United States v. Butch

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

6-29-2001

United States v. Butch

Precedential or Non-Precedential:

Docket 99-5738

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Filed June 29, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 99-5738

UNITED STATES OF AMERICA,

v.

JOSEPH BUTCH

Appellant

On Appeal From the United States District Court

For the District of New Jersey

(D.C. Criminal No. 98-00390)

District Judge: Honorable Stephen M. Orlofsky

Submitted Under Third Circuit LAR 34.1(a)

April 24, 2001

Before: BARRY, AMBRO and ALDISER T, Circuit Judges

(Filed: June 29, 2001)

Mark W. Catanzaro

Suite 208

513 South Lenola Road

Blason IV

Moorestown, NJ 08057

Attorney for Appellant, Joseph Butch

Robert J. Cleary

United States Attorney

George S. Leone

Chief, Appeals Division

970 Broad Street

Newark, NJ 07102-2535

Norman J. Gross,

Assistant United States Attorney

Camden Federal Building and

United States Courthouse

401 Market Street, Fourth Floor

Camden, NJ 08101-2098

Attorneys for Appellee, United States

of America

OPINION OF THE COURT

AMBRO, Circuit Judge:

Joseph Butch challenges his conviction following a jury

trial in the United States District Court for the District of

New Jersey (the "District Court") on one count of violating

21 U.S.C. S 846 by conspiring to distribute and to possess

with intent to distribute oxycodone, a Schedule II narcotic

controlled substance, contrary to 21 U.S.C.S 841(a)(1). He

also challenges the sentence imposed by the District Court.

Butch alleges that the District Court (1) impr operly

admitted evidence of prior thefts of oxycodone at trial, (2)

erred in determining the applicable sentencing range under

the United States Sentencing Guidelines by attributing to

him the entire weight of each pill rather than calculating

the amount of the controlled substance per pill, and (3)

erred by failing to submit the weight of the controlled

substance to the jury for a factual determination beyond a

reasonable doubt in light of Apprendi v. New Jersey, 530

U.S. 466 (2000). We have jurisdiction over this appeal

pursuant to 28 U.S.C. S 1291. For the r easons that follow,

we will affirm the conviction and sentence.

2

I.

At the time of this alleged criminal activity, Butch was

employed as a scheduler and dispatcher for two r elated,

Philadelphia-based commercial truck and driver leasing

companies, Marano Truck Lease ("Marano") and American

Helper ("AH"). Marano and AH leased trucks and drivers to

the courier service Rapid Delivery Services ("RDS"). RDS in

turn was employed by Amerisource, a wholesale distributor

of pharmaceutical drugs and other medical pr oducts, to

deliver those products from its war ehouse in Thorofare,

New Jersey, to hospitals and pharmacies.

From September, 1997 through January, 1998, Butch

scheduled Robert Manning ("Manning"), a temporary driver

for AH, to a delivery route for Amerisour ce. According to

Manning's testimony, on January 7, 1998 Butch of fered

Manning $5000 to help him steal a tote of Amerisour ce's

pharmaceutical drugs from the back of the delivery truck

that Manning would be driving the next day. Manning

agreed. On January 8, 1998, Manning met Butch and

another man at a Burger King restaurant on Front Street in

Philadelphia. Butch retrieved a plastic tote containing the

drugs from the back of the truck. After Manning had

resumed his route, Butch discovered that he had stolen the

wrong tote. Butch called Manning and arranged to have the

third man meet Manning at a Dunkin' Donuts shop to pick

up the correct tote, which he did. When Manning arrived

later at the Veteran's Administration hospital in

Philadelphia, he called the police and reported the theft as

planned. Several days later, Butch gave Manning the

agreed-upon $5000.

In April and May of 1998, Butch twice solicited Manning

to steal pharmaceutical drugs from Amerisource trucks

that others were driving. Butch identified the trucks, the

delivery routes and the drug totes, and gave Manning the

key. Manning was to follow the trucks and steal the drugs

when the drivers left the trucks unattended. Manning took

the keys, but did not follow through with the theft of any

drugs.

