§242 Drug Offenses, Constitutional Issues
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Supreme Court holds indictment that is defective under Apprendi is subject to plain-error analysis. (242) In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Here, the Court made clear, as suggested in Apprendi, that “Apprendi facts” must be alleged in the indictment. In a unanimous opinion by the Chief Justice, the Court also found that defects in the indictment do not deprive the court of jurisdiction over a criminal case; instead, an omission from an indictment is subject to plain-error analysis. Applying the plain-error test, the Court found that an indictment’s failure to allege a drug quantity that increased the defendants’ sentence under 21 U.S.C. 841(b)(1) (B) was error and that it was “plain.” But, the court held, that error did not meet the fourth prong of the plain error test, which requires a showing that the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings,” because the evidence of drug quantity at trial was overwhelming and essentially uncontroverted. U.S. v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002).
8th Circuit finds 200-month sentence for drug trafficking not disproportionate. (140)(242) Defendant pleaded guilty to drug-trafficking. At sentencing, the district court found that defendant was a career offender and that his sentencing range was 188 to 235 months. Citing defendant’s “long history of dealing drugs,” the district court sentenced him to 200 months. The Eighth Circuit found that defendant’s 200-month sentence was not disproportionate to his offense, in violation of the Eighth Amendment. U.S. v. Garth, __ F.3d __ (8th Cir. July 11, 2019) No. 18-1715.
8th Circuit affirms 622-month sentence for drugs and guns as not cruel or unusual. (140)(242)(330) Defendant was convicted of drug and gun offenses, including two counts of possession of a firearm in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c). The district court sentenced him to 262 months on the drug and gun offenses and a consecutive 360 months on the § 924(c) counts. On appeal, he argued that his sentence violated the Eighth Amendment because it was grossly disproportionate to his offense. The Eighth Circuit found that the 360-month sentence on the § 924(c) counts was not subject to analysis under the Eighth Amendment and the remaining sentence was not disproportionate to defendant’s offenses. U.S. v. McDaniel, __ F.3d __ (8th Cir. May 30, 2019) No. 18-1477.
Supreme Court says any fact that increases the sentence beyond the statutory maximum must be submitted to the jury. (242) In a 5-4 opinion written by Justice Stevens, the Supreme Court held that the Constitution requires that, except for the fact of a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The court said it did not matter whether the additional fact was labeled an element of the offense or a mere “sentencing factor.” Applying this rule to the facts of the case, the court reversed the defendant’s New Jersey sentence, which had been increased based on a judge’s finding at sentencing by a preponderance of evidence that the crime was racially motivated. Justice O’Connor dissented, joined by Chief Justice Rehnquist and Justices Kennedy and Breyer. Justice Breyer also filed a separate dissenting opinion joined by the Chief Justice. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000).
1st Circuit finds tying marijuana equivalency to actual oxycodone in pill is rational. (242) Defendant was convicted of possessing and distributing oxycodone. He argued that the marijuana equivalent for oxycodone, as amended by Amendment 657, was irrationally high. The amendment changed the marijuana equivalency from 500 grams per gram of pill weight, regardless of the amount of oxycodone contained in each pill, to 6,700 grams per gram of actual oxycodone. The First Circuit held that the Sentencing Commission had a rational basis for the amendment, and therefore, any equal protection claim by defendant failed. The amendment was intended to address “proportionality issues” that arose under the pre-amendment version, under which pills containing greatly differing amounts of actual oxycodone had the same marijuana equivalence. It was not irrational for the Commission to set higher marijuana equivalencies, and thereby increased punishment, for offenses involving higher amounts of oxycodone. U.S. v. Eksala, 596 F.3d 74 (1st Cir. 2010).
1st Circuit upholds sentence based upon judicial determination of drug quantity. (242) Defendant argued that his sentence violated the Sixth Amendment because it was based on a drug quantity that the court determined by a preponderance of the evidence. Courts have routinely upheld sentences that relied on drug quantities found by a preponderance of the evidence where the sentence fell within the maximum for the statute of conviction. Defendant argued that under Cunningham v. California, 549 U.S. 270 (2007), the “true statutory maximum” is not the term set by Congress as the upper limit for a type of crime, but the highest sentence that would survive scrutiny for substantive reasonableness based solely on jury-found or admitted facts. The First Circuit rejected this argument, ruling that Cunningham provided no basis to change its longstanding approach to judicial fact-finding on drug quantity. Cunningham involved a mandatory, determinate sentencing scheme unlike the advisory guidelines that emerged from Booker, and it therefore triggered different constitutional concerns. U.S. v. Zapata, 589 F.3d 475 (1st Cir. 2009).
1st Circuit holds that cocaine base/cocaine distinction is not fatally ambiguous. (242) Defendant argued that because “cocaine base” and “cocaine” are chemically identical, the penalty provision in 21 U.S.C. § 841, providing for harsher penalties for offenses involving cocaine base, is fatally ambiguous. The First Circuit disagreed. First, defendant’s claim that cocaine and cocaine base are chemically identical is inaccurate. In addition, the term cocaine base in § 841(b) includes all forms of cocaine base, not simply crack. Here, the government presented undisputed evidence that the substance seized was cocaine base, and the jury so found. There was no error in defendant’s sentence. U.S. v. Isler, 429 F.3d 19 (1st Cir. 2005).
1st Circuit holds that life sentence violated Apprendi. (242) The PSR identified 21 U.S.C. § 841(b)(1)(A), which sets the maximum statutory punishment at life imprisonment, as the relevant penalty provision. The district court sentenced defendant accordingly. However, the jury did not find that the charged conspiracy involved the drug quantities listed in § 841(b)(1) (A). Because the issue of drug type and quantity was not properly submitted to the jury, the statutory maximum was 20 years under § 841(b) (1)(C). The First Circuit rejected the government’s claim that the Apprendi error was harmless and did not affect defendant’s substantial rights. Although the evidence permitted “a reasonable inference that the charged conspiracy engaged in large-scale drug trafficking,” the evidence of drug quantity was not “overwhelming.” While this evidence did not undermine the conviction, more was required to show harmlessness beyond a reasonable doubt. U.S. v. Perez-Ruiz, 353 F.3d 1 (1st Cir. 2003).
1st Circuit rules sentencing judge did not improperly believe it was bound by jury’s drug quantity verdict. (242) The government recommended that defendant be held responsible for between five and 15 kilograms of cocaine. Defendant pointed to the jury’s special verdict that he was responsible for between 500 grams to two kilos of cocaine. The court first said, “you don’t have to argue the jury verdict with me, I’m bound by it.” After further discussion, the court retreated somewhat from this position, but still found defendant responsible for between 500 grams and two kilos, stating that this ruling would be “in harmony” with the jury’s verdict. Although a close question, the First Circuit ruled that the judge did not improperly believe that he was bound by the jury’s verdict. Moreover, while there was a very good argument for the higher range urged by the government, the court’s finding of only 500 grams to two kilos was not clearly erroneous. U.S. v. Picanso, 333 F.3d 21 (1st Cir. 2003).
1st Circuit holds that theoretical exposure to higher statutory maximum did not violate Apprendi. (242) Because defendant’s 121-month sentence was below the 20-year statutory maximum for trafficking in an unspecified quantity of cocaine base, see 21 U.S.C. § 841(b)(1)(C), the sentence did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant nonetheless argued that her sentence violated Apprendi because the court’s overall drug quantity calculation (35.33 grams of cocaine base) theoretically exposed her to a 40-year sentence under § 841(b)(1)(B). The First Circuit held that a defendant’s theoretical exposure to a higher statutory maximum does not violate Apprendi, provided the actual sentence imposed does not exceed the original statutory maximum. Defendant lacked standing to argue that Apprendi applied where a mandatory minimum sentence is imposed. Defendant’s sentence was not premised on the mandatory minimum in § 841(b)(1)(B), but rather on the applicable sentencing guidelines. Moreover, this would be a losing argument, since McMillan v. Pennsylvania, 477 U.S. 79 (1986) clearly allows a fact that triggers a mandatory minimum sentence to be found by a judge using the preponderance standard. U.S. v. Robinson, 241 F.3d 115 (1st Cir. 2001).
1st Circuit says Almendarez-Torres binding unless overruled by Supreme Court. (242) In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the Supreme Court held that any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt. The statutory maximum under 21 U.S.C. § 841(b)(1)(C) for an offense involving an unspecified amount of cocaine is 20 years, except that the maximum sentence increases to 30 years where there is a prior final drug conviction. The parties agreed that if the 30-year maximum for the prior felony convictions was applicable, then defendant’s 27-year sentence was valid. The First Circuit held that defendant’s claim that prior convictions must be proven beyond a reasonable doubt was precluded by the Supreme Court’s decision in Almendarez-Torres v. U.S., 523 U.S. 224 (1998). Almendarez-Torres held that the use of the fact of a prior conviction in sentencing where that fact was found by the judge rather than the jury did not violate the right to a jury trial. Although the combination of justices in the majority in Apprendi and in the dissent in Almendarez-Torres would provide a majority on the Supreme Court to overrule Almendarez-Torres, until Almendarez-Torres is overruled, it was binding. U.S. v. Terry, 240 F.3d 65 (1st Cir. 2001).
1st Circuit upholds cross-reference to murder guideline for drug defendant. (242) Section 2D1.1(d)(1) directs a court to apply § 2A1.1, the first-degree murder guideline, “[i]f a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.” Defendant attacked the lack of proportionality between the sentence he “might have received” based on drug quantity, and the life sentence he received under § 2D1.1(d)(1). Life sentence enhancements constituting “the tail which wags the dog of the substantive offense” may raise due process concerns. See U.S. v. Lombard, 72 F.3d 170 (1st Cir. 1995). However, because defendant did not contest the district court’s finding that he was responsible for murders, the First Circuit found his complaint that the murders were not proven beyond a reasonable doubt to be without merit. The district court did not err in failing to depart downward to remedy the “disproportion” between the quantity-based sentence he would have received under § 2D1.1(a) and the enhanced sentence he received under § 2D1.1(d)(1). Defendant never requested such a departure, and the court did not address the subject. U.S. v. Padro Burgos, 239 F.3d 72 (1st Cir. 2001).
1st Circuit refuses to extend Apprendi to mandatory minimums. (242) Defendant received a 160-month sentence for his cocaine conspiracy conviction. He sought to have his sentence vacated because the amount of cocaine attributed to him was never submitted to the jury and proved beyond a reasonable doubt. See Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Because his sentence was less than the 20-year statutory maximum for an offense involving an unspecified quantity of cocaine, see 21 U.S.C. § 841(b)(1)(C), the First Circuit found no Apprendi violation. Defendant’s reliance on U.S. v. Norby, 225 F.3d 1053 (9th Cir. 2000) was misplaced. Norby was convicted of a marijuana offense carrying only a five-year statutory maximum in § 841(b)(1)(D). The correct statutory maximum for a Schedule II substance like cocaine is 20 years under § 841(b)(1)(C). The panel refused to extend Apprendi to include mandatory minimums. The majority in Apprendi declined to overrule their previous decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986), which authorizes the legislatures to increase minimum penalties based upon non-jury factual determinations, as long as the penalty imposed does not exceed the maximum range. U.S. v. Houle, 237 F.3d 71 (1st Cir. 2001).
1st Circuit refuses to extend Apprendi to factors that increase mandatory minimum sentence. (242) Based on its finding that defendant’s offense involved from one to three kilograms of heroin, the district court sentenced defendant to a ten-year mandatory minimum sentence under § 841(b)(1)(A). Defendant argued that this violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), because the amount of heroin was never submitted to the jury and proved beyond a reasonable doubt. The First Circuit found no error, ruling that defendant misunderstood U.S. v. Nordby, 225 F.3d 1053 (9th Cir. 2000). Nordby struck down a ten-year sentence that exceeded the five-year maximum under § 841(b)(1)(D) for an offense involving an undetermined amount of marijuana. However, unlike the defendant in Norby, defendant was convicted of a heroin offense and not a marijuana offense. Therefore, the five-year statutory maximum in § 841(b)(1)(D) was inapplicable. The correct statutory maximum for an unspecified quantity of heroin, a Schedule II substance, is 20 years. See § 841(b)(1)(C). Defendant’s ten-year sentence was below this statutory maximum. The panel rejected defendant’s invitation to read Apprendi as applying to factors that increase the mandatory minimum sentence for an offense. No Apprendi violation occurs when the district court sentences the defendant within the statutory maximum, even if drug quantity was never determined by a jury beyond a reasonable doubt. U.S. v. LaFreniere, 236 F.3d 41 (1st Cir. 2001).
1st Circuit finds no Apprendi error even though drug quantity not determined by jury. (242) Defendant was convicted of conspiracy to posses with intent to distribute heroin, in violation of 21 U.S.C. § 846. The amount of heroin attributed to him was neither submitted to the jury, nor found by the jury beyond a reasonable doubt. The statutory maximum under 21 U.S.C. § 841(b)(1)(C) for an offense involving an unspecified quantity of heroin is 20 years. The First Circuit held that no constitutional error occurs when the court sentences the defendant within the statutory maximum, even if that drug quantity was never determined by the jury beyond a reasonable doubt. Defendant’s 188-month sentence, below the 20-year statutory maximum, did not constitute an error under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). U.S. v. Baltas, 236 F.3d 27 (1st Cir. 2001).
1st Circuit refuses to treat crack cocaine as equal to powder cocaine for sentencing purposes. (242) Defendant contended that the district court enforced “a vague law” when it refused to treat crack cocaine as equal to powder cocaine for sentencing purposes. The First Circuit found that it was bound by its prior decisions that have rejected this argument. Until this claim of disparity and is accepted by the en banc court, the U.S. Supreme Court, or Congress itself, challenges based on the disparity in sentences for crack cocaine and powder cocaine will continue to fail. U.S. v. Berrios, 132 F.3d 834 (1st Cir. 1998).
1st Circuit applies rule of lenity after finding ambiguity in pre-1995 definition of “hashish oil.” (242) In September 1995, defendants pled guilty to trafficking in a cannabis-derived black substance resembling road tar. The district court sentenced them for trafficking in hashish oil, which carries penalties 50 times greater than marijuana. The substance appeared to meet the definition of hashish oil that was added to the guidelines November 1995. However, because this definition constituted a substantive addition to the guidelines, it could not be retroactively applied to defendants. Before 1995, hashish oil was not defined in the guidelines. The First Circuit found the pre-1995 definition of hashish was ambiguous and therefore the rule of lenity mandated using the more lenient marijuana penalties. Experts for both the government and defendants offered reasonable constructions of the term hashish oil. A defense expert testified that hashish oil is a transparent, honey-colored oil produced when compressing hashish into bricks. Moreover, the substance at issue did not have the slippery, viscous or liquid properties of an oil, as that term is commonly used. The rule of lenity was appropriate here because there was a genuine doubt as to whether Congress intended to include this particular tarry substance within its definition of hashish oil. U.S. v. Bowen, 127 F.3d 9 (1st Cir. 1997).
1st Circuit rejects departure based on Commission’s proposal to eliminate crack disparity. (242) Defendant was sentenced for crack cocaine. He argued that the district court erred in not departing downward to the offense level for powder cocaine, noting that the Sentencing Commission recommended eliminating the sentencing disparity. The district court actually agreed with his claim that the disparity was unfair and that in the right circumstances a departure based on the Commission’s findings would be justified. However, the judge noted that were she to depart downward, defendant’s extensive criminal record would then require a substantial compensatory upward departure. Accordingly, the judge refused to depart. The First Circuit rejected defendant’s claim that the Commission’s recent proposal to eliminate the crack sentencing disparity was a ground for departure. The district court, although it purported to exercise its discretion not to depart, actually had no discretion to depart on this basis. U.S. v. Andrade, 94 F.3d 9 (1st Cir. 1996).
1st Circuit rejects rule of lenity challenge to harsher cocaine base penalties. (242) Defendant challenged the court’s refusal to consider expert testimony in support of defendant’s “rule of lenity” challenge to the enhanced statutory penalties for cocaine base. The First Circuit held that defendant’s claim was foreclosed by U.S. v. Camilo, 71 F.3d 984 (1st Cir. 1995), which was decided after briefing and oral argument in this case. Camilo rejected an identical challenge to the enhanced penalties for crack cocaine. U.S. v. Sanchez, 81 F.3d 9 (1st Cir. 1996).
1st Circuit rejects downward departure based on 100-to-1 crack cocaine ratio. (242) Defendant argued that the district court had authority to depart downward because the Sentencing Commission adopted Congress’s 100-to-1 ratio of crack to powder cocaine without fully investigating the circumstances underlying the ratio. The First Circuit held that this was not a proper ground for departure. In light of Congress’s recent decision to retain the disparate penalties for crack and powder cocaine, the Sentencing Commission cannot be said to have failed in its statutory duty to investigate the distinction between the two. Moreover, even if the two substances are synonymous in the scientific and medical communities, crack in reality differs from cocaine powder because of its cheaper unit price which could radically increase drug use absent stiffer penalties for crack distributors. U.S. v. Camilo, 71 F.3d 984 (1st Cir. 1995).
1st Circuit reaffirms 100-1 crack to powder cocaine sentencing ratio. (242) Defendant challenged § 2D1.1’s sentencing formula equating one kilogram of crack cocaine to 100 kilograms of powdered cocaine. The First Circuit found that circuit precedent required it to reject the claim. Previous cases have rejected the claim that the formula violates equal protection. There was no evidence that either Congress or the Sentencing Commission harbored a racial animus or discriminatory intent. The formula has a rational basis. U.S. v. Graciani, 61 F.3d 70 (1st Cir. 1995).
1st Circuit upholds sentencing distinction between cocaine base and cocaine powder. (242) Defendant argued that the sentencing distinction between cocaine base and cocaine powder was irrational, racially motivated, or both. The 1st Circuit upheld the distinction, finding there was a rational, racially neutral reason for it. Defendant presented no evidence to support his claim that cocaine base presents no greater health risk than cocaine powder. Moreover, the harsher penalties for cocaine base were rationally based on its cheaper unit price. Congress was concerned that the low price of cocaine base would lead to an explosion in drug use. Finally, given the racially neutral grounds for the classification, there was insufficient evidence that the distinction was motivated by any racial animus. U.S. v. Singleterry, 29 F.3d 733 (1st Cir. 1994).
1st Circuit holds that pre-trial destruction of marijuana plants did not violate due process. (242) Defendant argued that the government’s pre-trial destruction of marijuana plants seized from his trailer violated due process, since it precluded him from effectively challenging both the plant count and police testimony that all seized plants had developed root systems. The 1st Circuit held that the pre-trial destruction of the marijuana did not violate due process since police acted in good faith. A state’s failure to preserve potentially exculpatory evidence does not violate due process unless a defendant can show bad faith by the police. There was no bad faith, since at the time the plants were destroyed, this was only a state court matter, where the presence of root formations is irrelevant. U.S. v. Gallant, 25 F.3d 36 (1st Cir. 1994).
1st Circuit says that growth from cutting need not function as a root for cutting to be a plant. (242) Under 1st Circuit caselaw, the presence of roots determines whether a marijuana cutting constitutes a plant for sentencing purposes. Defendant argued that new growth on a cutting could only be termed “roots” when the growth physiologically functions as a root. The 1st Circuit rejected this requirement. Plant status is sufficiently established when there is “some readily observable evidence of root formation.” The district court had ample evidence that the 16 cuttings here were sufficiently developed to be classified as plants. The court summarily rejected the claim that the equivalency of one plant to one kilogram of marijuana lacks a rational basis. Senior Judge Oakes of the 2nd Circuit concurred, noting that if he were free to decide the issue, he would conclude that equating three-inch marijuana plants with “at best” marginal root structures to kilograms of marijuana was arbitrary and violated due process. U.S. v. Burke, 999 F.2d 596 (1st Cir. 1993).
1st Circuit upholds equating one marijuana plant to one kilogram of marijuana. (242) The 1st Circuit rejected defendant’s claim that equating one marijuana plant to one kilogram of marijuana for offenses involving 50 or more plants violated due process. The standard was not arbitrary. Congress could reasonably opt for a punitive deterrent against large-scale marijuana manufacturing operations which pose a greater threat than small-scale operations. U.S. v. Taylor, 985 F.2d 3 (1st Cir. 1993).
2nd Circuit says Blakely does not require conspirator to know type or quantity of drugs he directly possesses. (242) Defendants claimed that the district court failed to instruct the jury that, in order to convict them of drug conspiracy, the jury had to find that defendants knew, or could reasonable foresee, that the conspiracy involved the distribution of more than one kilogram of heroin. The Second Circuit found no error. The jury found defendants in joint possession of more than one kilogram of heroin Where each defendant was actually in possession of the drugs, foreseeability of the amount possessed is not needed because actual knowledge of the amount is assumed. The panel noted in passing “that Blakely v. Washington, 124 S.Ct. 2531 (2004), does not alter our prior caselaw holding that a defendant need not know the type or quantity of drugs when he is in direct possession of them as part of a conspiracy.” Moreover, because defendants’ sentences fell within the maximum penalty allowed by statute and were authorized by the jury verdict, the sentences did not implicate any issue raised in Apprendi v. New Jersey, 530 U.S. 466 (2000) or Blakely. U.S. v. Castrillon, 376 F.3d 46 (2d Cir. 2004).
2nd Circuit holds that default provision for marijuana is five years. (242) Because no quantity of marijuana was charged in the indictment or submitted to the jury, defendant should have been sentenced under the “default” provision for marijuana, i.e. the statutory provision in 21 U.S.C. § 841 that sets the maximum term of imprisonment for an unspecified quantity of marijuana. Section 841(b)(1)(D) provides for a penalty of up to five years for a violation involving less than 50 kilograms of marijuana, “except as provided in paragraphs (4) and (5) of this subsection.” Section 841(b)(4) provides for a one-year maximum for distributing a small amount of marijuana for no remuneration. Defendant argued that the default provision is § 841(b)(4), carrying a one-year maximum sentence. The Second Circuit, however, agreed with the government that the appropriate default provision for marijuana is five years under § 841(b)(1)(D). Congress intended § 841(b)(4) to be a mitigating exception to the five-year provision of § 841(b)(1)(D). The activity mostly contemplated by § 841(b)(4), the sharing of small amounts of marijuana in social situations, is not just one of lesser degree than those covered by (b)(1)(D) but of a different type more akin to simple possession than to drug trafficking. U.S. v. Outen, 286 F.3d 622 (2d Cir. 2002).
2nd Circuit holds that top of guideline range is not statutory maximum for Apprendi purposes. (242) Defendant argued that the district court violated Apprendi v. New Jersey, 530 U.S. 466 (2000) by increasing his prison term based on the quantity of drugs he allegedly shipped and his alleged possession of a handgun. He argued that the enhancements increased his sentence beyond the otherwise applicable maximum under the guidelines. The Second Circuit found no Apprendi error. The lowest statutory maximum for defendant’s conviction was 20 years imprisonment, precisely the term he received post-enhancement. The panel rejected defendant’s claim that the “maximum” sentence otherwise applicable would be the top end of the guidelines range, absent the enhancements. The hypothetical maximum urged by defendant was not the statutory maximum. U.S. v. Breen, 243 F.3d 591 (2d Cir. 2001).
2nd Circuit holds that top of guideline range is not statutory maximum for Apprendi purposes. (242) Defendant argued that the district court violated Apprendi v. New Jersey, 530 U.S. 466 (2000) by increasing his prison term based on the quantity of drugs he allegedly shipped and his alleged possession of a handgun. He argued that the enhancements increased his sentence beyond the otherwise applicable maximum under the guidelines. The Second Circuit found no Apprendi error. The lowest statutory maximum for defendant’s conviction was 20 years imprisonment, precisely the term he received post-enhancement. The panel rejected defendant’s claim that the “maximum” sentence otherwise applicable would be the top end of the guidelines range, absent the enhancements. The hypothetical maximum urged by defendant was not the statutory maximum. U.S. v. Breen, 243 F.3d 591 (2d Cir. 2001).
2nd Circuit says Apprendi does not require higher standard of proof for relevant conduct. (242) Defendant argued that the guideline provisions that allow courts to base sentences on relevant conduct violate Apprendi v. New Jersey, 530 U.S. 466 (2000) because that they allow sentencing factors to become “a tail which wags the dog of the substantive offense.” He contended that almost all of the cocaine base considered as relevant conduct was attributable to conduct occurring before the charged conspiracy, and that this violated Apprendi because the court used facts not before the jury to impose a sentence far higher than would have been warranted if only the amounts involved in the charged offenses had been considered. He further contended that even if Apprendi does not require that these facts be tried to a jury, it mandates that the court determine them by a higher standard of proof than a preponderance of the evidence. The Second Circuit refused to read Apprendi so broadly. Defendant’s interpretation of Apprendi would eviscerate the guidelines, despite the court’s explicit statement that the “Guidelines are, of course, not before the Court. We therefore express no view on the subject beyond what this Court has already held [in previous cases.]” There was no error in the court’s use of relevant conduct for sentencing purposes. U.S. v. White, 240 F.3d 127 (2d Cir. 2001).
2nd Circuit finds no Apprendi violation where defendants stipulated to drug quantity. (242) The Second Circuit found it unnecessary to determine whether Apprendi v. New Jersey, 530 U.S. 466 (2000) requires drug quantity to be found by a jury in order to sentence a defendant under any provision other than § 841(b)(1). At trial, the parties entered stipulations regarding the type and quantity of drugs involved in the three charged transactions. One transaction involved well over the five-gram minimum required for sentencing under § 841(b)(1)(B). Because defendant entered into this stipulation, and did not object to the failure of the court to include drug quantity as an element of the offense in its charge to the jury, any error was harmless. U.S. v. White, 240 F.3d 127 (2d Cir. 2001).
2nd Circuit rejects constitutional challenge to crack penalties. (242) Defendant claimed that the disparity in sentence for cocaine and crack is unconstitutional. The Second Circuit noted that it has previously rejected this argument. See U.S. v. Canales, 91 F.3d 363 (2d Cir. 1996). Defendant alternatively urged application of the rule of lenity because the distinction between crack and cocaine is inherently ambiguous. The Second Circuit also rejected this argument, noting that the record provided the district court with ample evidence that defendant prepared and distributed crack. Thus, “[n]o ambiguity arose from the manner in which the statute was narrowly applied to” defendant. U.S. v. Stephenson, 183 F.3d 110 (2d Cir. 1999).
2nd Circuit refuses to apply intermediate level of scrutiny to crack penalties. (242) Defendant raised an equal protection challenge to the sentencing provisions for crack cocaine based on their disproportionate effect on racial minorities. Previous court decisions have refused to apply the strict scrutiny test to the challenged provisions and have rejected challenges under the rational basis test. Presenting a new argument, defendant contended that because the provisions’ impact on minorities presented “recurring constitutional difficulties” and because of recent policy positions of the Sentencing Commission and the Attorney General to eliminate or reduce the sentencing disparity, the sentencing provisions should be examined under the intermediate level of scrutiny used in Plyler v. Doe, 457 U.S. 202 (1982). The Second Circuit refused to apply this intermediate level of scrutiny, which is applicable where the challenged law employs some sort of “quasi-suspect classification” or affects an important, though not constitutional, right. The challenged sentencing classifications distinguish between dealing in crack cocaine and dealing in powder cocaine. These are not quasi-suspect classifications. The present policy positions of the Sentencing Commission and the Attorney General, although politically significant, do not, in and of themselves, render the classifications quasi-suspect. U.S. v. Coleman, 166 F.3d 428 (2d Cir. 1999).
2nd Circuit rejects Fifth Amendment challenge to safety valve’s disclosure requirement. (242) Defendant provided information about relevant conduct to the government under a proffer agreement that barred the government from using the information. The district court ruled that to satisfy the information requirements of the safety valve provision, defendant would have to waive the non-disclosure provision of the proffer agreement. Defendant agreed and the court included in defendant’s sentencing calculation 350 grams of cocaine base that he disclosed in the proffer interview. The Second Circuit held that the safety valve’s requirement to admit relevant conduct in order to gain a reduction does not violate the Fifth Amendment. The choice presented to a defendant under § 5C1.2 between a sentence reduction with relief from the mandatory minimum sentence and waiver of Fifth Amendment privileges is analogous to the choice confronting defendants in plea bargain cases. The choice is not likely to prevent a defendant from making a free and rational choice. Moreover, like plea bargains, the purpose of conditioning the safety valve benefit on truthful disclosure of relevant conduct is not to force defendants to waive Fifth Amendment privileges, but to further legitimate government goals. U.S. v. Cruz, 156 F.3d 366 (2d Cir. 1998).
2nd Circuit refuses to apply rule of lenity where substance seized was undeniably crack cocaine. (242) Defendants were sentenced under 21 U.S.C. § 841(b)(1)(A)(iii), which imposes severe penalties for possession of “cocaine base,” rather than the more lenient provisions in § 841(b)(1)(ii)(II), which applies to “cocaine, its salts, optical and geometric isomers, and salts of isomers.” They argued that U.S. v. Jackson, 968 F.2d 158 (2d Cir. 1992) created a statutory ambiguity by adopting an all-inclusive, scientific definition of cocaine base that includes not only crack, but all other non-salt forms of cocaine. They asserted by in defining cocaine to include all non-salt forms of cocaine, the court selected a definition of cocaine base that applies equally to cocaine in the lower penalty provision. The Second Circuit refused to apply the rule of lenity since it was undisputed that the substance seized here was crack cocaine, and that Congress intended for the higher penalties to apply to crack cocaine. Regardless of whether defendants were correct concerning the ambiguity, there was no doubt about which penalty Congress intended to apply to their conduct. Because the statute was not unclear applied to defendants, they could not claim the benefit of the rule of lenity. U.S. v. Fields, 113 F.3d 313 (2d Cir. 1997).
2nd Circuit finds no discriminatory intent in Congress’s refusal to eliminate crack disparity. (242) The guidelines treat a quantity of crack cocaine as equal to one hundred times as much powder cocaine for sentencing purposes. Defendant argued that the disparity violates equal protection because it lacks a rational basis and Congress’s recent re-affirmance showed an intent to discriminate against blacks. The Second Circuit held that the disparity had a rational basis and found no evidence of a discriminatory intent by Congress. The greater accessibility and addictiveness of crack is a rational basis for the disparity. Although the Sentencing Commission proposed eliminating the disparity, Congress rejected that proposal and directed the Commission to recommend further amendments imposing higher sentences for trafficking in crack cocaine. Congress did not reaffirm the sentencing disparity with the intent to discriminate against blacks. It simply decided that the 1:1 ratio proposed by the Sentencing Commission was inadequate and directed the Commission to revise the proposal. U.S. v. Teague, 93 F.3d 81 (2d Cir. 1996).
2nd Circuit rejects application of rule of lenity to crack cocaine case. (242) Defendant was sentenced for conspiring to distribute crack cocaine. He argued that the guidelines’ use of the term “crack” was ambiguous, and therefore under the rule of lenity he should have been sentenced under the more less harsh penalties for powder cocaine. The Second Circuit rejected the application of the rule of lenity to crack cocaine cases, even if there was no scientific difference between crack and other forms of cocaine base. Statutory terms are to be given their common and ordinary meaning. The term “crack” is not ambiguous because it has a common and ordinary meaning that is understood by those in the drug trade and citizens in communities plagued by the drug. The guidelines’ definition adequately describes crack by its tell-tale appearance and by the common method for its manufacture. The point of the rule of lenity is for statutes to serve as fair warning in language that the common world will understand. A more technical definition would not necessarily provide a fairer warning. U.S. v. Canales, 91 F.3d 363 (2d Cir. 1996).
