Petition for Writ of Certiorari — Marks v. United States

Cee .

FILED

9 41 -5-0-4-MAR 1 5 1995)

OFFICE. OF THE CLERK

Supreme Court of the United States

October Term, 1994

*

RUSSELL B. MARKS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

¢

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

¢

THomas A. SHEEHAN

SHUGHART THOMSON & KILROY

A Professional Corporation

Twelve Wyandotte Plaza

120 W. 12th Street

Kansas City, Missouri 64105

(816) 421-3355

Attorney fer Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Pursuant to 21 U.S.C. § 841, Congress has created

seven separate sentencing ranges for federal drug

offenders based on the amount of drugs involved in the

offense and the defendant’s number of prior convictions.

The questions presented here are:

1. Whether the prosecution has to prove the amount

of drugs at sentencing by more than a preponderance of

the evidence when the amount greatly increases the man-

datory minimum sentence by triggering an entirely new

range of sentences applicable to the offense; and

2. Whether the district ccurt satisfies the require-

ments of Fed. R. Crim. P. 11(c)(1) when it informs a

defendant at the plea hearing that the maximum sentence

he could face is 20 years to life, but the amount of drugs

proved at sentencing requires the court to impose a man-

datory life sentence without release?

TABLE OF CONTENTS

Page

CAIRO Eee PRUE OMEE 66 ccdnkcavedesoUaweeesans i

Coy UNG G IO ks eckncccendnssdeeteerenekee ene 1

PRP. BRI va 80s 0604s Seeeeennedaeeeeeies 2

STATUTES INVOLVED IN THE CASE ............. 3

STATEMENT GH Tite GAs eek badeardeaseeincovens 6

REASONS FOR GRANTING THE WRIT ........... 8

I. The Decision Below Conflicts in Principle with

This Court’s Decision in McMillian v. Pennsyl-

vania and Directly Conflicts with the Third Cir-

cuit’s Decision in United States v. Kikumura.... 8

II. The Decision Below Raises Important Issues

Regarding the Trial Court’s Obligations Under

Fed. R. Crim. P. 11(c)(1) in Drug Cases Where the

Amount of Drugs Involved, Although Not an

Element of the Offense, Plays a Significant Role

in Determining the Sentence................... 11

COWRA no ress she vdee eee nee 14

APE RIGA 006s ciceiscnessedeen eee eee A-1

TABLE OF AUTHORITIES

Page

CASES

McMillian v. Pennsylvania, 477 U.S. 79 (1986)... 8, 9, 10, 11

'Inited States v. Galloway, 976 F.2d 414 (8th Cir.

1992), cert. denied, __ U.S. __, 113 S. Ct. 1420

Ger irciwrerrerrrnerrrer vers rerrererrereves. 9

United States v. Kikumura, 918 F.2d 1084 (3d Cir.

Ue ORES RR eerie ee Ree, eon ery en ge 8, 9, 10

United States v. Marks, 38 F.3d 1009 (8th Cir. 1994). ...2

STATUTES

8" ogg 2 ER nd ene ee ere 7m a

ee a oh cn ceen aga devdeeecuesbuswaar 11

ee ED 6 5 iu ws wee ekeeendestccteensuea sees 2

OTHER AUTHORITIES

ee we ee a Ba, Bee Se

I I I Bn os o'nv vnc beam ba na gases ees 2

6

In The

Supreme Court of the United States

October Term, 1994

¢

RUSSELL B. MARKS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

¢

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

S

Russell B. Marks respectfully prays that a writ of

certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Eighth Circuit

entered in this proceeding on October 27, 1994, in order

to resolve the conflict between the Eighth and Third

Circuits and to decide the issue of fundamental impor-

tance presented here.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eighth Circuit that gives rise to this petition is

reported at United States v. Marks, 38 F.3d 1009 (8th Cir.

1994), and is reprinted in Appendix A hereto (“App. A”)

at p. Al. By order filed December 12, 1994, the Eighth

Circuit denied Marks’ petition for rehearing and sugges-

tion for rehearing en banc. App. B, B1.

a

JURISDICTION

Russell B. Marks pleaded guilty to one count of con-

spiracy to distribute cocaine and one count of conspiracy

to launder monetary instruments. The district court sen-

tenced Marks to a mandatory life sentence without

release on the drug charge and to five years imprison-

ment of the money laundering charge. The court also

imposed a ten-year term of supervised release.

On October 27, 1994, the Eighth Circuit entered an

order affirming Marks’ convictions and the mandatory

life sentence. A timely-filed petition for rehearing and

suggestion for rehearing en banc was denied on Decem-

ber 12, 1994. Pursuant to Supreme Court Rule 13.1, this

petition has been filed within 90 days of the denial of

rehearing.

