United States v. William D. Davis, United States of America v. Curry James Williams

15 F.3d 902 UNITED STATES of America, Plaintiff-Appellee, v. William D. DAVIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Curry James WILLIAMS, Defendant-Appellant. Nos. 92-10592, 92-10620. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 11, 1993. Decided Feb. 4, 1994. As Amended March 2, 1994. Kevin M. Kelly, Las Vegas, Nevada; Nola M. McGuire, Irvine, California, for the defendants-appellants. Anthony S. Murry, Assistant United States Attorney, Las Vegas, Nevada, for the plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before: SNEED, POOLE and TROTT, Circuit Judges. POOLE, Circuit Judge: 1 Appellants William D. Davis and Curry James Williams were convicted on the following charges: (1) conspiring to distribute one-half pound of cocaine base, a Schedule II Controlled Substance under 21 U.S.C. Sec. 812 (c), in violation of 21 U.S.C. 846; and (2) distributing one-half pound of cocaine base, in violation of 21 U.S.C. Sec. 841 (a)(1). In these consolidated appeals, Davis and Williams challenge the legality of their convictions and sentences on several grounds. We have jurisdiction pursuant…

Appellants William D. Davis and Curry James Williams were convicted on the following charges: (1) conspiring to distribute one-half pound of cocaine base, a Schedule II Controlled Substance under 21 U.S.C. § 812 (c), in violation of 21 U.S.C. 846; and (2) distributing one-half pound of cocaine base, in violation of 21 U.S.C. § 841 (a)(1). In these consolidated appeals, Davis and Williams challenge the legality of their convictions and sentences on several grounds. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 . We affirm both of their convictions. We vacate their sentences and remand to the district court for resentencing.

I.

Davis and Williams were indicted on December 18,1991 and charged with the above-described offenses. At their joint trial, which commenced on July 6,1992, the following evidence was adduced:

In 1991, Richard McConnell, an undercover Drug Enforcement Administration (DEA) agent, instructed Hal Richardson, a longtime paid confidential informant with an extensive criminal history, to arrange a drug transaction in Las Vegas, Nevada involving “crack” cocaine, a very pure cocaine intended for smoking rather than inhalation. Richardson then…

concurring in part and dissenting in part.

I concur in Judge Poole’s opinion except the part holding 21 U.S.C. § 851 (e) unconstitutional. For the reasons given by the Eleventh Circuit in United States v. Williams, 954 F.2d 668, 673 (11th Cir.1992), I do not believe it was either unconstitutional or unreasonable for Congress to set a five-year limit on the ability of a recidivist to attack the validity of a dormant prior conviction. Enough is enough. After five years it becomes extremely difficult if not impossible to cope with claims such as what “my attorney told me,” “what the judge said,” “what I understood,” etc. If the matter has come to rest, so be it. Statutes of limitation are an important feature of our legal system.

Settled priors should be able to be used in sentencing criminals whose response to the criminal justice system and to society is to commit another crime. Why do we deem it necessary to bend over backwards to the point of standing on our heads to indulge repeat offenders whose “standing” to reopen closed cases is based on having committed another criminal offense? We should inform such repeat offenders that if when it was ripe to do so they did not succeed…