United States v. Angelo Buia
This text of 236 F.2d 548 (United States v. Angelo Buia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Defendant pleaded guilty to an indictment charging him with possession of thirty-five ounces of heroin in violation of .21 U.S.C.A. § 174 1 and 26 U.S.C. § ) . ’ *549 7237 (a) 2 The government then filed an information disclosing that, prior to the instant conviction, defendant had been convicted of conspiring to violate the federal narcotics laws under 18 U.S.C. § 88 (now § 371). 3 Thereupon he was sentenced to seven years in prison as a second offender. Although he admits the prior conviction, defendant appeals from this judgment and sentence. He contends that he is not a second offender within the meaning of the federal narcotics laws and should not have been sentenced as such.
At the time of defendant’s earlier conviction, conspiracy to violate the narcotics laws was an offense punishable only under the general omnibus provisions of 18 U.S.C. § 88 (now § 371). At the time of defendant’s conviction in the case at bar, such a conspiracy was an offense expressly punishable under the specific provisions of the narcotics laws. 21 U.S.C.A. § 174 and 26 U.S.C. § 7237 (a).
21 U.S.C.A. § 174 and 26 U.S.C. § 7237 (a) provide for increased sentences for second offenders and define what is meant by a second offender as follows: “ * * # an 0ffen(jer shall be considered a second * * * offender * * * if he previously has been convicted of any offense the penalty for which is provided in this subdivision [or subsection]” or “if he previously has been convicted of any offense the penalty for which” is or was set forth in certain enumerated provisions of the present or earlier versions of the federal narcotics laws. There is no explicit reference to 18 U.S.C. § 88 (now § 371), the statutory provision under which defendant was first convicted.
*550 Defendant argues that the statutory language defines a “second offender” as meaning only an offender who has previously been convicted under 21 U.S.C.A. § 174 or 26 U.S.C. § 7237(a), or under the enumerated provisions of the present Or an earlier statute. If defendant’s reading of the statute were correct he would not be a second offender, because he was not previously convicted under either 21 U.S.C.A. § 174, 26 U.S.C. § 7237(a), or the enumerated statutes but instead was convicted under 18 U.S.C. § 88 (now § 371).
However, we believe defendant’s reading of 21 U.S.C.A. § 174 and 26 U.S.C. § 7237(a) does violence not only to the statutory language but also to the obvious Congressional intent in enacting these provisions.
We hold that defendant is a second offender within the express language of 21 U.S.C.A. § 174 and 26 U.S.C. § 7237(a). Each of these provisions defines a second offender as one who “previously has been convicted of any offense the penalty for which is provided in this subsection [or subdivision].” Each of these statutes makes conspiracy to sell narcotics an offense and provides the penalty therefor. Defendant “previously has been convicted” of conspiracy to sell narcotics, an “offense the penalty for which is provided in” 21 U.S.C.A. § 174 and 26 U.S.C. § 7237(a). Therefore, defendant is within the statutory definition of a “second offender.” Cf. Beland v. United States, 5 Cir., 1942, 128 F.2d 795, certiorari denied, 1942, 317 U.S. 676, 63 S.Ct. 157, 87 L.Ed. 543; United States v. Johnson, 7 Cir., 1955, 218 F.2d 288, certiorari denied, 1955, 349 U.S. 923, 75 S.Ct. 663, 99 L.Ed. 1255.
Moreover, this court’s construction of the statute is clearly in accord with the Congressional intent. The purpose of Congress in enacting multiple offender penalties in the narcotics laws was to punish violators more severely, to deter the criminal who engages in illicit drug traffic, and to take habitual violators out of circulation. See House Report 635, 82nd Cong., 1st Sess., June 21, 1951; Senate Report 1051, 82nd Cong., 1st Sess., Oct. 1,1951. Where the intent of Congress is clear, penal statutes should not be so construed as to defeat that obvious intent. United States v. Alpers, 1950, 338 U.S. 680, 70 S.Ct. 352, 94 L.Ed. 457; United States v. Brown, 1948, 333 U.S. 18, 68 S.Ct. 376, 92 L.Ed. 442.
For these reasons we think the trial court correctly sentenced defendant as a second offender under the federal narcotics laws.
The judgment and sentence of the District Court is affirmed.
HINCKS, Circuit Judge, dissents without opinion.
. The relevant parts of 21 U.S.C.A. § 174 provide as follows:
“Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be fined not more than $2,-000 and imprisoned not less than two or more than five years. For a second offense, the offender shall be fined not more than $2,000 and imprisoned not less than five or more than ten years. For *549 a third or subsequent offense, the offender shall be fined not more than $2,009 and imprisoned not less than ten or more than twenty years. Upon conviction for a second or subsequent offense, the imposition or execution of sentence shall not be suspended and probation shall not be granted.
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236 F.2d 548, 1956 U.S. App. LEXIS 2799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-angelo-buia-ca2-1956.