2nd Circuit rejects ambiguity challenge to crack/powder cocaine distinction. (242) Defendant argued that the distinction between crack and powder cocaine was ambiguous and permitted arbitrary sentencing. The Second Circuit rejected this claim. There was no significant dispute that the substance introduced against defendant was crack; therefore his sentence was calculated properly. Under the 1991 guidelines in effect at the time of defendant’s offense, the term “cocaine” plainly referred to any form of cocaine other than cocaine base. The Drug Equivalency Tables gave one equivalency figure for “Cocaine” and another for the substance they designated as “Cocaine Base (‘Crack’).” The guidelines provided for a range of more than 21 years. Thus, any question as to the clarity of the statutory provision calling for a ten year minimum sentence was immaterial. U.S. v. Montoya, 87 F.3d 621 (2d Cir. 1996).
2nd Circuit refuses to reconsider 100:1 crack to powder cocaine ratio in light of proposed amendment. (242) Defendant challenged the constitutionality of the 100:1 crack to powder cocaine ratio. He also urged the court to remand for reconsideration in light of a proposed guideline amendment abandoning the 100:1 ratio. The Second Circuit affirmed the constitutionality of the ratio based on its recent decision in U.S. v. Then, 56 F.3d 464 (2d Cir. 1995). It added that appellate courts should not review sentences in light of proposed changes to the guidelines. [Ed. Note: the proposed amendment was rejected by Congress.] U.S. v. Jimenez, 68 F.3d 49 (2d Cir. 1995).
2nd Circuit rejects constitutional challenge to harsher crack penalties. (242) The Second Circuit held that the guidelines’ treatment of one unit of crack cocaine as equal to 100 units of powder cocaine did not constitute cruel and unusual punishment. A recent opinion rejected an Eighth Amendment challenge to the 100 to 1 ratio in 21 U.S.C. § 841(b)(1). That rationale required rejection of this challenge. U.S. v. Payne, 63 F.3d 1200 (2d Cir. 1995).
2nd Circuit upholds harsher penalties for crack cocaine. (242) The Second Circuit, without an extended discussion, rejected defendant’s claim that the harsher penalties for crack cocaine violated equal protection. The court declined the suggestion in Judge Calabresi’s concurrence to notify Congress that if it did not adopt the Sentencing Commission’s recommendation to equalize sentences for crack and powder cocaine, the court might invalidate the sentencing ratio in the future. It is not proper for courts to suggest to Congress that it ought to adopt proposed legislation. U.S. v. Then, 56 F.3d 464 (2d Cir. 1995).
2nd Circuit rejects “compelling” argument that Congress had discriminatory purpose in enacting crack penalties. (242) Defendant challenged the 100 to 1 sentencing ratio of powder cocaine to crack cocaine, contending that the ratio should be subjected to strict scrutiny because Congress acted with a racially discriminatory purpose. The Second Circuit found defendant’s argument “compelling,” but nonetheless rejected it. The legislative history cited by defendant was “discomfiting,” however, it merely showed a “racial consciousness.” Congress’s haste in passing the legislation without meaningful debate went to the issue of arbitrariness and rationality, rather than purposeful discrimination. Moreover, Congress offered a racially neutral reason for enacting the legislation without much debate—the burgeoning crack epidemic was a serious problem that had to be addressed quickly. Finally, it was irrelevant whether the medical establishment later discredited the greater addictiveness of crack cocaine. This did not shed light on Congress’s intent at the time it passed the legislation. U.S. v. Moore, 54 F.3d 92 (2d Cir. 1995).
2nd Circuit rejects equal protection challenge to 100:1 powder to crack cocaine ratio. (242) Defendant argued that the 100:1 ratio of powder to crack cocaine in the guidelines violated equal protection since African-Americans constitute a higher proportion of crack offenders than powder cocaine offenders. The 2nd Circuit upheld the ratio because it had a rational basis. Crack is more accessible and more addictive than powder cocaine. The ratio was not subjected to heightened scrutiny since there was no suggestion that Congress or the Sentencing Commission acted with discriminatory intent. U.S. v. Stevens, 19 F.3d 93 (2nd Cir. 1994).
2nd Circuit upholds application of harsher penalties for cocaine base even though it served as precursor for cocaine hydrochloride. (242) Defendant attempted to pick up 12 flowerpots containing 2.9 kilograms of cocaine base dissolved into the plastic. The 2nd Circuit affirmed the application of the higher penalties for cocaine base offenses, even though the government conceded that the cocaine base here was not crack, but was a precursor to cocaine hydrochloride and was likely to be converted into cocaine hydrochloride before being sold. Congress’s decision to enhance the penalties for those who deal in any form of cocaine base, regardless of its ultimate use, was rational. By transporting cocaine in the form of a base, defendant bore the risk that he would be punished under a scheme designed to punish cocaine in its more potent form. The fact that the 9th Circuit has defined cocaine base as only crack, while the 2nd Circuit has defined it more broadly, did not violate defendant’s equal protection rights. A disagreement between circuits as to the meaning of a statute does not deny equal protection. U.S. v. Palacio, 4 F.3d 150 (2nd Cir. 1993).
2nd Circuit upholds ratio equating one marijuana plant to one kilogram of marijuana. (242) Relying on U.S. v. Murphy, 979 F.2d 287 (2nd Cir. 1992), the 2nd Circuit affirmed that equating 100 marijuana plants with 100 kilograms of harvested marijuana was constitutional. Congress had a rational basis for its choice of penalties; it could have reasonably concluded that individuals who grow 100 or more plants were as culpable as individuals found guilty of offenses involving 100 or more kilograms of marijuana. U.S. v. Proyect, 989 F.2d 84 (2nd Cir. 1993).
2nd Circuit upholds treating one marijuana plant as equivalent to 1000 grams. (242) Under 21 U.S.C §841(b)(1)(B)(vii) and guideline section 2D1.1(c), for offenses involving more than 100 marijuana plants, one plant is treated as equivalent to 1000 grams of marijuana. For offenses involving a lesser number of plants, one plant is treated as equivalent to 100 grams of marijuana. The district court held that both the statute and the guideline were unconstitutional because there was no rational basis for equating one unharvested marijuana plant with one kilogram of dried marijuana. The 2nd Circuit reversed, agreeing with U.S. v. Osburn, 955 F.2d 1500 (11th Cir. 1992), that there was a rational basis for penalizing large scale growers more harshly than small time offenders. The 60-month mandatory minimum sentence in section 841(b)(1)(B)(vii) was rationally related to Congress’s objective of imposing severe punishment on large scale drug offenders. U.S. v. Murphy, 979 F.2d 287 (2nd Cir. 1992).
2nd Circuit holds court must sentence for “cocaine base” even though substance was not “crack.” (242) In U.S. v. Jackson, 768 F.Supp. 97 (S.D.N.Y. 1991), the district court held that the enhanced penalty provisions for crack cocaine in 21 U.S.C. section 841(b) and guideline section 2D1.1 were void for vagueness both on their face and as applied because they did not define the term “cocaine base.” The court was influenced by the fact that the chemist who identified the substance as “cocaine base” also stated that the substance was not pure enough to be used as “crack.” The 2nd Circuit reversed, noting that the provisions did not implicate First Amendment freedoms, and therefore they were not void on their face. With respect to defendant, the court found that “cocaine base” that is not pure enough to be used as “crack” still falls within the meaning of “cocaine base.” Expert testimony established that there is an undisputed definition of “cocaine base,” and that the substance in question met that definition. Although the substance was not crack, the court declined to equate cocaine base with crack. U.S. v. Jackson, 968 F.2d 158 (2nd Cir. 1992).
2nd Circuit bases offense level on heroin despite defendant’s claim that he thought it was cocaine. (242) Defendant swallowed 43 balloons of heroin. He contended that he believed that the balloons contained cocaine, and therefore it was error to sentence him on the basis of heroin. The 2nd Circuit ruled that the district court correctly relied on the offense of conviction, importation of heroin. The mens rea requirement for possession of a controlled substance satisfied due process concerns. Congress, for purposes of deterrence, intended that narcotics violators run the risk of sentencing enhancements when they know they possess controlled substances. U.S. v. Obi, 947 F.2d 1031 (2nd Cir. 1991).
3rd Circuit finds no Apprendi error because actual sentence was below original maximum. (242) Defendant’s case raised two issues under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). First, whether Apprendi applies to cases in which the trial judge decide a fact that increases a defendant’s sentence under the guidelines, but the sentence imposed does not exceed the statutory maximum. Second, whether Apprendi applies to cases in which judicial fact finding increases the possible sentence to be received above the statutory maximum, but the actual sentence is below the statutory maximum. The Third Circuit answered both question negatively. Apprendi did not apply to the increase in defendant’s sentence under the Sentencing Guidelines. The district court’s drug quantity finding increased defendant’s sentence under the guidelines, but his sentence did not exceed the 20-year statutory maximum. “Because the application of the Sentencing Guidelines in this case does not implicate a fact that would increase the penalty of a crime beyond the statutory maximum, the teachings of [Apprendi] were not relevant here.” U.S. v. Cepero, 224 F.3d 256 (3d Cir. 2000). The panel also ruled that the fact that the district court’s findings increased the possible statutory maximum under 21 U.S.C. § 841(b)(1) did not violate Apprendi because the sentence actually imposed (seven years and one month) was well under the original statutory maximum of 20 years. Also, based on the amount of drugs the court attributed to defendant, it would not be possible under the guidelines for the court to sentence defendant to a sentence exceeding the 20-year maximum. U.S. v. Williams, 235 F.3d 858 (3d Cir. 2000).
3rd Circuit reverses downward departure based on crack penalty’s disparate impact on African-Americans. (242) Defendant was a heavy crack cocaine trafficker. The district court departed downward under § 5K2.0, concluding that the Sentencing Commission did not adequately consider the disparate impact that its policies would have on African-American males when it developed the guidelines ranges for crack. The court also found that the Drug Equivalency Table which converts one gram of cocaine base to 20 kilograms of marijuana was arbitrary and capricious and the result of “improper agency action.” The Third Circuit reversed, holding that no “improper” agency action was involved in the Sentencing Commission’s establishment of the Equivalency Tables, at least insofar as the 100:1 ratio between crack cocaine and cocaine powder. The statute, 21 U.S.C. § 841(b)(1), established the 100:1 ratio of cocaine powder to crack cocaine. The ratio’s disparate impact on African-Americans was not a proper ground for a downward departure. Every appellate court to consider the issue has rejected the claim. The proposed mitigating circumstance rests on membership in a class rather than on a factor personal to defendant or his offense. Defendant did not establish facts or circumstances peculiar to himself or his offense that justified a downward departure. U.S. v. Alton, 60 F.3d 1065 (3d Cir. 1995).
3rd Circuit rejects vagueness, equal protection and 8th amendment challenges to cocaine base penalties. (242) Defendants challenged the harsher penalties for cocaine base than for cocaine on the grounds that (a) the term “cocaine base” is void for vagueness, (b) the penalty scheme violates equal protection because cocaine base offenders are predominantly black while cocaine offenders are predominantly white, and (c) the scheme violates the 8th amendment because the difference in penalties in disproportionate to the relative gravity of the offenses. The 3rd Circuit rejected all three constitutional challenges. In U.S. v. Jones, 979 F.2d 317 (3rd Cir. 1992), the 3rd Circuit held that the definition of cocaine base was not vague. Even if the claimed racial disparities exist, they do not violate equal protection because the scheme was not motivated by any discriminatory intent or racial animus. There is a rational basis for the distinction. U.S. v. Frazier, 981 F.2d 92 (3rd Cir. 1992).
3rd Circuit upholds harsher penalties for cocaine base than for cocaine. (242) The 3rd Circuit rejected the argument that because the guidelines do not define “cocaine base,” higher penalties for cocaine base than for cocaine are unconstitutional. Cocaine salt and cocaine base or crack are different substances with a different molecular structure and definition in organic chemistry. Simply because Congress has not provided a definition for the term cocaine base does not mean it has failed to establish minimal guidelines to govern law enforcement. There is a rational basis for distinguishing between cocaine base and cocaine salt. Cocaine base is far more addictive than cocaine in its salt form, and is more accessible due to its relatively low cost. Finally, defendant had no basis for arguing that the guidelines were vague as to him, since he never suggested that he misunderstood the difference between crack and cocaine. U.S. v. Jones, 979 F.2d 317 (3rd Cir. 1992), superseded by statue on other grounds as stated in U.S. v. Roberson, 194 F.3d 408 (3d Cir. 1999).
4th Circuit affirms drug quantity despite Apprendi error where evidence was strong. (242) Defendant pled guilty to drug charges, and was sentenced to life imprisonment. While the case was pending on appeal, the appellate court learned of impropriety by one of the investigators, and remanded. On remand, the court declined to hold a resentencing. Defendant appealed, but the conviction and life sentence were upheld. Defendant then filed a 28 U.S.C. § 2255 motion which the district court denied. Defendant appealed, arguing in part that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because the indictment did not allege a specific drug quantity. The Fourth Circuit rejected his claim. Defendant waited until the remand from this court to raise the issue, well after judgment issued. Accordingly, any Apprendi claim would be reviewed for plain error. Apprendi errors under § 841(b) should not be recognized on plain error review when the evidence as to drug quantity was “overwhelming” and “essentially uncontroverted.” U.S. v. Cotton, 535 U.S. 625 (2002). That was the case here. U.S. v. Dyess, 730 F.3d 354 (4th Cir. 2013).
4th Circuit reaffirms that 100-1 crack-to-powder-cocaine ratio did not violate equal protection or due process. (242) Defendant pled guilty to possession of crack with intent to distribute. Under the version of 21 U.S.C. § 841 in effect when he was sentenced, one unit of cocaine base was equated with 100 units of cocaine powder. He argued that the 100-1 sentencing ratio violated equal protection because the harsher crack penalties disproportionately impacted African Americans. The Fourth Circuit held that the disparities between crack and cocaine sentences contained in § 841 did not violate equal protection or due process. Previous cases have consistently upheld the constitutionality of the sentencing disparity between cocaine base and cocaine powder based on an equal protection challenge. Defendant did not identify any subsequent controlling precedent compelling a different conclusion. U.S. v. Bullard, 645 F.3d 237 (4th Cir. 2011).
4th Circuit finds no Apprendi violation where defendant pled to count alleging 1,000 kilos of marijuana. (242) Defendant was charged with conspiracy to distribute in excess of 1,000 kilograms of marijuana in violation of 21 U.S.C. § 841(b)(1)(A). He pled guilty to being involved in a conspiracy “as alleged in count 1,” and acknowledged that he was “in fact” guilty of counts 1 and 3. The district court sentenced him to the enhanced sentence for marijuana in excess of 1,000 kilograms. On appeal, the Fourth Circuit held that the plea established the quantity sufficiently to comply with Apprendi v. New Jersey, 530 U.S. 466 (2000). Moreover defendant acknowledged during the plea colloquy that the maximum sentence for count 1 was life, which is the maximum sentence for a drug offense involving at least 1,000 kilograms of marijuana. U.S. v. Scheetz, 293 F.3d 175 (4th Cir. 2002).
4th Circuit says alleged Apprendi error did not affect substantial rights. (242) Defendants challenged their drug sentences under Apprendi v. New Jersey, 530 U.S. 466 (2000), maintaining they were improperly denied the right to have the jury find drug quantities and other sentencing-enhancing facts. The government conceded, based on the now-vacated decision in U.S. v. Angle, 230 F.3d 113 (4th Cir. 2000), vacated and rehearing en banc granted, January 17, 2001, that there was plain error as to those defendant whose sentences were enhanced beyond 240 months based on the quantity of drugs involved. However, it argued that because the error was not preserved, under plain-error principles, these defendants were required to established that the error affected their substantial rights. The Fourth Circuit agreed that defendant could not meet this burden, since the overwhelming and uncontroverted evidence demonstrated amounts hundreds of times more than the amounts charged. Thus, the jury verdict would have been the same even if the jury been asked specifically to find whether the conspiracy involved more than five kilograms of cocaine or 50 grams of crack. U.S. v. Strickland, 245 F.3d 368 (4th Cir. 2001).
4th Circuit holds that indictment charging “detectable amount” of marijuana was adequate. (242) Defendant contended that his indictment charging him with a “detectable amount” of heroin was fatal because it failed to charge him with the offense for which he was sentenced – the distribution of 1-3 kilograms of heroin. The Fourth Circuit ruled that the indictment was adequate because the amount charged in the indictment, “a detectable amount” of heroin, fulfilled the language of 21 U.S.C. § 841. Defendant’s challenge could not relate to the indictment or jury finding of guilt on that indictment, but to sentencing, in which the district court found that defendant was involved in the distribution of 1-3 kilograms of heroin. However, U.S. v. Kinter, 235 F.3d 192 (4th Cir. 2000) instructs that factual determinations that increase a defendant’s sentence under the sentencing guidelines do not implicate Apprendi v. New Jersey, 530 U.S. 466 (2000) and may be made by the sentencing judge as long as the sentence imposed is less than the statutory maximum for the offense of conviction. The maximum sentence for distributing an unspecified, detectable amount of heroin is 20 years. Defendant’s sentence was only 200 months. U.S. v. Obi, 239 F.3d 662 (4th Cir. 2001).
4th Circuit holds that Apprendi error did not affect defendant’s substantial rights. (242) For the first time on appeal, defendant contended that his 360-month sentence was invalid under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) because it exceeded the maximum statutory penalty authorized by the jury verdict. Assuming that the sentence was in error and the error was plain, the Fourth Circuit still affirmed the sentence because defendant did not show that the error affected his substantial rights. To affect substantial rights, defendant had to demonstrate that the error was prejudicial, i.e. that it “actually affected the outcome of the proceedings.” Defendant was convicted of two drug counts. Guideline § 5G1.2(d) states that in the case of multiple counts of conviction, if the total punishment mandated by the guidelines exceeds the highest statutory maximum, the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment. Even if the maximum penalty for each of his offenses was 240 months, the district court would still have been obligated to calculate a guideline sentence by making a drug quantity finding. Given its finding that defendant’s total punishment under the guidelines should be 360 months, the court would have been obligated to reach that total sentence by imposing a term of 240 months or less on each count, and ordering those terms to be served consecutively to achieve the total punishment mandated by the guidelines. U.S. v. White, 238 F.3d 537 (4th Cir. 2001).
4th Circuit holds that sentences within statutory maximum did not violate Apprendi. (242) Defendants challenged their sentences under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt). The Fourth Circuit found no Apprendi issue as to the first defendant’s Continuing Criminal Enterprise conviction, in violation of 21 U.S.C. § 848, or as to his conviction for possessing with intent to distribute more than 50 grams of crack, in violation of 21 U.S.C. § 841(b)(1)(A)(iii). Both statutes provide for a maximum term of life imprisonment. A second defendant’s 235-month sentence for a drug conspiracy conviction also did not violate Apprendi. Where, as here, a general verdict of guilt is returned on a count charging a conspiracy to distribute multiple kinds of drugs, the sentence imposed may not exceed the statutory maximum for the least-punished object of the conspiracy on which the verdict could have been based. Here, the least punished object on which the conspiracy conviction could have been based was distribution of heroin, in violation of § 841(a)(1) and § 841(b)(1)(C). The maximum sentence was 240 months, and thus, defendant’s 235-month was within this statutory maximum. U.S. v. Richardson, 195 F.3d 192 (4th Cir. 1999).
4th Circuit rejects equal protection challenge to cocaine base penalties. (242) Defendant argued that the cocaine base penalty in 21 U.S.C. § 841(b) violates equal protection because whites are more frequently convicted of offenses involving cocaine powder, while blacks are more frequently convicted of offenses involving cocaine base. He pointed to a 1995 Sentencing Commission report showing that over 80 percent of those convicted for cocaine base trafficking or possession are black. The Fourth Circuit rejected the equal protection challenge. The fact that the statute does not have a uniform racial impact is not enough to establish an equal protection violation. Section 841(b) is facially neutral, is not being applied in a discriminatory manner, and there is no evidence that a discriminatory purposes motivated Congress to pass the statute. U.S. v. Perkins, 108 F.3d 512 (4th Cir. 1997).
4th Circuit rejects equal protection challenge to 100:1 sentencing ratio for crack and powder cocaine. (242) Defendant argued that the 100:1 sentencing ratio for crack and powder cocaine violated equal protection because Caucasians are more frequently convicted of offenses involving cocaine powder, while “persons of color” are more frequently convicted of offenses involving cocaine base. He requested the court to reconsider prior cases rejecting this argument based on the Sentencing Commission’s recent attempt to amend the guidelines to eliminate the sentencing disparity. The Fourth Circuit rejected the equal protection claim. Congress has specifically rejected the Sentencing Commissions’ proposed amendment eliminating the ratio. Congress could rationally conclude that distribution of cocaine base is a greater menace to society than cocaine powder because it is less expensive, more accessible, and more addictive than cocaine powder and is targeted toward youth. U.S. v. Burgos, 94 F.3d 849 (4th Cir. 1996) (en banc).
4th Circuit reaffirms constitutionality of sentencing disparity between crack and powder cocaine. (242) Defendants argued that Congress’s decision to punish crack cocaine more severely than powder cocaine lacked a rational basis. The Fourth Circuit held that crack’s lower price, greater accessibility, greater addictiveness and targeting of youth provided a rational basis for the disparity. The Sentencing Commission’s recent conclusion that the disparity was not rational did not change the court’s holding. Moreover, Congress recently rejected the Commission’s recommended changes. U.S. v. Hayden, 85 F.3d 153 (4th Cir. 1996).
4th Circuit upholds harsher penalties for cocaine base. (242) Defendant argued that the 100 to 1 sentencing ratio of cocaine base to cocaine powder violated equal protection and constituted racial genocide, and that the term “cocaine base” was unconstitutionally vague. The 4th Circuit rejected all of these claims. The first and third claims were foreclosed by circuit precedent. The second was rejected because defendant presented no credible evidence that either Congress or the Sentencing Commission established the sentencing ratio with the specific intent of “destroying” African-Americans, or any other racial or ethnic group. U.S. v. Wallace, 22 F.3d 84 (4th Cir. 1994).
4th Circuit rejects constitutional challenges to harsher penalties for crack than for powder cocaine. (242) The 4th Circuit, relying on recent caselaw, summarily rejected defendants’ claim that the harsher penalties for crack than for powder cocaine violated due process. U.S. v. Penn, 17 F.3d 70 (4th Cir. 1994).
4th Circuit finds life imprisonment for crack cocaine was not cruel and unusual. (242) Defendant argued that his sentence of life without parole was disproportionate to his crack cocaine offense, and constituted cruel and unusual punishment. The 4th Circuit upheld the constitutionality of the life sentence. The gravity of defendant’s offense was great — drug use has become a pervasive, destructive force in American society. Given the substantial quantity of drugs involved, life without parole was not disproportionate to the crime. The Supreme Court, in Harmelin v. Michigan, 115 L.Ed.2d 836 (1991), implicitly rejected defendant’s claim that life without parole is cruel and unusual punishment. U.S. v. D’Anjou, 16 F.3d 604 (4th Cir. 1994).
4th Circuit rejects equal protection challenge to harsher penalties for crack cocaine. (242) Under § 2D1.1(c), one unit of crack cocaine is equivalent to 100 units of powder cocaine for sentencing purposes. Because crack convictions are overwhelmingly obtained against African-Americans, defendant argued that the scheme violated the equal protection clause of the 5th Amendment. The 4th Circuit rejected the challenge. Although the scheme has a disproportionate impact upon blacks, this is not sufficient to violate equal protection. Defendant did not argue that Congress and the sentencing commission had a discriminatory purpose in enacting the law. Absent such a showing, the statute is examined under the rational basis test, which it satisfied. U.S. v. D’Anjou, 16 F.3d 604 (4th Cir. 1994).
4th Circuit rejects disparate impact of harsher crack penalties on blacks as grounds for downward departure. (242) The 4th Circuit rejected defendant’s claim that the disparate impact that the harsher penalties for crack has on blacks as a grounds for a downward departure. Even if the commission did not consider this disparate impact, this is not enough to justify a downward departure. Any defendant can identify something about himself that the guidelines do not address. Under defendant’s theory, every black person whose relevant conduct involved crack cocaine would be similarly entitled to a downward departure. U.S. v. Bynum, 3 F.3d 769 (4th Cir. 1993).
4th Circuit upholds provision equating one marijuana plant to one kilogram of marijuana. (242) Defendant argued that the requirement in section 2D1.1(c) that each marijuana plant be treated for sentencing purposes as the equivalent of one kilogram of marijuana violated due process because the average marijuana plant yields much less. The 4th Circuit, in accord with six other courts of appeals, upheld the one plant/one kilogram equivalence. In order to further the objective that growers be punished more severely than distributors, Congress could rationally create an irrebuttable presumption that each marijuana plant be treated as the equivalent of one kilograms of marijuana, even though the average plant might produce less than that amount. U.S. v. Underwood, 970 F.2d 1336 (4th Cir. 1992).
4th Circuit strikes down guideline equating one marijuana plant to 100 grams of marijuana. (242) Guideline section 2D1.1(c) provides that for offenses involving possession of fewer than 50 marijuana plants, each plant is to be treated as equivalent to 100 grams of marijuana. The 4th Circuit held that this provision is inconsistent with Congressional intent, as expressed in 21 U.S.C. section 841(b)(1)(D), to consider actual weight as the sentencing measure for offenses involving fewer than 50 plants. In 21 U.S.C. section 841, Congress directed that except in certain specific instances, the actual weight of the illegal substance is used to assess the penalty. One exception is found in section 841(b)(1)(D), which states that “in the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight . . . such person shall . . . be sentenced to a term of imprisonment of not more than five years.” Congress intended with this language to refer only to cases involving possession of 50 or more plants. For cases involving less than 50 plants, Congress intended to follow the general rule of section 841, which makes actual weight determinative for sentencing purposes. U.S. v. Hash, 956 F.2d 63 (4th Cir. 1992).
4th Circuit agrees with other circuits that “cocaine base” includes “crack” cocaine. (242) Defendants argued that they were denied due process because the term “cocaine base” as used in 21 U.S.C. § 841 does not include the substance “crack”. The 4th Circuit had “little difficulty” rejecting this argument, noting that other circuits have uniformly recognized that “cocaine base” includes “crack” cocaine. U.S. v. Pinto, 905 F.2d 47 (4th Cir. 1990).
5th Circuit rejects due process challenge to methamphetamine ratios. (242) Section 2D1.1’s Drug Equivalency Table provides that one gram of a mixture of substance containing methamphetamine is equivalent to two kilograms of marijuana, whereas one gram of actual methamphetamine is equivalent to 20 kilograms of marijuana. The Fifth Circuit rejected defendant’s argument that the 10:1 ratio was irrational and its application arbitrary, such that it violated due process. The 10:1 ratio was supported by a rational basis because the pure product is more concentrated and can be cut into larger quantities for resale. The sentencing scheme punishes more severely the sophisticated cooks who could otherwise manipulate the guidelines by producing smaller quantities of more concentrated meth. The application is not arbitrary. The choice of which multiplier to use is not determined by the language of the indictment. Even if the indictment alleges possession of a mixture or substance, the guidelines’ commentary directs the court to apply the offense level determined by the weight of the pure meth in the mixture or substance if doing so would result in a higher offense level. U.S. v. Molina, 469 F.3d 408 (5th Cir. 2006).
5th Circuit finds Apprendi error harmless where jury necessarily found over fifty grams of crack. (242) Although the instruction on the conspiracy charge did not explicitly inform the jury that they had to determine a specific amount, it did require them to find that each defendant agreed to possess “with intent to distribute cocaine base, ‘crack,’ as charged in the indictment.” The indictment stated that each defendant possessed with intent to distribute “over fifty (50) grams of cocaine base or ‘crack. ‘“ The Fifth Circuit held that because of the reference to the indictment, the jury necessarily found the defendants guilty of conspiring to possess with intent to distribute “over fifty (50) grams of cocaine base.” This satisfied the requirement of Apprendi v. New Jersey, 530 U.S. 466 (2000) for the jury to find the facts underlying the increased sentence. U.S. v. Green, 293 F.3d 886 (5th Cir. 2002).
5th Circuit rules jury verdict did not become ambiguous when court rejected one drug quantity finding. (242) Although the jury specifically attributed more than one kilogram of heroin and more than five kilograms of cocaine to each defendant, the district court explicitly refused to consider the jury’s finding on cocaine in determining defendants’ sentences. Defendants argued that the district court effectively granted a motion for judgment of acquittal with respect to the cocaine component of the conspiracy and thus rendered the jury’s verdict on the alleged multi-drug conspiracy “ambiguous.” Under this theory, the court would have been required to sentence defendants within the statutory maximum for the drug carrying the least severe penalty, in this case cocaine. The Fifth Circuit found that jury verdict was not ambiguous and did not become ambiguous when the court disregarded the jury’s finding on the quantity of cocaine attributable to the conspiracy. The jury verdict left no doubt that it found a conspiracy with respect to both cocaine and heroin. Although the court may have implicitly concluded that the jury’s findings on the amount of cocaine were not supported by the evidence, such a conclusion did not render ambiguous the jury’s findings on the amount of heroin attributable to the conspiracy. The court properly sentenced the defendants based on the jury’s finding that the conspiracy involved at least one kilogram of heroin. U.S. v. Carbajal, 290 F.3d 277 (5th Cir. 2002).
5th Circuit says Apprendi error not harmless even though court could have imposed consecutive terms. (242) Because defendant’s five-year term of supervised release represented an enhanced penalty under § 841(b)(1)(B), but a quantity of drugs was not stated in the indictment or submitted to a jury for a finding beyond a reasonable doubt, the Fifth Circuit found plain error in defendant’s sentence. In addition, defendant’s 65-month sentence was erroneous under Apprendi v. New Jersey, 530 U.S. 466 (2000), even though defendant did not raise this issue on appeal. Because the government failed to state a quantity of drugs in the indictment and prove it beyond a reasonable doubt, defendant could not be sentenced to more than 60 months on each count pursuant to 21 U.S.C. § 841(b)(1)(D). Although the government argued that the error was harmless because the district court could have imposed consecutive rather than concurrent terms, the district court found concurrent terms of 65 months incarceration for both counts appropriate punishment. Because the district court has discretion to fashion a penalty that combines terms of imprisonment with periods of supervised release, the Fifth Circuit remanded for sentencing. U.S. v. Vasquez-Zamora, 253 F.3d 211 (5th Cir. 2001).
5th Circuit holds that Apprendi error did not meet fourth prong of plain error test. (242) Defendants’ sentences were imposed in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). The error was plain, even though the district court’s procedure comported with clear, controlling precedent at the time it ruled on defendants’ objection to the drug quantity calculation. The error affected defendants’ substantial rights, because they were sentenced to serve between 20-30 years of incarceration, considerably longer than the maximum sentences available pursuant to the jury determination under the federal drug statute as interpreted by Apprendi and its progeny. However, the Fifth Circuit elected not to correct the error, because it did not “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” The amount of drugs attributed to each defendant in the PSR had ample support in the trial record. It was highly unlikely that a jury on retrial, properly instructed post-Apprendi, considering the evidence available to the government, would find drug quantities attributable to each defendant to be different from the amounts attributed to each defendant in the PSRs. U.S. v. Miranda, 248 F.3d 434 (5th Cir. 2001).