On May 19, 1998, Butch offered $5000 to George Fronick

("Fronick"), another AH driver who made deliveries for

3

Amerisource, to help him steal pharmaceutical drugs from

the truck Fronick was driving. Fronick r eported the plan to

his supervisor at RDS, and the FBI and DEA wer e notified.

Investigators for the two agencies arranged for Fr onick to

cooperate in apprehending Butch.

After a failed attempt on May 20, 1998, Butch again

solicited Fronick to assist him in his theft plans. Fronick

reported the solicitation to his supervisor , and the

investigators supplied Fronick with a concealed micro-

cassette recorder and a video camera to place in the back

of his truck. On June 4, 1998, Butch detailed the plan to

have Fronick arrive at Mercy Hospital at 6:30 a.m., drive

the front of the truck up to the loading dock, and unlock

the back of the truck. A third man would unload the totes

from the back of the truck. Fronick was then to get rid of

the padlock, and report the theft to the police. This

conversation was recorded on the micr o-cassette carried by

Fronick. The third man was Manning, who testified that

Butch instructed him to take the drugs from the back of

the truck, deliver them to Butch at a Dunkin' Donuts shop

near the Marano facility, and report to a job Butch had

scheduled for him.

Early the next morning, Fronick met Butch at a gas

station and went over the plan. Butch gave Fr onick two

plastic trash bags, told him to put the boxes of drugs into

the bags, and to leave them at the back of the truck.

Fronick picked up the delivery and drove his truck to Mercy

Hospital according to Butch's instructions. When he

reached the hospital parking lot, Fronick activated the

hidden camera in the truck and proceeded with the plan. In

addition to the hidden camera and the hospital's own

surveillance camera, the investigators had the entir e scene

under surveillance. They observed Butch and another man,

Fred Moll ("Moll"), sitting inside Moll's car. They also

observed Manning approach the truck, remove two plastic

bags containing the boxes of pharmaceutical drugs, and

place them into the trunk of his car. As Manning attempted

to drive out of the hospital parking lot, the investigators

stopped and arrested him, seizing the bags fr om the trunk.

Other agents blocked Moll's car and arrested Moll and

Butch. The bags contained 26,400 Endocet tablets, a

4

generic form of Percocet, each tablet containing

approximately 4.4 milligrams of oxycodone and 325

milligrams of acetaminophen. See Physicians' Desk

Reference 1211 (55th ed. 2001).

On June 18, 1998 a federal grand jury sitting in Newark,

New Jersey returned a one count indictment, charging

"[f]rom on or about May 19, 1998 to on or about June 5,

1998, . . . Joseph Butch did knowingly and intentionally

conspire and agree with others to distribute and to possess

with intent to distribute oxycodone, a Schedule II narcotic

drug controlled substance, contrary to T itle 21, United

States Code, Section 841(a)(1), [i]n violation of Title 21

United States Code, Section 846." The indictment did not

specify the quantity of oxycodone attributable to Butch.

On April 26, 1999, the Government filed a motion in

limine seeking the admission of evidence of Butch's

January and May, 1998 dealings with Manning as intrinsic

to the conspiracy charged or, alter natively, as admissible

under Federal Rule of Evidence 404(b). On May 3, 1999,

the day that the jury trial began, the District Court issued

a published opinion1 denying the Government's motion to

admit the evidence as intrinsic to the conspiracy and as

evidence of a common scheme and plan.2 However, the

District Court admitted under Rule 404(b) the testimony of

Manning for the limited purpose of establishing the

background of the conspiracy as charged in the indictment.

The District Court also recited the limiting instruction it

intended to accompany the evidence.

The Government introduced evidence of the January and

May, 1998 events at trial. The limiting instruction was

given. Butch testified in his own defense, denying any

criminal intent and claiming that it was Manning who had

solicited him to steal the drugs. Butch also testified that he

pretended to participate in the scheme in or der to catch

Manning in the act. The jury rejected Butch's defense and

_________________________________________________________________

1. See United States v. Butch, 48 F . Supp. 2d 453 (D.N.J. 1999).

2. The indictment alleged a conspiracy fr om May 19 to June 5, 1998,

which in the District Court's opinion render ed the events in January and

early May, 1998 too remote to be inextricably intertwined with the

conspiracy as charged, and not part of a single criminal episode.