The jurisdiction of the Court is invoked pursuant to

28 U.S.C. § 1254(1).

STATUTES INVOLVED IN THIS CASE

21 U.S.C. § 841(b) provides in relevant part:

(b) Penalties

Except as otherwise provided in section 859, 860, or

861 of this title, any person who violates subsection (a) of

this section shall be sentenced as follows:

(1)(A) In the case of a violation of subsection

(a) of this section involving -

(i) 1 kilogram or more of a mixture or sub-

stance containing a detectable amount of

heroin;

(ii) 5 kilograms or more of a mixture or

substance containing a detectable amount

of -

(I) coca leaves, except coca leaves and

extracts of coca leaves from which

cocaine, ecgonine, and derivatives of

ecgonine or their salts have been

removed;

(II) cocaine, its salts, optical and geo-

metric isomers, and salts of isomers;

(III) ecgonine, its derivatives, their

salts, isomers, and salts of isomers; or

(IV) any compound, mixture, or prep-

aration which contains any quantity of

any of the substances referred to in sub-

clauses (I) through (III);

(iii) 50 grams or more of a mixture or sub-

stance described in clause (ii) which con-

tains cocaine base;

(iv) 100 grams or more of phencyclidine

(PCP) or 1 kilogram or more of a mixture or

substance containing a detectable amount of

phencyclidine (PCP);

(v) 10 grams or more of a mixture or sub-

stance containing a detectable amount of

lysergic acid diethylamide (LSD);

(vi) 400 grams or more of a mixture or

substance containing a detectable amount of

N-phenyl-N-[1-(2-phenylethy])-4-

piperidinyl] propanamide or 100 grams or

more of a mixture or substance containing a

detectable amount of any analogue of

N-phenyl-N-[1-(2-phenylethyl)-4-

piperidinyl] propanamide;

(vii) 1000 kilograms or more of a mixture

or substance containing a detectable amount

of marijuana, or 1,000 or more marijuana

plants regardless of weight; or

(viii) 100 grams or more of meth-

amphetamine, its salts, isomers, and salts of

its isomers or 1 kilogram or more of a mix-

ture or substance containing a detectable

amount of methamphetamine, its salts, iso-

mers, or salts of its isomers;

such person shall be sentenced to a term of imprisonment

which may not be less than 10 years or more than life and

if death or serious bodily injury results from the use of

such substance shall be not less than 20 years or more

than life, a fine not to exceed the greater of that autho-

rized in accordance with the provisions of Title 18, or

$4,000,000 if the defendant is an individual or $10,000,000

if the defendant is other than an individual, or both. If

any person commits such a violation after a prior convic-

tion for a felony drug offense has become final, such

person shall be sentenced to a term of imprisonment

which may not be less than 20 years and not more than

life imprisonment and if death or serious bodily injury

results from the use of such substance shall be sentenced

to life imprisonment, a fine not to exceed the greater of

twice that authorized in accordance with the provisions

of Title 18, or $8,000,000 if the defendant is an individual

or $20,000,000 if the defendant is other than an individ-

ual, or both. If any person commits a violation of this

subparagraph or of section 859, 860, or 861 of this title

after two or more prior convictions for a felony drug

offense have become final, such person shall be sentenced

to a mandatory term of life imprisonment without release

and fined in accordance with the preceding sentence. . . .

Fed. R. Crim. P. 11(c)(1) provides in relevant part:

(c) Advice to defendant. Before accepting a plea of

guilty or nolo contendere, the court must address the

defendant personally ir open court and inform the defen-

dant of, and determine that the defendant understands,

the following:

(1) the nature of the charge to which the plea is

offered, the mandatory minimum penalty pro-

vided by law, if any, and the maximum possible

penalty provided by law, including the effect of

any special parole term or supervised release

term, the fact that the court is required to con-

sider any applicable sentencing guidelines but

may depart from those guidelines under some

circumstances, and, when applicable, that the

court may also order the defendant to make

restitution to any victim of the offense;

¢

STATEMENT OF THE CASE

Russell Marks was charged in a multicount indict-

ment with conspiracy to distribute cocaine (count 1) and

conspiracy to launder monetary instruments (count 3).

Count 1 alleged that the conspiracy involved a “detect-

able amount of cocaine.” Immediately before trial, Marks

informed the court that he wished to plead guilty to

Counts 1 and 3.

The following dialogue then took place:

The Court: Now, even though the sentences will

come under the sentencing guidelines,

it is necessary that I advise you of the

maximum sentence that could be

imposed under the statute.

As I understand it, under the statute,

depending somewhat upon the facts

developed, you could be sentenced up

to 20 years to life or fined up to $8

million and there might be a period of

supervised release of not less than 10

years.

Prosecutor: Now -

Maximum is mandatory life under

Count 1, and that would be the very

maximum number, and that’s depen-

dent upon the prior drug convictions.

The Court: That’s what I indicated to him depen-

dent upon prior drug convictions -

now, dependent upon that, the maxi-

mum sentence might be mandatory life.

Do you understand that?

The Defendant: Yes, sir.

After the court accepted Mr. Marks’ guilty plea, it

directed the probation officer to prepare a presentence

investigation report (PSI).