5th Circuit says that indictment’s allegation of a drug-quantity range satisfied Apprendi. (242). Defendant argued for the first time on appeal that he was sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), since the indictment did not allege, and the jury did not make a finding, as to a specific drug quantity. Both counts of defendant’s indictment listed a relevant range of “more than 100 kilograms, but less than 1000 kilograms of marijuana,” as well as a cite to § 841(b)(1(B). The Fifth Circuit held that an indictment’s allegation of a drug-quantity range, as opposed to a precise drug quantity, is sufficient to satisfy Apprendi. Although the jury charge did not list the quantity of marijuana as an element of the offense, such an omission cannot be plain error where, as here, the defendant stipulated at trial that the substance seized was 469.47 kilograms of marijuana. U.S. v. DeLeon, 247 F.3d 593 (5th Cir. 2001).
5th Circuit holds that failure to instruct jury on drug quantity was harmless error. (242) Defendant argued that his sentence must be vacated in light of Apprendi v. New Jersey, 530 U.S. 466 (2000) because the jury’s verdict could not be construed as a finding that he conspired to distribute the quantity of drugs that would support his 25-year sentence. The Fifth Circuit agreed that the court’s failure to instruct the jury on drug quantity was error. See U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000); U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended, 244 F.3d 367 (5th Cir. 2001). However, the error was harmless. The jury had with it during deliberations a copy of the indictment setting forth the specific quantities of drugs that would support the district court’s sentence. The district court explicitly instructed as part of the first conspiracy element that the jury must find that defendant agreed to commit the crime of distribution of the named drugs “as charged in the indictment.” Thus, implicit in the jury’s finding on the first element was a finding on the specific quantities charged in the indictment. There was no evidence that could rationally lead the jury to a conclusion that the quantity of drugs stated in the indictment was incorrect. U.S. v. Green, 246 F.3d 433 (5th Cir. 2001).
5th Circuit holds that failure to submit drug quantity to jury was harmless error. (242) Defendant argued that his convictions and sentences were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). Relying on its three opinions to date interpreting Apprendi, the Fifth Circuit disagreed. See U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended, 244 F.3d 367 (5th Cir. 2001); U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000); U.S. v. Keith, 230 F.3d 784 (5th Cir. 2000). First, each of the counts on which defendant was convicted contained an express allegation of the type and quantity of controlled substance involved. There was no question that the type and quantity of drug substance was sufficiently stated in the indictment. The jury’s finding that defendant was guilty of a conspiracy to distribute and possess 50 grams or more of crack cocaine necessarily included a finding as to the quantity and type of drug involved in the conspiracy. However, the other counts submitted to the jury did not state the specific quantity of cocaine base involved. This was error. However, the error was harmless because the jury had the counts of indictments in the jury room during deliberations and there was no evidence that could rationally lead the jury to a conclusion that the quantity of drugs stated in the indictment was incorrect. U.S. v. Slaughter, 238 F.3d 580 (5th Cir. 2000).
5th Circuit holds that Apprendi did not render federal drug statutes unconstitutional on their face. (242) Defendant argued that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt) rendered the federal drug statutes under which he was convicted unconstitutional on their face. The Fifth Circuit disagreed. The statutory provisions at issue in Apprendi were statutes of the State of New Jersey and nothing in the majority opinion nor even in the concurring and dissenting opinions made reference in any way to the federal drug statutes under which defendant was convicted. U.S. v. Slaughter, 238 F.3d 580 (5th Cir. 2000).
5th Circuit holds that Apprendi applies to drug quantity under § 841(b)(1). (242) In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), the Supreme Court held that any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt. The sentencing provisions in 21 U.S.C. § 841 clearly call for a factual determination regarding the quantity of the controlled substance, and that factual determination significantly increases the maximum penalty from 20 years under § 841(b)(1)(C) to life imprisonment under § 841(b)(1)(A). Therefore, the Fifth Circuit held that if the government seeks enhanced penalties based on the amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the quantity must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable doubt. Because no specified amount of drugs were charged in the indictment or submitted to the jury, the present defendants could only be sentenced using the statutory maximum in § 841(b)(1)(C) for the manufacture of any quantity of methamphetamine. Since the first defendant’s 235-month sentence fell short of this 20-year maximum, his claim failed. Apprendi does not prohibit the trial court from determining the amount of drugs for relevant conduct purposes under the Sentencing Guidelines. Because of a prior felony conviction, the second defendant’s statutory maximum under § 841(b)(1)(C) was 30 years. Since his two concurrent life sentences exceeded this limit, the panel remanded. U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000).
5th Circuit declines to correct possible Apprendi error where unchallenged concurrent sentence was longer. (242) Defendant argued that his ten-year sentence for marijuana possession violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). However, he did not challenge his concurrent 324-month sentence for conspiracy to possess crack cocaine. To show plain error, defendant had to show that the marijuana sentence affected his “substantial rights.” In light of his lengthier concurrent conspiracy sentence, the Fifth Circuit found that any Apprendi error did not affect defendant’s substantial rights. Moreover, even if defendant’s substantial rights were violated, an appellate court will correct plain error only if the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” That was not the case here, since defendant could show no meaningful benefit he would receive from vacating his sentence. However, the panel vacated a second defendant’s concurrent terms of life imprisonment because these sentences were longer than his unchallenged concurrent sentence of 360 months for a different count. U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended, 244 F.3d 367 (5th Cir. 2001).
5th Circuit says Apprendi does not apply where drug quantity increases sentence within statutory range. (242) In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Fifth Circuit ruled that defendant’s 168-month sentence for possession of crack cocaine did not violate Apprendi. The jury found beyond a reasonable doubt that defendant possessed crack cocaine in violation of 21 U.S.C. § 841(a)(1). The minimum statutory range for this offense was zero to 20 years. Since his 168-month sentence was within this range, defendant’s sentence was not enhanced beyond the statutory range based on a fact not contained in the indictment or presented to the jury. Apprendi does not apply to an enhancement that increases a sentence within the statutory range. “[T]he more limited reading of Apprendi is a more plausible reading of the case, and given the profound effect a broader rule would have on existing Supreme Court and Fifth Circuit precedent, we believe the limited reading of Apprendi is the more desirable one.” U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended, 244 F.3d 367 (5th Cir. 2001).
5th Circuit assumes, based on government concession, that Apprendi applies to § 841. (242) Defendants appealed their convictions and sentences for a variety of drug charges under 21 U.S.C. § 841. After briefing was complete, the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Fifth Circuit noted that this broad rule of constitutional law “calls into question our prior rule that drug amount is not an element of a § 841 case.” However, the panel found it unnecessary to reconcile “this apparent conflict” because the government conceded that Apprendi applied to 21 U.S.C. § 841. Thus, the panel would only address whether Apprendi mandated correction of defendants’ sentences. U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended, 244 F.3d 367 (5th Cir. 2001).
5th Circuit holds that failure to consider Jones-based claim that drug quantity is element of offense was not plain error. (242) Prior to 1999, courts routinely held that drug quantity is a sentencing factor rather than an element of the offense. In Jones v. United States, 526 U.S. 227 (1999), the Supreme Court held that constitutional doubt about certain provisions of the federal car-jacking statute, 18 U.S.C. § 2119, required that it be construed as creating three separate offenses rather than one offense with three separate punishments. Relying on Jones, defendant argued for the first time on appeal that drug quantity is an essential element of his offense that should have been charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt. The Fifth Circuit held that the impact of Jones was not sufficiently clear to permit it to deviate from existing precedent characterizing drug quantity as a sentencing factor. The court rejected the government’s claim that the effect of Jones was limited to the car-jacking statute. However, even if Jones raised “grave doubts” about the constitutionality of treating drug quantity as a sentencing factor, such doubt would not support a finding of plain error. U.S. v. Rios-Quintero, 204 F.3d 214 (5th Cir. 2000).
5th Circuit bases sentence on heroin defendant actually carried rather than cocaine he thought he carried. (242) Defendant was convicted of possessing and importing a controlled substance with intent to distribute. He believed that he was carrying cocaine, when in fact he was carrying heroin. The Fifth Circuit held that it did not violate due process to base defendant’s sentence on the heroin he actually carried, even though he believed he was carrying cocaine. Defendant clearly had the mens rea required for guilt under both the possession and importation statute – he knew he possessed a “controlled substance.” Due process does not require a mens rea be imported into sentencing. Congress had a rational basis for “exposing a drug trafficker to liability for the full consequences, both expected and unexpected, of his own unlawful behavior.” The district court’s failure to depart based on defendant’s mistaken belief that he was carrying cocaine was not reviewable. There was no indication in the record that the district court erroneously believed that it lacked authority to depart. U.S. v. Valencia-Gonzales, 172 F.3d 344 (5th Cir. 1999).
5th Circuit says life sentence based on uncharged drugs did not violate due process. (242) Defendant argued that the district court violated due process by imposing a life sentence based on an offense involving 706.1 kilograms of cocaine and 328.5 kilograms of marijuana, when only about 40 kilograms of marijuana were actually seized by police. The Fifth Circuit held it did not violate due process to base defendant’s sentence on uncharged drug or unseized drug quantities. The amount seized by police or the quantity alleged in the indictment was irrelevant. Drug quantity is a sentencing factor and not an element that must be alleged in the indictment. A penalty based on conduct that is an element of the offense of conviction cannot violate a defendant’s due process rights. U.S. v. Martinez, 151 F.3d 384 (5th Cir. 1998).
5th Circuit rules challenge to crack sentence foreclosed by circuit precedent. (242) Defendants argued that the disparity between penalties for offenses involving crack cocaine and powder cocaine was unconstitutionally vague. The Fifth Circuit ruled that their challenge was foreclosed by circuit precedent, including U.S. v. Dukes, 139 F.3d 469 (5th Cir. 1998). U.S. v. Kelley, 140 F.3d 596 (5th Cir. 1998).
5th Circuit holds distinction between powder cocaine and cocaine base is not ambiguous. (242) Defendant was convicted of violating 21 U.S.C. § 841, which defines separate offenses and penalties for conduct involving cocaine and cocaine base. He argued that the distinction between powder cocaine and cocaine base was ambiguous and therefore he should have been sentenced for powder cocaine. Reaffirming U.S. v. Flanagan, 87 F.3d 121 (5th Cir. 1996), the Fifth Circuit held that the distinction between powder cocaine and cocaine base in § 841 is not ambiguous. Therefore defendant was properly sentenced. U.S. v. Dukes, 139 F.3d 469 (5th Cir. 1998).
5th Circuit holds crack penalty’s disparate impact provides no basis for downward departure. (242) Defendant claimed that the court erred in refusing to depart downward based on the different treatment relating to crack and powder cocaine offenses and the disparate impact the penalties have on minorities. The Fifth Circuit held that the disparate impact did not provide a basis for a downward departure. Although the Sentencing Commission proposed a 1:1 ratio to replace the current 100:1 sentencing ratio between crack and powder cocaine, Congress rejected the proposal. A district court may not override the express intention of Congress regarding penalties for crack and powder cocaine. The chosen penalty is a discretionary legislative judgment for Congress and the Sentencing Commission to make. This court previously determined that the harsher penalty for crack cocaine does not violate equal protection, despite the disparate impact on minorities. U.S. v. Fonts, 95 F.3d 372 (5th Cir. 1996).
5th Circuit upholds constitutionality of information requirement in “safety valve.” (242) Defendant was arrested at the airport carrying 1339.5 grams of methamphetamine. The district court denied defendant “safety valve” protection under § 5C1.2 because defendant did not identify the other participants in the methamphetamine operation. She argued that § 5C1.2(5) was unconstitutional because it would force her to subject herself and her family to violent retaliation by the people she was required to identify, and would force her to work as a government informant. The Fifth Circuit upheld the constitutionality of the information requirement in the safety valve amendment. The fact that a more lenient sentence is imposed on a defendant who gives authorities all of the information she possesses does not compel a defendant to risk her family’s lives or to work for the government. Defendant can refuse the option and receive the statutory sentence under the regular sentencing scheme. U.S. v. Stewart, 93 F.3d 189 (5th Cir. 1996).
5th Circuit upholds refusal to admit evidence on ambiguity of distinction between crack and powder cocaine. (242) Defendant insisted that he should be sentenced based on the penalties for powder, rather than crack, cocaine. By motion he urged the district court to adopt the sentencing hearing transcript from U.S. v. Davis, 864 F.Supp. 1303 (N.D. Ga. 1994), in which four experts testified that cocaine powder and cocaine base are chemically indistinguishable. The Fifth Circuit refused to address the issue, noting that it had previous rejected ambiguity challenges in several unpublished opinions. Two of the opinions were issued before January 1, 1996, and they constituted binding precedent. U.S. v. Flanagan, 87 F.3d 121 (5th Cir. 1996).
5th Circuit affirms crack/cocaine powder penalty distinction. (242) Defendants complained that the guidelines for cocaine base violated their due process, equal protection and 8th Amendment rights. They also claimed that a downward departure was warranted. The Fifth Circuit summarily disagreed, noting that it has previously rejected attacks on the crack/powder discrepancies in the sentencing guidelines. Moreover, defendants did not present a theory that would distinguish their cases from the “heartland” of crack offenses. U.S. v. Fike, 82 F.3d 1315 (5th Cir. 1996), overruled on other grounds by U.S. v. Brown, 161 F.3d 256 (5th Cir. 1998).
5th Circuit upholds different penalties for cocaine and cocaine base. (242) Defendant argued that the 100-to-1 ratio between cocaine and cocaine base was unconstitutional. The Fifth Circuit found that the argument was foreclosed by Circuit precedent. Defendant’s reliance on a proposed amendment to the guidelines was not persuasive in light of its rejection by Congress. U.S. v. Wilson, 77 F.3d 105 (5th Cir. 1996).
5th Circuit says Congressional vote to equalize crack and cocaine penalties does not invalidate harsher penalties. (242) Defendants argued that the guidelines’ harsher penalties for crack than for powder cocaine offenses violate equal protection. They pointed to a vote by the House of Representatives in March 1994 to ask the Sentencing Commission to equalize the penalties for cocaine powder and cocaine base. The Fifth Circuit upheld the harsher crack penalties. Defendants’ equal protection argument was rejected in U.S. v. Fisher, 22 F.3d 574 (5th Cir. 1994). Fisher was decided in May 1994, after the House vote. U.S. v. McKinney, 53 F.3d 664 (5th Cir. 1995).
5th Circuit upholds harsher sentencing scheme for crack cocaine. (242) Defendant argued that the penalty scheme in § 2D1.1(c)(3) equating one gram of crack cocaine to 100 grams of powder cocaine violates equal protection because it disproportionately burdens African-Americans. He also claimed that Congress enacted the scheme with the intent to discriminate on the basis of race. The Fifth Circuit upheld the sentencing scheme. Defendant’s allegations of a media frenzy over African Americans’ use of crack cocaine did not establish that the legislation had a discriminatory purpose. Therefore, the penalty scheme was subject to rational basis review. The penalty scheme is rationally related to the legitimate government purpose of protecting the public from a drug that is more powerful than powder cocaine. U.S. v. Cherry, 50 F.3d 338 (5th Cir. 1995).
5th Circuit rejects 8th Amendment challenge to harsher penalties for cocaine base. (242) The 5th Circuit rejected defendants’ claim that the harsher penalties for crack cocaine than for powder cocaine violated the 8th Amendment. The harsher penalties are not grossly disproportionate to the severity of the offense. The impact of crack cocaine is devastating. U.S. v. Fisher, 22 F.3d 574 (5th Cir. 1994).
5th Circuit upholds sentence for cocaine base despite cocaine hydrochloride charge. (242) The indictment charged defendant with distributing 1/4 ounce of cocaine hyrdrochloride. The substance was later determined to be cocaine base. The 5th Circuit found no due process violation in treating the substance as cocaine base for sentencing purposes. The government did not improperly induce defendant to plead guilty — his sentence was within the statutory range for the offense of conspiracy to distribute cocaine hydrochloride. Moreover, at no point did defendant seek to withdraw his guilty plea. Finally, defendant’s motion for a continuance, filed significantly in advance of sentencing, reflected his awareness that the government’s tests revealed that cocaine base was involved. Defendant failed to raise his argument concerning judicial estoppel below. This did not present an extraordinary case in which his waiver should be excused. U.S. v. McCaskey, 9 F.3d 368 (5th Cir. 1993).
5th Circuit affirms that wet substance which had not yet dried into crack was cocaine base. (242) Defendant contended that the substance seized from him was not cocaine base, because it was not yet hard and dry, but was soft, mushy and a bit wet. The 5th Circuit affirmed that the substance was cocaine base. A DEA chemist testified that the substance was cocaine base. Although crack cocaine is a form of cocaine base, the terms are not synonymous. Neither the statute, 21 U.S.C. section 841(b), nor the sentencing guidelines are unconstitutionally vague, even though they do not define cocaine base. U.S. v. Butler, 988 F.2d 537 (5th Cir. 1993).
5th Circuit holds that destruction of drug mixture prior to weighing did not violate due process or confrontation rights. (242) The magistrate who issued the search warrant authorized the police to destroy the chemical mixtures, except for retained samples, provided that photographs were taken of the mixtures and their containers before destruction. The order did not authorize the destruction of the containers, but the agents decided to destroy them as well because they were contaminated by the hazardous chemical mixtures. The 5th Circuit, relying on an unpublished opinion, found no violation of defendants’ due process and confrontation rights. Defendants were afforded ample opportunity to show that the government’s evidence as to drug quantity was incorrect. They were not deprived of their right to confrontation. Defendants could have but did not call the DEA chemist to testify at sentencing regarding his calculations of the volumes in the containers. U.S. v. Sherrod, 964 F.2d 1501 (5th Cir. 1992).
5th Circuit rejects equal protection challenge to crack/powder cocaine sentencing scheme. (242) The 5th Circuit rejected defendant’s claim that the heavier penalties for possession of crack than for powder cocaine violated equal protection because crack is used more by blacks and powder cocaine is used more by whites. Even if defendant could prove a disparate impact, no heightened scrutiny of the disparity would be necessary because defendant did not claim a discriminatory intent on the part of the sentencing commission. The fact that crack is more addictive, more dangerous, and can therefore be sold in smaller quantities was a reasonable basis for providing harsher penalties for its possession. U.S. v. Watson, 953 F.2d 895 (5th Cir. 1992).
5th Circuit rejects constitutional challenges to 100:1 cocaine to crack ratio in Drug Equivalency Table. (242) The 5th Circuit rejected defendant’s claim that the ratio in the Drug Equivalency Tables equating 1 kilogram of crack to 100 kilograms of cocaine violated due process and equal protection. Cocaine base is a different drug from cocaine, and it does not violate due process to treat the two substances differently. Although the ratio may have a disproportionate impact against blacks, to violate equal protection the impact must be traced to a discriminatory purpose. The government provided evidence of the intent of the Sentencing Commission when it adopted 2D1.1, and evidence of the legislative history and intent of Congress when it enacted the Drug Abuse Act of 1986. None of the evidence indicated a discriminatory intent. U.S. v. Galloway, 951 F.2d 64 (5th Cir. 1992).
5th Circuit upholds distinction between cocaine and cocaine base. (242) The federal drug laws and the sentencing guidelines make the penalty for distributing cocaine base substantially greater than the penalty for distributing powdered cocaine. Defendants contended that cocaine and cocaine base are the same, and therefore the difference in penalty is unconstitutional. They further contended that if the two drugs are different, then the failure of the laws to define the differences makes the laws unconstitutionally vague. The 5th Circuit rejected both arguments. Cocaine base is a different drug from cocaine, and “even many children on the street know the difference between powdered cocaine and crack.” Undefined words will be given their ordinary, contemporary, common meaning. U.S. v. Thomas, 932 F.2d 1085 (5th Cir. 1991).
5th Circuit rules drug guidelines do not violate equal protection. (242) The 5th Circuit held that because the drug guidelines do not invidiously discriminate only a rational relation standard of review is warranted. It found that the drug guidelines which classify by quantity are reasonably related to the legitimate government interest of more severely punishing large volume drug dealers. U.S. v. Baker, 883 F.2d 13 (5th Cir. 1989).
6th Circuit holds that drug quantity finding violated Sixth Amendment. (242) The district court based defendant’s sentence on its finding that defendant possessed 18.3 grams of crack cocaine. The Sixth Circuit held that basing the sentence on judicial fact-finding violated defendant’s Sixth Amendment rights. U.S. v. Booker, 543 U.S. 220 (2005). Defendant preserved his argument, so plain error review was not applicable. The court factual findings as to the amount of drugs, resulting in an enhancement of defendant’s sentence under the guidelines, was the textbook example of a Sixth Amendment violation under Booker. The district court also denied defendant’s request for a downward departure based on outrageous police conduct. The court clearly noted that it had discretion to depart, but refused to do so. On remand, the panel encouraged the district court to explicitly state its reasons for applying particular guidelines, and sentencing within the recommended guidelines range. Such a statement will facilitate appellate review as to whether the sentence was “reasonable.” U.S. v. Jones, 399 F.3d 640 (6th Cir. 2005).
6th Circuit says § 851 does not violate separation of powers principles. (242) Under 21 U.S.C. § 851, increases in sentences based upon prior felony drug convictions may not be imposed unless the U.S. Attorney has filed an information stating the previous convictions to be relied upon. Defendant argued that § 851 violates separation of powers principles because the decision to request an enhanced sentence lies with the U.S. Attorney, while the district court has no leeway. The Sixth Circuit disagreed, holding that § 851 is not an improper delegation of legislative authority. The Supreme Court, in rejecting an argument that prosecutorial discretion under § 851 leads to unwarranted disparity in sentencing, has analogized prosecutorial discretion under § 851 to the power of the executive to charge defendants. See U.S. v. LaBonte, 520 U.S. 751 (1997). The rationale of LaBonte leads directly to the conclusion that § 851 does not violate the principle of separation of powers. The discretion a prosecutor exercises in determining whether an enhanced statutory maximum applies under § 851 is similar to the initial discretion the prosecutor has in deciding which charges to bring against a defendant. U.S. v. Crayton, 357 F.3d 560 (6th Cir. 2004).
6th Circuit holds that § 841(b)(1)(D) carries statutory maximum for indeterminate amount of marijuana. (242) The maximum penalty under 21 U.S.C. § 841(b)(1)(D) for cases dealing with “less than 50 kilograms of marihuana” is five years. On the other hand, under 21 U.S.C. § 841(b)(4), “any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration” is subject to a maximum sentence of one year of imprisonment. Because the jury did not determine drug quantity or remuneration, defendants argued that the district court violated Apprendi v. New Jersey, 530 U.S. 466 (2000) by sentencing them under § 841(b)(1)(D) rather than § 841(b)(4). The Sixth Circuit found no Apprendi violation, ruling that § 841(b)(1)(D) carries the statutory maximum penalty for offenses involving an indeterminate amount of marijuana. Section 841(b)(4) is a mitigating exception to the previous sections of the drug trafficking statute, rather than the “first rung of the penalty ladder for the offense of distribution of marijuana.” U.S. v. Outen, 286 F.3d 622 (6th Cir. 2002). U.S. v. Campbell, 317 F.3d 597 (6th Cir. 2003).
6th Circuit holds that § 841(b)(1)(D) provides statutory maximum for marijuana offense. (242) Defendant was convicted of conspiracy to distribute marijuana. The jury made no drug quantity finding, and therefore under Apprendi v. New Jersey, 530 U.S. 466 (2000), defendant could not be sentenced for a term that exceeded the statutory maximum for a marijuana conspiracy involving an undetermined amount of the drug. Defendant argued that 21 U.S.C. § 841(b)(4), which provides for a one-year maximum for a defendant who distributes a small amount of marijuana for no remuneration, was the applicable statutory maximum. However, because Apprendi is concerned with facts that a jury must decide, the proper baseline is not the provision with the lowest penalty, but the one which states a complete crime upon the fewest facts. Section 841(b)(4) cannot be the default provision for marijuana violations where drug quantity is undetermined, because it requires proof of an additional fact – the absence of remuneration. The Sixth Circuit concluded that § 841(b)(1)(D), which carries a five-year maximum, is the statute that prescribes the maximum for possessing or conspiring to distribute an undetermined amount of marijuana. Defendant’s 60-month sentence therefore was proper. U.S. v. Bartholomew, 310 F.3d 912 (6th Cir. 2002).
6th Circuit rejects Apprendi challenge where defendant stipulated to drug quantity. (242) Defendant stipulated in the factual basis accompanying his plea that he was responsible for 1108 pounds, or about 500 kilograms, of marijuana. He argued that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000) because the district court should have made a factual finding that he was responsible for 500 kilograms of marijuana beyond a reasonable doubt. The Sixth Circuit found no Apprendi error. Defendant stipulated that he was responsible for slightly more than 500 kilograms of marijuana. He also pled guilty to a count which, due to his prior felony drug conviction, carried a mandatory minimum sentence of ten years and a maximum sentence of life imprisonment. See 21 U.S.C. § 841(b). Defendant’s sentence of 168 months was, therefore, not in excess of the statutory maximum. The Apprendi argument might have merit if the indictment had failed to charge defendant with a conspiracy to distribute a specific quantity of drugs, if he pled guilty without stipulating to a specific drug quantity, and if the district court had determined drug quantity at sentencing by a preponderance of the evidence. However, defendant stipulated to the amount of drugs for which he was held responsible, and the district court did not rely on any fact outside the plea agreement to determine the drug quantity at sentencing. U.S. v. Harper, 246 F.3d 520 (6th Cir. 2001), overruled by U.S. v. Leachman, 309 F.3d 377 (6th Cir. 2002).
6th Circuit uses higher statutory maximum where single marijuana and cocaine conspiracy charged. (242) Defendant argued that his 360-month sentence for conspiring to distribute cocaine and marijuana violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Because defendant had a prior felony drug conviction, the statutory maximum under 21 U.S.C. § 841(b)(1)(C) for an offense involving an unspecified quantity of cocaine is 30 years. However, defendant argued that because of the general jury verdict, under U.S. v. Dale, 178 F.3d 429 (6th Cir. 1999), his sentence could not exceed the five-year statutory maximum for a conspiracy involving an unspecified quantity of marijuana. See 21 U.S.C. § 841(b)(1)(D). The Sixth Circuit found Dale distinguishable because the Dale court’s “enhanced unanimity” instruction required the jury “to unanimously agree as to which controlled substance, or both,” the defendants conspired to distribute. The general guilty verdict did not disclose the specific ground for conviction, i.e., crack, marijuana or both. In contrast, the indictment here charged defendants with conspiring to distribute both marijuana and cocaine, and the jury was repeatedly and consistently instructed in accordance with this charge. Dale governs where it cannot be determined from the verdict which drug or drugs the jury found was involved in a multiple-drug conspiracy. There was no such ambiguity here. Thus, defendant was subject to the 30-year maximum for a cocaine offense, and his sentence did not violate Apprendi. U.S. v. Neuhausser, 241 F.3d 460 (6th Cir. 2001).
6th Circuit says Apprendi not applicable where drug finding did not increase sentence beyond maximum. (242) Defendant pled guilty to distributing cocaine. He received a 121-month sentence, based in part on the judge’s determination that defendant conspired to distribute methamphetamine in addition to cocaine. The Sixth Circuit noted that defendant’s sentence was invalid under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) only if the district court’s finding that defendant conspired to distribute meth resulted in him receiving a sentence in excess of the statutory maximum for conspiracy to distribute cocaine. Defendant’s sentence did not exceed this maximum. For defendant’s cocaine conspiracy alone, the statute authorized a sentence of 20 years. U.S. v. Munoz, 233 F.3d 410 (6th Cir. 2000).
6th Circuit holds that sentencing in excess of Apprendi did not constitute plain error. (242) Based on the district court’s drug quantity findings, each defendant received a sentence that exceeded the 20-year maximum in 21 U.S.C. § 841(b)(1)(C) for offenses involving an undetermined drug quantity. Since drug quantity was not mentioned in the indictment nor submitted to the jury, the sentences violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000). Defendants, however, failed to object to the district judge making the drug quantity findings, and therefore the review was for plain error. The Sixth Circuit ruled that the sentences in excess of the maximum permitted under § 841(b)(1)(C) did not constitute plain error for those defendants convicted of both conspiracy and additional substantive drug counts. In these cases, the total statutory maximum was dramatically increased depending on the number of counts of conviction. Absent the error, the court would be required to impose the same sentence on these defendants—guideline § 5G1.2(d) would require that the sentence imposed on one or more of the substantive counts run consecutive to the sentence on the conspiracy count, to the extent necessary to produce a combined sentence equal to the total punishment. However, the error was prejudicial as to defendant Page, who was convicted of only the conspiracy count and received a 30-year sentence. U.S. v. Page, 232 F.3d 536 (6th Cir. 2000).
6th Circuit holds that death or serious bodily injury is element of § 841 offense. (242) Defendant pled guilty under a plea agreement to the distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). The agreement provided that her maximum term of imprisonment was 20 years, but that if the court found that death resulted from the distribution, she would be sentenced to a term of 20 years to life. Relying on Jones v. United States, 526 U.S. 227 (1999) (holding that bodily injury is element, rather than sentencing factor, of federal carjacking statute), Castillo v. United States, 530 U.S. 120 (2000) (holding that type of firearm is an element of § 924(c) offense), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”), the Sixth Circuit held that whether the drug caused death or serious bodily injury is an element of the § 841 offense that must be proven beyond a reasonable doubt. Such a factual determination significantly impacts the sentence imposed by the court, increasing the maximum penalty from 20 years to one of life imprisonment. In her plea agreement, defendant waived her right to a jury trial on the issue of whether her distribution of heroin caused her husband’s death. However, she did not waive the right to have a court decide any elements beyond a reasonable doubt, as opposed to making those determinations by a mere preponderance of the evidence. U.S. v. Rebmann, 226 F.3d 521 (6th Cir. 2000).
6th Circuit rejects multiple constitutional challenges to mandatory life sentence. (242) Defendant was convicted of a crack cocaine conspiracy. The district court sentenced him to a mandatory term of life imprisonment under 21 U.S.C. § 841(b)(1)(A) because he was involved with 50 grams or more of crack and had two or more prior felony drug convictions. The Sixth Circuit rejected numerous constitutional challenges to the mandatory life sentence. The fact that § 841(b)(1)(A) does not distinguish between violent and non-violent offenders does not violate due process. The mandatory nature of the life sentence also does not violate due process. The sentence enhancement for previous drug convictions does not violate double jeopardy. The Supreme Court has upheld enhanced penalties for recidivists in non-capital cases. U.S. v. Pruitt, 156 F.3d 638 (6th Cir. 1998).
6th Circuit holds that recent developments did not invalidate 100:1 crack cocaine sentencing ratio. (242) Defendant was convicted of crack cocaine charges. He contended that the 100:1 sentencing ratio violated due process and equal protection. He claimed that Congress’s rejection of the Sentencing Commission proposal to eliminate the 100:1 ratio based on its racially disparate impact required the court to adopt strict scrutiny, rather than rational basis review. The Sixth Circuit found nothing in the recent developments to permit it to overrule its earlier circuit precedent rejecting due process and equal protection claims. One panel cannot overrule a prior panel’s published decision. U.S. v. Washington, 127 F.3d 510 (6th Cir. 1997).
