United States District Court, S.D. Indiana, New Albany Division
ORDER SETTING HEARING ON DEFENDANT'S OBJECTIONS
AND MOTION TO STRIKE APPLICATION OF 21 U.S.C. §
WALTON PRATT, JUDGE
matter is before the Court on Defendant Ronald Tingle's
(“Tingle”) Objection and Motion to Strike
Application of 21 U.S.C. § 851 (Filing No.
165). For the reasons stated below, Tingle's Motion
is denied in part and hearing is scheduled on the remaining
October 20, 2015, Tingle was indicted by a federal Grand Jury
on four counts of distribution of methamphetamine.
(Filing No. 1.) On July 15, 2016, the Government
filed an Information, Pursuant to 21 U.S.C. § 851(a)(1),
which charged that on or about February 3, 1982, Tingle was
convicted of a prior felony offense related to controlled
substances (Trafficking in Lysergic Acid, Schedule II), in
the Carroll Circuit Court, Commonwealth of Kentucky.
(Filing No. 67.) Thereafter, on November 1, 2016, a
federal Grand Jury returned a Second Superseding Indictment
charging Tingle with one count of Possession of
Methamphetamine with Intent to Distribute in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii), three
counts of Distribution of Methamphetamine in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C), and
841(b)(1)(B)(viii), and one count of Possession of a Firearm
in Furtherance of a Drug Trafficking Crime in violation of 18
U.S.C. § 924(c)(1)(A)(i). (Filing No. 81.) In
addition, the Second Superseding Indictment notified Tingle
of the sentencing enhancement allegation. Id.
December 12, 2016, a jury found Tingle guilty on all counts.
(Filing No. 154.) The matter is scheduled for a
forfeiture hearing for Thursday, March 9, 2017, at 2:00 p.m.,
followed by a sentencing hearing at 3:00 p.m. (Filing No.
March 2, 2017, Tingle filed an Objection and Motion to Strike
Application of 21 U.S.C. § 851. (Filing No.
165.) Specifically, Tingle argues that ex post
facto prevents application of the § 851
enhancement; his prior conviction does not fall within the
parameters of § 851; application of the § 851
enhancement in this case is against Department of Justice
policy, and application of the mandatory minimum penalty
under 21 U.S.C. § 851 is unconstitutional on its face
and as applied in this case based on Apprendi v. New
Jersey, 530 U.S. 466 (1998). On March 3, 2017, the
Government filed a Response in Opposition asserting that none
of Tingle's four contentions have merit. (Filing No.
Court agrees with the Government that the “2013 Holder
Memorandum” is only a policy memorandum which does not
have any force of law. The memorandum specifically states,
“The policy set forth herein is not intended to create
or confer any rights, privileges, or benefits in any matter,
case, or proceeding. See United States v. Caceres,
440 U.S. 741 (1979).” Accordingly, the Motion to Strike
on the basis that application of the § 851 enhancement
in this case is against Department of Justice policy is
respect to Tingle's argument that application of the
enhancement as applied in his case is unconstitutional, the
Court is persuaded by the Government's assertion that
Tingle's argument does not comport with Seventh Circuit
precedent. The Supreme Court's decision in
Almendarez-Torres v. United States, 523 U.S. 224
(1998), holding that the government does not have to prove
facts to a jury pertaining to prior convictions for
recidivist enhancements to apply, is still controlling law.
See United States v. Shields, 789 F.3d 733, 741-42
(7th Cir. 2015); United States v. Lomax,
816 F.3d 468, 477- 78 (7th Cir. 2016). Accordingly,
Tingle's motion to strike on this basis is denied.
remaining arguments are that application of the enhancement
is barred based upon the principal of ex post facto
and his prior conviction does not fall within the parameter
of § 851. Title 21 U.S.C. § 851(b) provides as
If the United States attorney files an information under this
section, the court shall after conviction but before
pronouncement of sentence inquire of the person with respect
to whom the information was filed whether he affirms or
denies that he has been previously convicted as alleged in
the information, and shall inform him that any challenge to a
prior conviction which is not made before sentence is imposed
may not thereafter be raised to attack the sentence.
addition, 21 U.S.C. § 851(c)(1) provides:
If the person denies any allegation of the information of
prior conviction, or claims that any conviction alleged is
invalid, he shall file a written response to the information.
A copy of the response shall be served upon the United States
attorney. The court shall hold a hearing to determine any
issues raised by the response which would except the person
from increased punishment. The failure of the United States
attorney to include in the information the complete criminal
record of the person or any facts in addition to the
convictions to be relied upon shall not constitute grounds
for invalidating the notice given in the information required
by subsection (a)(1). The hearing shall be before the court
without a jury and either party may introduce evidence.
Except as otherwise provided in paragraph (2) of this
subsection, the United States attorney shall have the burden
of proof beyond a reasonable doubt on any issue of fact.
Court considers Tingle's filing to be a denial that he
has been previously convicted as alleged in the Information.
In addition, the Court considers Tingle's written notice
that his prior conviction does not fall within the parameters
of § 851, and that the age of his prior conviction bars
application of the enhancement under the ...