The PSI stated in relevant part that “[a]gents esti-

mated that during the course of the instant conspiracy,

Marks distributed at least 15 kilograms of cocaine... . ”

PSI at 6 J 28. Marks objected to this and numerous other

factual allegations in the PSI. Marks argued that he had

not pleaded guilty to any offense involving more than 5

kilograms of cocaine and that if the government was to be

allowed to prove additional quantities not alleged in the

indictment, he should be allowed to withdraw his plea.

Id. at 4-5, 7-8.

At the sentencing hearing Marks again argued to the

court that there was a misunderstanding as to what he

had pleaded guilty to. He stated that he had not been

charged with, and had not pleaded guilty to, distributing

fifteen kilograms of cocaine. Marks stated that the 15

kilograms mentioned in the PSI had not been alleged in

the indictment, that he had not been given notice of that

amount and that he had not pleaded guilty to conspiring

to distribute that amount (SH 6).

After the government presented its evidence the

court stated that it was plain that there was more than

five kilograms of cocaine involved in the conspiracy. Con-

sequently, based on 21 U.S.C. § 841(b)(1)(A), the court

was required to sentence Marks to a mandatory life sen-

tence without release on count 1.

7

REASONS FOR GRANTING THE WRIT

I. The Decision Below Conflicts in Principle with This

Court’s Decision in McMillian v. Pennsylvania and

Directly Conflicts with the Third Circuit’s Decision

in United States v. Kikumura

Russell Marks was sentenced to mandatory life

imprisonment with no release because his offense

involved more than five kilos of cocaine and because he

had at least two prior convictions. In its opinion, the

Eighth Circuit rejected Marks’ argument that because the

amount of cocaine involved in the conspiracy determined

the statutory parameters of his sentence, the amount

should have been proved by more than a preponderance

of the evidence. The Court stated, “[i]t is clear, however,

that we have ‘rejected the argument that the sentencing

phase requires a more stringent standard of proof than a

preponderance of the evidence.’ ” App. A, A10 (citation

omitted).

The Eighth Circuit’s blanket assertion that more than

a preponderance of tke evidence is never required con-

flicts in principle with this Court’s decision in McMillian

v. Pennsylvania, 477 U.S. 79 (1986), and conflicts directly

with the Third Circuit decision in United States v.

Kikumura, 918 F.2d 1084 (3d Cir. 1990).

In McMillian, the Court stated that the Due Process

Clause of the Fourteenth Amendment may require that

'

sentencing factors be proved by more than a prepon-

derance of the evidence where the sentencing factor

becomes “the tail which wags the dog of the substantive

offense.” 477 U.S. at 88. Although the Court did not

explain this statement, lower courts have interpreted it to

mean that sentencing factors should be proved by more

than a preponderance when they greatly enhance a

defendant’s sentence.

In Kikumura, for example, the Third Circuit held that

sentencing factors that increased a defendant’s sentence

from 30 months to 30 years had to be proved by clear and

convincing evidence. 918 F.2d at 1100. The court stated

that “[t]his is perhaps the most dramatic example imagin-

able of a sentencing hearing that functions as ‘a tail which

wags the dog of the substantive offense.’ ” Id. at

1100-1101 (citing McMillian, 477 U.S. at 88).

Because the sentence received by Mr. Marks was so

greatly increased as a result of the sentencing factors,

those factors should have been proved by more than a

preponderance of the evidence. But rather than analyze

whether Mr. Marks was entitled to greater due process

protection, the court below simply issued a blanket pro-

nouncement that greater protection will never be required

in the Eighth Circuit.?

1 The decision below also conflicts with a prior en banc

decision of the Eighth Circuit. In United States v. Galloway, 976

F.2d 414 (8th Cir. 1992), cert. denied, __ U.S. __, 113 S. Ct. 1420

(1993), the court stated that “a sentencing scheme could violate

due process if the sentencing factors exposed the defendant to

‘greater or additional punishment’ beyond that provided under

the statute of conviction.” Id. at 425 (citing McMillian, 477 U.S. at

85) (emphasis added).

10

The Eighth Circuit’s holding conflicts with McMillian

and Kikumura on an issue on which there should be no

conflicts. Congress’ enactment of the United States Sen-

tencing Guidelines signaled a new era in federal criminal

law. No longer should the length of criminal sentences

depend on the philosophy of the judges hearing the case.

Uniformity of sentences is now the rule rather than a

lofty goal.

The Eighth Circuit’s opinion violates this policy of

national uniformity. Criminal defendants in the Eighth

Circuit will be sentenced based on sentencing factors

proved by a mere preponderance of the evidence, while

defendants in the Third Circuit may be entitled to greater

constitutional protections. The natural result of these con-

flicting rules can only be disparate sentences — the very

goal Congress sought to avoid.