6th Circuit upholds enhanced penalties for drug crimes within 1000 feet of school. (242) Defendant was convicted of drug charges. Because the offense took place less than 1000 feet from an elementary school, his offense level was enhanced under § 2D1.2(a)(1), and in accordance with the Schoolyard Statute, 21 U.S.C. § 860(a). Defendant argued that the enhancement was beyond Congress’s power under the Commerce Clause, relying on U.S. v. Lopez, 115 S.Ct. 1624 (1995). Lopez invalidated 18 U.S.C. 922(q), which made it a crime to possess a gun near a school. The Sixth Circuit distinguished Lopez on the ground that the gun statute invalidated in Lopez, contained no congressional findings that possession of guns near schools affected interstate commerce. However, Congress and the courts have already determined that drug trafficking affects interstate commerce. It does not cease to affect commerce when carried out within 1000 feet of a school. U.S. v. Allen, 106 F.3d 695 (6th Cir. 1997).
6th Circuit rejects equal protection challenge to harsher crack penalties. (242) Defendant argued that the provisions equating 100 grams of powder cocaine to 1 gram of crack violated equal protection. The Sixth Circuit noted that it has consistently rejected this argument. Given the problems caused by the special qualities of crack, it was not irrational for Congress to determine that substantially greater penalties for the sale and distribution of crack were necessary. U.S. v. Bingham, 81 F.3d 617 (6th Cir. 1996).
6th Circuit upholds 100:1 sentencing ratio for cocaine powder and cocaine base. (242) Defendant urged the court to reverse the law of the circuit and hold the crack cocaine sentencing ratio unconstitutionally vague. He pointed to new scientific evidence suggesting that there is no meaningful distinction between crack cocaine and powder cocaine. The Sixth Circuit found that it was bound by circuit precedent to uphold the ratio. Moreover, the guidelines are not subject to a vagueness attack. Since there is no constitutional right to sentencing guidelines, the limitations put on a judge’s discretion by the guidelines do not violate a defendant’s right to due process by reason of vagueness. Judge Jones concurred separately to air his concerns about the “acute societal impact” of the sentencing ratio. U.S. v. Smith, 73 F.3d 1414 (6th Cir. 1996).
6th Circuit reaffirms validity of marijuana plant conversion ratio. (242) Defendant argued that § 2D1.1(c) was unconstitutional. That section provides that for 50 or more marijuana plants, each plant is treated as equal to one kilogram of marijuana, but for less than 50 plants, each plant is treated as equivalent to 100 grams of marijuana. The 6th Circuit noted that this precise argument was rejected in U.S. v. Holmes, 961 F.2d 599 (6th Cir. 1992). U.S. v. Sonagere, 30 F.3d 51 (6th Cir. 1994).
6th Circuit says amount of crack is an element of the offense, not merely a sentencing factor. (242) Under 21 U.S.C. § 844(a), a person convicted of simple possession of more than five grams of crack cocaine is subject to between five and twenty years’ imprisonment. Because the maximum term exceeds one year, it is classified as a felony. Possession of not more than five grams (for a first-time offender) is punishable by a maximum of one year in prison, and is classified as a misdemeanor. The 6th Circuit held that because quantity affects whether a first offender is guilty of a felony or a misdemeanor, the amount of crack possessed is an element of the offense to be determined by the jury. If the jury had found defendant guilty of possessing crack with intent to distribute it, this would not be an issue, because the maximum term of imprisonment would have exceeded one year regardless of the quantity involved. U.S. v. Sharp, 12 F.3d 605 (6th Cir. 1993).
6th Circuit upholds different penalties for crack and powder cocaine. (242) Based on previous cases, the 6th Circuit summarily rejected defendant’s claim that treating cocaine base as equal to 100 times the same amount of cocaine powder for sentencing purposes violated due process and equal protection. U.S. v. Lloyd, 10 F.3d 1197 (6th Cir. 1993).
6th Circuit affirms sentencing distinction between cocaine and cocaine base. (242) The 6th Circuit affirmed the constitutionality of the distinction between cocaine base and cocaine. Although the vast majority of crack defendants are black, the legislative history of the laws involved does not reveal a racial bias. All circuits that have considered this argument have rejected it. U.S. v. Reece, 994 F.2d 277 (6th Cir. 1993).
6th Circuit upholds equating one marijuana plant with 1000 grams of marijuana. (242) Relying on U.S. v. Holmes, 961 F.2d 599 (6th Cir.), the 6th Circuit rejected defendant’s claim that section 2D1.1 and 21 U.S.C. section 841(b)(1)(A)(vii) violated due process by equating one marijuana plant with 1000 grams of marijuana. U.S. v. Edge, 989 F.2d 871 (6th Cir. 1993).
6th Circuit affirms rationality of guideline equivalency for hydrocodone. (242) Defendant argued that the guideline relating to the equivalency of hydrocodone as compared to other drugs was irrational, and therefore violated due process. Adopting the district court’s reasons, the 6th Circuit concluded that the decisions regarding equivalency were reached on informed bases, the reasons given were rational, and the equivalency tables were constitutional. U.S. v. August, 984 F.2d 705 (6th Cir. 1993).
6th Circuit upholds disparate treatment of powder and crack cocaine for sentencing purposes. (242) Without an extended discussion, the 6th Circuit rejected defendant’s claim that treating cocaine base as equal to 100 times powder cocaine for sentencing purposes violates due process and equal protection. U.S. v. Tinker, 985 F.2d 241 (6th Cir. 1992).
6th Circuit upholds treating cocaine base 100 times more harshly than cocaine powder. (242) The 6th Circuit held that the penalty scheme in 21 U.S.C section 841(b), which treats one gram of cocaine base as equivalent to 100 grams of cocaine, did not violate the equal protection clause. The ratio is reasonably related to a legitimate end. First, crack is a purer drug than cocaine and speed with which it progresses increases the likelihood of addiction. Second, because crack is sold in small doses and at cheap prices, it is easier to transport and use, and is affordable to children. U.S. v. Williams, 962 F.2d 1218 (6th Cir. 1992).
6th Circuit affirms that definition of “cocaine base” is not unconstitutionally vague. (242) The 6th Circuit rejected defendant’s claim that the failure of Congress to define “cocaine base” in 21 U.S.C. section 841(b)(1)(B)(iii) rendered the statute void for vagueness. In U.S. v. Levy, 904 F.2d 1026 (6th Cir. 1990), the court held that section 841(b)(1)(B), which provides penalties for offenses involving 500 grams of more of cocaine or five grams of more of cocaine base, was not unconstitutionally vague. U.S. v. Williams, 962 F.2d 1218 (6th Cir. 1992).
6th Circuit upholds equating one marijuana plant to one kilogram of marijuana. (242) Defendants claimed that 21 U.S.C. section 841(b)(1)(A)(vii) and guideline section 2D1.1(c) violate due process because in offenses involving 50 or more marijuana plants, they equate one marijuana plant to one kilogram of marijuana, even though marijuana plants are not capable of producing one kilogram of marijuana. The 6th Circuit rejected the challenge, since the purpose of this provision was not to declare that mature marijuana plants would yield an average of one kilogram of marijuana, but to state that a person who grows 1000 marijuana plants is as culpable as a person who harvests over 1000 kilograms of marijuana. The court also rejected defendants’ equal protection challenge to the provision’s enhanced penalties for offenses involving 50 or more plants. The 50-plant cutoff is simply a legislative judgment that individuals cultivating 50 or more plants are likely to be major drug dealers and hence, a bigger threat to society than those who grow fewer marijuana plants. U.S. v. Holmes, 961 F.2d 599 (6th Cir. 1992).
6th Circuit rules defendant waived challenge to Drug Quantity Table. (242) Defendants contended that 21 U.S.C. section 841(b)(1)(b) and the Drug Quantity Table in guideline section 2D1.1 violate due process and equal protection by treating, one plant as equivalent to one kilogram of marijuana, for offenses involving 50 or more marijuana plants, while one plant is treated as 100 grams of marijuana for offenses involving less than 50 plants. The 6th Circuit ruled that defendant had waived this argument. He raised the issue for the first time in a motion for correction of sentence under Fed. R. Crim. P. 35. The district court denied the motion, and defendant did not appeal the denial. U.S. v. Allen, 954 F.2d 1160 (6th Cir. 1992).
6th Circuit upholds equating one gram of crack to 100 grams of cocaine. (242) Defendant contended that by equating one gram of crack to 100 grams of cocaine, the guidelines violated substantive due process and the 8th Amendment prohibition against cruel and unusual punishment. The 6th Circuit rejected both of these challenges. The ratio tracked a similar ratio passed by Congress. The ratio was rationally based upon (a) evidence in the scientific community which suggested that crack is more likely to cause addiction than cocaine, and (b) the fact that the cheap price and small size of crack made it more accessible to children. Circuit precedent already rejected defendant’s argument concerning the 8th Amendment, and nothing in the Supreme Court’s recent decision in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2860 (1991); altered the analysis. U.S. v. Pickett, 941 F.2d 411 (6th Cir. 1991).
6th Circuit upholds 100-1 ratio of cocaine to cocaine base. (242) Section 2D1.1(a)(3) of the sentencing guidelines provides that a single gram of cocaine base will be counted as 100 grams of simple cocaine for the purpose of determining a sentence. Defendant argued that the increased sentencing for cocaine base violated equal protection and constituted cruel and unusual punishment. The 6th Circuit rejected both arguments, and also upheld 21 U.S.C. § 841(a)(1) as not vague, even though it does not define the word “cocaine base.” U.S. v. Avant, 907 F.2d 623 (6th Cir. 1990).
6th Circuit agrees with other circuits that 100:1 ratio of cocaine base to cocaine is not cruel and unusual punishment. (242) Defendant argued that because there was no proof that cocaine base is 100 times more powerful than cocaine hydrochloride, this 100:1 ratio was unconstitutionally disproportionate. The 6th Circuit rejected the argument, agreeing with four other circuits which have considered the issue. The court noted that there have been only three recognized instances of disproportionality arising to the level of an Eighth Amendment violation. “A 10-year sentence for drug possession simply does not approach the same level of gross inequity.” U.S. v. Levy, 904 F.2d 1026 (6th Cir. 1990).
6th Circuit rules that “cocaine base” includes “crack cocaine.” (242) Defendant argued that the term “cocaine base” as used in 21 U.S.C. 841(b)(1)(B) was unconstitutionally vague, and that Congress should have used the word “crack” cocaine if that is what it intended. The 6th Circuit rejected the argument, noting that the phrase occurs only in a penalty provision and does not change the elements of the offense of possession with intent to distribute. “The fact that a type of contraband may have various nicknames on the street does not render a statute punishing possession of that contraband invalid simply because it fails to list all of the then-current nicknames.” U.S. v. Levy, 904 F.2d 1026 (6th Cir. 1990).
7th Circuit holds that court did not err in using preponderance of the evidence standard to apply murder cross-reference. (242) Defendant was convicted of distributing cocaine base. Based on defendant’s involvement in the murder of a police informant, the district court applied the cross-reference to the murder guideline, resulting in a life sentence. Defendant argued for the first time on appeal that the court erred in applying the cross-reference based solely on a finding by a preponderance of the evidence. However, in U.S. v. Reuter, 463 F.3d 792 (7th Cir. 2006), the Seventh Circuit expressly rejected the argument that, post-Booker, a higher standard of proof is required for substantial enhancements based on facts not found by a jury. Here, the Seventh Circuit held that the district court did not plainly err in applying the cross-reference based on the preponderance of the evidence. Reuter is still good law, and the court has relied on it in three published opinions. The evidence of defendant’s involvement in the informant’s murder met the preponderance standard. The court properly considered the Special Agent’s hearsay testimony that a jailhouse informant reported that defendant had confided that he had assisted in the murder. U.S. v. Mitchell, 635 F.3d 990 (7th Cir. 2011).
7th Circuit remands where court used facts not admitted by defendant or found by jury to determine drug quantity. (242) Defendant argued that the court erred by enhancing his sentence based on a factual finding made solely by the sentencing judge with respect to the purity and quantity of methamphetamine involved in his offenses. The jury found defendant guilty of offenses involving 600 grams or more of plain old “methamphetamine” – not “methamphetamine (actual) or “Ice.” The district court found by a preponderance of the evidence that the actual weight of the charged mixtures was 878.8 grams (based on uncontested results of government lab analysis) and that 91 percent of those mixtures, or 799.7 grams, constituted “methamphetamine (actual).” The Seventh Circuit agreed that the court’s use of supplemental facts not admitted by defendant or proven to the jury beyond a reasonable doubt violated the Sixth Amendment, as interpreted by U.S. v. Booker, 543 U.S. 220 (2005). U.S. v. Macedo, 406 F.3d 778 (7th Cir. 2005).
7th Circuit holds that Apprendi error was plain. (242) Defendant argued for the first time on appeal that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). To justify a finding of plain error, there must be an error that is plain, and that affects substantial rights. U.S. v. Olano, 507 U.S. 725 (1993). The first three criteria were clearly satisfied. Defendant’s case constituted clear error because his drug quantity was not charged in the indictment or determined by the jury. The only issue was whether this case triggered the appellate court’s discretion to reverse by implicating the fairness, integrity, or reputation of the judicial process. Although such concerns are not implicated when overwhelming evidence supports a sentence above the statutory maximum, the Seventh Circuit exercised its discretion and vacated defendant’s sentence. Defendant’s case was characterized by limited physical evidence and minimal corroborating testimony. Defendant disputed the drug quantity for which he was held responsible. His sentence was hinged to a significant degree on the district court’s credibility determinations. Defendant raised non-frivolous concerns about one witness’s ability to recall the amount of drugs he purchased over two years. His estimates of drug transactions were inconsistent both in quantity purchased and frequency. Another witness’s testimony was based on secondhand knowledge. A reasonable jury would not be compelled to conclude that defendant possessed or distributed more than 1000 kilograms of marijuana. U.S. v. Noble, 246 F.3d 946 (7th Cir. 2001).
7th Circuit says Apprendi does not affect use of relevant conduct if statutory maximum not exceeded. (242) Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), defendant argued for the first time on appeal that his jury instructions erroneously failed to direct the jury that it must find that the government proved beyond a reasonable doubt the type and quantity of drugs alleged in the indictment. Because defendant’s 312-month sentence was 48 months lower than the 30-year statutory maximum for a defendant with a prior felony drug conviction, the Seventh Circuit found Apprendi inapplicable. Defendant also challenged the sufficiency of the findings made by the district court in calculating his sentence. He argued that Apprendi requires all sentencing factors, including relevant conduct, to be found beyond a reasonable doubt. The Seventh Circuit disagreed. Apprendi “does not affect application of the relevant-conduct rules under the Sentencing Guidelines to sentences that fall within a statutory gap.” Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000). A district court may still determine a drug offender’s base level offense under the guidelines by considering drugs that were not specified in the count of conviction but that the court concludes, by a preponderance of the evidence, were part of the defendant’s relevant conduct, as long as that determination does not result in a sentence that exceeds the statutory maximum for that crime. U.S. v. Jones, 245 F.3d 645 (7th Cir. 2001).
7th Circuit holds that federal drug statute does not violate due process. (242) Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), defendant argued that 21 U.S.C. § 841 is unconstitutional because it does not mention the burden of persuasion (or the allocation of issues between judge and jury) and does not identify sentencing considerations as elements of the offense. However, after Apprendi, as interpreted by U.S. v. Nance, 236 F.3d 820 (7th Cir. 2000), all facts, other than prior convictions, that set the maximum possible punishment under § 841 must be established beyond a reasonable doubt to the satisfaction of the same body that determines culpability under § 841(a). The Seventh Circuit held that neither Apprendi nor Nance established that § 841 was unconstitutional. If Congress had specified that only judges may make the findings required by § 841(b), or that these findings must be made by a preponderance of the evidence, then § 841 would create a constitutional problem. Instead the law attaches effects to facts, leaving it to the judiciary to sort out who determines the facts, under what burden. It makes no constitutional difference whether a single subsection covers both elements and penalties, whether they are divided across multiple subsections, or even whether they are scattered across multiple statutes. U.S. v. Brough, 243 F.3d 1078 (7th Cir. 2001).
7th Circuit won’t reverse where Apprendi error did not result in miscarriage of justice. (242) In the aftermath of Apprendi v. New Jersey, 530 U.S. 466 (2000), the Seventh Circuit held that the kind and quantity of drugs are jury questions, to the extent they affect the statutory minimum and the maximum punishment. See U.S. v. Nance, 236 F.3d 820 (7th Cir. 2000). However, when the defendant does not ask the judge to instruct the jury on this question, the review is limited to plain error. Where the error is plain, reversal is not mandated. Unless the error also causes a miscarriage of justice, a court of appeals retains discretion to affirm the judgment. The Seventh Circuit found no miscarriage of justice from the Apprendi error here, finding it inconceivable that the same jury that convicted defendants of this crack conspiracy could have thought that the quantity of crack was under 50 grams. The overwhelming evidence showed that defendants’ organization lasted at least a decade and during its best years grossed more than $40,000 a day in retail sales. The fact that the indictment was silent as to drug quantity did not change the plain error analysis. U.S. v. Patterson, 241 F.3d 912 (7th Cir. 2001).
7th Circuit rules defendant failed to show cause and prejudice for failure to preserve Apprendi claim. (242) Defendant originally sought resentencing under 18 U.S.C. § 3582(c) based on a retroactive change in the guidelines. The district court reduced defendant’s sentence under the amendment, but rejected defendant’s request to cut his sentence further based on the fact that the judge, not the jury, had determined drug quantity. The Seventh Circuit affirmed, but the Supreme Court remanded for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi established that the district court erred in 1992 when it failed to instruct the jury to determine whether defendant was accountable for more than 50 grams of crack, or some lesser amount. Defendant did not raise this issue in 1992, so plain error would be the standard if this were a direct appeal. However, because defendant did not raise his claim at trial or on direct appeal, the Seventh Circuit treated the action as a collateral attack under § 2255. To obtain collateral relief, defendant was required to show “cause and prejudice” for his failure to raise the drug quantity issue at his 1992 trial. He could not. The lack of precedent differs from “cause” for failing to make a legal argument. Although the lack of any reasonable legal basis for a claim may constitute “cause,” the foundation for Apprendi was laid long before 1992. See, e.g. McMillan v. Pennsylvania, 477 U.S. 79 (1986). Moreover, it was by no means clear that Apprendi is retroactively applicable on collateral attack. U.S. v. Smith, 241 F.3d 546 (7th Cir. 2001)..
7th Circuit holds that sentence below statutory maximum did not violate Apprendi. (242) Defendant argued that his sentence was determined in violation of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) (other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt). However, when a defendant is sentenced to a term of imprisonment within the statutory maximum for the crime for which he was convicted, Apprendi is not applicable. See Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000). The Seventh Circuit found no Apprendi violation, since defendant’s sentence of 12 years and seven months was less than the 240-month statutory maximum for an offense involving an unspecified quantity of cocaine base in 21 U.S.C. § 841(b)(1) (C). Moreover, Apprendi was not applicable to cases involving a mandatory minimum sentence, provided the actual sentence imposed is less severe than the statutory maximum. U.S. v. Williams, 238 F.3d 871 (7th Cir. 2001).
7th Circuit holds that Apprendi error was not plain. (242) Before a defendant can be sentenced to a term of imprisonment above the statutory maximum provided in 21 U.S.C. § 841(b)(1)(C) or (D) for offenses involving an unspecified drug quantity, Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) requires that the drug type and amount be charged in the indictment and found by the jury. See U.S. v. Nance, 236 F.3d 820 (7th Cir. 2000). Defendant was sentenced to 151 months imprisonment; the statutory maximum for an unspecified amount of marijuana is five years. The Seventh Circuit held that any Apprendi error was harmless under Neder v. U.S., 527 U.S. 1 (1999). Even if there was error and that error was plain and affected defendant’s substantial rights by increasing his sentence by over seven years, he could not show that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. When the government arrested defendant, it seized nearly 1000 kilograms of marijuana from defendant’s truck. None of the defendants in the case ever contested the amount of marijuana found in the truck. In order to convict at all, the jury must have found that defendant knew that the boxes contained marijuana. There was no evidence that defendant could have been guilty of possessing some but not all of the seized drugs. U.S. v. Mietus, 237 F.3d 866 (7th Cir. 2001).
7th Circuit says plain error under Apprendi must be prejudicial. (242) Defendant’s 262-month sentence exceeded the 20-year maximum found in 21 U.S.C. § 841(b)(1)(C) for offenses involving an unspecified quantity of crack cocaine. Since drug quantity was not charged in the indictment or presented to the jury, the Seventh Circuit agreed that defendant’s sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). However, reversal was not required. Defendant failed to preserve his objection to the drug quantity issue, and thus review was for plain error. Under this standard, even if the error was “plain” and affected defendant’s substantial rights (by increasing his sentence by 22 months), reversal was only required if the error seriously affected the “fairness, integrity, or public reputation of the judicial proceedings.” If it was clear beyond a reasonable doubt that a properly worded indictment and jury instruction would have found defendant guilty absent this error, then the error was not so serious as to require reversal. That was the case here. If the jury was going to convict defendant at all, there was no way on this record that it could have failed to find that he was conspiring to distribute five grams or more of crack cocaine, the minimum amount necessary to support his sentence. Numerous witnesses testified about drug quantities in excess of five grams. Almost any piece of evidence standing alone would have supported this drug quantity. U.S. v. Nance, 236 F.3d 820 (7th Cir. 2000).
7th Circuit finds Apprendi error harmless given overwhelming evidence of hundreds of grams of crack. (242) Defendant received a 30-year sentence based on the sentencing judge’s finding that his offense involved at least five grams of crack cocaine. 21 U.S.C. § 841(b)(1) (B). The Supreme Court then remanded for resentencing in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). However, because defendant did not raise this issue in the district court, the review was for plain error. To prevail under the plain error standard, defendant must show not only that the error was plain in the sense of clear, but that the error was prejudicial—i.e. that there was some likelihood that the judgment would have been different had the error not been made. See U.S. v. Nance, 236 F.3d 820 (7th Cir. 2000).The Seventh Circuit ruled that defendant could not meet this standard, because the evidence that his offense involved at least five grams of crack was “overwhelming.” Defendant was an official of the Gangster Disciples, a very large drug gang whose principal commodity was crack cocaine. On one occasion alone, defendant sold 51.7 grams of crack, more than ten times the amount required to make him eligible for a 40-year maximum sentence. No reasonable jury could have failed to find that defendant was involved in the sale of hundreds, if not thousands, of grams of crack. U.S. v. Jackson, 236 F.3d 886 (7th Cir. 2001).
7th Circuit notes limits of Apprendi decision. (242) In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), the Supreme Court held that, except for prior convictions, any fact that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt. After rejecting defendant’s habeas petition, the Seventh Circuit noted that Apprendi was simply not applicable to many of the applications it had received for habeas relief. “All Apprendi holds is that most circumstances increasing a statutory maximum sentence must be treated as an element of the offense…. Apprendi does not affect application of the relevant conduct rules under the Sentencing Guidelines to sentences that fall within a statutory cap. Thus, for example, when the statutory maximum is life imprisonment, Apprendi is besides the point…. When a drug dealer is sentenced to less than 20 years’ imprisonment—the limit under 21 U.S.C. § 841(b)(1)(C) for even small-scale dealing in Schedule I and II controlled substances—again Apprendi is irrelevant….” Apprendi does not affect the holding of Edwards v. United States, 523 U.S. 511 (1998) that the judge alone determines drug types and quantities when imposing sentences short of the statutory maximum. Apprendi also does not affect the holding of Custis v. United States, 511 U.S. 485 (1994) that the validity of prior convictions is not open to reexamination at sentencing for a new offense, unless the defendant lacked counsel when convicted of the prior offense. Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000).
7th Circuit will reject successive § 2255 petitions until Supreme Court announces Apprendi is retroactive. (242) Based on the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), defendant requested authorization to file a second or successive motion for relief under 28 U.S.C. § 2255. Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Seventh Circuit held it will not authorize a successive petition under Apprendi unless and until the Supreme Court announces that Apprendi applies retroactively. “[A] new decision of the Supreme Court justifies a second or successive attack only if it establishes ‘a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.’” Under Bennett v. U.S., 119 F.3d 470 (7th Cir. 1997), that retroactive application must be declared by the Supreme Court itself. If the Supreme Court ultimately declares that Apprendi applies retroactively on collateral attack, then the Seventh Circuit will authorize successive collateral review of cases to which it applies. “Until then prisoners should hold their horses and stop wasting everyone’s time with futile applications.” Moreover, prisoners considering initial collateral attacks based on Apprendi should reconsider, because a loss will require the appellate court’s approval to launch a later collateral attack. Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000).
7th Circuit holds 848(b) is a mandatory minimum sentence unaffected by Apprendi. (242) Defendants, leaders of the Gangster Disciples street gang, were convicted of operating a “continuing criminal enterprise” in violation of 21 U.S.C. § 848. Subsection (a) authorizes imprisonment from 30 years to life, and subsection (b) simply eliminates anything in that range below a life sentence for the principal administrator, organizer or leader when certain quantities or value of drugs are involved. The Seventh Circuit held that defendants’ sentences under subsection (b) did not constitute “increased punishment” so as to trigger the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). The panel noted that Apprendi did not overrule McMillan v. Pennsylvania, 477 U.S. 79 (1986), which held that factors on which a minimum mandatory sentence is based need not be submitted to the jury. The panel ruled that the rationale of McMillan “applies with equal force” to § 848. The statute simply operates to divest the judge of discretion to impose any sentence less than life; it does not authorize a sentence in excess of that otherwise allowed for the offense. Accordingly, it was not necessary to charge the enhancing factors in the indictment nor to submit them to the jury. U.S. v. Smith, 223 F.3d 554 (7th Cir. 2000).
7th Circuit upholds constitutionality of crack cocaine penalties. (242) Defendant was convicted by a jury of conspiring to distribute crack cocaine in violation of 21 U.S.C. §§ 846 and 841. The Seventh Circuit rejected defendant’s constitutional challenges to § 841(a)(1) for offenses involving crack cocaine and to the mandatory penalties of § 841(b). Congress validly exercised its authority under the Commerce Clause when it enacted the Controlled Substances Act, which included the cocaine distribution conspiracy statute. Defendant’s challenge to the 100-1 disparity between crack and powder cocaine also failed, because this court has consistently held that the penalty structure is constitutional. Finally, the federal crack cocaine laws do not usurp the states’ traditional police powers under the 10th Amendment. U.S. v. Westbrook, 125 F.3d 996 (7th Cir. 1997).
7th Circuit holds Commission’s reconsideration of crack penalties does not affect their constitutionality. (242) Defendant challenged the constitutionality of the disparity in sentencing between cocaine powder offenses and crack cocaine offenses. He conceded that this Circuit previously rejected this argument, but urged the court to reconsider in light of the Sentencing Commission’s indication that it may reconsider and eliminate this disparity. The Seventh Circuit held that the Sentencing Commission’s reconsideration of the crack penalties did not affect the constitutionality of those penalties. The fact that the Commission might set a new, lesser penalty did not make the old penalty unconstitutional. U.S. v. Westmoreland, 122 F.3d 431 (7th Cir. 1997).
7th Circuit says court did not improperly consider Congress’ action in refusing to depart. (242) Defendant was convicted of crack cocaine offenses. He sought a downward departure, citing the Sentencing Commission’s 1995 Report to Congress that criticized the 100:1 crack cocaine sentencing ratio, and the Commission’s proposal to eliminate the disparity. The district court expressed sympathy for defendant’s argument, but denied the request, noting that Congress had rejected the proposed amendment. Defendant argued that Congress’s rejection of the proposed amendment was beyond the scope of permissible considerations, since § 3553(b) permits a court to consider only the guidelines, policy statements, and official commentary of the Sentencing Commission. The Seventh Circuit upheld the denial of the departure. The court’s decision not to depart was not based on Congress’ rejection of the proposed amendment. Rather, it was based on the fact that, because of that rejection, the crack ratio remained in effect. U.S. v. Jackson, 103 F.3d 561 (7th Cir. 1996).
7th Circuit rules crack penalties do not violate Commerce Clause. (242) Defendant argued that Congress exceeded its authority under the Commerce Clause when it created the penalty for crack cocaine possession. The 7th Circuit held that this argument failed because sentencing for a crime does not require a commerce nexus. U.S. v. Stowe, 100 F.3d 494 (7th Cir. 1996).
7th Circuit upholds constitutionality of methamphetamine sentencing scheme. (242) Defendant argued that the 10:1 ratio penalty scheme in 18 U.S.C. § 841(b)(1)(B)(viii) and § 2D1.1(c) between methamphetamine (actual) and mixtures that contain methamphetamine was subject to arbitrary application and thus violated due process and equal protection. He contended that if the methamphetamine substance in question is more than 10 percent pure, the length of an offender’s sentence depends upon which guideline the sentencing court elects to use. The Seventh Circuit upheld the constitutionality of the methamphetamine sentencing scheme. The 10:1 ratio is supported by a rational basis because the pure product is more concentrated and can be cut into larger quantities for resale. Moreover, the scheme does not permit the sentencing court to set an offender’s offense level using either the weight of the pure methamphetamine in a mixture or the total weight of the mixture. An explanatory note to § 2D1.1(c) provides that the court should use the guideline that produces the highest offense level. U.S. v. Turner, 93 F.3d 276 (7th Cir. 1996).
7th Circuit rejects challenges to crack penalties. (242) Defendant argued that because cocaine and cocaine base are chemically indistinguishable, the rule of lenity required applying the cocaine guidelines. The Seventh Circuit found this argument was foreclosed by U.S. v. Booker, 70 F.3d 488 (7th Cir. 1995), which ruled that the terms were intended by Congress and the Sentencing Commission to refer to different forms of the drug. The term cocaine base refers to crack, a solid form of pure cocaine which is essentially smoked. The term cocaine refers to all other forms of drug. Defendant waived his claim that Congress’s rejection of the Sentencing Commission proposal to eliminate the disparity was discriminatory. U.S. v. Reddrick, 90 F.3d 1276 (7th Cir. 1996).
7th Circuit summarily rejects constitutional challenges to crack penalties. (242) Defendant argued that the sentences for possession of crack are racially discriminatory and violate the Eighth Amendment, and that the distinction between cocaine and cocaine base is ambiguous. The Seventh Circuit noted, without discussion, that it has previously considered and rejected these arguments. U.S. v. Baker, 78 F.3d 1241 (7th Cir. 1996).
7th Circuit rejects downward departure based on crack penalties’ disparate impact on African-Americans. (242) Defendant was convicted of possessing cocaine base. He argued that he was entitled to a downward departure because the Sentencing Commission did not consider the disparate impact that the 100-to-1 penalty difference for crack versus powder cocaine would have on African-Americans. He pointed to the proposed guideline amendments that would eliminate the penalty differential. The Seventh Circuit rejected the claim. The 100-to-1 ratio was established by Congress in 21 U.S.C. § 841. Moreover, defendant did not show anything atypical about himself or his crime to justify a departure. U.S. v. Booker, 73 F.3d 706 (7th Cir. 1996).
7th Circuit says crack guidelines’ disparate impact on African-Americans is not grounds for downward departure. (242) Defendant argued that the sentencing provisions for crack cocaine have a disparate impact on African-Americans, thus giving the court authority to depart downward. The Seventh Circuit held that a guidelines’ disparate impact on a particular racial group is not grounds for a downward departure. Section 5H1.10 states that race is not relevant in determining a sentence. U.S. v. Arrington, 73 F.3d 144 (7th Cir. 1996).
7th Circuit says distinction between cocaine and cocaine base is not ambiguous. (242) Defendants argued that the provisions mandating different penalties for cocaine and cocaine base are ambiguous, since both terms have the same scientific meaning. The Seventh Circuit, relying on its recent opinion in U.S. v. Booker, 70 F.3d 488 (7th Cir. 1995), rejected the claim. The penalties for cocaine base apply to crack and the penalties for cocaine apply to all other forms of cocaine. U.S. v. Arrington, 73 F.3d 144 (7th Cir. 1996).
