Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 CR 783 -- George W. Lindberg, Judge.
Before POSNER, Chief Judge, and BAUER and KANNE, Circuit Judges.
From June to August of 1991, Arango-Montoya was part of a drug distribution conspiracy. As a result of his involvement in this conspiracy, on October 27, 1993, Arango-Montoya was one of three defendants indicted for conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C. sec. 846 (Count I), and two counts of possession of cocaine with the intent to distribute in violation of 21 U.S.C. sec. 841(a)(1) (Counts II and III). On March 10, 1994, the government filed an information notifying the district court and Arango-Montoya that under 21 U.S.C. sec. 841(b)(1)(B)(ii)(II), the mandatory minimum sentence that Arango-Montoya faced could be enhanced from a term of five years' imprisonment to a term of ten years' imprisonment because of a 1986 Illinois state conviction for a felony drug offense, unlawful possession of a controlled substance, Ill. Rev. Stat. ch. 56 1/2, para. 1402(b) (1971) (current version at Ill. Ann. Stat. ch. 720, para. 570/402(c) (Smith-Hurd 1991)).
Arango-Montoya pleaded guilty to Count I, and the government dismissed Counts II and III, on May 3, 1994. As part of his plea agreement, Arango-Montoya admitted that he was responsible for the distribution of a total of 749 grams of cocaine. In the plea agreement, the government stated its position that because of the prior 1986 state conviction for possession of a controlled substance, Arango-Montoya's mandatory minimum for the instant offense was ten years' imprisonment. However, the plea agreement also provided that Arango-Montoya did not agree with this position and that both Arango-Montoya and the government reserved the right to argue their respective positions at sentencing. On July 21, 1994, Arango-Montoya filed an opposition to the enhancement of his mandatory minimum sentence based on his prior conviction arguing that the prior conviction was the result of an involuntary guilty plea (i.e., that he had not been informed of his right to a trial by jury). Arango-Montoya additionally filed a supplementary pleading arguing that although 21 U.S.C. sec. 851(e) prevented him from collaterally attacking his prior state conviction (because, as of the time of the filing of the government's information, the prior conviction was more than five years old), sec. 851(e) was unconstitutional and therefore should not prevent him from challenging his prior conviction. The district court denied Arango-Montoya's request to exclude the prior conviction for sentencing purposes. Accordingly, although with a total offense level of 26 and a criminal history category of I the applicable Sentencing Guidelines range was 63 to 78 months' imprisonment, Arango-Montoya was sentenced to the statutory minimum of ten years' (120 months') imprisonment. The district court also imposed an eight-year term of supervised release to follow his term of imprisonment. This timely appeal follows.
Arango-Montoya challenges the district court's finding that he was subject to a ten-year mandatory minimum sentence pursuant to 21 U.S.C. sec. 841(b)(1)(B)(ii)(II). Specifically, he maintains that (1) the language of 21 U.S.C. sec. 851(e) which bars any collateral attack of a defendant's prior conviction when it occurs more than five years before the date of the information alleging the prior conviction is unconstitutional because (a) it deprives a defendant of his liberty interest in having only a valid prior conviction enhance his current sentence, (b) it is arbitrary in violation of the Due Process Clause of the Fifth Amendment, and (c) since a prior sentence which serves to double the mandatory minimum under 21 U.S.C. sec. 841(b)(1)(B)(ii)(II) is considered an element of the offense, it unconstitutionally lowers the government's burden of proof; and (2) notwithstanding the validity of sec. 851(e), the district court erred in failing to follow the procedural dictates of sec. 851(b) and (c).
Arango-Montoya was convicted for violating 21 U.S.C. sec. 846 by conspiring to possess with the intent to distribute 749 grams of cocaine in violation of 21 U.S.C. sec. 841(a)(1). Accordingly, the district court applied the following sentencing provision:
Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows:
(B) In the case of a violation of subsection (a) of this section involving --
(ii) 500 grams or more of a mixture or substance containing a ...