This disparity will be most noticeable in sentences of

drug offenders such as Marks. Mr. Marks was sentenced

under 21 U.S.C. § 841(b), which contains seven separate

sentencing ranges. Under that section, no term of

imprisonment beyond the statutory minimum range is

applicable until the amount of drugs is proved. Accord-

ingly, any sentence above the minimum range depends

entirely on the amount of drugs involved in the conspir-

acy. Under § 841(b) the range itself is determined by the

amount of drugs involved in the offense. Indeed, Marks’

mandatory life sentence became applicable only after the

11

government proved that 5 or more kilograms were

involved in the offense. 21 U.S.C. § 841(b)(1)(A).2

In McMillian, the sentencing factor “neither alter[ed]

the maximum penalty for the crime committed nor cre-

ate[d] a separate penalty; it operate[d] solely to limit the

sentencing court’s discretion in selecting a penalty within

the range already available to it... .” 477 U.S. at 87-88.

The sentencing factors in the present case, however, do

not simply limit the sentencing court’s discretion within a

statutory range — they determine the range itself. Because

the amount of drugs involved in the offense plays such a

significant role in sentences under § 841, the burden of

proof should be uniform nationwide.

The Court should grant the petition to decide this

important issue.

Il. The Decision Below Raises Important Issues

Regarding the Trial Court’s Obligations Under Fed.

R. Crim. P. 11(c)(1) in Drug Cases Where the

Amount of Drugs Involved, Although Not an Ele-

ment of the Offense, Plays a Significant Role in

Determining the Sentence

Defendants indicted on federal drug charges are

faced with an insurmountable task when they wish to

plead guilty. They must not only predict the quantity of

2 The only other factor in Marks’ life sentence was the

number of prior convictions he had. The government was

required to prove that number beyond a reasonable doubt. See

21 U.S.C. § 851(c)(1).

12

drugs the government will prove at the sentencing hear-

ing, but also compute the likely sentence to be imposed

based on that quantity. Although the trial court is

required to inform the defendant of the mandatory mini-

mum sentences he faces at the plea hearing, see Fed. R.

Crim. P. 11(c)(1), as a practical matter the court cannot do

so. The facts of the present case illustrate this problem.3

At the plea hearing the court and the prosecutor

informed Mr. Marks that the maximum sentence he could

receive was life imprisonment. The court stated:

The Court:

Mr. Johnson:

Now, even though the sentences will

come under the sentencing guidelines,

it is necessary that I advise you of the

maximum sentence that could be

imposed under the statute.

As I understand it, under the statute,

depending somewhat upon the facts

developed, you could be sentenced up

to 20 years to life or fined up to $8

miilion and there might be a period of

supervised release of not less than 10

years.

Now -

Maximum is mandatory life under Count

1, and that would be the very maximum

number, and that’s dependent upon the

prior drug convictions.

3 The Eighth Circuit acknowledged that the trial court did

not inform Mr. Marks of the mandatory minimum sentence he

faced. App. A, A8.

13

The Court: That’s what I indicated to him dependent

upon prior drug convictions — now, depen-

dent upon that, the maximum sentence

might be mandatory life.

At the sentencing hearing, however, the court stated

that because of the amount of drugs involved in the

offense and Mr. Marks’ past criminal history, the only

sentence applicable was mandatory life without release.

Although Marks was informed that life imprisonment

was the maximum sentence he could receive, in reality life

imprisonment was the mandatory minimum sentence he

would receive. But the district court could not inform

Marks of the correct mandatory minimum sentence at the

plea hearing because it was based on evidence not before

the court — the amount of drugs involved in the offense.

This case shows that the requirements of Fed. R. Crim. P.

11(c)(1) are nearly impossible to follow where, as here,

the government alleges a small amount of drugs in the

indictment, but later proves a large amount at sentencing.

The Eighth Circuit erred when it heid that Mr. Marks’

rights were protected when the trial court informed him

that the maximum sentence he faced was life imprison-

ment. The trial court plainly failed to inform Marks of the

mandatory minimum, for the simple reason that it had no

way to know what the mandatory minimum would be.

The Court should grant the petition to guide the district

courts in plea hearings in federal drug cases.

¢

14

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

THomas A. SHEEHAN

SHUGHART THOMSON & KILROY

A Professional Corporation

Twelve Wyandotte Plaza

120 W. 12th Street

Kansas City, Missouri 64105

(816) 421-3355

Attorney for Petitioner

A-1

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 93-2017

United States of America, *

* Appeal from the United

Appellee, * States District Court for

V. * the Eastern District of

Russell B. Marks, : Missouri.

Appellant. *

Submitted: December 14, 1993

Filed: October 27, 1994

Before McMILLIAN, FAGG, and BOWMAN, Circuit

Judges.

BOWMAN, Circuit Judge.

Russell Bradley Marks pled guilty to one count of

conspiracy to distribute cocaine, a violation of 21 U.S.C.

§ 846, and one count of conspiracy to launder money, a

violation of 18 U.S.C. § 371. He appeals both of the

resulting convictions and his mandatory life sentence on

the cocaine conviction. We affirm.

A-2

I.