7th Circuit refuses to apply rule of lenity to reduce sentences to level of powder rather than crack cocaine. (242) Defendants argued that the rule of lenity should have been applied to reduce their sentences and bring them into line with the sentences they would have received had they been dealing in powder cocaine instead of crack. The Seventh Circuit rejected this claim in light of Congress’s disapproval of proposed amendments lowering the penalties for crack cocaine. U.S. v. Pollard, 72 F.3d 66 (7th Cir. 1995).
7th Circuit holds that sentencing scheme of using gross weight of Dilaudid tablets has rational basis. (242) Defendant was convicted of conspiring to possess and distribute Dilaudid tablets, a prescription drug containing hydromorphone. He argued that the sentencing scheme of using the gross weight of the Dilaudid tablets lacks a rational basis and leads to arbitrary punishment because Dilaudid tablets are manufactured with different doses of hydromorphone. The Seventh Circuit upheld the sentencing scheme, noting that the Supreme Court rejected a similar challenge in Chapman v. U.S. 500 U.S. 453 (1991). In a case involving LSD, the Court found that Congress can include the weight of a carrier medium in the drug quantity because the medium is used to facilitate the distribution of the drug. Moreover, by setting penalties according to the gross weight of the drugs, Congress reasonably sought to avoid arguments about the accurate weight of pure drugs. Dilaudid presents an even more compelling case for inclusion than LSD because its active ingredient is diffused throughout the tablets and cannot be easily separated from the carrier medium. U.S. v. Sasson, 62 F.3d 874 (7th Cir. 1995).
7th Circuit reaffirms validity of harsher penalties for crack cocaine. (242) Defendant argued that the harsher penalties for crack cocaine than for powder cocaine in § 2D1.1(a)(3) violated equal protection because of their disproportionate impact on African-Americans. The 7th Circuit rejected this claim based on its decision in U.S. v. Chandler, 996 F.2d 917 (7th Cir. 1993). Defendant did not offer any compelling reason for overturning Chandler. U.S. v. Jones, 54 F.3d 1285 (7th Cir. 1995).
7th Circuit upholds use of witness testimony to determine drug quantity. (242) Defendant argued that § 2D1.1 was unconstitutional because it allows quantities of controlled substances to be determined through potentially inaccurate testimony. The 7th Circuit upheld the constitutionality of § 2D1.1. Due process does not require the facts upon which a sentence is based to be correct beyond any doubt. Despite the potential inaccuracy of witness testimony regarding amounts, it is not unconstitutional to base a sentence on it as long as the court’s conclusions are supported by a preponderance of the evidence. Defendants are entitled to an opportunity to rebut any evidence presented regarding amount. All four government witnesses here were extensively cross-examined. U.S. v. Johnson, 32 F.3d 265 (7th Cir. 1994).
7th Circuit rules that harsher cocaine penalties do not violate 8th Amendment. (242) Defendant argued that the severity of his sentence, stemming from the enhanced penalties for offenses involving cocaine base rather than powder cocaine, was cruel and unusual punishment. The 7th Circuit held that the harsher penalties do not violate the 8th Amendment. The higher penalties are based on the highly addictive nature of crack, its growing availability, and its relatively low cost. Because the higher penalties are rationally based, they are not cruel or unusual. U.S. v. Smith, 26 F.3d 739 (7th Cir. 1994).
7th Circuit agrees that defendant was responsible for all nine marijuana patches. (242) Police discovered nine marijuana patches on a piece of public land. Defendant was found tending the plants in one of the patches, and some supplies were found in another patch. The 7th Circuit found that defendant was properly held responsible for all 175 plants in all nine patches. The district court found that defendant was involved in the cultivation of all nine patches based on the pathways between the patches, and the similarity of the auger holes and rows of plants in each patch. The court also rejected defendant’s constitutional challenge to the sentencing scheme that equates each plant with one kilogram of marijuana where more than 50 plants are involved. U.S. v. Huels, 22 F.3d 1410 (7th Cir. 1994).
7th Circuit upholds crack-to-cocaine ratio against equal protection challenge. (242) Under 18 U.S.C. §841 and 2D1.1, one gram of cocaine base, or crack, is treated as the equivalent of 100 grams of cocaine. Defendant argued that this scheme violates equal protection because African-Americans disproportionately commit crack offenses. Concluding that defendant had not made the required showing of discriminatory purpose, the 7th Circuit rejected the challenge. That Congress has failed to repeal the statute despite its awareness of its disparate impact on African-Americans does not establish discriminatory purpose. U.S. v. Chandler, 996 F.2d 917 (7th Cir. 1993).
7th Circuit upholds disparity between sentences for marijuana growers and distributors. (242) Guideline section 2D1.1(c) provides that for offenses involving 50 or more marijuana plants, each plant shall be treated for sentencing purposes as equivalent to one kilogram of marijuana, except that if the actual weight is greater, the actual weight should be used. In general, one marijuana plant produces much less than one kilogram of marijuana. Defendant, a marijuana farm worker, was sentenced based on the 12,500 marijuana plants produced by his farm, rather than the 400 kilograms of marijuana the plants produced. Thus, defendant received the same sentence as a dealer who distributed on the street many times more marijuana than defendant grew. The 7th Circuit rejected defendant’s claim that his sentence violated the “overriding principles of proportionality and consistency” in the guidelines. Congress has taken a supply-side approach to the marijuana problem by determining that marijuana growers deserve greater punishment than marijuana distributors. Although some might question this approach, the court would not second guess the reasonable judgment of Congress. U.S. v. Haynes, 969 F.2d 569 (7th Cir. 1992).
7th Circuit upholds constitutionality of 100 to one cocaine ratio in Drug Equivalency Table. (242) The 7th Circuit rejected defendant’s claim that the provision in the Drug Equivalency Table treating one gram of crack cocaine as equivalent to 100 grams of cocaine violated due process. Agreeing with other Circuit courts, the court found that the highly addictive nature of crack, its growing availability, and relatively low cost increased the risks associated with its use. The 100 to one ratio was rationally related to the purpose of combating those increased risks. U.S. v. Lawrence, 951 F.2d 751 (7th Cir. 1991).
7th Circuit holds that requiring judge to determine the amount of drugs does not violate the Constitution. (242) Defendant argued that U.S.S.G. 2D1.1 creates an “element of the offense” under 21 U.S.C. § 846 which must be proven beyond a reasonable doubt. Under § 2D1.1, sentencing for violation of § 846 is largely determined by the quantity and type of drugs involved. The judge is required to make a finding of the approximate amount of drugs in order to apply the guidelines. Defendant argued that the amount was an “element” of § 846 which must be proved beyond a reasonable doubt. The 7th Circuit rejected the argument, noting that although “there are Constitutional limits upon the government’s power to dictate the burden of proof merely by manipulating the definitional elements of the offense,” the guidelines did not change the elements for conviction under § 846. Therefore § 2D1.1 is constitutional as applied to 21 U.S.C. § 846. U.S. v. Reynolds, 900 F.2d 1000 (7th Cir. 1990).
8th Circuit says 600-month sentence for drug conspiracy was not cruel and unusual. (242) Defendant was convicted of conspiracy to distribute 50 grams or more of methamphetamine and five kilograms or more of cocaine. The district court sentenced him to two concurrent terms of 600 months with five years of supervised release. The Eighth Circuit held that defendant’s two concurrent 600-month sentences were not cruel and unusual punishment under the Eighth Amendment. “It is exceedingly rare for an offense that does not have a capital sentence to violate the Eighth Amendment, which forbids only extreme sentences that are grossly disproportionate to the crime.” The Supreme Court has held that life imprisonment for possession of 650 grams of cocaine with intent to distribute does not violate the Eighth Amendment. Certainly then, a sentence of 600 months for defendant’s possession of five kilograms of cocaine does not violate the Eighth Amendment. U.S. v. Rodriguez-Ramos, 663 F.3d 356 (8th Cir. 2011).
8th Circuit says crack statute and Sentencing Guidelines did not violate equal protection rights. (242) Defendant pled guilty to aiding and abetting the distribution of 13 grams of crack cocaine. His guideline range was 41-51 months, but he faced a mandatory minimum sentence of five years. The district court sentenced defendant, an African-American, to the mandatory minimum. Defendant argued that the 100 to 1 crack to cocaine ratio used to set the mandatory minimum was irrational, and disproportionately affected African Americans. The Eighth Circuit held that the crack statute and Sentencing Guidelines do not violate equal protection rights. Congress had rational motives for creating the distinction between crack and powder cocaine, and there was no evidence of a racially discriminatory motive. The only difference between previous cases rejecting defendant’s argument and the facts here was a change in the ratio in the Guidelines and the introduction of bills in Congress to change or eliminate the ratio. Neither of these facts warranted a different conclusion. U.S. v. Watts, 553 F.3d 603 (8th Cir. 2009).
8th Circuit upholds consideration of harm defendant caused by accepting welfare benefit cards for drugs. (242) Defendant operated a drug trafficking business on a South Dakota Indian reservation. She argued that the court violated her equal protection rights by taking into account at sentencing the fact that her victims were poor, since this penalized her for living in an impoverished community. The Eighth Circuit held that the district court did not err in taking into account the harm that defendant’s offenses did to the community. Defendant was not penalized for living in an impoverished community, but for preying on it. Not only was defendant pumping cocaine into a vulnerable community, but she was accepting her customers’ welfare benefit cards, at a fraction of their cash value, in exchange for the cocaine that was ravaging the community, including its children. While she denied accepting the cards at her sentencing, she also condoned such conduct, suggesting that the blame should fall on the welfare recipient who made the decision to use the cards to purchase drugs. U.S. v. Spotted Elk, 548 F.3d 641 (8th Cir. 2008).
8th Circuit holds that defendant did not meet burden of showing his sentence was not influenced by Booker error. (242) Defendant was convicted by a jury of a drug conspiracy involving 50 to 500 grams of methamphetamine. Although the court treated the guidelines as mandatory, it considered the jury finding of drug quantity to be binding, and refused to hold defendant responsible for more drugs or to apply a firearm enhancement. It also enhanced his sentence for obstruction of justice on the assumption that the guilty verdict meant the jury had found his testimony to be false. Both sides agreed that the district court committed Booker error by treating the guidelines as mandatory and by applying an obstruction enhancement based upon the jury’s general verdict. The Eighth Circuit agreed. The court also erred by refusing to make independent determinations as to the quantity for drugs for which defendant was responsible and as to whether he possessed firearms during his offense. As the beneficiary of the Booker error, defendant had to show that his sentence was not substantially influenced by it, and he did not meet that burden. The PSR recommended that defendant be held responsible for at least 1.5 kilograms of meth and enhancements for obstruction of justice and possession of a firearm. Had these enhancements been applied, defendant would have had a total offense level of 38 rather than 32, and a guideline range of 324-405 months instead of 168-210 months. Thus, the errors clearly influenced his sentence. U.S. v. Gutierrez, 437 F.3d 733 (8th Cir. 2006).
8th Circuit holds that undercover agent’s multiple drug purchases did not constitute sentencing entrapment. (242) An undercover officer purchased illegal drugs from defendant on eight separate occasions. The district court found defendant responsible for 35,700 Ecstasy pulls, 11.25 grams of cocaine, and more than 100 kilograms of marijuana, the quantity of drugs connected to the conspiracy that the district court found reasonably foreseeable to defendant, rather than the relatively small amounts purchased by the undercover agent. The Eighth Circuit rejected defendant’s claim of sentencing entrapment or sentencing factor manipulation. The district court heard evidence that the undercover agent made repeated purchases to gather more information about the overarching conspiracy, as well as evidence indicating defendant’s disposition to sell illegal substances in the quantities sold to the undercover officer. Moreover, defendant failed to explain how sentencing manipulation would apply since his sentence was based on his involvement in the conspiracy and not on the limited quantity of drugs he sold to the undercover agent. U.S. v. Mai Vo, 425 F.3d 511 (8th Cir. 2005).
8th Circuit holds that jury finding precluded court from holding defendant accountable for lesser quantity. (242) The PSR recommended that defendant be held responsible for possessing 50.6 grams of methamphetamine with intent to distribute. Defendant objected, arguing that he intended some or all of the meth mixture for personal consumption. The court estimated that defendant had possessed 25% of the meth for his personal consumption and 75% of it with intent to distribute it to others. The Eighth Circuit reversed, holding that this conflicted with the jury’s finding that defendant possessed 50 grams of more of methamphetamine with intent to distribute. Given the jury’s finding, the judge erred as a matter of law by concluding that defendant intended 25% for personal consumption. A fact proven beyond a reasonable doubt cannot simultaneously be disproved by a preponderance of the evidence. U.S. v. Campos, 362 F.3d 1013 (8th Cir. 2004).
8th Circuit says methamphetamine amendment did not violate substantive due process. (242) Defendant was convicted of conspiracy to manufacture methamphetamine, 21 U.S.C. §§ 841 (b)(1)(A) and 848, and endangering human life in manufacturing a controlled substance, 21 U.S.C. § 858. Under Amendment 608, the court added three levels to his conspiracy offense level because the offense involved the manufacture of methamphetamine and created a substantial risk of harm to human life. See § 2D1.1(b)(6)(A). Amendment 608 also required a three-level increase to his endangering offense level, because the offense involved the manufacture of methamphetamine. See § 2D1.10(b)(1)(A). Defendant argued that Amendment 608 violated his substantive due process rights because it created a “super” methamphetamine manufacturing offense whose guideline range would likely exceed the guideline range for more “serious” manufacturing or conspiracy offense. The Eighth Circuit found this contention without merit. Congress directed the Sentencing Commission to increase by at least three levels the offense level then applicable “to any offense relating to the manufacture [of] methamphetamine.” Methamphetamine Anti-Proliferation Act of 2000, § 3612(a)(1). The Commission obeyed this mandate by adding three-level increases to both § 2D1.1 and § 2D1.10. An amendment that implements a directive of Congress does not implicate substantive due process concerns. U.S. v. Fortney, 357 F.3d 818 (8th Cir. 2004).
8th Circuit says court erred in finding defendant was victim of sentencing entrapment. (242) On defendant’s first appeal, the Eighth Circuit found that the district court had used the wrong standard in rejecting defendant’s sentencing entrapment claim. The sentencing entrapment analysis must focus on the defendant’s predisposition, not on whether the government’s conduct had been outrageous. U.S. v. Searcy, 233 F.3d 1096 (8th Cir. 2000). On remand, the district court found that defendant was not predisposed to deal in crack and resentenced defendant by treating all of the drugs sold as powder cocaine rather than crack. The Eighth Circuit reversed, finding defendant was predisposed to sell crack in the quantities sold. Although defendant had never sold crack before, and initially told Watkins, an informant, that “he doesn’t sell crack cocaine,” defendant had been present during the manufacturing of crack in the past, had used it, and had distributed it as gifts. Significantly, he displayed no reluctance to sell crack to Watkins in the very first conversation they had, a conversation that contained no particular signs of pressure or coercion on Watkin’s part. The actual agreement for sale did not take place until later, but there was no particular difficulty in getting defendant to entertain the idea. Although there was some evidence that the government sought a higher quantity in order to secure a severe sentence, defendant was not an all unwilling to sell the larger quantity. U.S. v. Searcy, 284 F.3d 938 (8th Cir. 2002).
8th Circuit finds 60-month maximum applicable where jury did not make marijuana quantity finding. (242) Possession with intent to distribute less than 50 kilograms of marijuana has a statutory maximum sentence of 60 months, see 21 U.S.C. § 841(b)(1)(D), but if a defendant is found to possess over 50 kilograms, the statutory maximum goes up to 240 months, see § 841(b)(1) (C). Defendant’s 97-month sentences were based on the court’s finding that the amount of marijuana involved was between 60 and 80 kilograms. Under Apprendi v. New Jersey, 530 U.S. 466 (2000), defendant could not have been sentenced under the higher statutory maximum unless the issue of drug quantity was submitted to the jury. The Eighth Circuit remanded for resentencing, rejecting defendant’s claim that he was also entitled to a new trial. The jury found defendant responsible for an offense involving an unspecified amount of marijuana, which was only sufficient to support a 60-month sentence under § 841(b)(1)(D). U.S. v. Ray, 250 F.3d 596 (8th Cir. 2001).
8th Circuit remands rather than reformulate sentence to comply with Apprendi. (242) Defendants argued that they were entitled to resentencing under Apprendi v. New Jersey, 530 U.S. 466 (2000) because both the indictment and the jury’s verdict failed to specify any drug quantities. The government argued that the sentences were proper because they were, or could have been, imposed under the career offender provision of the guidelines. However, since drug quantity determinations ultimately steer the career offender’s sentence, Eighth Circuit directed the district court to analyze the government’s arguments on remand. The panel found it unclear whether it could “avert the Apprendi violations by merely finding that the district court could have imposed consecutive, rather than concurrent, sentences” to support the sentence imposed. In calculating the appropriate sentence, a district court must reconcile various guideline provisions. Although with an “appropriate record,” an appellate court “may often be able to recalculate the defendants’ sentences,” it was “prudent” to remand to give the district court the opportunity to determine defendants’ sentence “according to the Sentencing Guidelines’ rather idiosyncratic calculation scheme.” U.S. v. Bradford, 246 F.3d 1107 (8th Cir. 2001).
8th Circuit refuses to assume that Apprendi error was harmless. (242) Defendant challenged his sentence because drug quantity was not alleged in the indictment and found by the jury, and the court’s quantity finding increased his sentence beyond the 60-month sentence in 21 U.S.C. § 841(b)(1)(C) for possession of less than 50 kilograms of marijuana. See U.S. v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000) (applying Apprendi v. New Jersey, 530 U.S. 466 (2000)). The Eighth Circuit was unwilling to assume that the Apprendi error did not affect defendant’s substantial rights and reversed, finding the case distinguishable from U.S. v. Poulack, 236 F.3d 932 (8th Cir. 2001). The Poulack defendant was expressly informed at the arraignment of the drug quantity he was alleged to have possessed. In addition, the Poulack defendant stipulated to the drug quantity involved and to the admission of a lab report showing the weight of the drug. Defendant here did not stipulate to the quantity of marijuana involved in his offense, and the lab report introduced into evidence did not indicate total quantity. U.S. v. Butler, 238 F.3d 1001 (8th Cir. 2001).
8th Circuit says Apprendi error not plain where sentence can be reformed to avoid error. (242) The district court sentenced defendant to 60 months for a marijuana distribution charge and a concurrent 262 months for a crack distribution charge. Defendant’s 262-month sentence on the crack count violated Apprendi v. New Jersey, 530 U.S. 466 (2000) because that sentence exceeded the 240-month statutory maximum for an indeterminate quantity of crack. However, because defendant’s sentence could be reformed to avoid the Apprendi error, the Eighth Circuit held that the error was not plain. Guideline § 5G1.2(d) requires a district court to run sentences from multiple counts consecutively, rather than concurrently, if the guideline sentence exceeds the statutory maximum sentence for each count. Applying § 5G1.2(d), the district court could have capped defendant’s crack sentence at 240 months, and run 22 months of the 60-month marijuana sentence consecutively, thereby achieving the 262-month sentence imposed by the guidelines. So constituted, defendant’s sentence would not violate Apprendi, because neither sentence would exceed the statutory maximum sentence for the respective drug types. See U.S. v. Page, 232 F.3d 536 (6th Cir. 2000) (finding no plain error when § 5G1.2(d) would render defendants’ sentence identical after remand to correct Apprendi error). U.S. v. Sturgis, 238 F.3d 956 (8th Cir. 2001).
8th Circuit finds Apprendi error harmless in light of overwhelming evidence of drug quantity. (242) Although the district court instructed the jury that it only needed to find that the conspiracy intended to produce a “measurable amount” of methamphetamine, the court found at sentencing that the conspiracy intended to manufacture more than 50 grams of meth. Because the maximum sentence for an undetermined quantity of meth is 20 years, see 21 U.S.C. § 841(b)(1)(C), defendants’ 30-year sentences violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). However, Apprendi “did not recognize or create a structural error that would require per se reversal.” Rather, the sentences can be affirmed unless the appellate court finds that “the record contains evidence that could rationally lead to a contrary finding with respect to the omitted evidence.” The Eighth Circuit found that the Apprendi error was harmless, given the overwhelming evidence that defendants conspired to produce sufficient meth to support their 30-year sentences. Police seized about 100 grams of pseudoephedrine, the main precursor chemical, from a co-conspirator’s residence. This quantity of pseudoephedrine could theoretically yield 92 grams of meth. A finding of anything more than five grams of meth would subject defendants to a statutory maximum of 40 years. See 21 U.S.C. § 841(b)(1)(B). U.S. v. Anderson, 236 F.3d 427 (8th Cir. 2001).
8th Circuit says Apprendi only applies where findings increase sentence beyond range authorized by jury verdict. (242) Defendant argued that the trial court erred when it declined to submit the question of drug quantity to the jury. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). The Eighth Circuit noted that Apprendi applies only where the non-jury factual determination increase the maximum sentence beyond the statutory range authorized by the jury’s verdict. In this case, the court gave defendant a sentence of 63 months, which was less than the 20-year maximum that the statute authorized. See § 841(b)(1)(C). U.S. v. Ortiz, 236 F.3d 420 (8th Cir. 2001).
8th Circuit requires resentencing where general verdict led to ambiguity about type of controlled substance. (242) The jury was instructed that it could find that defendant violated § 841(a) even if it found “that the controlled substance distributed was not cocaine base, but another controlled substance, either cocaine, marijuana, or PCP.” Thus, even though his indictment alleged cocaine base, the Eighth Circuit could not rule out the possibility that the jury convicted defendant on a finding of marijuana distribution. If this were the case, he would be subject to a maximum sentence of five years on each counts. See 21 U.S.C. §§ 841(b)(1)(D)., 846. In U.S. v. Nattier, 127 F.3d 655 (8th Cir. 1997), the court held that where a jury renders a general verdict that may rest on any of several alternative factual findings, the court “should sentence defendant on the alternative that yields a lower sentencing range.” Under Edwards v. United States, 523 U.S. 511 (1998), Nattier no longer applies to cases where the verdict’s ambiguity affects only the judge’s application of the Sentencing Guidelines within the limit of the statute. However, Edwards does not affect a case such as this where different statutory maximums might apply. The Nattier rule had an exception where the evidence supported a specific finding beyond a reasonable doubt. However, to the extent that the Nattier exception authorized a judge, rather than a jury, to find the facts that determine a defendant’s maximum statutory penalty, such exception did not survive Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt). U.S. v. Nicholson, 231 F.3d 445 (8th Cir. 2000).
8th Circuit treats Apprendi appeal as § 2255 petition where defendant filed late notice of appeal. (242) Defendant challenged his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt). However, at oral argument, defense counsel informed the court that defendant’s notice of appeal had been filed late and requested that the court consider his appeal as a petition for post-conviction relief under 28 U.S.C. § 2255. Because the government did not oppose such treatment, and because substantial constitutional issues were at stake, the Eighth Circuit granted defendant’s request. This did not preclude the court from applying Apprendi because defendant had not previously collaterally attacked his sentence. Cf. Rodgers v. United States, 229 F.3d 704 (8th Cir. 2000) (holding that Apprendi does not apply retroactively to second or successive § 2255 motion). U.S. v. Nicholson, 231 F.3d 445 (8th Cir. 2000).
8th Circuit holds that Apprendi required resentencing. (242) The jury returned general verdicts convicting defendant of drug conspiracy, crack cocaine distribution, and firearms charges. The indictment did not specify the amount of drugs involved in the conspiracy, and the jury did not make any express finding of quantity as to that count. The trial court found by a preponderance of the evidence that defendant was connected with more than 150 kilograms of cocaine, which, after other adjustments, resulted in an offense level of 43 and a life sentence. The Eighth Circuit held that resentencing was required by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt). The statutory maximum for conspiracy, where the jury makes no finding of drug quantity, is 20 years, see 21 U.S.C. §§ 841(b)(1)(C) and § 846, and the statutory maximum for distributing 15 pounds of marijuana is five years, see 21 U.S.C. § 841(d). The sentences on those counts needed to be modified. However, the sentencing range for distributing crack was ten years to life. Thus, the life sentence that defendant received for this count was proper even under Apprendi. U.S. v. Nicholson, 231 F.3d 445 (8th Cir. 2000).
8th Circuit finds no Apprendi error where maximum sentence was already life. (242) Defendant was convicted of possession with intent to distribute methamphetamine, two counts of distributing meth, and conspiracy to distribute meth. See 21 U.S.C. §§ 841(a)(1) and 846. In its verdict form, the jury found that the quantity of meth involved was at least 1700 grams. Relying on the PSR, which suggested the actual quantity was 81 pounds, the district court sentenced defendant to a life sentence on each count. He argued that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000) (any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt) required that drug quantities used in sentencing be found by a jury. The Eighth Circuit found no Apprendi error. The statutory maximum for each of defendant’s crimes, even assuming the minimum quantities of meth found by the jury, was a life sentence. Because none of defendant’s sentences exceeded the statutory maximum, Apprendi was not applicable. U.S. v. Chavez, 230 F.3d 1089 (8th Cir. 2000).
8th Circuit applies Apprendi to drug cases but finds any error was harmless. (242) The Eighth Circuit held that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), “if the government wishes to seek penalties in excess of those applicable by virtue of the elements of the offense alone, then the government must charge the facts giving rise to the increased sentence in the indictment, and must prove those facts to the jury beyond a reasonable doubt.” Applying Apprendi to 21 U.S.C. § 841, the court held that its prior decisions that drug quantity was a mere “sentencing factor” must be abandoned. Nevertheless, the court upheld the defendant’s mandatory minimum 20-year sentence under 21 U.S.C. § 841(b)(1)(A), because that sentence was within the 20-year maximum authorized by § 841(b)(1)(C) for defendants with a prior conviction, without reference to drug quantity. Thus, the increased maximum sentence in subsection (A) “played no role” in defendant’s sentence. The court noted that Apprendi did not overrule the holding of McMillan v. Pennsylvania, 477 U.S. 79 (1986), that mandatory minimum sentences may be imposed based on non-jury factual findings, as long as the sentence is within the statutory maximum for the crime of which defendant was convicted by the jury. U.S. v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000).
8th Circuit rejects argument that defendant must “know” the drug type and quantity. (242) In a footnote, the Eighth Circuit said that the sentencing provisions in 21 U.S.C. § 841(b) “only require the government to prove that the offense ‘involved’ a particular type and quantity of controlled substance, not that the defendant knew he was distributing that particular type and quantity.” Thus, “to the extent Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000)] applies, the jury need only be instructed to find, as it did in this case, that a particular type and quantity of controlled substance was involved in the offense.” U.S. v. Sheppard, 219 F.3d 766 (8th Cir. 2000).
8th Circuit finds any Apprendi error harmless due to special verdict on drug quantity. (242) At the government’s request, the district court submitted a “Special Finding” dealing with drug type and quantity. Thus, the jury unanimously found beyond a reasonable doubt that more than 500 grams of methamphetamine were involved in the offense. “Because the indictment had alleged this drug type and quantity, and because the district court made a drug quantity finding at sentencing that was consistent with the jury’s special finding, [defendant] received all the Fifth and Sixth Amendment protections that Jones and Apprendi require.” In these circumstances, “any failure to treat drug type and quantity as an element of the crime was harmless error.” U.S. v. Sheppard, 219 F.3d 766 (8th Cir. 2000).
8th Circuit refuses to address constitutional challenge raised for the first time on appeal. (242) Defendants argued for the first time on appeal that Congress exceeded its authority under the due process clause when it treated drug quantity as a sentencing factor rather than as an element of the offense of conviction. See 21 U.S.C. § 841(b). The Eighth Circuit declined to address this argument, since neither defendant squarely presented this argument to the district court. One defendant’s challenge to the district court’s drug quantity finding was not a challenge to the constitutionality of the statute. U.S. v. Molina, 172 F.3d 1048 (8th Cir. 1999).
8th Circuit refuses to review distinction between crack and powder cocaine. (242) Defendant invited the appellate court to once again address the statutory sentencing differences between crack and powder cocaine. He conceded that the court has previously upheld the guidelines and statutes that provide for longer sentences for crack cocaine than for powder cocaine. See, e.g. U.S. v. Crawford, 83 F.3d 964 (8th Cir. 1996) (the distinction is not ambiguous and does not require application of rule of lenity). In this case, the Eighth Circuit refused to revisit this issue and affirmed defendant’s 324-month crack cocaine sentence. U.S. v. Surratt, 172 F.3d 559 (8th Cir. 1999).
8th Circuit again rejects challenge to harsher crack penalties. (242) Defendants were convicted of conspiracy to distribute crack cocaine. They challenged as unconstitutional the disparity in penalties for crack cocaine offenses as compared to offenses involving an equal quantity of powder cocaine. The Eighth Circuit, without discussion, noted that this argument has been rejected in numerous cases. U.S. v. Davis, 154 F.3d 772 (8th Cir. 1998).
8th Circuit holds that reference to “cocaine base or crack” meant crack. (242) Defendant pled guilty to possessing and distributing cocaine base or crack. His plea agreement also referred to the substance as “cocaine base or crack.” Defendant complained that his sentence was calculated as if the substance were “crack,” which carries a harsher penalty than other forms of cocaine base. He argued that because the phrase “cocaine base or crack” is worded in the disjunctive, the rule of lenity required the phrase to be interpreted as referring to cocaine base rather than crack. The Eighth Circuit ruled that the phrase “cocaine base or crack” was simply an expanded way of saying “crack.” Under the guidelines, “cocaine base” and “crack” are the same thing. Although chemically there are forms of cocaine base that are not “crack,” the guidelines make the two terms synonymous for sentencing purposes. U.S. v. Kang, 143 F.3d 379 (8th Cir. 1998).
8th Circuit reaffirms 100:1 sentencing ratio for cocaine base and powder cocaine. (242) Defendants challenged the 100:1 sentencing ratio between cocaine base and powder cocaine, contending that (1) the distinction was ambiguous and the court should have applied the rule of lenity to impose the lesser penalty, and (2) the court should have departed downward under § 5K2.0. An expert testified that the terms cocaine and cocaine base are synonymous and that crack cocaine, as it was known in the 1980s—the substance to which Congress intended the stiffer penalty to apply—no longer existed. The Eighth Circuit held that defendant’s challenges to the 100:1 ratio had previously been considered and rejected. While U.S. v. Jackson, 64 F.3d 1213 (8th Cir. 1995) did not address the unique claim that “crack,” as previously understood, no longer exists, the case is still controlling. Defendants did not contend that they were unaware they were dealing in crack or that they could not distinguish between the two. The 100:1 ratio is not a basis for departure, and does not violate equal protection. U.S. v. Herron, 97 F.3d 234 (8th Cir. 1996).
8th Circuit finds no discriminatory purpose in Congress’s refusal to eliminate crack disparity. (242) Defendant argued that the 100-1 sentencing ratio between crack and powder cocaine had a disproportionate adverse impact on African Americans. He further contended that Congress’s rejection of a proposed guideline amendment that would have eliminated this disparity evidenced a discriminatory purpose in maintaining the penalty scheme. The Eighth Circuit held that defendant did not show that Congress rejected the amendment or that the President approved the bill because they wanted to impose a disproportionate adverse effect on African Americans. The fact that Congress has seldom, if ever, rejected a proposed amendment to the guidelines does not mean that Congress departed from the normal procedural sequence to amend the guidelines. Congress’s rejection of the amendment was rationally related to a legitimate government purpose—determining a more appropriate punishment for crack offenses than the existing ratio or the ratio proposed by the Commission majority. U.S. v. Carter, 91 F.3d 1196 (8th Cir. 1996).
