Opinion
Civil Case No. 99-3324-SAC, Criminal Case No. 94-40017-01-SAC
August 28, 2002
MEMORANDUM AND ORDER
The court recently filed a memorandum and order deciding the defendant's motion for relief pursuant to 28 U.S.C. § 2255. (Dk. 893). The court denied the defendant's motion with the exception of his argument based on the government's failure to serve the notice of information pursuant to 21 U.S.C. § 851(a)(1). Id. The court scheduled an evidentiary issue on this remaining argument. The government in response filed a motion for reduction of the defendant's supervised release term or, in the alternative, for denial of all relief on the lack of plain error. (Dk. 896). The defendant filed no response to the government's motion but did request and receive a continuance of the evidentiary hearing. After considering the government's motion and researching the law relevant to this issue, the court believes an evidentiary hearing is now unnecessary and grants the government's motion to reduce the defendant's term of supervised release from ten to five years.
Though represented by an attorney in this proceeding, the defendant wrote the court a letter saying he had instructed counsel to request that he be present at the evidentiary hearing. In the letter, the defendant argues the prior conviction that is the subject of the required § 851(a)(1) notice was used to enhance his term of imprisonment. The defendant wants to argue this matter in person at the hearing. The defendant's request to appear at this hearing to argue the pending issue and the additional matter addressed in his letter is denied. Both matters have been fully and fairly briefed by the parties, and the defendant offers the court no grounds that necessitate his presence at the hearing. As for the additional matter raised in his letter, the court's order decided this argument: "The defendant's term of custody was not enhanced as a result of any prior convictions subject to § 851 notice." (Dk. 893, p. 7 n. 1). "The defendant's term of incarceration was not enhanced by reason of a prior conviction, because the enhanced statutory minimum and maximum did not affect the guideline sentence that was imposed." Id. at 7. "The only part of the defendant's sentence affected by a prior conviction that would trigger the § 851 notice requirement was the term of supervised release." Id. The court denies the defendant any additional relief requested in his letter dated July 23, 2002.
In its motion, the government furnishes the court with the transcript of the Rule 5 hearing which shows that the magistrate judge notified the defendant that he faced a ten-year period of supervised release because of his prior felony drug conviction. The government, however, recognizes that the Tenth Circuit in United States v. Larsen, 948 F.2d 1295, 1991 WL 240140, at *3 (10th Cir. Nov. 12, 1991), rejected the argument of defendant's actual knowledge satisfying the service requirement in § 851(a)(1). The government attaches the transcript of the defendant's sentencing and points out that the court did not comply with the inquire and inform requirements of § 851(b). In light of these circumstances, the government "asserts that in the interests of justice and in conserving precious judicial resources, the defendant's supervised release term should be reduced." (Dk. 896, p. 4). The court agrees with the government and so modifies the defendant's sentence setting aside the ten-year term of supervised release and imposing a five-year term of supervised release.
Despite this concession, the government proceeds with the alternative argument that there is no plain error here because the ten-year term of supervised release is within the statutory limits. The maximum term of supervised release under 21 U.S.C. § 841(b)(1)(A) is life. United States v. Reed, 4 Fed. Appx. 575 (10th Cir. Feb. 2, 2001). When a defendant fails to make a contemporaneous objection, the "plain error" standard applies in direct appeals but is inapplicable in § 2255 proceedings. United States v. Frady, 456 U.S. 152, 166 (1982). The § 2255 movant must show cause excusing his procedural default and prejudice resulting from the error of which he complains. Id. at 17. As it has not raised Frady's procedural bar, the government has waived it. United States v. Hall, 843 F.2d 408, 409-10 (10th Cir. 1988). Of course, the court may raise Frady sua sponte if doing so would further "`the interests of judicial efficiency, conservation of scarce judicial resources, and orderly and prompt administration of justice.'" United States v. Allen, 16 F.3d 377, 379 (10th Cir. 1994) (quoting Hines v. United States, 971 F.2d 506, 509 (10th Cir. 1992)). The court seriously doubts that these interests are served here and, thus, declines to raise this procedural bar.
IT IS THEREFORE ORDERED that the government's motion for reduction of the defendant's supervised release term is granted and that the court's ruling on the defendant's motion for relief pursuant to 28 U.S.C. § 2255 is now final and complete;
IT IS FURTHER ORDERED that an amended judgment of conviction imposing a five-year term of supervised release shall be prepared, signed and filed.