Marks argues that the District Court! did not prop-

erly inform him of the nature of the charges against him,

did not establish a factual basis for his plea of guilty

under Count 1 (the cocaine conspiracy count), and did

not inform him of the possible sentence he faced under

that count.

A.

We first consider Marks’ contention that the trial

court failed to inform him of the nature of the charges.

Rule 11(c)(1) of the Federal Rules of Criminal Procedure

requires that the court must “inform the defendant of,

and determine that the defendant understands . . . the

nature of the charge to which the plea is offered... . ”

Here the District Court addressed Marks and discussed

the charges, but did not fully recite them. In determining

whether the defendant understood the nature of the

charges, it is necessary to “examine the totality of the

circumstances. We examine whether the indictment gave

him notice of the charge, whether he discussed the charge

with his attorney or the judge, and we look at any other

facts which are in the record.” United States v. Nieuwsma,

779 F.2d 1359, 1361 (8th Cir. 1985).

Count 1 accused the defendant of participation in a

conspiracy to distribute cocaine. Marks had received

notice of this charge in the indictment, testified under

1 The Honorable Russell G. Clark, Senior United States

District Judge for the Western District of Missouri.

A-3

oath that he had counseled extensively with his attorney

concerning the charge, and agreed that he understood its

nature. See Plea Hearing Tr. at 7. Marks’ attorney sim-

ilarly stated that defendant was aware of the meaning of

the charge. Id. at 7-8. The District Court summarized

conspiracy to distribute in simple language before engag-

ing in a discussion with Marks to establish a factual basis

for his plea. Id. at 11. When a defendant indicates “at the

plea hearing that he had read the indictment and under-

stood the charges against him, ‘[s]uch statements at the

plea hearing provide persuasive evidence of an under-

standing’ of the nature of the charges.” United States v.

Young, 927 F.2d 1060, 1064 (8th Cir.) (quoting Harvey v.

United States, 850 F.2d 388, 396 (8th Cir. 1988)), cert.

denied, __ U.S. __, 112 S. Ct. 384 (1991). The transcript of

the plea hearing shows that Marks understood the nature

of the charge, Plea Hearing Tr. at 7, while his reference to

specific overt acts, id., at 12, 13, satisfies us that he had

read the indictment.

Marks further argues with respect to Count 1 that the

court erred in failing to inform him that the government

would have to prove beyond a reasonable doubt that he

had “knowingly and intentionally” conspired with

others. It is not always necessary, however, to explain

formally the elements of an offense if the defendant

understood the nature of the charge. See Nieuwsma, 779

F.2d at 1362. Here it is clear that defendant “understood

that he was pleading guilty to conspiracy to distribute

2 The attorney who was appointed to represent Marks in

the District Court proceedings is not the attorney of record in

this appeal.

A-4

cocaine, and that it involved an agreement to commit a

crime, and that he understood the nature _—_‘the charge.

There was substantial compliance under Rule 11 in this

regard.” United States v. Kriz, 586 F.2d 1178, 1180 (8th Cir.

1978), cert. denied, 442 U.S. 945 (1979). In these circum-

stances, the District Court did not err in failing to explain

the government’s burden of proof, and adequately

informed the defendant of the nature of the charge under

Count 1.

The record on Count 3, which charged Marks with

conspiracy to launder money, is not as clear. As in the

case of Count 1, Marks received notice in the indictment

of the charge, testified under oath that he had counseled

extensively with his attorney concerning the charge, and

stated that he understood its nature. See Plea Hearing Tr.

at 7. Marks’ attorney agreed that Marks was aware of the

meaning of the count, while the government's attorney

noted that the charge concerned a “conspiracy to launder

money derived from drug trafficking.” Plea Hearing Tr. at

7-8, 2. The court, however, merely stated with respect to

Count 3 that: “It charges that you conducted some finan-

cial transactions involving proceeds that you had

received and - generally from drug trafficking ...,” id. at

12, before going on to question Marks about specific overt

acts alleged under the count. While a clearer statement of

the nature of the charge would have been desirable, we

cannot say that defendant is entitled to a reversal under

the Young test. Marks’ responses to the court’s queries

about overt acts, see id. at 12, 13, indicate that he had read

the indictment, and he testified affirmatively as to his

understanding of the charges against him, id., at 7. He

had discussed the charges with his attorney, had heard

A-5

them stated succinctly by the government’s attorney, and

had been questioned about them by the court. Examining

the totality of the circumstances, we conclude that Marks

was adequately informed of the nature of the charge in

Count 3.

B.

Marks further argues that his guilty plea should be

vacated because the trial court did not establish a factual

basis for the plea’s acceptance. As only Count 1, the

charge of conspiracy to distribute cocaine, is discussed in

Marks’ brief, we will limit our discussion accordingly.

For the purposes of Rule 11(f) of the Federal Rules of

Criminal Procedure, a factual basis for a plea of guilty is

established when the court determines there is sufficient

evidence at the time of the plea upon which the court

may reasonably determine that the defendant likely com-

mitted the offense. See United States v. Boucher, 909 F.2d

1170, 1175 (8th Cir.), cert. denied, 498 U.S. 942 (1990). This

determination is satisfied if the transcript described the

acts to which the defendant pleaded guilty. See Uitited

States v. Villegas, 987 F.2d 1362, 1364 (8th Cir. 1993).