8th Circuit rejects downward departure based on 100:1 ratio of crack to powder cocaine. (242) Defendant argued that recent developments concerning the guidelines’ 100‑1 ratio between crack and powder cocaine justified a downward departure from sentences for crack cocaine. The Eighth Circuit held that the court lacked authority to depart downward based on the disparate impact of crack/powder cocaine ratio. The Supreme Court’s recent decision in Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996) did not support defendant’s claim. It did not undercut the court’s conclusion that § 5K2.0 gives district courts the power to depart for unusual circumstances peculiar to particular cases, and not for reasons common to a whole class of cases. Although the Sentencing Commission strongly recommended against a 100:1 quantity ratio, Congress rejected this recommendation. U.S. v. Lewis, 90 F.3d 302 (8th Cir. 1996).
8th Circuit refuses to consider sentencing entrapment claim that did not affect sentence. (242) Defendant’s co‑conspirator sold crack cocaine to an undercover agent. Defendant asserted that the agent manipulated his sentence by insisting on buying crack cocaine. The Eighth Circuit did not address this sentencing entrapment claim because it had no affect on defendant’s base offense level of 36. Excluding the 34.34 grams of crack from the court’s estimate of 1083.4 grams of crack would still result in a base offense level of 36. U.S. v. Atkinson, 85 F.3d 376 (8th Cir. 1996).
8th Circuit rejects challenge to cocaine base/ cocaine powder distinction. (242) Defendant attacked the sentencing scheme that punishes cocaine base offenses far more severely than cocaine powder offenses. The Eighth Circuit, relying on circuit precedent and U.S. v. Booker, 70 F.3d 488 (7th Cir. 1995), upheld the sentencing scheme, finding no reason to apply the rule of lenity. The statutory distinction between cocaine and cocaine base was not ambiguous, but based on “practical, real‑world differences.” U.S. v. Crawford, 83 F.3d 964 (8th Cir. 1996).
8th Circuit finds constitutional challenges to crack sentence precluded by precedent. (242) Defendant, who is black, was convicted of possession with intent to distribute crack cocaine. He raised equal protection and due process challenges to the harsher penalties for crack cocaine. The Eighth Circuit held that defendant’s arguments were precluded by earlier decisions holding that the different treatments given crack and powder cocaine do not violate either the right to equal protection or the right to due process. U.S. v. Smith, 82 F.3d 241 (8th Cir. 1996).
8th Circuit affirms validity of crack/powder cocaine distinction. (242) Defendant challenged her cocaine base sentence, arguing that “cocaine base” was chemically indistinguishable from powder cocaine. The Eighth Circuit held that defendant was barred from raising this challenge since she stipulated in her plea agreement that her sentence would be governed by the applicable guidelines for 150‑500 grams of cocaine base. Moreover, the court rejected defendant’s argument on the merits, relying on U.S. v. Jackson, 64 F.3d 1213 (8th Cir. 1995). Jackson found that practical differences between powder and crack cocaine, such as cost, method of production, availability to the urban poor, and rate of addiction, undermined the significance of the similarity in molecular structure between the two types of cocaine. Furthermore, defendant made no argument that she was unaware that she was dealing in crack or could not distinguish between the two. U.S. v. Long, 77 F.3d 1060 (8th Cir. 1996).
8th Circuit says distinction between cocaine and cocaine base is not ambiguous. (242) Defendant argued 21 U.S.C. § 841’s distinction between cocaine base and cocaine was ambiguous. The Eighth Circuit found that defendant’s claim was precluded by U.S. v. House, 939 F.2d 659 (8th Cir. 1991). House held that the term “cocaine base” was not unconstitutionally vague. Moreover, because the distinction was not ambiguous, defendant’s argument for application of the rule of lenity also failed. U.S. v. Jackson, 64 F.3d 1213 (8th Cir. 1995).
8th Circuit upholds rationality of drug equivalency table. (242) Defendants, brothers of Hmong ethnic descent, pled guilty to opium smuggling charges. They argued that the drug equivalency table, which directs that one gram of opium is equivalent to 50 milligrams of heroin or 50 grams of marijuana, was irrational and had no pharmacological basis. The 8th Circuit upheld the equivalencies, which were drawn from the mandatory minimum sentences for offenses involving drugs of different types. Courts have repeatedly held that the mandatory minimum sentencing statutes have a rational basis and do not violate due process. The table’s failure to take into account that opium might not be processed into heroin, but smoked in its raw form, by custom of the people of Hmong descent, did not violate equal protection. The facially neutral law did not have a discriminatory purpose. U.S. v. Vue, 38 F.3d 973 (8th Cir. 1994).
8th Circuit upholds constitutionality of 100 to 1 ratio of cocaine base to powder cocaine. (242) Defendant pled to a cocaine base offense that carried a 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)(iii). The district court held that the 100 to 1 ratio for crack cocaine to powder cocaine was disproportionate and in violation of the equal protection clause. The 8th Circuit reversed. A neutral law that has a disproportionate adverse impact on a minority is unconstitutional only if that effect can be traced to a discriminatory purpose. The district court’s findings did not establish that Congress acted with such a discriminatory purpose. The district court’s reliance on “unconscious racism” was questionable. The court’s conclusion that Congress was influenced by media stereotypes of crack dealers was also questionable. A belief that racial animus is a motivating factor, based on disproportionate impact, is not enough, since the equal protection clause is violated only if the impact can be traced to a discriminatory purpose. U.S. v. Clary, 34 F.3d 709 (8th Cir. 1994).
8th Circuit upholds constitutionality of 100:1 cocaine sentencing ratio. (242) Defendants argued that the 100:1 cocaine base to powder cocaine sentencing ratio in guideline § 2D1.1 and 21 U.S.C. § 841 discriminate on the basis of race and violate the equal protection clause. The 8th Circuit rejected the challenge, relying on U.S. v. Clary, 34 F.3d 709 (8th Cir. 1994), decided two days earlier. The district court’s refusal to depart based on the disparate impact on blacks was not reviewable. U.S. v. McMurray, 34 F.3d 1405 (8th Cir. 1994).
8th Circuit refuses to infer discriminatory purpose in harsher penalties for crack cocaine. (242) Defendants argued that by reaffirming the statute and guidelines providing for harsher penalties for crack cocaine than for powder cocaine, Congress and the Sentencing Commission evidenced a discriminatory purpose. The 8th Circuit rejected the claim. Since there were legitimate reasons for adopting the current crack penalties, it would not infer a discriminatory purpose in the maintenance of those penalties. U.S. v. Johnson, 28 F.3d 1487 (8th Cir. 1994).
8th Circuit upholds 132-month sentence for conspiring to distribute more than 100 grams of methamphetamine. (242) Defendant received a 132-month sentence for conspiring to distribute more than 100 grams of methamphetamine. The 8th Circuit upheld the sentence, rejecting the claim that the sentence was disproportionate to the crime, or that it violated due process. Even if the guidelines do punish methamphetamine traffickers more severely than other drug traffickers, the classification only needed a rational basis to survive a due process challenge. Defendant offered nothing to show that the punishment for methamphetamine traffickers lacked a rational basis. U.S. v. Frieberger, 28 F.3d 916 (8th Cir. 1994).
8th Circuit upholds marijuana conversion ratio. (242) In U.S. v. Marshall, 998 F.2d 634 (8th Cir. 1993), the 8th Circuit remanded for further consideration of the constitutional validity of the guideline provision that sets a conversion ratio of one kilogram of marijuana per plant for 50 or more plants, as compared to a ratio of 100 grams per plant for 49 or less plants. Previous caselaw established that it was not irrational to equate one plant to a kilogram of marijuana. However, the court invited defendant to explore the issue of the surprising degree of disparity present in the conversion ratio. On defendant’s second appeal, the 8th Circuit upheld the ratio since defendant did not provide any new facts or legal analysis. His arguments were a mere repetition of the arguments rejected in previous cases. The court also rejected defendant’s claim that 100 of the 414 plants seized from his home had no root hairs and should not be counted. The district court was entitled to discredit defendant’s testimony that he “cloned” over 100 plants on the night before he was arrested. U.S. v. Marshall, 28 F.3d 801 (8th Cir. 1994).
8th Circuit rejects disparate impact of cocaine base sentencing ratio as basis for departure. (242) The district court departed downward on the ground that the 100:1 ratio between cocaine base and cocaine powder disparately impacted African-Americans. The 8th Circuit held that the ratio’s disparate impact was not a proper ground for a downward departure. It is for Congress, and not the courts, to determine whether a racially disparate impact mandates a change in the guidelines. A downward departure based on a racially disparate impact will ultimately result in class-wide downward departures and impede Congress’s policy decision to treat cocaine base more harshly than powder cocaine. U.S. v. Maxwell, 25 F.3d 1389 (8th Cir. 1994).
8th Circuit upholds continued enforcement of disparate penalties for crack and powder cocaine. (242) Defendants argued that the 100:1 ratio for cocaine base and cocaine powder in 21 U.S.C. § 841 and guideline § 2D1.1 are unconstitutional because they have a disparate impact on African-Americans. Defendants contended that it was the continued enforcement rather than the enactment of the ratio that was unconstitutional. The 8th Circuit rejected this claim, since defendants presented no evidence that Congress or the Sentencing Commission permitted the challenged provisions to stay in effect in part because of their adverse effects upon a racial minority. U.S. v. Maxwell, 25 F.3d 1389 (8th Cir. 1994).
8th Circuit summarily rejects constitutional challenge to harsher penalties for crack than for powder cocaine. (242) Defendant argued that the disparate sentences imposed for cocaine base, or crack, versus powder cocaine violates equal protection laws because the majority of crack offenders are black, while the majority of powder cocaine offenders are white. The 8th Circuit, relying on circuit precedent, summarily rejected the claim. U.S. v. Yell, 18 F.3d 581 (8th Cir. 1994) No. 93-1363.
8th Circuit reaffirms 100:1 crack to cocaine ratio. (242) Defendants raised due process and equal protection challenges to the 100:1 disparity in the guidelines between penalties for cocaine base and powder cocaine. The 8th Circuit noted that it has repeatedly rejected these claims. U.S. v. Simms, 18 F.3d 588 (8th Cir. 1994).
8th Circuit rejects equal protection challenge to disparate penalties for crack and powder cocaine. (242) Defendant argued that the heavier penalties in 21 U.S.C. § 841(b)(1)(A)(iii) for crack than for powder cocaine violated the equal protection and due process clauses. The 8th Circuit summarily rejected defendant’s claim based on previous caselaw. U.S. v. Parris, 17 F.3d 227(8th Cir. 1994).
8th Circuit remands to determine whether LSD amendment should be applied retroactively. (242) The 8th Circuit rejected defendant’s claim that the district court should have excluded the weight of the carrier medium, in this case blotter paper, from the weight of the LSD. Circuit and Supreme Court precedent require consideration of the carrier medium. The court also upheld the validity of Amendment 488, effective November 1, 1993, which amends section 2D1.1(c) to provide that the weight of LSD for sentencing purposes is to be determined by treating each dose of LSD as weighing 0.4 milligrams. Section 1B1.10 does not mandate that Amendment 488 be applied retroactively, but instead gives the sentencing court discretion to so apply it. The case was remanded to permit the district court to consider whether to apply Amendment 488 retroactively to defendant. U.S. v. Coohey, 11 F.3d 97 (8th Cir. 1993).
8th Circuit suggests marijuana conversion ratio may be unconstitutional. (242) Defendant pled guilty to manufacturing in excess of 100 marijuana plants. The district court departed downward sua sponte, finding it was arbitrary and capricious to set the conversion ratio at one kilogram per plant for 50 or more plants, but only 100 grams for 49 or fewer plants. The 8th Circuit rejected this as a ground for departure, but suggested that on remand, defendant should challenge the conversion ratio as arbitrary and capricious. The court acknowledged that decisions have upheld the ratio on the ground that Congress intended “heightened culpability” for growers. However, even if Congress intended to punish growers more severely, the court found no evidence that it intended to adopt a harsh 10 to 1 one punishment ratio. The court found it might be fruitful to explore (1) what rationale, if any, there was the 10 to 1 ratio, and (2) whether Congress and the Sentencing Commission actually intended such disparity in punishment. U.S. v. Marshall, 998 F.2d 634 (8th Cir. 1993).
8th Circuit rejects due process challenge to drug guidelines. (242) Defendant argued that the guidelines violate due process by (a) limiting the sentencing court’s discretion and (b) classifying punishment for drug offenses on the basis of quantity rather than purity. The 8th Circuit rejected both arguments. The limits the guidelines place on a sentencing court’s discretion do not violate due process. It is neither arbitrary nor irrational to sentence according to the total quantity of the PCP mixture without regard to purity. U.S. v. Jones, 994 F.2d 456 (8th Cir. 1993).
8th Circuit upholds equating one marijuana plant to one kilogram of marijuana. (242) For offenses involving more than 50 marijuana plants, guideline section 2D1.1(c) equates one marijuana plant to one kilogram of marijuana. The 8th Circuit summarily rejected defendant’s claim that this ratio was “unreasonable and arbitrary.” U.S. v. Meyers, 990 F.2d 1083 (8th Cir. 1993).
8th Circuit upholds 100 to 1 ratio between cocaine and cocaine base. (242) The 8th Circuit summarily rejected defendant’s claim that the 100 to 1 sentencing ratio between cocaine and cocaine base in section 2D1.1(a)(2) violates the 8th Amendment. U.S. v. Wesley, 990 F.2d 360 (8th Cir. 1993).
8th Circuit rejects equal protection challenge to disparity between crack and powder cocaine. (242) Without a protracted discussion, the 8th Circuit rejected defendants’ argument that the disparity in the guidelines between sentences relating to crack cocaine and powder cocaine violate equal protection. U.S. v. Womack, 985 F.2d 395 (8th Cir. 1993).
8th Circuit rejects due process and equal protection challenges to 100 to 1 ratio of powder cocaine to crack cocaine. (242) Guideline section 2D1.1(a)(3) equates 100 grams of powder cocaine to one gram of crack cocaine or cocaine base. The 8th Circuit affirmed that this ratio did not violate due process or equal protection. There is a rational basis for the more severe penalties for crimes involving crack cocaine or cocaine base than for those involving powder cocaine. Cocaine base is more dangerous to society because of its potency, highly addictive nature, affordability and increasing prevalence. The ratio does not impermissibly differentiate on the basis of race. Senior Judge Bright concurred separately to note the racial inequities flowing from the guidelines’ policy. U.S. v. Williams, 982 F.2d 1209 (8th Cir. 1992).
8th Circuit affirms one kilogram/one marijuana plant ratio and mandatory minimum sentence. (242) Defendant’s offense involved 50 or more marijuana plants, so each plant was treated as one kilogram of marijuana under section 2D1.1(c). Because the offense involved more than 100 marijuana plants, defendant was subject to a mandatory minimum prison sentence of five years under 21 U.S.C. § 841(b)(1)(B)(vii). The 8th Circuit affirmed that the one plant/one kilogram ratio was not irrational and the 60-month mandatory minimum sentence was not unduly severe in violation of the 8th Amendment. Congress intended to punish marijuana growers based on their place in the distribution chain, rather than the predictable yield of their plants. The five-year sentence was not grossly disproportionate to the offense. The fact that unproductive male marijuana plants, which comprised one-half of his 147 plants, were assessed against him, did not render his sentence cruel and unusual. U.S. v. Coones, 982 F.2d 290 (8th Cir. 1992).
8th Circuit reaffirms constitutionality of consideration of uncharged drug quantities at sentencing. (242) The 8th Circuit, relying on its recent en banc decisions in U.S. v. Galloway, 976 F.2d 414 (8th Cir. 1992) (en banc) and U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992), rejected defendant’s claim that the inclusion of uncharged drug quantities in the computation of his sentence violated his constitutional rights to indictment, jury trial, and confrontation. Galloway held that a sentencing enhancement based on uncharged relevant conduct that is proven by a preponderance of the evidence does not violate the right to indictment, jury trial and proof beyond a reasonable doubt. Wise held that the right to confront witnesses does not attach at the sentencing phase. Relying on Galloway, the court also rejected defendant’s claim that the Commission exceeded its statutory authority in promulgating section 1B1.3(a)(2), the relevant conduct provision. Senior Judge Heaney concurred. U.S. v. Calva, 979 F.2d 119 (8th Cir. 1992).
8th Circuit finds no sentencing entrapment where government did not purchase drugs to increase sentence. (242) Defendant argued that the government engaged in sentencing entrapment in violation of his due process rights. Since the government indicted him on the basis of one two-ounce sale, he claimed that the remaining 8-1/8 ounces he sold to the government informant resulted from sales instigated by the government merely to increase his sentence. The 8th Circuit rejected this argument, since defendant presented no evidence that the government continued the purchases merely to enhance his eventual sentence. The government continued purchases of narcotics from defendant for a reasonable period of time in order to probe the extent of the distribution ring, identify forfeitable assets, and snare defendant’s supplier. The government was successful in this endeavor, locating considerable forfeitable assets, snaring defendant’ cocaine supplier, and arresting a co-conspirator. U.S. v. Calva, 979 F.2d 119 (8th Cir. 1992).
8th Circuit holds that “cocaine base” includes crack or cocaine that can be smoked. (242) The 8th Circuit rejected defendant’s argument that the term “cocaine base” in guideline section 2D1.1 was unconstitutionally vague. A term is not void for vagueness simply because courts of appeal differ in their definitions. Defendant’s chemist testified that defendant’s 12 rock-like substances were cocaine base and not cocaine and that he could differentiate between the two drugs. The court rejected defendant’s claim that under U.S. v. Buckner, 894 F.2d 975 (8th Cir. 1990), the presence of hydroxyl radical determined whether a substance was cocaine base. It agreed with the 9th Circuit in U.S. v. Shaw, 939 F.2d 414 (9th Cir. 1991) that Congress and the sentencing commission must have intended the term “cocaine base” to include “crack” or “rock cocaine,” which means cocaine that can be smoked. U.S. v. Wheeler, 972 F.2d 927 (8th Cir. 1992).
8th Circuit affirms harsher sentences for crack cocaine than for powder cocaine. (242) Defendant argued that the more severe sentence he received for his offense involving crack cocaine, as opposed to cocaine powder, violated his equal protection rights. He asserted that the higher penalties for crack have a racially discriminatory impact because locally, blacks accounted for 100 percent of those sentenced for possession of crack, but only 27 percent of those sentenced for possession of cocaine powder. Following previous Circuit decisions, the 8th Circuit rejected this claim. Congress had a rational basis for imposing harsher penalties for crimes involving crack because of crack’s potency, its highly addictive nature, its affordability, and its increasing prevalence. Senior Judge Heaney, joined by Senior Judge Lay, concurred only because they felt bound by prior Circuit decisions. U.S. v. Willis, 967 F.2d 1220 (8th Cir. 1992).
8th Circuit affirms that five-year enhancement for prior state drug conviction was not cruel and unusual punishment. (242) Defendant received a five-year sentence enhancement under 21 U.S.C. section 841(b(1)(B), because he had a prior Illinois felony conviction for possession of methaqualone. He argued that since this was only a serious misdemeanor in many other states, the enhancement constituted cruel and unusual punishment and violated the equal protection clause. The 8th Circuit rejected the argument. Even if the Illinois statute was the most stringent in the 50 states, that severity did not render his sentence grossly disproportionate to his offense or to the punishment he would have received in other states. Section 841(b)(1)(B) does not require the sentencing court to compare how conduct has been classified in various jurisdictions. Nor did the enhancement violate equal protection. Imposing heavier penalties on persons with prior felony convictions is rationally related to the purpose of deterring repeat offenders. U.S. v. Curtis, 965 F.2d 610 (8th Cir. 1992).
8th Circuit reaffirms constitutionality of 100:1 ratio for cocaine base in sentencing guidelines. (242) Guideline section 2D1.1(c) provides that one gram of cocaine base carries the same penalty as 100 grams of cocaine powder for the purpose of determining an individual’s base offense level. Relying on Circuit precedent, the 8th Circuit summarily rejected defendant’s claim that the 100:1 ratio discriminates on the basis of race in violation of the due process clause, equal protection clause and the eighth amendment. The court did note that were it writing “from a clean slate,” it might accept as valid defendant’s arguments regarding the disproportionate penalty. U.S. v. Simmons, 964 F.2d 763 (8th Cir. 1992).
8th Circuit affirms basing sentence on the number of marijuana plants. (242) The 8th Circuit upheld the constitutionality of 21 U.S.C. section 841(b)(1)(A)(vii) and guideline section 2D1.1(c), which provide for sentencing based on the number of plants (if 50 or more) rather than the weight of the plants or the amount of net marketable proceeds. Congress intended to account for the heightened culpability of growers because of their primacy in the distribution chain, rather than to punish them based on the predictable yield of their plants. U.S. v. Smith, 961 F.2d 1389 (8th Cir. 1992).
8th Circuit rejects equal protection challenge to harsher sentence for crack than for powder cocaine. (242) The 8th Circuit summarily rejected defendant’s claim that his equal protection rights were denied by the imposition of a harsher sentence for crack than for powder cocaine. Such an argument had previously been rejected by the court in U.S. v. Reed, 897 F.2d 351 (8th Cir. 1990). U.S. v. Hechavarria, 960 F.2d 736 (8th Cir. 1992).
8th Circuit reaffirms constitutionality of “100 to 1” ratio for cocaine base. (242) Defendants argued that the “100 – 1” ratio of cocaine to cocaine base violated the due process clause of the 5th Amendment and constituted cruel and unusual punishment in violation of the Eighth Amendment. The 8th Circuit rejected both arguments, citing its earlier ruling in U.S. v. Buckner, 894 F.2d 975 (8th Cir. 1990), in which it had upheld the constitutionality of the “100 to 1” ratio. U.S. v. Winfrey, 900 F.2d 1225 (8th Cir. 1990).
8th Circuit holds distinction between cocaine and cocaine base does not offend Eighth Amendment. (242) Defendant argued on appeal that the distinction between cocaine and cocaine base under guideline sections 2D1.1(a)(3) and 21 U.S.C. § 841(b) violated the Eighth Amendments ban of cruel and unusual punishment. The Eighth Circuit used the three step proportionality analysis of Solem v. Helm, 463 U.S. 277, 290 (1983) and found that: (1) because crack is a much greater threat than cocaine the sentences were not disproportionate to the crime; (2) in light of Congress’s findings about the dangers of crack use and distribution, the fact that certain drug offenses are treated the same as heinous crimes of violence was proper; and (3) the standardized penalties for crack are imposed on all similarly situated individuals in all federal jurisdictions and are comparable to sentences imposed by several states. Since defendant did not meet his heavy burden of showing disproportionality, the sections were found not to offend the Eighth Amendment. U.S. v. Buckner, 894 F.2d 975 (8th Cir. 1990).
9th Circuit says Apprendi error in failing to prove type of drug was not harmless. (242) Under Apprendi v. New Jersey, 530 U.S. 466 (2000), the government must allege and prove beyond a reasonable doubt any fact, other than the fact of a prior conviction, that increases a defendant’s maximum sentence. Defendant was arrested in possession of an unopened Federal Express package that contained more than a kilogram of cocaine. The defendant pleaded guilty to attempted possession of controlled substance with intent to distribute, but he never admitted attempting to possess cocaine. Nevertheless, he was sentenced under the cocaine guidelines. On appeal, the Ninth Circuit reversed, ruling that the error was not harmless because there was no other evidence that defendant attempted to possess cocaine, nor that defendant looked inside the package containing the cocaine. U.S. v. Hunt, 656 F.3d 906 (9th Cir. 2011).
9th Circuit says failure to prove type of drug limited sentence to lowest maximum for any drug. (242) Defendant was charged with attempted possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a), based on his possession of an unopened Federal Express box containing a kilogram of cocaine. At his guilty plea colloquy, neither the court nor the prosecutor expressly informed defendant that the government would be required to prove that he intended to possess cocaine. In response, defendant admitted only the elements of a violation of § 841(a); although he admitted that he intended to possess a controlled substance, he declined to admit that he knew that the controlled substance was cocaine. The Ninth Circuit held that because defendant did not admit that he attempted to possess cocaine, he was subject only to a one-year maximum sentence. U.S. v. Hunt, 656 F.3d 906 (9th Cir. 2011).
9th Circuit holds that prior conviction triggering enhanced drug sentence does not require proof beyond a reasonable doubt. (242) Under 21 U.S.C. § 841(b)(1)(A), a defendant convicted of a drug-trafficking offense is subject to an increased sentence if he has “a prior conviction for a felony drug offense.” Defendant argued that under Apprendi, the government had to prove the prior felony conviction to a jury beyond a reasonable doubt because application of the enhancement turns on disputed facts concerning the nature of the prior offense. The Ninth Circuit disagreed on the ground that determining whether a prior conviction qualifies under § 841(b) as a “prior conviction for a felony drug offense” turns on the fact of conviction and the statutory definition of the prior offense and does not involve judicial fact-finding in violation of Apprendi. U.S. v. Hollis, 490 F.3d 1149 (9th Cir. 2007), abrogated as to cocaine base by DePierre v. U.S., 131 S.Ct. 2225, 180 L.Ed.2d 114 (2011), as recognized in U.S. v. Sykes, 658 F.3d 1140 (9th Cir. 2011).
9th Circuit holds that Booker does not require severance of drug penalty provisions. (242) Defendant argued that the Supreme Court’s decision in Booker held that whenever a sentencing provision could be construed to violate the Sixth Amendment, it should be severed from the remainder of the statute. On this basis, defendant argued that 21 U.S.C. § 841(b), which sets the sentence for drug offenses, should be severed because it could be construed to require the court, not the jury, to find facts that result in an increase in the statutory maximum sentence. The Ninth Circuit rejected this argument, and held that because § 841(b) could be construed to be constitutional, Booker did not require its severance. U.S. v. Ching Tang Lo, 447 F.3d 1212 (9th Cir. 2006).
9th Circuit holds that mandatory minimums based on prior convictions do not violate Constitution. (242) When a defendant convicted of certain drug offenses under 21 U.S.C. § 841(a) has prior drug convictions, and the government files an information alleging those convictions, the defendant is subject to a mandatory minimum sentence. The Ninth Circuit held that these mandatory sentences do not violate the separation of powers or the non-delegation doctrine by giving the executive branch authority over sentencing. The court also found that the mandatory minimum sentencing scheme did not violate the Due Process Clause by vesting discretion in the Attorney General, instead of the court. U.S. v. Jensen, 425 F.3d 698 (9th Cir. 2005).
9th Circuit says guilty plea without admitting drug quantity will not support enhanced sentence. (242) An indictment charged defendant with possession with intent to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C. § 841. Defendant agreed to plead guilty but refused to admit the type and quantity of drug that he possessed. Although the district court initially ruled that defendant had to admit the indictment’s type and quantity allegations to enter a guilty plea, it let defendant enter a plea in which he admitted that the government’s type and quantity allegations were correct but denied that he knew how much cocaine base he had possessed. The Ninth Circuit held that because drug quantity and type are not elements of the offense defined by § 841, but instead are material facts necessary to trigger increased maximum sentences under that statute, defendant’s guilty plea to the charged offense did not encompass the quantity and type allegations necessary to trigger the increased sentences. The court also found that because defendant challenged only his sentence, not his conviction, on remand the district court must impose the maximum sentence authorized for a violation of § 841 without a finding of quantity. U.S. v. Thomas, 355 F.3d 1191 (9th Cir. 2004).
9th Circuit reaffirms that Apprendi does not apply to drug quantity calculations that do not increase maximum sentence. (242) The jury at defendant’s trial convicted him of drug trafficking conspiracy and determined that the conspiracy involved cocaine, but it could not reach a verdict on the amount of cocaine involved in the conspiracy. The maximum sentence for an offense involving any quantity of cocaine is 20 years. 21 U.S.C. § 841(b). At sentencing, the district court determined that the conspiracy involved five kilograms of cocaine and sentenced defendant within the guideline range dictated by that quantity, which was less than 20 years. The Ninth Circuit reaffirmed that Apprendi does not bar a district court from making drug quantity findings at sentencing as long as they do not increase the maximum sentence. U.S. v. Toliver, 351 F.3d 423 (9th Cir. 2003).
9th Circuit holds Apprendi error is not harmless when drug quantity is neither charged nor proved to a jury. (242) Despite a timely objection, the government did not charge drug quantity in the indictment, nor was drug quantity submitted to the jury. At sentencing, the judge found that the offense involved more than 50 grams of methamphetamine, and sentenced defendant to life in prison. On appeal, the Ninth Circuit held that this violated Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The court also found that the error was not harmless, reasoning that where drug quantity is neither charged in the indictment nor proved to a jury beyond a reasonable doubt, the government cannot meet its burden of showing harmless error because “there are too many unknowns to be able to say with any confidence, let alone beyond reasonable doubt, that the error was harmless.” The panel rejected the argument that a stipulation could cure the Apprendi error. “A stipulation at sentencing does not address the jury’s finding and cannot be considered under Apprendi.” U.S. v. Jordan, 291 F.3d 1091 (9th Cir. 2002).
9th Circuit says Apprendi did not prohibit sentence which exceeded mandatory minimum by one month. (242) In this second appeal after remand for resentencing, defendant argued that his guideline sentence – which exceeded the ten-year mandatory statutory minimum by one month – required a new trial with new jury instructions because of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The Ninth Circuit noted that the question had not been presented to the district court, but ruled that in any event “Apprendi has no application here.” Apprendi dealt with the consideration of facts in sentencing enhancement beyond the statutory maximum. In the instant case the sentence imposed was nine years and eleven months below the statutory maximum.” U.S. v. Garcia-Sanchez, 238 F.3d 1200 (9th Cir. 2001).
9th Circuit finds Apprendi error harmless where sentence was within statutory maximum. (242) Defendant argued that the judge’s drug quantity finding under the “relevant conduct” section of the guidelines increased the statutory maximum penalty to which he was exposed, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000). In a footnote, the panel found it unnecessary to address the issue because defendant was not prejudiced by any Apprendi error. He was sentenced to 135 months, which was less than the lowest possible statutory maximum applicable for manufacture of methamphetamine: the 20-year maximum under 21 U.S.C. § 841(b)(1)(C) for distribution of an unspecified quantity of methamphetamine. Thus, even if the district court’s finding of drug quantity increased the prescribed maximum, defendant was not prejudiced “because the sentence he received fell well below the statutory maximum for the offense to which he pleaded guilty.” U.S. v. Scheele, 231 F.3d 492 (9th Cir. 2000).
9th Circuit forbids downward departure based on crack/powder sentencing disparity. (242) The Ninth Circuit noted that the widely disparate penalties for cocaine and cocaine base “may be unfair,” but courts of appeal nevertheless have held that district courts have no authority to depart downward for that reason. Consistent with its holding in U.S. v. Jackson, 84 F.3d 1154 (9th Cir. 1996), the Ninth Circuit joined other circuits that have held that “district court has no discretion to depart downward based on the powder/base sentencing disparity.” U.S. v. Berger, 103 F.3d 67 (9th Cir. 1996).