5

on May 11, 1999, convicted him of the charge. The District

Court sentenced Butch to 240 months (20 years)

imprisonment, the statutory maximum for the crime of

which he was convicted.

II.

Butch's initial challenge on appeal is that the District

Court improperly permitted the Gover nment to introduce

evidence of his January and May, 1998 dealings with

Manning under Federal Rule of Evidence 404(b).3 The

nature of his objection is twofold. First, Butch argues that

the testimony of specific events admitted to establish the

background of a conspiratorial relationship goes well

beyond the limited, general questioning that this Court

permits. See United States v. O'Leary, 739 F.2d 135 (3d Cir.

1984). Second, he argues that the probative value of the

evidence is substantially outweighed by its pr ejudicial

effect. We review the District Court's decision to admit

evidence under Rule 404(b) for an abuse of discr etion,

which "may be reversed only when `clearly contrary to

reason and not justified by the evidence'." United States v.

Balter, 91 F.3d 427, 436 (3d Cir. 1996) (citing United States

v. Bethancourt, 65 F.3d 1074, 1079 (3d Cir. 1995)). We

conclude that the District Court did not abuse its discretion

in admitting Manning's testimony as background evidence

of a conspiratorial relationship pursuant to Rule 404(b).

The "threshold inquiry a court must make before

admitting similar acts evidence under Rule 404(b) is

whether that evidence is probative of a material issue other

_________________________________________________________________

3. Federal Rule of Evidence 404(b) provides:

(b) Other crimes, wrongs, or acts. Evidence of other crimes,

wrongs,

or acts is not admissible to prove the character of a person in

order

to show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive,

opportunity,

intent, preparation, plan, knowledge, identity, or absence of

mistake

or accident, provided that upon request by the accused, the

prosecution in a criminal case shall pr ovide reasonable notice in

advance of trial, or during trial if the court excuses pretrial

notice

on good cause shown, of the general nature of any such evidence it

intends to introduce at trial.

6

than character." Huddleston v. United States, 485 U.S. 681,

686 (1988). This Court recently set out a four -factor

standard governing the admissibility of evidence pursuant

to Rule 404(b), which requires: (1) a pr oper evidentiary

purpose; (2) relevance under Rule 402; (3) a weighing of the

probative value of the evidence against its pr ejudicial effect

under Rule 403; and (4) a limiting instruction concerning

the purpose for which the evidence may be used. United

States v. Mastrangelo, 172 F.3d 288, 294 (3d Cir. 1999).

The District Court found that the Government met its

burden of articulating the requisite "chain of logical

inferences" in support of a proper evidentiary purpose,

satisfying the first prong. Butch, 48 F. Supp. 2d at 459

(citing Mastrangelo, 172 F.3d at 294). Because Manning's

testimony was "logically relevant to explain his role in the

criminal enterprise" and because it "would give the jury a

complete story of the crime by explaining the cir cumstances

of the alleged relationship between the alleged

conspirators," the District Court found the testimony

relevant under the second prong. Id. at 460. Under the Rule

403 balancing test, the District Court concluded that the

probative value of Manning's testimony outweighed any

prejudicial effect. "As an alleged participant in the charged

conspiracy, Manning's testimony is significantly probative

of the formation of his criminal relationship with Butch in

January, 1998, as well as[ ] the further development of that

relationship during the events of early May, 1998." Id.

Moreover, the evidence of the prior criminal activity detailed

a similar crime against the same victim, without the use of

violence or threats, and thus the testimony to this effect

was not overly prejudicial. Thus, the District Court

concluded that the evidence "does not rise to the level of

the distracting, confusing, or emotionally char ged evidence

from which Rule 403 protects a criminal defendant." Id. at

461. Finally, the District Court gave the requisite limiting

instruction to satisfy the fourth prong and eliminate an

"undue tendency . . . suggest[ing] a decision on an

improper basis . . . ." See Fed. R. Evid. 403, Advisory

Committee's Note.4

_________________________________________________________________

4. Deciding on the Government's motion in limine, the District Court

stated:

7

In light of the District Court's thorough analysis in its

published opinion of Manning's testimony under the

Mastrangelo factors, Butch cannot demonstrate an abuse of

discretion. This Court has held that "testimony of . . . a co-

conspirator . . . could be considered r elevant to provide

necessary background information, to show an ongoing

relationship between [the defendant and a co-conspirator],

and to help the jury understand the co-conspirator's role in

the scheme." United States v. Simmons, 679 F.2d 1042,

1050 (3d Cir. 1982). This was precisely the purpose for

which the Government sought to introduce Manning's

testimony. Moreover, in its discussion of O'Leary, the

District Court noted:

The Government's evidentiary purposes in O'Leary and

the Government's evidentiary purposes in this case are

identical, namely, to show background of the charges,

the witness' and the defendant's relationship, and their

concerted action. In light of Simmons, Harris, Moore,

and Pipola, Butch's attempt to limit O'Leary to its

specific facts, though spirited, is without merit.

_________________________________________________________________

Prior to the Government's inquiry into the events of January and

early May, 1998, at the conclusion of Manning's testimony, and

again when I charge the jury, I will instruct the jury as follows:

Evidence that Mr. Butch was involved in a criminal enterprise

with Mr. Manning in January, 1998, and with Mr. Manning and

Mr. Frederick Moll in early May, 1998, has been admitted into

evidence, but you may consider that evidence only as background

to the offense charged in the Indictment, as evidence of Mr.

Manning's and Mr. Butch's relationship prior to May 19, 1998,

and as evidence of their concerted efforts prior to May 19, 1998.

You may not, however, consider this evidence of Mr. Butch's prior

involvement in a criminal enterprise in deciding whether or not

the Government has proven Mr. Butch's guilt beyond a reasonable

doubt for the offense charged in the Indictment. For the limited

purpose for which this evidence has been received, you may give

it such weight as you feel it deserves. You may not, however,

consider this evidence for any other purpose. See 1 Devitt, et al.,

Federal Jury Practice and Instructions S 11.09 (4th ed).

Butch, 48 F. Supp.2d at 461. The limiting instruction actually given by

the District Court mirrors this instruction.

8

Accordingly, I find that the Government has sufficiently

proffered a proper evidentiary purpose for introducing

into evidence the January and early May, 1998, events.

Butch, 48 F. Supp. 2d at 460 (citations omitted). We agree

with the District Court's reading of O'Leary, and can find

no abuse of the Court's discretion.5 As a result, we will

affirm Butch's conviction.

III.

Butch also challenges his sentence on the gr ound that

the District Court erred when it attributed to him the gross

weight of the Endocet pills rather than the net weight of the

controlled substance oxycodone in the pills. This error, he

contends, resulted in an incorrect range under the

Sentencing Guidelines. Our review of the District Court's

interpretation and application of the Sentencing Guidelines

is plenary, whereas we review its findings of fact for clear

error. United States v. Yeaman, 194 F.3d 442, 456 (3d Cir.

1999).

The District Court sentenced Butch to 240 months

imprisonment, determined as follows. Accor ding to the

DEA's laboratory report, the accuracy of which Butch did

not contest, the 26,400 Endocet pills had a combined

weight of 14.49 kilograms. See Presentence Report ("PSR")