In this case, the indictment charged that Marks had

conspired with several other named individuals, some of

them charged as co-conspirators and some of them men-

tioned as unindicted co-conspirators, to distribute

cocaine. At the plea hearing, the following colloquy took

place:

THE COURT: Now, Count 1 charges, com-

mencing in June of 1987 and continuing to on or

about July 1991, you agreed or conspired with

a

A-6

others to distribute a mixture containing

cocaine.

During that period of time, did you have

some sort of an understanding with other peo-

ple that you would possess and distribute

cocaine?

THE DEFENDANT: Yes, sir.

THE COURT: What was your involvement

in this regard?

What was [sic] your duties or obligations in

regard to the agreement or the understanding?

What were you supposed to do?

THE DEFENDANT: I really didn’t do any-

thing, I guess, except answer the phone. If

somebody said they needed something, then, I

guess I helped them achieve their goals.

THE COURT: Did you receive some tele-

phone calls from people wanting cocaine?

THE DEFENDANT: Yes, sir I did.

THE COURT: Did you make arrangements

to see that they got the [sic]?

THE DEFENDANT: Yes, sir, I did.

- Plea Hearing Tr. at 11-12. Conspiracy to distribute does

not require that the existence of a formal agreement be

demonstrated; “ ‘showing a tacit agreement by under-

standing proven wholly by circumstantial evidence or by

inferences from the parties’ actions is sufficient.’ ” United

States v. Casas, 999 F.2d 1225, 1229 (8th Cir. 1993) (quoting

United States v. Searing, 984 F.2d 960, 964 (8th Cir. 1993)),

cert. denied, ___ U.S. ____, 114 S. Ct. 894 (1994). At the same

A-7

time, some degree of knowing involvement and coopera-

tion beyond mere knowledge must be established. Casas,

999 F.2d at 1229. Here, the defendant clearly admitted to

an understanding with others to possess and distribute

cocaine, establishing his knowing involvement and coop-

eration in the conspiracy.

Marks refers us to United States v. Townsend, 924 F.2d

1385 (7th Cir. 1991), which notes that a drug sale, “by

definition, requires two parties; their combination for that

limited purpose does not increase the likelihood that the

sale will take place, so conspiracy liability would be

inappropriate.” Id. at 1394. Townsend also notes, however,

that conspiracies “are typically distinguished by coopera-

tive relationships between the parties that -facilitate

achievement of the goal.” Id. at 1395. Marks admitted that

“[i]f somebody said they needed something, then, I guess

I helped them achieve their goals.” Plea Hearing Tr. at 11.

While we might wish that more had been done to estab-

lish a factual basis for Marks’ plea on Count 1 in the

District Court’s colloquy with defendant, we nevertheless

believe that what was done is adequate. Accordingly,

Marks is not entitled to have his plea vacated on this

ground.

i.

We now turn to Marks’ contention that his guilty plea

should be vacated because the court did not adequately

notify him of possible sentences. Rule 11(c)(1) of the

Federal Rules of Criminal Procedure states that the court

must “inform the defendant of, and determine that the

A-8

defendant understands. . . the mandatory minimum pen-

alty provided by law, if any, and the maximum possible

penalty provided by law, including the effect of any

special parole or supervised release term,” and “the fact

that the court is required to consider any applicable sen-

tencing guidelines but may depart from those guidelines

under some circumstances. ... ” In the instant case,

Marks was clearly informed that he faced a possible

sentence of life imprisonment. Plea Hearing Tr. at 8-9.

While the term “mandatory minimum” does not appear

in the plea hearing transcript, in discussing Count 1, the

court advised Marks that “under the statue, depending

somewhat upon the facts developed, you could be sen-

tenced up to 20 years to life or filed up to $8 million and

there might be a period of supervised release of not less

than ten years.” Plea Hearing Tr. at 8.

When a five kilogram mixture of cocaine is involved,

and the defendant has a final prior conviction for a felony

drug offense, the defendant must be sentenced to a mini-

mum of twenty years in prison. 21 U.S.C. § 841(a)(1),

(b)(1)(A). We believe that the trial court’s “20 years to

life” statement adequately informed the defendant of the

possible application of the twenty-year mandatory mini-

mum sentence. Similarly the court informed the defen-

dant that for Count 3 “under the statute, you could [be]

imprisoned for not more than five years and fined up to

$250,000 or some combination of the two.” Plea Hearing

Tr. at 8-9. The offense charged in Count 3 does not carry a

mandatory minimum sentence. 18 U.S.C. § 371. We con-

clude that defendant received sufficient notification of

both maximum and minimum sentences under the two

counts to satisfy the requirements of Rule 11.

A-9

II.