9th Circuit upholds 100:1 ratio of crack to powder cocaine despite Sentencing Commission’s criticism. (242) Defendant argued that the rational basis for the 100:1 ratio has eroded because the Sentencing Commission, after some study, recently recommended that the disparity between crack and powder cocaine be eliminated. Congress disapproved the Commission’s recommendation. Pub. L. No. 104-38, 109 Stat. 334 (1995). The Ninth Circuit held that the Commission’s report and Congress’s decision to reject it did not affect the precedential value of U.S. v. Harding, 971 F.2d 410, 413 (9th Cir. 1992), cert. denied, 506 U.S. 1070 (1993), that Congress had a rational basis for the 100:1 ratio. The reasons attributed to Congress’s decision to enact the 100:1 ratio are rational even though the magnitude of the ratio differs from the Sentencing Commission’s current recommendation. U.S. v. Jackson, 84 F.3d 1154 (9th Cir. 1996).
9th Circuit says 100-to-1 crack-powder cocaine ratio does not violate equal protection. (242) A facially neutral law is subject to strict scrutiny if it is a pretext for discrimination, but “disparate impact alone is insufficient to support a finding of invidious racial discrimination.” Thus the Ninth Circuit found that Congress was not motivated by racial animus when it created the 100-to-1 crack-powder cocaine ratio in 21 U.S.C. § 841(b). Nor did the statute violate equal protection as applied. It was true that Blacks constituted 91% of federal crack defendants but only 67% of state crack defendants in the Eastern District of Washington. However, the government showed that the decision to prosecute in federal court was guided by neutral criteria, including quantity over five grams, gang affiliation, and the presence of firearms. Of the 27 White defendants prosecuted in state court, only one met these criteria, whereas 24 of the Black defendants prosecuted in state court could have been prosecuted federally under these criteria, but were not. Judge Boochever concurred in the opinion, but found “shocking” the difference in punishment between crack and powder cocaine. U.S. v. Dumas, 64 F.3d 1427 (9th Cir. 1995).
9th Circuit upholds life sentence for possession of 1,000 pounds of cocaine. (242) The Ninth Circuit held that the fact that the sentencing guidelines’ base offense level of 42 for drug offenses existed only during a relatively small window of time did not violate due process, since the district courts must apply the sentencing guidelines in effect on the date of sentencing. 18 U.S.C. § 3553(a)(4). As for defendant’s 8th Amendment claim, defendant cited no case law in support of the proposition that a life sentence for possession of thousands of pounds of cocaine is constitutionally defective. Instead, he conceded the existence of both Ninth Circuit and Supreme Court cases holding just the opposite. See, e.g., Harmelin v. Michigan, 501 U.S. 957 (1991) (life sentence for possession of l.5 pounds of cocaine); U.S. v. VanWinroe, 951 F.2d 1069 (9th Cir. 1991) (life sentence for possession of 150 grams of cocaine with intent to distribute). U.S. v. Duque, 62 F.3d 1146 (9th Cir. 1995).
9th Circuit upholds 30-year career offender sentence for 67 grams of cocaine base. (242) Defendant was convicted of possession with intent to distribute 67 grams of cocaine base. Because he had two prior felony drug offenses, he was subject to a 30-year sentence under the career offender guideline, §4B1.1. The Ninth Circuit rejected the argument that his 30 year sentence violated the Eighth Amendment and the due process clause. The court noted that in Harmelin v. Michigan, 501 U.S. 957, 961 (1991), the Supreme Court upheld a sentence of life without parole for a first offense of possession of 672 grams of cocaine, against an Eighth Amendment challenge. See also Hutto v. Davis, 454 U.S. 370, 375 (1982) (upholding a 40-year sentence for possession of less than 9 ounces of marijuana); Rummel v. Estelle, 445 U.S. 263, 265 (1980) (upholding a life sentence under a “recidivist statute” where the three felonies were (1) passing a forged check for $28.36 (2) fraudulently using a credit card to obtain $80 worth of goods and services, and (3) obtaining $120.75 by false pretenses). Although harsh, the sentence in this case was less severe than the sentences upheld in those cases. U.S. v. Carr, 56 F.3d 38 (9th Cir. 1995).
9th Circuit says term “cocaine base” not unconstitutionally vague. (242) 21 U.S.C. § 846(a)(1), which outlaws distributing “cocaine base,” is not unconstitutionally vague. The 9th Circuit ruled that the substances called “cocaine base” are distinguishable from cocaine powder. U.S. v. Davis, 36 F.3d 1424 (9th Cir. 1994).
9th Circuit holds higher punishment for cocaine base does not violate Equal Protection. (242) The 9th Circuit held that higher punishment for distribution of cocaine base (21 U.S.C. § 841(b)(1)(A) than powdered cocaine implicates neither a suspect class nor a fundamental right. The higher punishment does not violate Equal Protection because the government has a rational basis for treating cocaine base (“crack”) more harshly. It offers first time users and addicts easy, relatively inexpensive and potent means to a temporary high. U.S. v. Davis, 36 F.3d 1424 (9th Cir. 1994).
9th Circuit rules five year limit on challenging prior conviction does not violate Equal Protection. (242) 21 U.S.C. § 851(e) bars anyone convicted of an offense from challenging the validity of a prior conviction that occurred more than five years before the information. The 9th Circuit refused to find any Equal Protection violation. There is no constitutional right to attack a prior conviction not obtained in violation of the right to counsel. Further, barring challenges to older prior convictions is rational. U.S. v. Davis, 36 F.3d 1424 (9th Cir. 1994).
9th Circuit says difference in sentence for crack and powder cocaine is constitutional. (242) Defendant argued that U.S.S.G. §2D1.1 and 21 U.S.C. §841(b), which provide for higher sentences for defendants convicted of offenses involving cocaine base (crack) than for defendants convicted of crimes involving cocaine hydrochloride (powder cocaine), violate the Equal Protection Clause. Specifically, defendant argued that the crack/cocaine powder distinction has a disparate impact on black defendants. The 9th Circuit rejected the argument, relying on U.S. v. Chandler, 996 F.2d 917, 918 (7th Cir. 1993), and agreeing that Congress’ and the Sentencing Commission’s “awareness of consequences alone does not establish discriminatory intent.” U.S. v. Coleman, 24 F.3d 37 (9th Cir. 1994).
9th Circuit upholds crack and powder cocaine guidelines against equal protection challenge. (242) The 9th Circuit rejected an equal protection challenge to the sentencing provisions in 21 U.S.C. section 841(b)(1), and the sentencing guidelines, agreeing with U.S. v. Lawrence, 951 F.2d 751, 755 (7th Cir. 1991); U.S. v. House, 939 F.2d 659, 664 (8th Cir. 1991); U.S. v. Avant, 907 F.2d 623, 627 (6th Cir. 1990); U.S. v. Thomas, 900 F.2d 37, 39 (4th Cir. 1990); U.S. v. Cyrus, 890 F.2d 1245, 1248-49 (D.C. Cir. 1989); and U.S. v. Solomon, 848 F.2d 156, 157 (11th Cir. 1988), The court held that the statute and the guidelines were subject only to “rational basis” scrutiny, and found that “the distinction between crack and powder cocaine is “neither arbitrary nor irrational.” U.S. v. Harding, 971 F.2d 410 (9th Cir. 1992).
10th Circuit finds no Apprendi violation where sentence fell within statutory maximum supported by jury verdict. (242) Defendant argued that his trial and sentencing procedures violated Apprendi v. New Jersey, 530 U.S. 466 (2000) Although the jury did not determine drug quantity beyond a reasonable doubt, defendant’s sentence fell within the prescribed statutory maximum for the offense the jury did consider, and thus the Tenth Circuit ruled there was no Apprendi violation. The jury was instructed that it need only find that defendant possessed “a measurable amount” of the drug. Although the jury considered drug amounts beyond the 36 ounces alleged in the indictment when computing defendant’s sentence, that is not error unless the statutory maximum was exceeded. Defendant had a prior felony drug conviction, so the statutory maximum for his offense was increased from 20 to 30 years under § 841(b)(1)(C). Thus, his 262-month fell within the heightened statutory maximum. Defendant’s claim that prior convictions should be decided by a jury was expressly foreclosed by Almendarez-Torres v. U.S., 523 U.S. 224 (1998). Apprendi did not overrule Almendarez-Torres. U.S. v. Wilson, 244 F.3d 1208 (10th Cir. 2001).
10th Circuit holds that sentence based on drug quantity not alleged in the indictment required resentencing. (242) The indictment charged defendant with distributing crack in violation of 21 U.S.C. § 841(a)(1), but did not specify the amount involved. The district court sentenced her to 360 months’ imprisonment pursuant to § 841(b)(1)(A). The Seventh Circuit initially rejected her appeal, but the Supreme Court remanded for further consideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). After Apprendi, a trial court may not use § 841(b)(1)(A) or § 841(b)(1)(B) for sentencing without drug quantity being charged in the indictment. Because the indictment did not allege drug quantity, the Seventh Circuit held that the court erred in imposing a 30-year sentence. Since defendant had no prior felony drug convictions, the maximum sentence she could receive under § 841(b)(1)(C) for an offense involving an unspecified drug quantity was 20 years. The indictment error was not subject to harmless error analysis. “The error … is best characterized as sentencing in excess of the statutory maximum penalty applicable to the offense of conviction.” However, the court’s failure to require the jury to determine drug type and quantity was harmless error, since defendant stipulated to a quantity of cocaine base at trial (24.36 grams) sufficient to support a sentence of up to 40 years under § 841(b)(1)(B). No reasonable jury could have rationally concluded that defendant was guilty of the charged offenses, but that the amount of crack possessed was less than five grams. U.S. v. Jackson, 240 F.3d 1245 (10th Cir. 2001).
10th Circuit holds that Apprendi error did not violate substantial rights. (242) Defendant argued that because the jury did not make a specific finding as to the amount of cocaine he possessed, his conviction and sentences should be overturned, based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). The Tenth Circuit agreed that defendant’s sentence was in error, and the error was plain. However, no substantial rights were affected, because defendant was sentenced to 14 years, well below the 20-year limit in § 841(b)(1)(C) for offenses involving an unspecified quantity of cocaine. Therefore, no reversal was necessary. In addition, the district court did not err in considering drugs amounts as aggravating factors in establishing defendant’s offense level under the guidelines. Not all facts that affect a defendant’s sentence are essential elements, requiring prosecutorial proof and a jury finding. “Judges may still ascertain drug quantities by a preponderance of the evidence for the purpose of calculating offense levels under the Sentencing Guidelines, so long as they do not sentence above the statutory maximum for the jury.” U.S. v. Heckard, 238 F.3d 1222 (10th 2001).
10th Circuit finds no Apprendi error where sentence fell within range for unspecified drug quantity. (242) In Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Although defendant’s indictment did not allege drug quantity, the Tenth Circuit found that it was legally sufficient because his 121-month sentence fell within the 240-month statutory maximum for an offense involving an unspecified quantity of cocaine base. See 21 U.S.C. § 841(b)(1)(C). “A district court may not impose a sentence in excess of the maximum set forth in 21 U.S.C. § 841(b)(1)(C) unless the benchmark quantity of cocaine base for an enhanced penalty is alleged in the indictment in addition to being submitted to the jury and proven beyond a reasonable doubt.” U.S. v. Jones, 235 F.3d 1231 (10th Cir. 2000). Moreover, defendant’s concurrent five-year terms of supervised release did not violate Apprendi because they were within the minimum statutory range. Section 841(b)(1)(C) provides for a minimum of three years’ supervised release, and consistent with this, the guidelines authorize a term of not less than three years and not more than five years. USSG § 5D1.2. U.S. v. Thompson, 237 F.3d 1258 (10th Cir. 2001).
10th Circuit says Apprendi does not bar use of relevant drugs if sentence falls within statutory maximum. (242) Agreeing with every other circuit interpreting Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the Tenth Circuit ruled that, under § 841(b)(1), the quantity of drugs is a fact that may “increase[] the penalty for a crime beyond the prescribed statutory maximum” and therefore “must be submitted to a jury” and proved beyond a reasonable doubt. The failure to require specific jury findings regarding the quantity of cocaine involved in defendant’s offense constituted a “plain or obvious error.” However, defendant was not prejudiced by this error. At trial, the government chemist described a total of 44.6 grams of crack, enough to trigger the five to 40 year term in § 841(b)(1)(B) for offenses involving more than five grams of crack. Defendant’s 360-month sentence fell within that statutory maximum. Defendant admitted that he possessed this crack. Defendant’s sentence was properly based upon consideration of drugs quantities beyond the offense of conviction. “As long as the defendant’s sentence falls within the maximum established by statute, Apprendi does not foreclose consideration of drug quantities beyond the offense of conviction.” U.S. v. Hishaw, 235 F.3d 565 (10th Cir. 2000).
10th Circuit holds that failure to comply with Apprendi not plain error. (242) Defendant argued for the first time on appeal that since drug quantity was not determined by the jury, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), his sentence could not exceed the maximum statutory range for an undetermined amount of marijuana, specifically five years’ imprisonment under 21 U.S.C. § 841(b)(1)(D). The Tenth Circuit agreed with other circuits that Apprendi applies to drug quantities under § 841(b). Since defendant did not raise this issue below, however, he had to show that failure to comply with Apprendi constituted plain error. The first two requirements for plain error were met: there was actual error, and the error was plain or obvious. However, the error did not affect defendant’s substantial rights because he could not establish prejudice. To demonstrate prejudice, the evidence must suggest a reasonable doubt on drug quantity. The evidence of defendant’s involvement with Hodges’ growing operation over time was overwhelming. The explanation Hodges gave for the discrepancy in his debriefing and the 150 pounds he testified to at trial went unchallenged. Moreover, Anderson’s testimony was highly corroborative of Hodges’ testimony about the relationship between Hodges and defendant. Because the evidence of drug quantity was overwhelming, there was no plain error. U.S. v. Keeling, 235 F.3d 533 (10th Cir. 2000).
10th Circuit holds that drug quantity is element of offense if it exposes defendant to increased maximum. (242) Defendant’s indictment did not allege the amount of cocaine base involved in either count. Section 841(b)(1)(C) authorizes a maximum sentence of 20 years for offenses involving an unspecified quantity of cocaine. At sentencing, the court found that 165.5 grams of cocaine base were involved in both offenses and sentenced defendant under § 841(b)(1)(A), which authorizes a maximum term of life imprisonment. On defendant’s first appeal, U.S. v. Jones, 194 F.3d 1178 (10th Cir. 1999), the Tenth Circuit rejected defendant’s argument that drug quantity was an element of the offense. The Supreme Court vacated and remanded for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). On remand, the Tenth Circuit held that drug quantity involved in a violation of § 841 is an essential element of the offense if that fact exposes the defendant to a heightened maximum sentence under § 841(b)(1)(A) or (B). A district court may not impose a sentence in excess of the maximum in § 841(b)(1)(C) unless the benchmark quantity of cocaine base for an enhanced penalty is alleged in the indictment in addition to being submitted to the jury and proven beyond a reasonable doubt. See U.S. v. Crockett, 812 F.2d 626 (10th Cir. 1987). Defendant’s 30-year sentence improperly exceeded the statutory maximum applicable to the offense alleged in the indictment. Although the sentence fell below the 40 years defendant could receive if the court imposed two consecutive 20-year sentences, the error was not harmless. The relevant inquiry is the constitutionality of the sentence imposed on each individual count. U.S. v. Jones, 235 F.3d 1231 (10th Cir. 2000).
10th Circuit upholds sentencing distinction between crack and powder cocaine. (242) For sentencing purposes, the guidelines equate one gram of crack to 100 grams of powder cocaine. Defendant argued that the distinction between powder and crack cocaine violated his Fifth Amendment right to due process and equal protection, as well as his Eighth Amendment right to be free from cruel and unusual punishment. The Tenth Circuit held that these arguments were foreclosed by circuit precedent. U.S. v. Brooks, 161 F.3d 1240 (10th Cir. 1998).
10th Circuit rules Commission’s crack recommendations not basis for downward departure. (242) Defendant argued the district court could depart downward in light of the Sentencing Commission’s recent recommendation to Congress to abolish the 100:1 sentencing differential between crack and powder cocaine. The Tenth Circuit found no basis for a downward departure. Absent ex post facto considerations, a court is bound to apply the guidelines in effect at the time of sentencing. Congress has rejected the Commissions’ recommendation, voting instead to preserve the higher sentences for crack‑related crimes. U.S. v. Maples, 95 F.3d 35 (10th Cir. 1996).
10th Circuit examines sentencing manipulation claim under outrageous conduct standard. (242) Defendant argued that the government unnecessarily continued its undercover investigation for the sole purpose of increasing his punishment under the guidelines. The Tenth Circuit examined the sentencing manipulation claim under its established outrageous conduct standard. The relevant inquiry is whether, under the totality of the circumstances, the government’s conduct was so shocking, outrageous, and intolerable that it offended the universal sense of justice. The government gave several reasons for its continued investigation of defendant. The surveillance enabled the government to locate an underground drug stash, Moreover, until the date of defendant’s arrest, the FBI had no direct evidence placing cocaine in his possession. The government could properly decide to seek a “bigger buy” from defendant’s distributor. It is not outrageous for the government to induce a defendant to continue criminal activity or even induce him to expand or extend previous criminal activity. The ultimate seizure of a larger quantity of illegal drugs has positive social consequences. U.S. v. Lacey, 86 F.3d 956 (10th Cir. 1996).
10th Circuit upholds 100 to 1 crack cocaine sentencing ratio. (242) The Tenth Circuit, relying on previous cases, summarily rejected defendant’s claim that § 2D1.1, which equates one kilogram of crack to 100 kilograms of powder cocaine, is unconstitutional. The disparate impact does not imply a finding of intentional discrimination. The distinction between the forms of cocaine is rational. U.S. v. Williamson, 53 F.3d 1500 (10th Cir. 1995).
10th Circuit finds no discriminatory intent in 100 to 1 ratio of cocaine to cocaine base. (242) Defendant argued that the 100 to 1 ratio of cocaine to cocaine base in 21 U.S.C. 841(b)(1)(A)(iii) and guideline § 2D1.1 violated equal protection. He offered evidence of both disproportionate impact and discriminatory intent on the part of Congress. The Tenth Circuit rejected the claim, since defendant failed to prove a discriminatory intent. Congress’s “failure to account for a foreseeable disparate impact” did not violate equal protection. U.S. v. Williams, 45 F.3d 1481 (10th Cir. 1995).
10th Circuit upholds 100:1 cocaine base sentencing ratio. (242) The 10th Circuit, without an extended discussion, upheld the constitutionality of the 100:1 ratio of cocaine base to cocaine powder in § 841(b)(1)(A)(iii) and guideline § 2D1.1(a)(3). U.S. v. Ashley, 26 F.3d 1008 (10th Cir. 1994).
10th Circuit upholds marijuana conversion scheme. (242) In U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds by U.S. v. Wise, 976 F.3d 393 (8th Cir. 1992), the 8th Circuit held that the requirement in guideline section 2D1.1 to consider each marijuana plant as the equivalent of 100 grams in cases involving less than 50 plants was inconsistent with 21 U.S.C. § 841(b)(1)(D)’s mandate that weight alone be determinative in cases involving less than 50 plants. The 10th Circuit rejected the 8th Circuit’s interpretation, relying on amendments to the commentary to section 2D1.1. Congressional acceptance of the amendment to the section requires that the section be applied. Moreover, the comment now sets forth an adequate explanation for section 2D1.1’s treatment of cases involving less than 50 plants and dispels any assertion that the treatment is arbitrary or capricious. U.S. v. Dahlman, 13 F.3d 1391 (10th Cir. 1993).
10th Circuit upholds marijuana equivalency. (242) The 10th Circuit summarily rejected defendant’s challenge to the marijuana plant equivalency in section 2D1.1(c). The sentencing scheme is not based on a correlation between the weight and yield of individual marijuana plants. Congress intended to punish growers of marijuana by the scale or potential of their operation. U.S. v. Jackson, 11 F.3d 953 (10th Cir. 1993).
10th Circuit upholds equivalency scheme for sentencing marijuana growers. (242) Under 21 U.S.C. section 841(b)(1) and guideline section 2D1.1, for offenses involving 50 or more marijuana plants, each plant is treated as equivalent to one kilogram of marijuana. For offenses involving less than 50 plants, each plant is treated as equivalent to 100 grams of marijuana. The 10th Circuit upheld the sentencing scheme against a due process challenge. Congress was attempting to measure the severity of the offense, not the actual weight of marijuana grown. U.S. v. Cody, 7 F.3d 1523 (10th Cir. 1993).
10th Circuit holds statistics insufficient to show discriminatory purpose in cocaine base ratio. (242) Defendants offered evidence that 95 percent of federal cocaine base prosecutions are brought against African-Americans, while 40 percent of federal cocaine powder prosecutions are brought against whites. Defendants claimed that this was one of those rare cases where the statistical evidence alone was enough to prove that Congress had a racially discriminatory purpose in enacting the harsher penalties for cocaine base. The 10th Circuit found defendant’s statistics insufficient. Discriminatory impact alone will not show discriminatory purpose unless “a clear pattern, unexplainable on grounds other than race, emerges from the effect of the legislative action.” There was ample evidence of Congress’s reasons, other than race, for providing harsher penalties for offenses involving cocaine base. Cocaine base (a) has a more rapid onset of action, (b) is more potent, (c) is more highly addictive, (d) is less expensive than powder cocaine, and (e) has widespread availability. U.S. v. Thurmond, 7 F.3d 947 (10th Cir. 1993).
10th Circuit upholds classification of P-2-P as a Schedule II stimulant. (242) Defendant alleged that the guidelines unconstitutionally classified P-2-P as a Schedule II stimulant when there was no scientific evidence that it was a stimulant. The 10th Circuit upheld the classification, since P-2-P is a known and listed “immediate precursor” chemical used in the manufacture of amphetamine and methamphetamine. Pursuant to 23 U.S.C. § 811(e), the Attorney General may place an immediate precursor in the same schedule as the controlled substance or in any other schedule with a higher numerical designation. U.S. v. Killion, 7 F.3d 927 (10th Cir. 1993).
10th Circuit upholds equating one marijuana plant to one kilogram for sentencing purposes. (242) The 10th Circuit upheld the constitutionality of §2D1.1(a)(3), which provides that, in cases involving 50 or more marijuana plants, each plant is the equivalent of one kilogram for sentencing purposes. Large-scale marijuana growers are not a suspect class deserving of heightened scrutiny, and there is a rational basis for penalizing large producers at an elevated level, regardless of their actual proficiency in achieving the weight equivalencies upon which they are sentenced. U.S. v. Occhipinti, 998 F.2d 791 (10th Cir. 1993).
10th Circuit concludes that “cocaine base” is not unconstitutionally vague. (242) Defendant argued that 21 U.S.C. sec. 841 and 2D1.1 are void for vagueness in imposing increased sentences for offenses involving “cocaine base.” Relying on circuit precedent, the 10th Circuit disagreed. It made no difference that defendant, unlike the defendants in some prior cases, had argued that the drugs he possessed had actually been improperly classified as cocaine base. U.S. v. McIntyre, 997 F.2d 687 (10th Cir. 1993).
10th Circuit finds guideline and statute are not vague despite failure to define “cocaine base.” (242) The 10th Circuit held that 21 U.S.C. section 841(b)(1) and guideline section 2D1.1 are not unconstitutionally void for vagueness for failing to define the term “cocaine base.” The statute and guidelines make it clear that trafficking in cocaine, no matter what the form, will result in punishment. Section 841(b)(1) is merely a penalty provision and does not change the elements of cocaine trafficking offenses. “Cocaine base” is sufficiently defined and distinguishable from other forms of cocaine to prevent arbitrary and discriminatory enforcement. As a result of their different chemical compositions, cocaine base and cocaine hydrochloride have distinct physical properties, including different melting points, solubility levels, and molecular weights. U.S. v. Easter, 981 F.2d 1549 (10th Cir. 1992).
10th Circuit finds harsher penalties for cocaine base do not violate equal protection. (242) The 10th Circuit rejected defendant’s claim that the enhanced penalty scheme for offenses involving cocaine base, rather than cocaine, violates equal protection by disproportionately affecting blacks. There was no evidence that Congress or the sentencing commission adopted the more severe cocaine base penalties to further a racially discriminatory purpose. Therefore, the scheme was subject only to rational basis review, and met that standard. U.S. v. Easter, 981 F.2d 1549 (10th Cir. 1992).
10th Circuit upholds harsher penalties for cocaine base than for cocaine powder. (242) The 10th Circuit rejected constitutional challenges to the guideline section providing for harsher penalties for offenses involving crack cocaine than for cocaine powder. Even if such a provision has a discriminatory impact upon African-Americans, there is a rational relationship between the classification and a legitimate end. The guideline is not unconstitutionally vague. The mandatory nature of the guidelines is not an impermissible exercise of judicial power by the legislative branch. U.S. v. Robinson, 978 F.2d 1554 (10th Cir. 1992).
10th Circuit upholds mandatory minimum sentence for more than 100 marijuana plants against equal protection challenge. (242) Title 21 U.S.C. section 841(b)(1)(B)(vii) provides for a mandatory five year sentence for 100 kilograms or more of a mixture or substance containing marijuana, or 100 or more marijuana plants, regardless of weight. Defendant was growing 249 marijuana plants. The district court ruled that applying the mandatory minimum sentence to defendant would violate the equal protection clause because there was no rational relationship between 100 marijuana plants and 100 kilograms of marijuana. The 10th Circuit reversed, holding that even if a single marijuana plant cannot produce a kilogram of marijuana substance, and the statute punishes marijuana growers more severely than those who possess harvested marijuana, the sentencing scheme does not violate the equal protection clause. Congress intended to punish growers of marijuana by the scale of potential of their operation and not just the weight of the plants seized at a given moment. U.S. v. Lee, 957 F.2d 770 (10th Cir. 1992).
10th Circuit upholds guidelines’ distinction between cocaine base and cocaine in other forms. (242) The guidelines punish offenses involving cocaine base more harshly than offenses involving other forms of cocaine, treating one gram of cocaine base the same as 100 grams of cocaine hydrochloride. Defendant claimed that this sentencing scheme violated due process, and that the term “cocaine base” was impermissibly vague and invited arbitrary sentencing. The 10th Circuit rejected these arguments, noting that other circuits have held that this does not violate due process. Moreover, defendant did not establish that the term “cocaine base” encourages arbitrary and discriminatory enforcement or that it was vague as applied to his conviction and sentence. In fact, defendant’s expert chemist testified that a chemist can easily differentiate between cocaine base and cocaine hydrochloride based upon their melting points. U.S. v. Turner, 928 F.2d 956 (10th Cir. 1991).
10th Circuit holds base offense levels for crack cocaine are not cruel and unusual punishment. (242) Defendant pled guilty to conspiracy to distribute cocaine base and was sentenced to 264 months. Defendant argued that the sentencing guidelines for distribution of cocaine base (21 U.S.C. § 841(b)(1)(A)(iii) violate the 8th Amendment’s prohibition against cruel and unusual punishment. The 10th Circuit affirmed the sentence, finding that the base offense level for the crime “was clearly not disproportionate to what Congress and other jurisdictions have indicated is appropriate for drug offenses.” The court also compared the sentence to the 22 year sentence for possession of 9 ounces of marijuana upheld by the Supreme Court in Hutto v. Davis, 454 U.S. 370 (1982). U.S. v. Colbert, 894 F.2d 373 (10th Cir. 1990).
11th Circuit says Booker error was harmless where court stated it would impose same sentence even if guidelines were unconstitutional. (242) Defendant pled guilty to drug charges. Over defendant’s objection, the district court included some additional drugs that it found was relevant conduct in its sentencing calculation, resulting in a higher sentence than it otherwise could have imposed given the facts admitted by defendant. The district court imposed a 24-month sentence under a mandatory guidelines scheme. However, the court stated that it would impose the same sentence whether Blakely invalidated the guidelines or not. In light of U.S. v. Booker, 543 U.S. 220 (2005) defendant argued that the district court erred in sentencing him under the mandatory guideline scheme. The Eleventh Circuit agreed that the court erred, but found that the government met its burden of showing that the error was harmless beyond a reasonable doubt. The district court stated its sentence would be the same even if the guidelines were only advisory. Thus, the panel could know with certainty beyond a reasonable doubt what the district court would do upon remand. When an error does not change the achieved result, it is harmless. U.S. v. Robles, 408 F.3d 1324 (11th Cir. 2005).
11th Circuit finds Apprendi error was not plain where only evidence of drug quantity was uncontested. (242) Defendant was convicted of a variety of drug trafficking charges and received 40-year sentences on some counts, and a life sentence on another. The Supreme Court granted defendant’s petition for a writ of certiorari, vacated and remanded for further consideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Wims v. U.S., 121 S.Ct. 32 (2000). Because defendant did not raise a constitutional objection on or before sentencing, the case was reviewed only for plain error. The Eleventh Circuit ruled that the Apprendi error involved here did not satisfy all four prongs of the plain error test. There was error, since defendant’s life sentence exceeded the maximum (20 years) prescribed in § 841(b)(1)(C) for an offense involving an unspecified quantity of drugs. The error was plain, since a sentence that exceeds that statutory maximum without regard to quantity is clear error. However, defendant was unable to satisfy the third prong—he failed to show that the error affected his substantial rights. As to the counts for which he received 40-year sentences, the uncontested evidence showed that least 500 grams of cocaine were involved, enough to support a 40-year sentence under § 841(b)(1)(B). As to the conspiracy count for which he received a life sentence, the uncontested evidence concerned six one-kilogram packages of cocaine. Because the jury convicted him of this count, they necessarily attributed six kilograms to defendant, enough to support the life sentence under § 841(b)(1)(A). U.S. v. Wims, 245 F.3d 1269 (11th Cir. 2001).
11th Circuit holds that Apprendi does not apply to relevant conduct provisions. (242) The district court held that Apprendi v. New Jersey, 530 U.S. 466 (2000) precluded it from considering drug quantities other than those involved in the counts of conviction. The Eleventh Circuit disagreed, based on its recent decision in U.S. v. Maldenaldo-Sanchez, 247 F.3d 1306 (11th Cir. 2001). Maldenaldo-Sanchez held that Apprendi does not apply to the Sentencing Guidelines. “Because a finding under the Sentencing Guidelines determines the sentence within the statutory range rather than outside it, the decision in Apprendi, which addresses any increase in penalty for a crime outside the statutory maximum, has no application to the Guidelines.” U.S. v. Harris, 244 F.3d 828 (4th Cir. 2001), affirmed, Harris v. U.S., 536 U.S. 545 (2002), overruled by Alleyne v. U.S., 133 S.Ct. 2151 (2013).
11th Circuit rules defendants could not show Apprendi error affected substantial rights. (242) Four defendants contended for the first time on appeal that their sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because the quantity of drugs involved was not submitted to the jury and proved beyond a reasonable doubt. The Eleventh Circuit found no Apprendi error as to one defendant, because his 168-month sentence fell below the 20-year maximum in 21 U.S.C. § 841(b)(1)(C) for an offense involving an unspecified amount of drugs. The other three defendants could not meet the third prong of plain error review — they could not show that the error affected their substantial rights. Defendant Felix, who received a 324-month sentence, admitted in a PSR objection and at sentencing that he possessed four kilograms of cocaine. This exceeded the 500-gram threshold necessary for sentencing under § 841(b)(1)(B), which authorizes a sentencing range of five to 40 years. Defendant Lazaro’s conviction was based on his involvement in a 326-kilogram “rip-off” of cocaine. Lazaro did not object to or contest this amount at trial. There was no way a jury could have convicted him and still determined that the quantity involved was less than five kilograms of cocaine, which is the minimum amount necessary to support a life sentence under § 841(b)(1)(A). Finally, defendant Rizo conceded that a prior New Jersey conviction involved ten kilograms of cocaine. Because these ten kilograms of cocaine were part of the current conspiracy, the jury necessarily found the conspiracy involved more than five kilograms of cocaine. U.S. v. Gallego, 247 F.3d 1191 (11th Cir. 2001).
