Opinion
CASE NO. 1:03-cr-00041-MP-AK.
May 6, 2008
ORDER
This matter is before the Court on Doc. 668, Report and Recommendation of the Magistrate Judge, which recommends that Defendant's Motion to Vacate, Doc. 563, be denied. The Magistrate Judge filed the Report and Recommendation on Thursday, March 20, 2008. The parties have been furnished a copy of the Report and have been afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), this Court must make a de novo review of those portions to which an objection has been made.
Defendant Boyd pled guilty to conspiracy to distribute a controlled substance involving "crack cocaine," and he was sentenced to 120 months incarceration. In his Motion to Vacate, Defendant argues that the Supreme Court's decision in Booker "makes the drug identity an element," and therefore must be proved to a jury beyond a reasonable doubt. Because Defendant waived the right to assert a defense challenging the identity of the drugs when he voluntarily and knowingly pled guilty, the Magistrate recommends that the motion to vacate be denied. In his objections, as in his motion to vacate, Defendant claims that crack cocaine is an unscheduled drug, and therefore federal courts do not have jurisdiction hear criminal cases involving crack cocaine. It is readily apparent that federal law makes illegal the sale, manufacturing, and distribution of crack cocaine. See 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii).
Since the Court has jurisdiction, and because Defendant admitted to the crime charged, the Court agrees with the Magistrate's Report. Therefore, having considered the Report and Recommendation, and the objections thereto, I have determined that it should be adopted. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge is adopted and incorporated herein.
2. Defendant's Motion to Vacate, Doc. 563, is DENIED.
DONE AND ORDERED.