Mr. William Underwood, a handsome, extremely intelligent man, who studied at Columbia University, was accused by the government of living a dual life. He was unquestionably a successful music impresario, having discovered and managed the career of R&B sensation, Johnny Gill and promoted stars like Guy, Keith Sweat, New Edition, Bobby Brown and many others in the 80’s. He was highly regarded in the R&B music world as a prominent manager/promoter and was an important presence at all of the major music industry awards, galas and functions. All that changed when he was arrested on December 6, 1988, and held without bail since that time. He was represented at trial by top defense and trial attorneys’, Gerald Shargel and Alan Futerfas. Numerous defense witnesses came to testify on Mr. Underwood’s behalf, including senior executives from Atlantic Records who traveled from London, without being subpoenaed.

The charges against Mr. Underwood were extremely serious. His convictions were:

Count 1: participating in racketeering enterprise, 18 U.S.C. §1962(c) (RICO)

Count 2: conspiring to participate in racketeering enterprise, 18 U.S.C.
              §1962(d) (RICO conspiracy)

Count 3: participating in narcotics conspiracy, 21 U.S.C. §846

Count 4: operating continuing criminal enterprise, 21 U.S.C. §848 (CCE)


Underwood was sentenced under the guidelines to life imprisonment on the CCE count and concurrent terms of 20 years each on the RICO and RICO conspiracy counts; his sentence on the narcotics conspiracy count was combined with the CCE sentence.

The most critical issue in the trial at sentence was whether the conspiracies charged against Mr. Underwood continued beyond November 1, 1987, the effective date of the (then brand new) sentencing guidelines. The issue suggested to Mr. Underwood and his defense attorney’s that the question should be resolved, by the jury, unanimously and beyond a reasonable doubt.

The issue was of extraordinary importance. If the jury found beyond a reasonable doubt that the conspiracies charged continued beyond November 1, 1987, the guidelines required the Judge to impose a sentence of life without parole on Mr. Underwood’s CCE conviction. On the other hand, were no such finding made, a pre-guidelines sentence would have allowed the Court the discretion to impose a prison term between ten years and life. Thus, ten years before the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and fifteen years before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), his attorneys’ requested that the jury verdict sheet include the question of whether the conspiracies charged continued beyond November 1, 1987 and that the Judge instruct the jury that its decision in this regard must be made unanimously and beyond a reasonable doubt.

The Judge denied that request and found at a sentencing hearing that the conspiracy continued beyond November 1, 1987. See United States v. Underwood, 932 F.2nd 1049, 1055 (2d Cir. 1991) (“In this case Judge Cedarbaum properly recognized that whether Underwood’s continuing offense extended past the effective date of the Guidelines presented a factual sentencing issue to be resolved by the court using a preponderance of the evidence standard. The issue was squarely raised in the district court at a hearing in February 1990; the judge explicitly addressed the question and determined that “there is clear evidence in this record that this enterprise continued past November 1, 1987.”)

Based on that finding, Judge Cederbaum determined that she was bound by the sentencing guidelines to impose a sentence of life without parole. Mr. Underwood filed direct appeals in due course and has filed habeas proceedings. These were all denied years before the Supreme Court’s decisions in Apprendi and Booker. Essentially, each of those appeals and petitions were denied based upon pre- Apprendi law that permitted a court to make sentencing findings by a preponderance of the evidence standard even if those findings changed the minimum or maximum possible sentence. The excerpted portion here is indicative of this pre-Apprendi landscape.

We believe that the Supreme Court’s decision in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct.2411, 91 L.Ed.2d. 67 (1986), is dispositive of Underwood’s claim. In McMillan, the Court considered constitutional challenges to a state statute mandating a minimum sentence for specified crimes if the sentencing judge found by a preponderance of the evidence that the offender visibly possessed a firearm during commission of the offense. The Court found that visible possession of a firearm was not an element of the specified crimes, id, at 85-86, 106 S.Ct. at 2415-16, and did not alter the maximum penalty for committing them, id. at 87-88, 106 S.Ct. at 2416-17, “but instead is a sentencing factor that comes into play only after the defendant has been found guilty of one of those crimes beyond a reasonable doubt,” id. at 86, 106 S.Ct. at 2416. The Court went on to hold that determination of such sentencing factors by the court by a preponderance of the evidence, rather than by the jury beyond a reasonable doubt, violated neither the due process clause nor the sixth amendment right to a trial by jury. Id. at 91-93, 106 S.Ct. at 2418-20.

United States vs. Underwood, 932 F.2d. at 1053, see also United States vs. Underwood, 15 F.3d.16, 19 (2d. Cir. 1993) (adopting same legal analysis in the context of Mr. Underwood’s 2255 petition.)

Today, it is likely that Mr. Underwood is the ONLY federal prisoner who:

a) Properly preserved an Apprendi objection to the use of the guidelines ten years before that decision issued; and where

b) The denial of that objection resulted in the use of the mandatory sentencing scheme which (at that time) required imposition of a sentence of life without parole.

As of Tuesday, December 6, 2005, Mr. Underwood completed the required 17 years on Counts 1, 2, and 3 (85% of 20 years = 17 years). While still imprisoned under Count 4 [21 U.S.C §848 (a) ("CCE" = Continuing Criminal Enterprise)], he is in legal limbo. Thus, without relief, Mr. Underwood is going to serve out his life in prison based on a now UNCONSITIUTIONAL sentencing law which was utilized in his case only as a result of a VIOLATION of other subsequent Supreme Court precedent. We at INPRISON.NET REFUSE TO BELIEVE THAT GIVEN THESE TRULY EXTRAORDINARY CIRCUMSTANCES, THE LAW AFFORDS NO OPPORTUNITY FOR MR. UNDERWOOD TO OBTAIN RE-SENTENCING OR OTHER RELIEF.