U.S. v. FAZIO, (S.D.W.Va. 2002)

JOHN T. COPENHAVER, JR., United States District Judge.

This matter is pending on the defendant's Motion to Dismiss Supervised Release Violation Petition, filed April 22, 2002.

On May 15, 1995, the defendant, Frank Fazio, entered a plea of guilty to a single-count information filed on April 14, 1995, charging him with conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846. The drug quantity was not specified in the information. At the time of his arrest on March 19, 1995, the defendant was found with 1009 grams of cocaine base packaged and taped to his body. Inasmuch as this amount exceeded the 50 grams or more of cocaine base specified under 21 U.S.C. § 841(b)(1)(A), the defendant was subject to an offense that would carry a sentence of a minimum of 10 years to as long as life, being a Class A felony.

This case has at all times proceeded on that basis down to the time of the current proceeding filed against him on April 1, 2002, wherein the petition seeks revocation of the defendant's second term of supervised release. The defendant's plea of guilty to the single-count information in this case was received pursuant to his plea agreement which specified the term of imprisonment as 10 years to life and a term of at least 5 years of supervised release. At his guilty plea hearing, he was advised by the court of this very same penalty and he was further informed by the court that he would be subject to an additional five years imprisonment in the event of violation of his supervised release. His presentence report also designated the term of imprisonment as not less than 10 years and as long as life and described his offense as a Class A felony that included a term of supervised release of at least 5 years.

At the time of his sentencing on July 31, 1995, the framework of his sentence proceeded on the same premise of 10 years to life and at least 5 years supervised release. However, the court was able to relieve the defendant of the 10-year statutory minimum, as specifically noted at the sentencing hearing, because the defendant qualified for so-called safety valve relief under 18 U.S.C. § 3553(f). The defendant's guideline imprisonment range became 87 to 108 months and, pursuant to a motion for substantial assistance filed by the government, the sentence imposed by the court was 3 years imprisonment and 5 years supervised release.

Once on supervised release, the defendant violated its terms. Based on the probation officer's petition to revoke supervised release, dated October 27, 1999, accompanied by the probation officer's violation report of the same date, the court ordered a warrant for the defendant's arrest. The violation report expressly stated that the defendant's "maximum exposure to imprisonment upon revocation is sixty months, pursuant to 18 U.S.C. § 3583(e)(3)." At the revocation hearing, Samuel D. Marsh, Assistant United States Attorney, and Edward H. Weis, Assistant Federal Public Defender, counsel for defendant, agreed that the defendant was subject to a maximum sentence of five years:

THE COURT:. . . Are the parties in agreement that the guideline provision in this matter is three to nine months; that the maximum sentence of imprisonment that the Court may impose in this matter, notwithstanding the guidelines, is five years?

MR. MARSH: Yes, sir.

MR. WEIS: Yes, Your Honor.

The defendant was sentenced on December 7, 1999, to a term of 2 years imprisonment and a further term of 3 years supervised release. The defendant has served that 2-year term of imprisonment, is charged with a violation of his second term of supervised release and is again before the court on a petition to revoke his supervised release.

The defendant has never objected to or filed an appeal of any sentence imposed by the court and has never sought habeas relief. He nevertheless contends that, inasmuch as the offense with which he was charged in the single-count information to which he pled guilty would, under Apprendi v. New Jersey, 530 U.S. 466 (2001), carry a maximum term of 20 years imprisonment and a term of supervised release of as long as 5 years, being a Class C felony, and inasmuch further as the sentence originally imposed by the court of three years imprisonment and five years supervised release falls within that range, the court may consider theApprendi claim at this juncture because, he says, the matter has not been ripe for consideration until this point.

The court concludes that the defendant would have been required to seek review under Apprendi not later than the time for doing so after the second imposition of supervised release on December 7, 1999. If, as defendant now argues, the original offense had been treated as a Class C felony, the provisions of 18 U.S.C. § 3583(e)(3) would have limited the term of imprisonment that could have been imposed on revocation of supervised release to a total of 2 years. If so, when he was sentenced to a term of imprisonment of 2 years upon revocation, there would have been no basis for the imposition then of a further term of supervised release because the 2-year imprisonment term would have exhausted the penalty of supervised release under 18 U.S.C. § 3583(h). See United States v. Maxwell, 285 F.3d 336 (4th Cir. 2002). However, the defendant was sentenced without objection in keeping with the penalty to which he had been subject from the beginning. The court imposed not only a 2-year term of imprisonment but also a 3-year term of supervised release that could have had no purpose but to expose the defendant to a further term of imprisonment of as long as three years if he violated its conditions.

Consequently, the time for review of the imposition of the 3-year term of supervised release began to run no later than the time it was imposed on December 7, 1999. The defendant failed to seek review and it is now too late to obtain relief on the basis of Apprendi inasmuch as, even in the face of plain error affecting a substantial right, the defendant's conspiratorial possession with intent to distribute 1009 grams of cocaine base (20 times the amount for a Class A felony) is not only supported by overwhelming evidence but by evidence that is uncontroverted and indeed admitted. Thus, as held by the United States Supreme Court in United States v. Cotton, 2002 WL 1008494 (US May 20, 2002), it is not, under these circumstances, correctable error inasmuch as it does not affect the fairness, integrity or public reputation of judicial proceedings. SeeUnited States v. Promise, 255 F.3d 150 (4th Cir. 2001) Moreover, the attack now is a collateral one to which Apprendi does not retroactively apply and it is untimely in that it comes more than one year since the order under attack became final. United States v. Sanders, 247 F.3d 139 (4th Cir. 2001); 18 U.S.C. § 2255.

The uniform treatment of this case from its beginning in 1995 as a Class A felony is unmistakable. The defendant is subject to imprisonment under 18 U.S.C. § 3583(e)(3) for as much as 5 years upon violation of supervised release, of which 3 years remain unexhausted.

It is accordingly ORDERED that the defendant's Motion to Dismiss Supervised Release Violation Petition, filed April 22, 2002, be, and it hereby is, denied.

The Clerk is directed to forward copies of this order to the defendant, all counsel of record, the United States Probation Office and the United States Marshal.