_________________________________________________________________

5. We also agree with the Gover nment's contention that it also could

have introduced the evidence under Rule 404(b) to rebut Butch's

testimony that he acted without criminal intent. Such evidence is

permissible to show criminal intent and the absence of innocent

association. See United States v. Zackson, 12 F.3d 1178, 1182-83 (2d

Cir. 1993) (ruling evidence of appellant's prior involvement with the co-

defendant in a marijuana trafficking and conspiracy properly admitted

under Rule 404(b) as relevant to intent and to rebut defense of innocent

association); see also United States v. Howell , 231 F.3d 615, 628-29 (9th

Cir. 2000) (admitting evidence of appellant's previous drug-trafficking

convictions under Rule 404(b) to rebut claimed innocent motive for being

present where drugs were found); United States v. Williams, 31 F.3d 522,

527 (7th Cir. 1994) (ruling evidence r egarding appellant's prior drug

smuggling was properly admitted in a drug-trafficking conspiracy

prosecution to rebut defense that he was merely an innocent Spanish

interpreter for a co-conspirator).

9

at P18. Because oxycodone, the controlled substance in

Endocet, is not one for which the Sentencing Guidelines'

Drug Quantity Table provides a base of fense level by unit

of weight, the Probation Office looked to the Drug

Equivalency Tables found in Application Note 10 of S 2D1.1.

U.S. Sentencing Guidelines Manual, S 2D1.1(c) (1998);6 PSR

P17. According to those tables, one gram of oxycodone is

equivalent to 500 grams of marijuana, resulting in this case

to an equivalency of 7,245 kilograms of marijuana. PSR

P18. The base offense level for this quantity is 34. See U.S.

Sentencing Guidelines Manual, S 2D1.1(c)(3). The District

Court overruled Butch's objection to the PSR's calculation

of drug quantity attributable to him "because the PSR

accurately reflects the appropriate drug equivalency

calculation under the United States Sentencing Guideline

Section 2D1.1." The District Court imposed a two-level

enhancement to this base level for Butch's r ole as a

manager or supervisor of the offense pursuant to S 3B1.1(c)

of the Sentencing Guidelines. The District Court then found

Butch's criminal history category to be IV. See PSR PP 56-83.7

The effective Sentencing Guideline range was 262 to 327

months. However, given the statutory maximum penalty of

240 months, the District Court sentenced Butch to the

statutory maximum pursuant to S 5G1.1 of the Sentencing

Guidelines, which provides that "wher e the statutorily

authorized maximum sentence is less than the minimum of

the applicable guideline range, the statutorily authorized

maximum sentence shall be the guideline sentence."

In support of his argument, Butch cites to Amendment

517 to the Sentencing Guidelines,8 applicable to Schedule I

_________________________________________________________________

6. The 1998 edition of the Sentencing Guidelines is applicable in this

case.

7. Butch does not challenge either of these deter minations on appeal.

8. Amendment 517

modifies S 2D1.1 . . . with respect to the determination of the

offense

levels for Schedule I and II Depressants . . . by applying the Drug

Quantity Table according to the number of pills, capsules or

tablets

rather than by the gross weight of the pills, capsules or tablets.

. . . The current guidelines use the total weight of the pill,

capsule,

or tablet containing the controlled substance. This method leads to

10

or II Depressants, which equates one unit or one pill to one

gram of marijuana (as opposed to the 500 grams of

marijuana figure used by the District Court). He argues

that because, under the language of 28 C.F.R.S 1308.12(e),

oxycodone acts like a depressant and is not specifically

excepted or listed in another schedule, oxycodone qualifies

as a Schedule II Depressant. If this pr ovision of the Drug

Equivalency Table were followed as Butch suggests, the

drug equivalency would equal 26.4 kilograms of marijuana,

not 7,245 kilograms. The resultant base of fense level would

then be 18. Alternatively, using the net weight of the

oxycodone would result in an equivalency of 59 kilograms

of marijuana and a base offense level of 20. Butch invokes

the rule of lenity9 to resolve the alleged ambiguity in the

Sentencing Guidelines with respect to the calculation of the

drug equivalency of oxycodone after Amendment 517.

