UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10400
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHARLES ADOLPH KUBOSH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
August 25, 1995
Before KING, HIGGINBOTHAM and PARKER, Circuit Judges.
ROBERT M. PARKER:
The appellant, Charles Adolph Kubosh ("Kubosh"), was charged
with 22 counts of various narcotics-related offenses. A jury found
Kubosh guilty on 21 counts. The district court sentenced him to a
statutorily mandated term of life imprisonment on two counts, a
term of life imprisonment on four counts, and other terms of
varying lengths. The sentences were ordered to run concurrently.
Kubosh does not challenge his underlying convictions and makes only
legal challenges to the use of his prior convictions for statutory
enhancement under 21 U.S.C. §§ 841(b)(1)(A) and 851. We affirm.
I. INTRODUCTION
Prior to the commencement of Kubosh's trial, the government
filed a penalty enhancement information pursuant to 21 U.S.C. §
851. That document alleged that, prior to the offenses charged in
the instant case against Kubosh, he had been finally convicted in
Texas state courts of the following felony drug offenses: (1)
possession of a controlled substance, March 7, 1989; (2) possession
of a controlled substance, December 8, 1989; and (3) possession of
a controlled substance, December 8, 1989. The two offenses
underlying convictions two and three occurred on the same day. The
three convictions combined to provide the enhancement of Kubosh's
sentence to mandatory life imprisonment without the possibility of
release.
Kubosh challenges the enhancement on three grounds. First, he
argues that because convictions two and three involved two counts
of possession of the same narcotic on the same date, the two
convictions are not separately countable for purposes of
enhancement. Second, Kubosh contends that the district court erred
in refusing to reopen the statutory penalty enhancement hearing in
order to allow Kubosh to present evidence and arguments that
conviction one was constitutionally invalid and hence unavailable
for enhancement purposes. Last, Kubosh argues that enhancement on
the basis of possession offenses which would be misdemeanors in
some jurisdictions but which are classified as felonies under Texas
law violates equal protection and due process.
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III. ANALYSIS
A. Prior Convictions Used for Enhancement
21 U.S.C. § 841(b)(1)(A) provides for mandatory "life
imprisonment without release" in cases of a violation of § 841
after two or more prior convictions for felony drug offenses.
Because Kubosh has three prior convictions, he must successfully
nullify two for the enhancement to be improper.
Kubosh challenges his first prior conviction on the ground
that the district court erred in ruling as untimely Kubosh's
constitutional objections to that conviction. On November 23,
1993, the district court set the penalty enhancement matter for
hearing on December 16, 1993, and ordered Kubosh to file a written
response to the information by December 10, 1993. On that date,
Kubosh filed his response, stating only that "the convictions
alleged in the Information are constitutionally invalid." No
particulars were given. On December 16, 1993, the scheduled
hearing was held, but Kubosh provided no further evidence or
argument as to the constitutional validity of the prior
convictions.
On January 19, 1994, over one month later, Kubosh submitted
three CJA-24 forms, requesting the district court to authorize
transcriptions of the proceedings in Kubosh's three prior state
convictions. These forms stated that the transcripts were to be
used for "appeal and sentencing proceedings, particularly in regard
to the statutory enhancements for these prior state convictions."
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The district court authorized the requests, and Kubosh received the
transcripts on February 17, 1994.
In the meantime, on January 31, 1994, Kubosh filed a motion
for continuance of his sentencing date in which the sole recited
reason for the postponement was the pending investigation into the
prior convictions. The district court granted the motion, finding
that "failure to grant a continuance would deny defendant's counsel
the reasonable time necessary for effective preparation."
Sentencing was therefore continued until March 14, 1994.
Kubosh's attorney reviewed the transcripts and on March 10,
1994, filed supplemental objections to the presentence report. The
supplement specifically requested that the statutory enhancement
issue be reopened on the basis of alleged constitutional violations
vitiating the first prior conviction. Kubosh then, for the first
time, specified what the alleged constitutional violations were,
including violations of the Fourth, Fifth, and Sixth Amendments.
On March 14, 1994, the government filed a response but
addressed only Kubosh's Fourth Amendment objections. On March 15,
1994, the district court sua sponte reset sentencing to March 28,
1994. On March 23, 1994, the district court issued Tentative
Findings on the sentencing issues raised in the pleadings to date.
The district court stated that it would overrule Kubosh's
constitutional challenges on the basis set out in the government's
response. On March 24, 1994, Kubosh filed a response pointing out
that because the government's response did not address the Fifth
and Sixth Amendment arguments, the district court had likewise
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failed to rule on those claims. Kubosh requested the district
court to rule on those unaddressed claims and enter tentative
findings as to them.
On March 28, 1994, the date of sentencing, the government
filed another response to Kubosh's constitutional challenges. For
the first time, the government argued that the challenges were
untimely and that there was no good cause shown to warrant
consideration of the challenges. At sentencing that same day, the
district court overruled Kubosh's constitutional challenges partly
on the basis that they were untimely. On appeal, Kubosh argues
that the district court erred in precluding the constitutional
challenges and refusing to reopen the statutory enhancement issue.
This Court has not announced a standard of review for a
district court's refusal to hear a belated constitutional challenge
to a prior conviction used for enhancement under 21 U.S.C. §
841(b)(1)(A). A district court's decision whether or not to reopen
the evidence at a jury trial is reviewed for abuse of discretion.
United States v. Walker, 772 F.2d 1172, 1177 (5th Cir. 1985).
Similarly, a district court's refusal to reopen a suppression
hearing is reviewed for abuse of discretion. United States v.
Hobbs, 31 F.3d 918, 923 (9th Cir. 1994). By analogy, we therefore
adopt the abuse of discretion standard for reviewing a district
court's refusal to reopen a hearing on the issue of statutory
enhancement.
The district court clearly ordered Kubosh to file a written
response to the information "no later than 4:30 p.m. on December
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10, 1993." It is also clear that the first time Kubosh presented
his constitutional challenges with any sort of particularity was
March 10, 1994. The district court did grant a continuance for
Kubosh to obtain and review the transcripts of the state trials,
but that was after the district court's deadline had already
passed. Kubosh did not comply with the deadline, nor did he
request a continuance prior to it. Therefore, it was not an abuse
of discretion for the district court to refuse to reopen the
enhancement issue.
Because we find that Kubosh's first prior conviction remains
valid for enhancement purposes, we need not reach his argument
concerning the merging of convictions two and three. Even if those
two convictions were counted as only one, Kubosh would still have
two prior convictions and be subject to enhancement.
B. Constitutionality of Enhancement Provision
Kubosh's only other argument is that the enhancement of his
sentence on the basis of possession offenses which would be
misdemeanors in some jurisdictions but which are classified as
felonies under Texas law violates equal protection and due process.
This Court has not considered this specific question but has
addressed an equal protection and due process argument in an
analogous context. See United States v. Mendiola, 42 F.3d 259 (5th
Cir. 1994) (defendant appealed from sentencing order that did not
reflect offense-level reduction due to fact that drunk driving
offense for which defendant was convicted while on escaped status
was punishable by term of one year or more under state law).
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Applying the rational basis test, the Mendiola court concluded,
"'It is not irrational for Congress to defer to state law with
regard to the characteristics of a prior offense.'" Id. at 262
(quoting United States v. Lender, 985 F.2d 151, 156 n.* (4th Cir.
1993)). Mendiola also rejected a due process argument on the same
grounds. Id.
Following Mendiola, we find that Congress was well aware that
different states classify similar crimes differently. Congress'
deference to the states in this matter is not irrational.
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