holding the requirement that sentences separated by an intervening arrest be counted separately is plain and unambiguous
How later courts described this case
- holding the requirement that sentences separated by an intervening arrest be counted separately is plain and unambiguous
- noting that the arresting officer knew that drug traffickers commonly hide contraband in the crotch area
- "The rule of lenity' applies where there is ambiguity in a criminal statute.”
- “In this case, handcuffing Smith and transporting him to a police post, where he remained handcuffed for at least an hour and a half, rises to the level of arrest.”
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
dissenting.
In this case the district judge and my colleagues have found a way in the “career criminal” guideline to impose an ultra-severe sentence of 20 years for possession of a couple of ounces of cocaine base' — demonstrating again a sentencing philosophy with which I disagree.
The sentencing judgment of 20 years in this case is not final and is now on appeal. We should apply the current guideline, § 4A.1.2(a), unless it would violate the ex post facto clause (which all concede is not the case here since the guideline would benefit the defendant). The last sentence of the revised § 4A.1.2(a) refers to the clause just above and says: “Count any prior sentence covered by (A) or (B) as a single sentence.” Clause B, immediately above this clear language, states, “(B) the sentences were imposed on the same day.” Although left unmentioned and unclear in the majority opinion it is in fact completely clear and beyond purview that all three state “sentences were imposed on the same day” by the state court to run concurrently, namely, on October 26, 1999. The state court considered them all together at one time and imposed a single, undifferentiated concurrent sentence. I would read the text on the same day to mean what it says. Nevertheless, the defendant’s 10-year sentence was automatically increased by 10 more years under the Guideline grid as a result of the “career offender” finding that the state crimes were not to be considered to meet the test of “sentences imposed on the same day.”
Our current sentencing law now requires a sentence “not greater than neces *364 sary,” 18 U.S.C. § 3553 (a) to comply with the purposes of punishment. That version of the rule of lenity has not been considered here, and no one has suggested why a 20-year sentence for possession of a couple of ounces of cocaine base is “necessary” here.
There is not one case I can find supporting the majority’s interpretation of the “on the same day” sentence of the newly amended § 4A.1.2(a); and no sentencing principle, purpose or goal of punishment is given for this ultra-severe sentence. I would cut the sentence for this obese, previously addicted, 33-year-old black male who at the time of sentencing had custody of his several children. This harsh sentence senselessly adds 10 more years of costs to the federal taxpayer and adds nothing to the goals of deterrence and rehabilitation.