error prong, any error was not obvious.
2. Section 3553(a) and 21 U.S.C. § 841(b)(1)(A) are not in conflict. Sec. 3553 (a) does not apply to mandatory sentences, as made clear by § 3551(a), which states that the sentencing laws of that chapter (including section 3553) apply “except as otherwise specifically provided....”.
3. Citing Harmelin v. Michigan, 501 U.S. 957 (1991), which found no constitutional infirmity where a first offender in a drug case was sentenced to life without parole for possession of more than 650 grams of cocaine, the 10th rejects Defendant’s 8th Amendment argument.
posted by Anonymous at 8:53 AM
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