United States v. Galan, No. 08-4552 (6th Cir. Aug. 19, 2011) (unpublished). Panel of Judges Guy, Cook, and Stranch.
Defendant appealed his drug-conspiracy conviction and his life sentences for murder with a firearm in the course of a drug conspiracy. Court affirmed the drug-conspiracy conviction, but vacated the life sentences. Remanded for resentencing.
The defendant's first argument was that the district court erred in not instructing the jury concerning the effect of the five-year statute of limitations applicable to the drug conspiracy charge. Plain-error review b/c argument not raised in district court. Five-year statute of limitations under 18 U.S.C. 3282(a). Conspiracy here was a "chain conspiracy." Evidence supported jury's decision to convict the defendant for the charged conspiracy.
Bigger issue was the alleged sentencing error. Defendant argued that district court erred in instructing the jury to choose b/t death or life imprisonment. Defendant argued that the court should have instructed the jury on imprisonment for any term of years as well. Plain-error review here too. Government conceded and appellate court agreed that plain error occurred. Under 18 U.S.C. 924(j)(1), the murder was punishable by death "or by imprisonment for any term of years or for life." Section 924(j) incorporates only the definition of murder found in 18 U.S.C. 1111(a). It does not incorporate 1111(b)'s penalty provisions. Failing to give the jury the option of permitting the judge to sentence a defendant to a term of years is plain error. Resentencing necessary.