Marks argues that the District Court erred in not

allowing him to challenge his prior felony drug convic-

tions at the sentencing hearing. When the government

establishes two or more such prior convictions and the

present offense of conviction involves five kilograms or

more of a substance listed under 21 U.S.C.

§ 841(b)(1)(A){ii), the sentencing court must impose a

mandatory term of life imprisonment without release. 21

U.S.C. § 841(b). Marks argues that the District Court

failed to follow the procedure mandated by 21 U.S.C.

§ 851(b), which requires the court to “inquire of the

person with respect to whom the information was filed

whether he affirms or denies that he has been previously

convicted as alleged in the information.” Here Marks was

asked not once, but was asked not once, but twice, as to

whether he was challenging his three prior convictions,

and he replied in the negative. Sentencing Hearing Tr. at

10, 11. Later he changed his mind and asserted a desire to

challenge the prior convictions. The District court

declined to allow him to do so. See Sentencing Hearing Tr.

at 29, 85. We think the District Court's ruling is correct for

two reasons, either one of which is a sufficient ground for

sustaining the ruling.

First, § 851(c)(1) clearly states that “[i]f the person

denies any allegation of the information of prior convic-

tion, or claims that any conviction alleged is invalid, he

shall file a written response to the information.” 21 U.S.C.

§ 851(c)(1) (emphasis added). There is no indication in the

record that defendant complied with this requirement.

Second, § 21 U.S.C. § 851(e) states that “[n]o person who

A-10

stands convicted of an offense under this part may chal-

lenge the validity of any prior conviction alleged under

this section which occurred more than five years before

the date of the information alleging such prior convic-

tion.” Sister circuits have held that “[a] trial court is not

required ‘to adhere to the rituals of § 851(b) where a

defendant, as a matter of law, is precluded from attacking

the conviction forming the basis of the enhancement

information.’ ” United States v. Weaver, 905 F.2d 1466, 1482

(11th Cir. 1990) (quoting United States v. Nanez, 694 F.2d

405, 413 (5th Cir. 1982), cert. denied, 461 U.S. 909 (1983)),

cert. denied, 498 U.S. 1091 (1991). In the present case the

information alleging the prior conviction was filed on

October 30, 1992. Doc. 187, Appeilee’s Appendix at 21.

Defendant’s 1984 and 1986 convictions, all that are neces-

sary for the operation of 21 U.S.C. § 841(b), are barred

from challenge as having occurred more than five years

previously. See 21 U.S.C. § 851(e). It therefore is of no

consequence whether Marks might have successfully con-

tested his 1990 conviction.

We conclude that Marks’ claim of error lacks merit.

If.

Marks objects to the District Court’s finding that five

or more kilograms of cocaine were involved in the

cocaine-distribution conspiracy to which he pled guilty

and argues that proof should have been based on more

than a preponderance of the evidence. It is clear, how-

ever, that we have “rejected the argument that the sen-

tencing phase requires a more stringent standard of proof

than a preponderance of the evidence.” United States v.

A-11

Galloway, 976 F.2d 414, 425 (8th Cir. 1992) (en banc), cert.

denied, __ U.S. __, 113 S. Ct. 1420 (1993). Here the

determination by the District Court as to the amount of

cocaine involved was a finding of fact which we must

accept unless it is clearly erroneous. United States v. Alex-

ander, 982 F.2d 262, 267 (8th Cir. 1992).

The District Court based its findings on information

supplied by one of Marks’ named co-conspirators, Wil-

liam Snyder, who stated that he had distributed fifteen

kilograms or cocaine for Marks over the course of the

conspiracy, and Michelle McDonald, an unindicted co-

conspirator, who estimated that she had distributed ten to

fifteen kilograms of the drug. Sentencing Hearing Tr. at

48, 49, 65. The District Court stated that it relied on the

testimony of Snyder and McDonald in meeting the find-

ing that five or more kilograms of cocaine had been

involved in the conspiracy. Although Snyder contradicted

his own earlier testimony, and received a reduced sen-

tence as a result of his cooperation with the government,

the court was eniitled to credit his testimony, as well as

McDonald's. See United States v. Frondle, 918 F.2d 62, 64-65

(8th Cir. 1990) (credibility for the district court to deter-

mine with due regard to testifier’s criminal past and self-

interest in testifying), cert. denied, 499 U.S. 941 (1991);

United States v. Phillippi, 911 F.2d 149, 151 n.3 (8th Cir.

1990) (testimony of co-participant in offense who has

become a government witness is sufficient evidence on

which to base an increase in the quantity of drugs used

for sentencing), cert. denied, 498 U.S. 1036 (1991); United

States v. Johnson, 767 F.2d 1259, 1276 (8th Cir. 1985) (dis-

trict court’s discretion at sentencing largely unlimited as

to kind of information considered or its source). In light

A-12

of the testimony before the sentencing court, we cannot

say that the finding that five or more kilograms of

cocaine were involved in the conspiracy is clearly erro-

neous.

IV.

Marks further submits that the trial court erred in

allowing him to proceed pro se at his sentencing hearing.

