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July 14, 2000


The opinion of the court was delivered by: Rhoades, District Judge.


I. Overview

Peter Alexander Kelly ("Defendant") is charged in two consolidated indictments with reentry of a deported alien, in violation of 8 U.S.C. § 1326, and possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). Defendant has filed motions to dismiss the indictments or, alternatively, to sever the indictments. For the reasons set forth below, the Court denies Defendant's motions to dismiss and grants his motion to sever the indictments.

II. Background*fn1

There is no material dispute between the parties with regard to the pertinent facts. Defendant was arrested in early August, 1999, for possession of marijuana for sale, in violation of Cal. Health and Safety Code § 11359. Defendant describes in detail the facts of that arrest, which are uncontradicted by the government. Defendant asserts that federal agents stopped him to question his citizenship. After Defendant produced what the agents believed to be false documentation, the agents followed Defendant to his residence and conducted a search that lead to the seizure of marijuana and drug paraphernalia. Defendant plead. guilty to violating § 11359 and was sentenced to sixtyseven days in jail and three years of probation. He never appealed or collaterally attacked his guilty plea.

Because he was in the United States illegally, Defendant appeared before an immigration judge ("IJ") on September 28, 1999, for removal proceedings. At that hearing, the IJ held that Defendant was ineligible for voluntary departure from deportation due to his § 11359 violation. Defendant asserted his innocence and claimed that he had plead guilty only to receive the benefits of his plea agreement. In response to Defendant's protestations, the IJ stated that he could not look behind the conviction and ordered Defendant deported from the United States. Defendant was removed to Jamaica on October 6, 1999.

On January 7, 2000, Defendant was observed and suspected as an illegal alien by a Border Patrol agent in Lemon Grove, California. An arrest warrant was issued for violation of 8 U.S.C. § 1326. On February 15, 2000, federal agents located Defendant at a residence at 9070 Valencia Street, Spring Valley, CA, where he purportedly lived with his girlfriend and her children. When the agents arrested Defendant, he was holding a cellular telephone, which the agents seized. Defendant was read his Miranda rights and stated that he had been deported and was in the United States illegally. Agents conducted a search of the house and seized various property.

During the arrest process, Defendant's cellular phone rang. Agents answered the phone and learned that someone was en route to the residence. Over an hour later, a vehicle arrived at the residence containing approximately nine kilograms of marijuana. One of the occupants of the vehicle possessed a cellular phone with the same number that had placed the earlier calls answered by agents. Defendant was again read his Miranda rights. He invoked his rights and refused to speak with agents. A grand jury returned two indictments against Defendant on March 1, 2000, one charging possession of marijuana and the other reentry of a deported alien. On April 24, 2000, the Court granted the government's oral motion to consolidate the indictments.

III. Discussion

Defendant moves to dismiss both indictments or, alternatively, to sever the indictments for trial. With respect to the drug indictment, Defendant argues, based on the recent Supreme Court case of Apprendi v. New Jersey, ___ U.S. ___, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that 21 U.S.C. § 841 is unconstitutional because it sets the maximum sentence by reference to facts determined by the sentencing judge by a preponderance of the evidence. Defendant moves to dismiss the 8 U.S.C. § 1326 charge due to alleged procedural flaws in the deportation hearing held on September 28, 1999. The Court denies Defendant's motions to dismiss and severs the two indictments for trial.

A. Motion to Dismiss the 21 U.S.C. § 841 Indictment

(i) Summary

Defendant argues that § 841 is unconstitutional because § 841(b) establishes the mandatory maximum sentence by reference to facts that the sentencing judge finds by a preponderance of the evidence — i.e., drug type and quantity. The courts of this circuit have repeatedly confronted whether § 841(b) sets forth sentencing factors for the judge to decide or elements that must be proven to the jury beyond a reasonable doubt. Those courts have squarely held that § 841(b) states sentencing factors. See, e.g., United States v. Harrison-Philpot, 978 F.2d 1520, 1523 (9th Cir. 1992). Nonetheless, recent Supreme Court caselaw compels the Court to revisit the issue. After exhaustive deliberation, the Court holds that, while recent Supreme Court decisions have exhibited a trend toward classifying facts that bear on the sentence as elements, that trend has not progressed as far as Defendant urges. Rather, under the current state of the law, § 841(b) properly sets forth sentencing factors to be determined by the trial judge.*fn2

(ii) Relevant Precedent

Every element of a crime must be proven to the jury beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Generally, legislatures are free to chose the elements that define their crimes. See Patterson v. State of New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). Nonetheless, the Supreme Court has recognized for more than twenty years that some constitutional limit constrains the legislature's ability to circumvent the rule in Winship by reclassify an element of a crime as a sentencing factor. See Patterson, 432 U.S. at 210, 97 S.Ct. 2319; see also McMillan v. Pennsylvania, 477 U.S. 79, 89, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (stating that there are "constitutional limits to the State's power" to define the elements of a crime).

Until recently, the Supreme Court had "never attempted to define precisely the constitutional limits" noted in Patterson. McMillan, 477 U.S. at 86, 106 S.Ct. 2411. With Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Court decided the first of three cases that bring those limits more clearly into focus. Jones involved the federal carjacking statute at 18 U.S.C. § 2119, which then read as follows:

Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and ...

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