Butch's argument fails for two reasons. His assertion that

the net controlled substance should be used in determining

the base offense level is directly contrary to Application

Note A to the Drug Quantity Table, which pr ovides that

"[u]nless otherwise specified, the weight of a controlled

substance set forth in the table refers to the entire weight

of a mixture or substance containing a detectable amount

of the controlled substance." See U.S. Sentencing

Guidelines Manual, S 2D1.1(c), cmt. n.A. Mor eover, this

argument was expressly rejected by this Court in United

_________________________________________________________________

anomalies because the weight of most pills is deter mined primarily

by the filler rather than the controlled substance. Thus, heavy

pills

lead to higher offense levels even though ther e is little or no

relationship between gross weight and the potency of the pill.

Applying the Drug Quantity Table accor ding to the number of pills

will both simplify guideline application and mor e fairly assess

the

scale and seriousness of the offense.

Appendix C to the U.S. Sentencing Guidelines Manual, November 1,

1997, p. 341 ("Appendix C").

9. The rule of lenity provides that "when ambiguity in a criminal statute

cannot be clarified by either its legislative history or inferences drawn

from the overall statutory scheme, the ambiguity is resolved in favor of

the defendant." United States v. Pollen, 978 F.2d 78, 85 (3d Cir. 1992)

(citing Rewis v. United States, 401 U.S. 808, 812 (1971)).

11

States v. Gurgiolo, 894 F.2d 56 (3d Cir. 1990), wherein we

reversed the District Court's calculation of the applicable

drug quantity based on the net weight of the oxycodone in

Percocet pills.

Indeed, Congress requires the whole drug to be

weighed when the drug consists at least in part of a

detectable amount of Schedule I substances, such as

LSD and heroin, which are the most danger ous

substances available. . . . In short, where Congress

provides for full-weight conversion of Schedule I, III

and IV substances, there is no self-evident r eason to

conclude that it meant to treat Schedule II drugs

differently.

Id. at 61.10

Second, oxycodone is not a Schedule II Depressant. It is

a Schedule II Opiate, a classification distinguishable from

Schedule II Depressants. See 21 U.S.C.S 812; 21 C.F.R.

S 1308.12(b)(1); U.S. Sentencing Guidelines Manual,

S 2D1.1(c). Consequently, Amendment 517 does not operate

to require that oxycodone be converted into a drug

equivalency based on the number of pills as opposed to its

weight. Although Butch is correct that the Amendment

replaced the marijuana drug equivalencies for Schedule I

and II Depressants with a provision that one unit (pill,

_________________________________________________________________

10. The other Circuit Courts of Appeals to consider this issue are in

agreement. See United States v. Limber opoulos, 26 F.3d 245, 252-53 (1st

Cir. 1994) (concluding Application Note A applies to Percodan, Percocet

and Valium); United States v. Meitinger , 901 F.2d 27, 29 (4th Cir. 1990)

(ruling the same with respect to Dilaudid, containing the active

ingredient hydromorphone, a Schedule II Opiate), cert. denied, 498 U.S.

531 (1990); United States v. Blythe, 944 F .2d 356, 362 (7th Cir. 1991)

(same); United States v. Young, 992 F .2d 207 (8th Cir.1993) (holding that

the weight of the entire tablet and not just the amount of the illegal

hydromorphine contained therein should be used to compute the

defendant's sentence); United States v. Cr owell, 9 F.3d 1452, 1454-55

(9th Cir. 1993) (same); United States v. Lazarchik, 924 F.2d 211, 214

(11th Cir. 1991) (concluding the same with r espect to hydrocodone

(Tussionex) and diazepam (Valium)), cert. denied, 502 U.S. 827 (1991);

United States v. Shabazz, 933 F.2d 1029, 1032-33 (D.C. Cir. 1991)

(ruling that Application Note A applies to Dilaudid), cert. denied, 502

U.S. 964 (1991).

12

capsule or tablet) equals one gram of marijuana, the

Amendment by its own terms does not extend to Schedule

II Opiates. Appendix C at 340. The Congressional intent

behind Amendment 517 is clear. Congress specifically

excepted Schedule I and II Depressants, not Schedule I and

II Opiates. Had Congress intended to modify the Guidelines

with respect to the latter, it would have done so. Those

Circuit Courts of Appeals to consider the issue, albeit in

unpublished form, have come to the same conclusion. See

United States v. Carruthers, 215 F.3d 1328, 2000 WL

712382, *2 (6th Cir. 2000) (unpublished opinion); United

States v. Flores, 112 F.3d 506, 1996 WL 599798, *2 (2d Cir.

1996) (unpublished opinion). As the Sixth Cir cuit

explained:

Congress only intended to make an exception for

Schedule I or II Depressants[,] not Schedule I or II

Opiates-the category to which hydromorphones belong.

Had it intended to make an exception for Opiates to be

measured by their active ingredients as opposed to the

gross weight of the drug, Congress pr esumably would

have done so. . . . . Amendment 517 was enacted to

clarify the law with respect to Schedule I and II

Depressants and Schedule III, IV and V contr olled

substances. Nothing more can be gleaned fr om the

Amendment. Therefore, Defendant's contention that

the legislative intent is inconsistent with the statute

must fall.

Carruthers, 215 F.3d 1328, 2000 WL 712382 at *2.

Moreover, no ambiguity exists in the operation of the

Sentencing Guidelines with respect to oxycodone. The Drug

Equivalency Tables provide that one gram of oxycodone is

equivalent to 500 grams of marijuana. See U.S. Sentencing

Guidelines Manual, S 2D1.1(c) (1998). Ther efore, Butch's

reliance on the rule of lenity is misguided. United States v.

Johnson, 529 U.S. 53, 59 (2000) ("Absent ambiguity, the

rule of lenity is not applicable to guide statutory

interpretation."); Muscarello v. United States, 524 U.S. 125,

138-39 (1998) ("The rule of lenity applies only if, after

seizing everything from which aid can be derived . . . we

can make no more than a guess as to what Congr ess

intended. . . . To invoke the rule, we must conclude that

13

there is a grievous ambiguity or uncertainty in the

statute.").

In summary, we can find no error in the District Court's

determination of the quantity of oxycodone attributable to

Butch, nor in the application of the Sentencing Guidelines

to this determination.

IV.

Butch's final argument on appeal is that the District

Court erred by failing to submit the weight of the controlled

substance to the jury for a factual determination beyond a

reasonable doubt in light of Apprendi v. New Jersey, 530

U.S. 466 (2000). The preliminary issue is whether Apprendi

even applies to cases in which judicial factfinding at

sentencing increases the Sentencing Guideline range, and

thus the potential sentence, above the statutory maximum,

but the actual sentence imposed is equal to the statutory

maximum. Because Butch did not raise this claim in the

District Court at sentencing, we review his challenge for

plain error. United States v. Mack , 229 F.3d 226, 234-35 &

n.12 (3d Cir. 2000).

Our recent decision in United States v. W illiams, 235

F.3d 858 (3d Cir. 2000) controls this case. In Williams, the

appellant argued that Apprendi was implicated because the

trial court's finding of drug quantity incr eased the

prescribed range of penalties and the maximum penalty to

which he was exposed, even though his actual penalty did

not exceed 20 years. Id. at 863. We ruled that "Apprendi is

not applicable to [Appellant's] sentence, because the

sentence actually imposed . . . was well under the original

statutory maximum of 20 years." Id. at 863 (relying on

Mack, 229 F.3d 226).

In Mack, Chief Judge Becker prescribed a two-step

"Apprendi inquiry" under which

[a] court must first determine the"prescribed statutory

maximum" sentence for the crime of which the

defendant was convicted and assess whether the

defendant's ultimate sentence exceeded it. If it did, the

court must consider . . . whether the enhanced

14

sentence was based on "the fact of a prior conviction."

If it was, then the sentence is constitutional. If it was

not, then the sentence is unconstitutional.

Id. at 237. Just as in Williams, Butch's claim fails to get

past step one because the ultimate sentence imposed by

the District Court did not exceed the "pr escribed statutory

maximum" of 20 years. Apprendi is therefore not

implicated.

V.

For the foregoing reasons, we will affir m Mr. Butch's

conviction and sentence.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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