11th Circuit rules Apprendi error did not affect substantial rights. (242) Because the indictment did not allege a specific quantity of cocaine, the maximum sentence that defendant could receive under 21 U.S.C. § 841(b)(1)(C) was 20 years. See Apprendi v. New Jersey, 530 U.S. 466 (2000). For the first time on appeal, defendant argued that his 30-year sentence violated Apprendi. Under plain error review, defendant must establish (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. The Eleventh Circuit ruled that although defendant could satisfy the first two elements of the plain error test, he could not show that the Apprendi error affected his substantial rights. Although the amount of cocaine involved at the offense was disputed at sentencing, defendant never contended that he conspired to distribute less than 500 grams. In both his plea agreement and during the plea colloquy, defendant admitted that he had accepted delivery of three kilograms of cocaine. Under § 841(b)(1)(B), conspiracy to distribute this quantity of cocaine is punished with a statutory range of five to 40 years. U.S. v. Pease, 240 F.3d 938 (11th Cir. 2001).
11th Circuit says substantial rights not affected if sentence does not exceed aggregate maximum for multiple convictions. (242) Under Apprendi v. New Jersey, 530 U.S. 466 (2000), a judge must submit to the jury an element of sentencing that would increase the sentence beyond the statutory maximum. Since drug quantity was not submitted to the jury, the statutory maximum for each of defendants’ convictions was 20 years. See 21 U.S.C. § 841(b)(1)(C). Defendants never objected at sentencing when the judge determined drug quantity by a preponderance of the evidence, so appellate review was limited to plain error. For a plain error to merit reversal, it must affect a defendant’s substantial rights. Here, defendants were convicted of three counts, each carrying a maximum sentence of 20 years, and making them subject to a possible maximum sentence of 60 years. The Eleventh Circuit ruled that when the ultimate sentence does not exceed the aggregate statutory maximum for the multiple convictions, no effect on substantial rights has occurred that must be remedied. Accordingly, it refused to reverse the sentences. U.S. v. Smith, 240 F.3d 927 (11th Cir. 2001).
11th Circuit holds that Apprendi error did not affect substantial rights. (242) For the first time on rehearing, defendant challenged his sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000). The Eleventh Circuit held that the error did not satisfy the third prong of the plain error test — the error did not affect defendant’s substantial rights. On the drug possession count, defendant’s partner was the only witness. The jury necessarily believed the partner in order to convict defendant under this count. The partner testified that, on one occasion, defendant delivered nine ounces of cocaine base to him for distribution. No reasonable jury could have concluded that defendant was guilty of the substantive possession offense, but that the amount was less than five grams. Under 21 U.S.C. § 841(b)(1)(B)(iii), if defendant possessed five grams or more of cocaine base, he was subject to up to 40 years’ imprisonment. Defendant received a 30-year sentence on this count. The conspiracy count necessarily subsumed the amount of cocaine in the possession charge. U.S. v. Candelario, 240 F.3d 1300 (11th Cir. 2001).
11th Circuit outlines standards for reviewing Apprendi errors. (242) The Eleventh Circuit outlined the differing standard of review for alleged Apprendi errors. The standard of review depends upon whether the objection was timely. An Apprendi objection is timely if made at or before sentencing. If timely, the objection receives the benefit of preserved error review, which is de novo. However, under this standard of review, even if a defendant’s sentence violates Apprendi, such an error is subject to harmless error analysis under Fed. R. Crim. P. 52(a). An error is harmless where it is clear beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. If the defendant does not raise his Apprendi claim in a timely fashion, he is only entitled to plain error review. Under this standard, defendant must show that (1) there is error, (2) that is plain, and (3) that affects substantial rights. Previous cases have found an Apprendi error does not affect substantial rights where there was no way a jury could have found that the defendant possessed less than the amount needed to support his sentence, or where the defendant’s sentence did not exceed the aggregate statutory maximum for multiple convictions. If all three plain error conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. U.S. v. Candelario, 240 F.3d 1300 (11th Cir. 2001).
11th Circuit holds that defendant abandoned Apprendi claim by failing to raise it until supplemental brief. (242) Defendant argued for the first time in his supplemental brief that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000) required the indictment to include the element of drug quantity. The Eleventh Circuit held that defendant abandoned this Apprendi claim by not raising the issue in his initial brief. Defendant argued at trial and in his initial brief that the question of drug quantity should be submitted to the jury, but did not raise the indictment issue until his supplemental brief. Defendant could not properly raise totally new issues in his supplemental brief. U.S. v. Nealy, 232 F.3d 825 (11th Cir. 2000).
11th Circuit holds that failure to submit drug quantity to jury was harmless error. (242) Under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), the judge must submit to the jury any element of sentencing that would increase the sentence beyond the statutory maximum. Where, as here, the defendant has prior drug felony convictions, the maximum sentence absent drug quantity under 21 U.S.C. § 841(b)(1)(C) is 30 years. Because the judge here did not submit the issue of drug quantity to the jury, defendant’s 32-year sentence violated Apprendi. The Eleventh Circuit ruled that the failure to submit the drug quantity issue to the jury was harmless error. When police searched defendant’s residence, they found 14.8 grams of cocaine base in his backpack, which also contained defendant’s identification card. This amount was uncontested at trial and sentencing. Defendant admitted at the scene that the cocaine base was his. Defendant was convicted for this possession, and, given the undisputed evidence, no reasonable jury could have rationally concluded that defendant was guilty of the substantive offense, but that the amount of cocaine possessed was less than five grams. U.S. v. Nealy, 232 F.3d 825 (11th Cir. 2000).
11th Circuit finds no plain error in supervised release terms, regardless of drug quantity. (242) Under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt. Because both defendants’ imprisonment terms were below the statutory maximum of 20 years for a cocaine offense without reference to drug quantity, see 21 U.S.C. § 841(b)(1)(C), Apprendi did not apply to the imprisonment portion of their sentences. However, they argued for the first time on appeal that their five-year supervised release terms violated Apprendi. Section 841(b)(1)(C) provides for “a term of supervised release of at least 3 years.” Under 18 U.S.C. § 3583(b)(2), the maximum term of supervised release for a Class C felony is three years, “[e]xcept as otherwise provided[.]” Defendants claimed that three years was the maximum term of supervised release under § 841(b)(1)(C). The Eleventh Circuit found no plain error, since there was no Supreme Court or Eleventh Circuit precedent on the issue of whether § 3582(b)(2) provides the maximum term of supervised release for a sentence under § 841(b)(1)(C). Other circuits that have addressed this issue are split, and the majority of them have resolved the issue against defendant’s position. Accordingly, the district court could not have committed plain error in imposing terms of supervised release in excess of three years, regardless of the quantity of drugs involved. U.S. v. Gerrow, 232 F.3d 831 (11th Cir. 2000).
11th Circuit holds that no relief warranted despite assumed Apprendi error. (242) After defendant was sentenced, the Supreme Court held, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), that any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt. Assuming that the district court’s failure to comply with Apprendi was plain error, the Eleventh Circuit nonetheless held that the error did not require reversal, because defendant could not show that the error affected his substantial rights or provided sufficient reason for the appellate court to exercise its power to correct plain error. After his arrest, defendant led authorities to 100-plus grams of cocaine and 20-odd grams of cocaine base in his house and admitted to possessing the cocaine and cocaine base. He offered no evidence at sentencing to challenge this admission. Thus, there was no serious dispute that defendant possessed at least 5 grams of cocaine base, enough for the increased statutory maximum. As to the sufficiency of the indictment, defendant did not even argue that he did not know before trial that the quantity or type of drugs could affect his sentence. The indictment cited § 841(b)(1) (B), the quantity enhancement subsection under which defendant was sentenced. Thus, the failure to submit the issues of the kind and quantity of drugs to the jury, or mention them in the indictment, could not have “affected the outcome of the district court proceedings.” U.S. v. Swatzie, 228 F.3d 1278 (11th Cir. 2000).
11th Circuit refuses to revisit constitutionality of crack cocaine guidelines. (242) Since their enactment, the guidelines provisions for crack cocaine have been attacked on the ground that the sentencing disparity violates the equal protection clause. Crack cases tends to involve poor urban African Americans, while powder cocaine use is more common among wealthier whites. The Supreme Court recently refused to review the Eleventh Circuit’s rejection of this argument in U.S. v. Sloan, 97 F.3d 1378 (11th Cir. 1996), cert. denied, 520 U.S. 1277 (1997). The Eleventh Circuit refused to reconsider the issue here. The various circuit courts agree that there are numerous legitimate and non race-released reasons why Congress may have included the distinction between cocaine base and cocaine powder, and it is not for the courts to interfere in that determination. U.S. v. Matthews, 168 F.3d 1234 (11th Cir. 1999).
11th Circuit holds crack penalties do not violate due process or equal protection. (242) Defendant challenged the constitutionality of the crack cocaine penalties on substantive due process and equal protection grounds. The Eleventh Circuit rejected both challenges. Previous cases have rejected the due process claim. The case cited by defendant, BMW of North America v. Gore, 517 U.S. 559 (1996) did not overrule or even relate to the circuit decisions upholding the crack cocaine guideline. Although the Sentencing Commission recommended the elimination of the harsher penalties for crack cocaine offenses, Congress rejected this proposed amendment and mandated further study. Congress specifically said that crack sentences should generally exceed sentences for an equivalent amount of powder cocaine. Even if the Sentencing Commission’s conclusion was entitled to controlling weight (as an agency’s interpretation of its own rules), nothing required Congress to accept that interpretation. Congress can constitutionally “veto” an agency’s interpretation of a legislative rule as long as Article I, § 7 requirements are met. U.S. v. Hanna, 153 F.3d 1286 (11th Cir. 1998).
11th Circuit holds sentence increase in § 851 does not improperly delegate legislature power to executive. (242) Defendant was convicted of conspiracy to possess with intent to distribute cocaine. He argued that 21 U.S.C. § 841 et. seq. is an unconstitutional delegation of legislative authority to the executive branch because it gives prosecutors unbridled discretion to determine whether or not to file a sentencing enhancement under § 851 without providing any “intelligible principle” to guide that discretion. The Eleventh Circuit held that § 851’s sentencing enhancement procedure did not improperly delegate legislative power to the executive branch. The power that prosecutors exercise under § 851 is analogous to the executive branch’s classic charging power. The Supreme Court has upheld the prosecutor’s ability to influence the sentence through the charging decision. U.S. v. Cespedes, 151 F.3d 1329 (11th Cir. 1998).
11th Circuit upholds constitutionality of crack cocaine penalties. (242) Defendant challenged the constitutionality of the crack cocaine penalties. The Eleventh Circuit rejected all of the constitutional challenges. Defendant’s cruel and unusual punishment claim and his rational basis argument have been rejected in previous opinions. U.S. v. Quinn, 123 F.3d 1415 (11th Cir. 1997).
11th Circuit rejects constitutional challenge to crack cocaine penalties. (242) Defendant raised a number of constitutional challenges to the harsher penalties for crack cocaine. The Eleventh Circuit rejected all of the challenges. Defendant’s claim that the rule of lenity should be applied in sentencing for crack offenses was foreclosed by U.S. v. Sloan, 97 F.3d 1378 (11th Cir. 1996). The sentencing disparity between crack and cocaine does not violate the equal protection clause. Although the penalty scheme has been changed since Sloan so that the harsher penalties only apply to crack, this change only made the penalty scheme even more rational than its predecessor. U.S. v. Vasquez, 121 F.3d 622 (11th Cir. 1997).
11th Circuit rejects constitutional challenges to crack sentencing ratio. (242) Defendant argued that his cocaine base sentence violated equal protection because the harsher penalties for crack than for powder cocaine have a disparate impact on blacks. The Eleventh Circuit noted that it has repeatedly rejected this argument over the past several years. Relying on U.S. v. Sloan, 97 F.3d 1378 (11th Cir. 1996), the court also rejected a second defendant’s claim that the sentencing distinction violates due process because cocaine and cocaine base are chemically indistinguishable. U.S. v. Butler, 102 F.3d 1191 (11th Cir. 1997).
11th Circuit rejects application of rule of lenity to crack cocaine offenses. (242) Defendants were convicted of offenses involving cocaine base. They argued that the statute and guideline punishing cocaine base offenses far more severely than cocaine powder offenses are ambiguous because “cocaine base” and “cocaine” are chemically synonymous. They argued that the rule of lenity required them to receive the less severe penalties for powder cocaine. The Eleventh Circuit found no ambiguity. The higher penalty for cocaine base applies to the rock‑like form of cocaine base, while the lesser cocaine penalties are applied to cocaine-related substances, such as salts, which are chemically indistinguishable from the base compound. Congress’ recent rejection of the proposed guideline amendment to end the 100:1 sentencing ratio between the two substances confirms its intent to treat crack cocaine offenses more harshly than powder cocaine offenses. U.S. v. Sloan, 97 F.3d 1378 (11th Cir. 1996).
11th Circuit rejects equal protection challenge to cocaine base penalties. (242) Defendant argued that the harsher sentences for cocaine base violated equal protection because Congress acted with purposeful discrimination. The Eleventh Circuit disagreed, finding Congress distinguished between the kinds of cocaine not to discriminate against people, but because crack cocaine is more dangerous, more addictive, more easily available and less expensive than powder cocaine. U.S. v. Terry, 60 F.3d 1541 (11th Cir. 1995).
11th Circuit rules that cocaine base/cocaine disparity does not violate equal protection. (242) Defendants argued that the disparity in punishment for drug crimes involving cocaine base and cocaine violates the equal protection clause. The Eleventh Circuit disagreed. The distinction withstands rational basis scrutiny. The simple allegation that a distinction disparately impacts blacks is not sufficient to require strict scrutiny. Defendants must establish that discriminatory intent played a significant role in Congress’ decision to establish the distinction. Defendants failed to establish such a discriminatory intent. U.S. v. Butler, 41 F.3d 1435 (11th Cir. 1995).
11th Circuit upholds constitutionality of harsher penalties for crack cocaine. (242) The 11th Circuit rejected defendant’s equal protection and due process challenges to the statutory and guidelines scheme providing harsher penalties for crack cocaine than for powder cocaine. The scheme has a rational basis because lawmakers had a legitimate purpose for the harsher penalties. Crack is more addictive, more dangerous, and can be sold in smaller quantities than powder cocaine. The scheme does not warrant strict scrutiny because there is no evidence that either Congress or the Sentencing Commission acted with a discriminatory purpose. U.S. v. Harden, 37 F.3d 595 (11th Cir. 1994).
11th Circuit rejects equal protection challenge to crack cocaine sentencing scheme. (242) Defendant argued that Congress and the Sentencing Commission acted with a racially discriminatory purpose in establishing the penalties for crack cocaine and powder cocaine. The 11th Circuit rejected defendant’s equal protection challenge. Defendant only argued “vague statistical evidence and academic commentary” concerning the discriminatory impact of the harsher crack penalties. He failed to present any evidence of a discriminatory purpose. Therefore, his claims of disparate impact were reviewed under the rational basis standard. Previous cases have held that the harsher penalties do have a rational basis. Crack has a more rapid onset of action, is more potent, is more addictive, is less expensive, and is more available than powder cocaine. U.S. v. Byse, 28 F.3d 1165 (11th Cir. 1994).
11th Circuit reaffirms that term “cocaine base” is not unconstitutionally vague. (242) The 11th Circuit reaffirmed its holding in U.S. v. Williams, 876 F.2d 1521 (11th Cir. 1989) that the term “cocaine base” as used in 21 U.S.C. section 841 and guideline section 2D1.1 is not unconstitutionally vague. U.S. v. Saget, 991 F.2d 702 (11th Cir. 1993).
11th Circuit upholds 100 to 1 cocaine to cocaine base ratio. (242) The 11th Circuit rejected defendant’s claim that section 2D1.1(c)(11), which equates for sentencing purposes one gram of cocaine base with 100 grams of cocaine, was arbitrary and capricious. The court also rejected defendant’s claim that in 21 U.S.C. section 841, which equates five grams of cocaine base with 500 grams of cocaine, Congress manifested an intention not to apply the 100 to 1 ratio to amounts of cocaine base less than five grams. A more plausible reading is that Congress wished to set particular parameters to guide the sentencing of large-scale drug dealers, but left the smaller dealers to the discretion of the Sentencing Commission. U.S. v. Lawrence, 972 F.2d 1580 (11th Cir. 1992).
11th Circuit rejects equal protection challenge to harsher penalties for crack than for cocaine. (242) Defendant argued that the wide disparity in punishment for crimes involving crack cocaine and powder cocaine violates the Equal Protection Clause of the Constitution because it has a discriminatory impact on black persons. According to defendant, crack cocaine is used predominantly by blacks, while powder cocaine is used predominantly by whites. The 11th Circuit rejected this argument, since there was a rational basis for the disparate penalties. The fact that crack cocaine is more addictive, more dangerous, and can be sold in smaller quantities than powder cocaine was sufficient reason for Congress to provide harsher penalties for its possession. U.S. v. King, 972 F.2d 1259 (11th Cir. 1992).
11th Circuit upholds equating one marijuana plant with 1,000 grams of marijuana. (242) In U.S. v. Osburn, 756 F.Supp. 571 (N.D. Ga. 1991), the District Court held that the Drug Quantity Table in section 2D1.1 was unconstitutional to the extent it treated one marijuana plant as equivalent to 1000 grams of marijuana for plants in groups of 50 or more. The 11th Circuit reversed, upholding the constitutionality of this portion of guideline section 2D1.1 and the statute on which it was based, 21 U.S.C. section 841. Federal legislation mandating length of sentence does not violate the separation of powers doctrine. Section 2D1.1 of the guidelines is consistent with the congressional mandate contained in section 841(b)(1)(D) for offenses involving 50 or more marijuana plants. The classification equating one marijuana plant to 1000 grams of marijuana for offenses involving more than 50 plants, and using actual weight of marijuana for offenses involving fewer than 50 plants, was not arbitrary. There is a rational basis for penalizing those convicted of offenses involving 50 or plants more harshly than those convicted of offenses involving fewer than 50 plants. U.S. v. Osburn, 955 F.2d 1500 (11th Cir. 1992).
D.C. Circuit says failure to apply heightened standard of proof in drug case was not plain error. (242) Defendant argued for the first time on appeal that, in light of the near ten-fold increase in his sentence as a result of the quantity of attributed drugs, the government must prove facts underlying the attribution by clear and convincing evidence. The D.C. Circuit has never applied the “clear and convincing” standard at sentencing. Other circuits have rejected the heightened burden of proof, and the Third Circuit, which pioneered the standard, see U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), has refused to apply it in cases similar to defendant’s case. See U.S. v. Paulino, 996 F.2d 1541 (3d Cir. 1990). Where the increased punishment is based solely on the charged and convicted conduct, such as in drug cases, where the drug quantity determines the offense level and no upward departure from the guideline range is contemplated, courts have been less likely to apply a heightened standard. Given the lack of clarity concerning the standard, the D.C. Circuit found no “clear” or “obvious” error that would warrant reversal. U.S. v. Graham, 317 F.3d 262 (D.C. Cir. 2003).
D.C. Circuit finds no Apprendi error in sentence for selling drugs within 1,000 feet of a school. (242) Defendant was sentenced to 286 months for possession with intent to distribute heroin within 1,000 feet of a school, in violation of 21 U.S.C. § 860. Concurrent 286-month sentences were also imposed on two other counts for conspiracy and distribution of drugs. The sentences on these other counts exceeded the 240-month statutory maximum under 21 U.S.C. § 841(b)(1)(C) for possession for distribution of detectable amounts of drugs. Because drug quantity was not submitted to the jury, the sentences on these other counts violated Apprendi v. New Jersey, 530 U.S. 466 (2000). However, the maximum statutory sentence for the “school yard” offense under 21 U.S.C. § 860(a) was 40 years, so the 286-month sentence on this count did not violate Apprendi. Accordingly, the D.C. Circuit found that the error with respect to the other concurrent counts was harmless and affirmed the sentence. U.S. v. Agramonte, 276 F.3d 594 (D.C. Cir. 2001).
D.C. Circuit requires resentencing under Apprendi despite concurrent life sentences for RICO conspiracy. (242) The government conceded that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the district court committed plain error in imposing life sentence on the drug conspiracy count in the absence of jury findings as to drug quantity. However, the government contended that this error was not reversible because the district court relied on “overwhelming proof” that the conspiracy involved drug quantities necessary to trigger a life sentence under 21 U.S.C. § 841(b)(1)(A). The D.C. Circuit disagreed. The district court relied heavily on the imprecise testimony of various cooperating witnesses. In addition, defendant admitted that he “made a living selling crack,” “worked selling marijuana four to five days a week,” and “had no idea how much marijuana he had sold.” This evidence was far from “overwhelming proof” that defendant’s crimes involved sufficient drug quantities to support a life sentence. The government also argued that the error was not reversible because the life sentence on the RICO conspiracy count was a “statutorily available sentence” under Apprendi. See U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended on rehearing, 244 F.3d 367 (5th Cir. 2001) (no reversal even if 10-year sentence unlawful under Apprendi where no challenge to greater 324-month sentence on another count). Although the court imposed concurrent life sentences on the RICO conspiracy count, there was no clear finding by the trial court that it intended to impose life sentence under RICO. U.S. v. Fields, 251 F.3d 1041 (D.C. Cir. 2001), on rehearing en banc, U.S. v. Fields, 242 F.3d 393 (D.C. Cir. 2001).
D.C. Circuit rules Jones did not affect precedent holding that drug quantity is a sentencing factor. (242) In Jones v. United States, 526 U.S. 227 (1999), the Supreme Court held that bodily injury, a factor that increases a defendant’s sentence under the federal carjacking statute, is an element of the crime for the jury, rather than a sentencing factor to be decided by the judge. Interpreting the statute to make bodily injury a sentencing factor would have required the Court to address the “serious constitutional question” of whether “judicial factfinding … may support application of a provision that increases the potential severity of the penalty for a variant of a given crime.” Defendant argued that because drug quantity so dramatically affects the severity of penalties under 21 U.S.C. § 841, allowing the judge to determine drug quantity implicates the unsettled constitutional issue identified in Jones. The D.C. Circuit held that Jones’ effect on § 841 was not sufficiently clear to reconsider its precedent holding that quantity is a sentencing factor, not an element of the offense. See U.S. v. Patrick, 959 F.2d 991 (D.C. Cir. 1992); U.S. v. Lam Kwong-Wah, 966 F.3d 682 (D.C. Cir. 1992). First, Jones did not squarely hold that the carjacking statute would have been unconstitutional if bodily injury was an element of the crime. Second, it was not at all clear whether Jones applies broadly to all criminal statutes or is limited to the unique facts of that case. U.S. v. Williams, 194 F.3d 100 (D.C. Cir. 1999).
D.C. Circuit rejects equal protection challenge to crack cocaine sentences. (242) Defendant contended that minorities are denied equal protection because they are disproportionately impacted by the higher mandatory minimum sentences applied to crack cocaine offenses. He presented evidence that purported to show that there was no rational basis for treating crack cocaine differently than powder cocaine. The D.C. Circuit held that the disparate impact did not violate equal protection since there was no evidence of discriminatory intent. The opinions of the Sentencing Commission and scientific journals do not provide the requisite proof that Congress was motivated by any impermissible considerations. There is a race neutral explanation for the sentencing disparity—efficiencies of distribution, heightened potency and acute violence are associated with crack cocaine. U.S. v. Holton, 116 F.3d 1536 (D.C. Cir. 1997).
D.C. Circuit says asking for crack rather than powder cocaine was not sentencing entrapment. (242) On three occasions, defendant sold crack cocaine to a DEA agent posing as a crack dealer. Each time, defendant came from her supplier with cocaine powder, but the agent said he wanted to buy crack. Defendant then would go to her apartment, “cook” the cocaine into crack, and sell the crack to the agent. The district court imposed sentences below the mandatory minimum for crack cocaine, because defendant sold crack only after the DEA agent insisted on crack rather than powder cocaine. The D.C. Circuit, relying on U.S. v. Walls, 70 F.3d 1323 (D.C. Cir. 1995), held that the agent’s insistence on purchasing crack was not sentencing entrapment. Walls makes clear that asking for crack cocaine upon delivery of powder cocaine, without more, is not sentencing entrapment. The main element in any entrapment defense is defendant’s predisposition. Here, when the DEA agent said he would buy only crack cocaine, defendant willingly, without hesitation, converted the powder cocaine into crack cocaine. U.S. v. Shepherd, 102 F.3d 558 (D.C. Cir. 1996).
D.C. Circuit rejects constitutional challenges to crack cocaine penalties. (242) Defendant raised various constitutional challenged to the higher penalties for crack cocaine. The D.C. Circuit rejected them all. The penalties do no violate equal protection despite their disparate impact on blacks. Congress did not act with a discriminatory purpose. The severe penalties do not constitute cruel and unusual punishment, do not amount to a bill of attainder, and the distinction between the terms “cocaine base” and “cocaine” is not so ambiguous as to require application of the rule of lenity. U.S. v. Edwards, 98 F.3d 1364 (D.C. Cir. 1996).
D.C. Circuit reaffirms use of 100:1 crack to powder cocaine sentencing ratio. (242) Defendant was convicted of trafficking in cocaine base. He argued that the district court should have considered a downward departure under § 5K2.0 based on the Sentencing Commission’s report criticizing the present 100:1 ratio of cocaine base to cocaine powder. The D.C. Circuit rejected this argument in light of U.S. v. Anderson, 82 F.3d 436 (D.C. Cir. 1996). U.S. v. Baylor, 97 F.3d 542 (D.C. Cir. 1996).
D.C. Circuit rules that flaws in 100:1 crack cocaine ratio do not justify downward departure. (242) Defendants argued that flaws in the 100:1 ratio of crack to powder cocaine justified a downward departure under 18 U.S.C. § 3553(b), pointing out that the Sentencing Commission recently concluded that the 100:1 ratio was not logically supportable. Although Congress rejected the proposed 1:1 ratio proposed by the Commission in 1995, Congress suggested the Commission “try again” with the guidance that crack sentences should generally exceed powder cocaine sentences. The District of Columbia Circuit ruled that the Commission’s and Congress’s recent actions did not justify a downward departure. Section 3553(b) requires the court to consider only the guidelines, policy statements and official commentary of the Sentencing Commission. The Commission did not characterize its proposal to Congress as any of these, and therefore it had no more weight than a report by a learned society. Congress’ direction to the Commission to come up with an alternative was not a change in the law. Judge Tatel concurred and Judge Wald dissented. U.S. v. Anderson, 82 F.3d 436 (D.C. Cir. 1996).
D.C. Circuit rejects sentencing entrapment even though agent insisted on crack because of higher penalties. (242) Defendants sold crack cocaine to an undercover agent. They argued that they should have been sentenced as if they had distributed powder cocaine rather than crack, because the government agent had insisted that the cocaine be in the form of crack. The D.C. Circuit rejected the sentencing entrapment claim, even though the agent testified at trial that he insisted on crack rather than powder because of the higher penalties. The main element in any entrapment defense is the defendant’s predisposition, not the government’s conduct. Defendants showed no hesitation in committing the crack offense. The fact that they would have sold powder cocaine had the agent not negotiated for crack proved only that defendants were predisposed to commit both offenses. The government’s conduct was not so outrageous as to bar a conviction; therefore its actions could not serve as a basis for disregarding the statute’s mandatory sentencing requirements. U.S. v. Walls, 70 F.3d 1323 (D.C. Cir. 1995).
D.C. Circuit finds no discriminatory purpose in harsher crack cocaine penalties. (242) Defendants argued that the harsher penalties for crack than for powder cocaine in the Anti-Drug Abuse Act of 1986 and the sentencing guidelines violated the equal protection clause by disproportionately impacting blacks. They contended that the court should exercise “strict scrutiny” rather than a rational basis review because Congress had a discriminatory purpose in enacting the harsher penalties. The D.C. Circuit found that the “sketchy and unpersuasive bits of information” provided by defendants did not establish a discriminatory purpose. Thus, because the crack/powder cocaine distinction had previously been held to have a rational basis, it did not violate equal protection. U.S. v. Johnson, 40 F.3d 436 (D.C. Cir. 1994).
D.C. Circuit rules that crack penalty’s disparate impact on blacks is not grounds for downward departure. (242) Defendant complained because the guidelines punish offenses involving crack cocaine (which predominantly involve African-Americans) much more severely than offenses involving cocaine powder (which predominantly involve whites). The D.C. Circuit held that the disparate treatment of crack and powder cocaine survived both equal protection and 8th Amendment challenges. The disparate racial impact for crack offenses was not a basis for a downward departure. If it warranted a departure in any case, it would warrant a departure in all cases. A departure only for African-Americans would lead to different punishments based solely on a defendant’s race. U.S. v. Thompson, 27 F.3d 671 (D.C. Cir. 1994).
D.C. Circuit upholds constitutionality of higher sentences for crack cocaine. (242) Defendant was convicted of possession of 50 grams of crack cocaine. He appealed, arguing that higher sentences for crack cocaine offend the 8th Amendment, equal protection and due process. The D.C. Circuit held that higher terms for cocaine base did not rise to the level of an 8th Amendment violation since the punishment is not disproportionate to the crime. The equal protection argument failed because Congress need not explicitly state its purpose for passing legislation so long as a court can divine some rational purpose. Since crack is far more addictive than cocaine, is more popular, and costs less, there was a rational basis for distinguishing it from cocaine. Finally, the cocaine/cocaine base distinction was not unconstitutionally vague since the fact that cocaine base may have various interpretations on the street does not make it incapable of objective definition by chemical analysis. U.S. v. Cyrus, 890 F.2d 1245 (D.C. Cir. 1989).
Article assesses reasons for racial disparities in sentencing. (242) Douglas C. McDonald and Kenneth E. Carlson undertake a statistical study of the reasons why blacks’ maximum prison sentences have been 41 percent longer than whites’ sentences since implementation of the guidelines. Some of the difference may be explained by the greater percentage of blacks who are convicted of drug offenses, which are punished severely. Other differences are explained by factors such as criminal record or role in the offense. The most important factor, however, was that blacks are convicted of crack offenses much more frequently than whites, and the crack offenses carry especially heavy penalties. Two other articles in the same issue of the Federal Sentencing Reporter assess McDonald and Carlson’s findings. Douglas C. McDonald and Kenneth E. Carlson, Why Did Racial/Ethnic Sentencing Differences in Federal District Courts Grow Larger Under the Guidelines?, 6 Fed. Sent. Rptr. 223-26 (1994).
Article examines study on racial disparity in charging individuals with crack offenses. (242) Joseph E. Finley examines a study of charging patterns in Los Angeles offered to prove that crack defendants were disproportionately chosen for federal prosecution based on race. The study has been relied upon to try to show selective prosecution in violation of Wayte v. U.S., 470 U.S. 598 (1985). Finley canvasses the arguments made by the government in response to the earlier study. Joseph E. Finley, Crack Charging in Los Angeles: Do Statistics Tell the Whole Truth about “Selective Prosecution?”, 6 Fed. Sent. Rptr. 113-15 (1993).