We disagree. A defendant is entitled to represent himself

when he knowingly and intelligently forgoes his right to

counsel. Faretta v. California, 422 U.S. 806, 821, 835 (1975);

Meyer v. Sargent, 854 F.2d 1110, 1114 (8th Cir. 1988).

Indeed, for the state to force defendant to accept an

appointed counsel would be a violation of his constitu-

tional rights. Faretta, 422 U.S. at 836. Determination of

whether a defendant’s election to proceed pro se is volun-

tary, knowing, and intelligent depends upon the particu-

lar facts and circumstances surrounding the case,

including the background, experience, and conduct of the

accused. Edwards v. Arizona, 451 U.S. 477, 482 (1981);

Meyer, 854 F.2d at 1114. While this court has not held that

“a specific warning on the record of the dangers and

disadvantages of self-representation” is an absolute

necessity, it is required that in its absence “the record

shows that the defendant had this required knowledge

from other sources.” Meyer, 854 F.2d at 1114.

Here Marks received a specific warning on the record

when the court heard defendant’s motion to proceed pro

se at trial. “I think you would make a tremendous mistake

to try and represent yourself in this case. It’s almost like a

surgeon doing major surgery on himself. You’re not

A-13

familiar with the procedures . . . involved in a criminal

case. You’re not familiar with the Federal Rules of Evi-

dence. I don’t think that you would be competent to pass

on the correctness or appropriateness of instructions.”

Brief for Appellee at 41. Similariy, at sentencing, the court

noted, in regard to defendant’s decision to represent him-

self, “I’m going to advise you I think it’s a very poor

judgment on your part. . . . Mr. Carter [Marks’ appointed

counsel] is trained in the law, understands procedures in

regard to a hearing. He understands the law. I don’t think

you have any expertise in the law whatsoever.” Sentenc-

ing Hearing Tr. at 4. Marks was thus not warned once,

but twice, of the dangers of pro se representation. This

court has previously noted that “[s]entencing hearings

demand much less specialized knowledge than trials” for

the pro se attorney. United States v. Day, 998 F.2d 622, 626

(8th Cir. 1993), cert. denied, __U.S. ___ 114 S. Ct. 2140

(1994). Here, the defendant was adequately warned of the

pitfalls of pro se representation, and he has failed to show

that his election to represent himself was anything other

than voluntary, knowing, and intelligent (in the limited

sense in which that term is used in this context). That he

may have lacked the skills and the knowledge of the law

necessary to do a first-rate job is irrelevant. Faretta, 422

U.S. at 836. We conclude that Marks’ claim of error cannot

be sustained.

V.

Marks finally argues that the District Court erred in

applying 21 U.S.C. § 841’s mandatory life sentence as no

evidence was presented at the sentencing hearing to

establish clearly that any cocaine transaction took place

A-14

after the effective date of that section. The amendment

was enacted on 18 November 1988 became effective 120

days later. Marks would therefore be liable to a manda-

tory lifetime sentence, he argues, only if evidence at the

sentencing hearing established that an act covered by 21

U.S.C. § 841 (a) occurred after this effective date, as any

retroactive application of increased punishment would

violate the Ex Post Facto Clause, U.S. Const. Art. 1, § 9, cl.

2; see Miller v. Florida, 482 U.S. 423 (1987). We have

recently noted that ” ‘[i]t is well established that a statute

increasing a penalty with respect to a criminal conspiracy

which commenced prior to, but was continued beyond

the effective date of the statute, is not ex post facto as to

that crime.’ ” United States v. Cooper, No. 92-3501, slip op.

at 6 (8th Cir. Aug. 29, 1994). Moreover, in an analogous

situation

it has been held that applying the Sentencing

Guidelines to a conspiracy that straddles the

Sentencing Guidelines’ effective date is not vio-

lative of the ex post facto clause. We have noted

that with conspiracy and other continuing

offenses it is the completion date of the of

offense that controls the use of the Sentencing

Guidelines to be applied.

Id. (citations omitted). In the present case, Marks’ guilty

plea to Count 1, charging a conspiracy to distribute from

June 1987 to July 1991, establishes that the conspiracy,

and Marks’ participation in it, continued long after the

effective date of the amendment to 21 U.S.C. § 841. As we

already have held in part III of this opinion, the finding

of the District Court that the conspiracy involved five or

more kilograms of cocaine is not clearly erroneous. And

as discussed in part II of this opinion, Marks has two

A-15

prior felony drug convictions. The District Court there-

fore was required to impose the mandatory life sentence,

and Marks’ ex post facto claim is meritless.

VI.

Having considered all of Marks’ arguments, we

affirm the judgment of the District Court in all respects.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIR-

CUIT.

B-1

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 93-2017WMS

United States of ns

America, * Order Denying Petition

peace oe * for Rehearing and

PP , * Suggestion for Rehearing

v. * En Banc

Russell B. Marks, ;

Appellant. *

The suggestion for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

December 12, 1994

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit