Opposition Brief — Goodine v. United States

j uy

No. 03-596 :

§Jn the Supreme Court of the Gnited States

BRIAN GOODINE, A/K/A DWAYNE GOODINE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

CHRISTOPHER A. WRAY

Assistant Attorney General

MICHAEL A. ROTKER

Attorney

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether drug quantity is an element of the offenses

of possessing a controlled substance with the intent to

distribute it, in violation of 21 U.S.C. 841, and

conspiring to possess a controlled substance with the

intent to distribute it, in violation of 21 U.S.C. 846.

(I)

TABLE OF CONTENTS

Page

I Nadia ances irecsapassncudesinsasnearannasensaeeses- 1

NIT orth coseraicesocomssvsnsnsanvosensinsnosecinetisasassasnssoeneanavensnnceees, 1

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I Sa aah cd cece onssinconsennncacessesnssanncecee (5

I eta lariat se Aasosanisacbescenedonnsiekacsocdocacoecsseseec, 20

TABLE OF AUTHORITIES

Cases:

Almendarez-Tores v. United States, 523 U.S. 224

SITET AIAN tribes inde dshhdinsinieeshepeevncieansneieesasiceareexeeeaanasaenese 6,8

Apprendi v. New Jersey, 530 U.S. 466 (2000) ........ 3, 6, 10, 11

Blakely v. Washington, 124 S. Ct. 429 (2008) ceccccccccssseccose. 6

Castillo v. United States, 530 U.S. 120 (2000) cecccccceeccsee-o 6

Coleman v. United States, 329 F.3d 77 (2d Cir.

I icasiicasiarlilisissrstcsccintexnssasicesngvesavnensenihisabunniannscesnesoeesassenes 18

Harris v. United States, 586 U.S. 545 (2002) .ecccscccccssssec 4,11

Illinois v. Lidster, 124 8. Ct. 885 (2004) ceessssssssssssssssssssssee 18

Jones v. United States, 526 U.S. 227 (1999) ceccccccccccsccocooce. 6

Liparota v. United States, 471 U.S. 419 (1985) cecccecccocssse. 6

McMillian v. United States, 477 U.S. 79 (1986) -eccccccssse... 3,8

Ring v. Arizona, 536 U.S. 584 ES ee 11

Staples v. United States, 511 U.S. 600 (1994) ceecccccccccsceoce. 6

United States v. Acevedo, 891 F.2d 607 (7th Cir.

SUNT i dssenlivahbaneninieehairessocsiunsnnsoniviobeseehctarieeianienanearenaiensnneonens 9

United States v. Barbosa, 271 F.3d 438 (3d Cir.

2001), cert. denied, 537 U.S. 1049 (2002) veeccccccccsssssssesesseee 13

United States v. Brough, 243 F.3d 1078 (7th Cir.),

cert. denied, 534 U.S. 880 (2001) .......cccccccssscsscsccceccececoeceecees 11

United States v. Caceres, 404 U.S. 741 (1979) cccccccccccsseoses 8

United States v. Campuzano, 905 F.2d 677 (2d

Cir.), cert. denied, 498 U.S. 947 (1990) cccccccccccccccsscccccoseeeece. 9

United States v. Cotton, 535 U.S. 625 (2002) ceeccccccccccceeoces 10

(IIT)

IV

Cases—Continued: Page

United States v. Darwich, 337 F.3d 645 (6th Cir.

a A Ra ETRE Seen aT ee Ee CTT 17

United States v. Fields, 242 F.3d 393 (D.C. Cir.

ee eT RS ROE ET IE Ae ET 16

United States v. Fletcher, 74 F.3d 49 (4th Cir.),

cert. denied, 519 U.S. 857 (1996) .....ccccccsccescssssscsssscsssceees 9

United States v. Graham, 317 F.3d 262 (D.C. Cir.

i aT TSE SAM ECE NOE Te TN ae a TE 14, 15

United States v. Jackson, 327 F.3d 273 (4th Cir.),

cert. denied, 124 S. Ct. 566 (2008) ....c.ccccccccccccssscsssccsscssscesees 12-13

United States v. Jenkins, 866 F.2d 331 (10th Cir.

i EN nS NN TE TR ST ONC he Oe 9

United States v. Lewis, 113 F.3d 487 (3d Cir. 1997),

cert. denied, 523 U.S. 1108 (1998) ....cceccccccssscscsssssssceseeeees 9

United States v. Lindia, 82 F.3d 1154 (1st Cir.

Se ia vissilbeneiiaidiialateiaereaaten ia EAST 9

United States v. Mendoza-Gonzalez, 318 F.3d 663

(5th Cir.), cert. denied, 123 S. Ct. 2114 (2008) vececccccccccses 17

United States v. Mietus, 237 F.3d 866 (7th Cir.

SEIT | easscicaescupndatdanasilbdiuainaicanmaninainia sats Raeemeieianr 13

United States v. Minore, 292 F.3d 1109 (9th Cir.

_2002), cert. denied, 537 U.S. 1146 (2008) voecccccccccccccscsceceeeee 13

United States v. Morgan, 835 F.2d 79 (5th Cir.

IOP ssestevesheecin stabs cininhadetuiehcaaaideatladdaanitecdontiaccdeaeasetoace 9

United States v. Patrick, 959 F.2d 991 (D.C. Cir.

SEG sesdcoicccinapiciteteisiaceioansaelnnttnaiandadiniibananedidntuntsctieanmacaas 10

United States v. Promise, 255 F.3d 150 (4th Cir.

2001), cert. denied, 535 U.S. 1099 (2002) oo... 5, 13-14

United States v. Sanchez, 269 F.3d 1250 (11th Cir.

2001), cert. denied, 535 U.S. 942 TED sehsitiedaanhicdinctiiiee 11,13

United States v. Smith, 308 F.3d 726 (7th Cir.

SUED sti<tisshotin theese ania eghtdlaieaniatintandadaiasdlendasduididia tenes tee: 13

United States v. Sotelo-Rivera, 931 F.2d 1317

(9th Cir. 1991), cert. denied, 502 U.S. 1100 (1992) ........... 9

V

Cases—Continued: Page

United States v. Thomas, 274 F.3d 655 (2d Cir. 2001) ..... 17

United States v. Thomas, No. 02-10409, 2004 WL

112644 (9th Cir. Jan. 26, 2004) wooccecccccccccssssscssscesossesoseeceseeees 17

United States v. Todd, 920 F.2d 399 (6th Cir.

EITD winssihinammcdivssnilsitneeninanthisiddmsiemdmmimbcbaumbetinledbeaes 9

United States v. Toliver, 351 F.3d 423 (9th Cir.

OUD snsinsessnsenninsosininpia sith daepeaeioemtiaauepatiant amide 13, 16-17

United States v. Van Hemelryck, 945 F.2d 1493

GINS TIE sainiernlonisiialatecteess dita Gar tate eal 10

United States v. Vazquez, 271 F.3d 98 (3d Cir.

2001), cert. denied, 536 U.S. 963 (2002) voecccccccccccccccosceee. 13-14

United States v. Webb, 255 F.3d 890 (D.C. Cir.

OORE <icsecoinssascsanniicesibestiie hisitaiipinigi R ca ee e ta 15-16

United States v. Williams, 194 F.3d 100 (D.C. Cir.

1999), cert. denied, 531 U.S. 1178 (2001) cececccccccccccccesceeeee.. 15

United States v. Wood, 834 F.2d 1382 (8th Cir.

EPNTE sess snieicanciasnneinineinawedaabochaddasaet cies ee 9

Statutes:

Controlled Substances Act of 1970, Pub. L. No. 91-

513, Tit. IT, §§ 401-410, 84 Stat. 1260-1269......................... 7

Ce Re eee ee 7,8

Fy he UR BNE ettuincidionilcee 7,8

Ie: CRN IW siiinsanceseeiieneesinpesicinieplangislcie 4, 5, 6, 8, 9, 10, 19

BR TETRIS, BARR) woecceessneconnsonrennstnenaons 7, 8, 10, 12, 18, 14, 15, 19

Be. SAUDE An PRUNE) iscetincsesdtbtentnsanidisadanailned ee 2

MET |, ee ene 2,4, 7,8, 10, 12, 19

ee: Chee BRAD sensi escasinscicnssvatnetcarecsenee ee 2, 3, 4, 14, 15

21 U/S.C. 841(b)(1)(A) (HEI) ossceessscecsscssscssssesssssssstnsessnesesoece 3

BL SEA, BER ceceecesessenincsseristsansenspsmastiniareese cect. 7

eT PUTTY scsesicvsssnctemcoisiaboabuaiiuci 4

21 W.S.C. 841(D)(1)(B) (iI) «.......cesscescecsocsovescesorsovssesesesoesceseces. 3,4

Be Pan CRIED simncntsesricaciniaceanaae 15

VI

Statutes—Conatinued:

21 U.S.C. 846

21 U.S.C. 851

OTTER HORE TEETH EH ETE EEE EEE EE EEE EE EEE OEE EET ESE EEE EEEEEEEE EEE EEE EE EEE SEES

Miscellaneous

H.R. Rep. No. 1444 (Pt. 1), 91st Cong., 2d Sess. 46

TTT “sosrieaceesiseesanieeab ies deeded bonibiaebimibiadaedehaibai

U.S. Dep’t of Justice, Handbook on the Anti-Drug

Mduae Act af 1066 (Uber. LOBF) escsecsesininsssseneerssersecesntineensinnes

Jn the Supreme Court of the United States

No. 03-596

BRIAN GOODINE, A/K/A DWAYNE GOODINE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-15a)

is reported at 326 F.3d 26.

JURISDICTION

The judgment of the court of appeals was entered on

April 9, 2003. A petition for rehearing was denied on

May 19, 2003 (Pet. App. 22a-23a). On August 8, 2003,

Justice Souter extended the time within which to file

a petition for a writ of certiorari to and including

September 17, 2003. On September 8, 2003, Justice

Souter further extended that time to and including

October 16, 2003, and the petition for a writ of certiorari

was filed on that date. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

2

STATEMENT

After a jury trial in the United States District Court

for the District of Maine, petitioner was convicted of

conspiring to possess cocaine base with the intent to

distribute it, in violation of 21 U.S.C. 846, and pos-

sessing cocaine base with the intent to distribute it, in

violation of 21 U.S.C. 841(a)(1). He was sentenced to

concurrent terms of 240 months of imprisonment on

each count, to be followed by eight years of supervised

release. The court of appeals affirmed. Pet. App.

la-1lda.

1. From June 2000 through March 2001, petitioner

dealt in cocaine base with two drug organizations in

Maine. In April 2001, a federal grand jury in the

District of Maine returned a multi-count indictment

against petitioner and two co-defendants. Count 1

charged petitioner with conspiring with his co-de-

fendants and others to distribute, and to possess with

the intent to distribute, “50 or more grams of cocaine

base,” in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(A),

and 846. Indictment 1-2. Count 10 charged petitioner

with possessing “50 or more grams of cocaine” with

the intent to distribute it, in violation of 21 U.S.C.

841(a)(1) and 841(b)(1)(A). Indictment 5. Before trial,

the government filed an information pursuant to 21

U.S.C. 851 asserting that petitioner had a prior felony

drug conviction.

The jury found petitioner guilty on Counts 1 and 10.

The jury specifically found that the quantity of cocaine

base involved in those offenses was “5 or more grams,”

but not “50 or more grams.” Pet. App. 3a.

2. Petitioner was subject to sentencing on each

count under the graduated penalties set forth in 21

U.S.C. 841(b). In the case of a defendant who, like

3

petitioner, has a prior felony drug conviction, Section

841(b)(1)(A)(iii) prescribes a maximum term of life

imprisonment and a mandatory minimum term of 20

years of imprisonment if the offense involves “50 grams

or more” of cocaine base. Section 841(b)(1)(B)(iii) pre-

scribes a maximum term of life imprisonment and a

mandatory minimum term of ten years of imprison-

ment for a recidivist defendant whose offense involves

“O grams or more,” but less than 50 grams, of cocaine

base.

The Probation Office recommended that petitioner be

held accountable for 309.2 grams of cocaine base.

Presentence Report (PSR) § 23. That quantity sub-

jected petitioner to a sentencing range of 168 months to

210 months of imprisonment under the Sentencing

Guidelines. Jd. { 47. The Probation Office noted, how-

ever, that the district court could impose a 20-

year mandatory minimum sentence under 21 U.S.C.

841(b)(1)(A), if the court found that petitioner’s offenses

involved 50 grams or more of cocaine base. PSR § 46

(citing McMillan v. Pennsylvania, 477 U.S. 79 (1986)).

Petitioner objected to the Probation Office’s calcu-

lation of drug quantity and to the imposition of a 20-

year mandatory minimum sentence. Petitioner argued

that the imposition of that sentence would violate the

rule articulated in Apprendi v. New Jersey, 530 U.S.

466, 490 (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.” Petitioner contended that the Apprendi rule

should apply to the imposition of a sentence that would

exceed the otherwise applicable Guidelines range based

on a fact found by the court under a preponderance

standard. Def. Sent. Mem. 2-5 (filed July 23, 2002).

4

Alternatively, petitioner argued that drug quantity is

an element of his offenses, so that the court could not

give effect to any such finding for purposes of sentence

ing. See id. at 6-9.

At sentencing, the district court found that petitioner

was responsible for 309.2 grams of cocaine base.

Relying on a “plain reading” of Section 841 as well

as Harris v. United States, 536 U.S. 545 (2002), the

court explained that the jury’s special verdict on drug

quantity determines only the statutory maximum

sentence, not the minimum sentence. Sent. Tr. 17.

Having found petitioner responsible for more than 50

grams of cocaine base, the court imposed concurrent 20-

year mandatory minimum sentences under 21 U.S.C.

841(b)(1)(A) on each count. Sent. Tr. 18.

_ 3. The court of appeals affirmed. The court held that

the imposition of a 20-year mandatory minimum sen-

tence did not violate the Apprendi rule, because that

sentence did not exceed the statutory maximum

sentence authorized by the jury’s verdict under 21

U.S.C. 841(b)(1)(B)(iii). See Pet. App. 13a-15a.'

As particularly relevant here, the court of appeals

concluded, as a matter of statutory construction, that

drug quantity is “not an element” of a drug offense

under Section 841. Pet. App. 2a, 12a. The court

observed that a “straightforward reading” of the statu-

tory text indicates that Section 841(a) was designed to

“identifly] a crime,” whereas Section 841(b) was

>

| The court of appeals identified the statutory maximum sen-

tence under 21 U.S.C. 841(b)(1)(B) as 40 years of imprisonment. In

fact, because of petitioner’s prior felony drug conviction, the

statutory maximum sentence under that provision was life impri-

sonment. The difference between a 40-year maximum and a life

maximum does not affect the analysis.

designed to “outline[] different penalties for that

crime.” Jd. at 10a-1la. The court also read the Con-

ference Report, which described the “sentencing

procedures” under Section 841 as giving “maximum

flexibility to judges,” as indicating that Section 841(b)

was intended to provide sentencing factors. Jd. at lla

(quoting H.R. Conf. Rep. No. 1444, 91st Cong., 2d Sess.

(1970)). Aside from the text and history of Section 841,

the court reasoned that “drug quantity is a classic

sentencing factor”—a fact that “goes to how the offense

is conducted, rather than the result of the crime.” Jd. at

1la-12a. Finally, the court suggested that a construc-

tion of Section 841 that classified drug quantity as an

offense element would “causef] difficulty we think

Congress did not intend” by effectively creating “as

many as 350 different offenses.” Jd. at 12a (citing

United States v. Promise, 255 F.3d 150, 175 (4th Cir.

2001) (Luttig, J., concurring), cert. denied, 535 U.S.

1098 (2002)).°

ARGUMENT

Petitioner contends that the court of appeals erred in

holding, as a matter of statutory construction, that drug

quantity is not an element of an offense under 21 U.S.C.

841. Petitioner also asserts that the court of appeals’

holding deepens a circuit conflict on that question. See

Pet. 4-13. The court of appeals’ decision is correct.

There is no clear circuit conflict on the question pre-

sented by the petition. And the question does not

* The court of appeals stated that, because Section 846 “adopts

the sentencing scheme of [Section 841],” it was unnecessary sepa-

rately to address the construction of Section 846. Pet. App. 3a n.2.

For that reason, and in the interest of simplicity, this brief adheres

to the court of appeals’ approach in not separately referring to

Section 846.

a

6

appear to be of sufficient practical importance to war-

rant this Court’s review at this time.’

1. Within broad constitutional limits, “the definition

of the elements of a criminal offense is entrusted to the

legislature, particularly in the case of federal crimes,

which are ~..ely creatures of statute.” Staples v.

United States, 511 U.S. 600, 604 (1994) (quoting

Liparota v. United States, 471 U.S. 419, 424 (1985)).

Accordingly, whether a particular fact specified in a

federal criminal statute is an offense element or a

sentencing factor (i.e., one that affects the sentence

within the legislatively prescribed range) is pre-

eminently a question of congressional intent. See, e.g.,

Castillo v. United States, 530 U.S. 120, 124 (2000);

Jones v. United States, 526 U.S. 227, 232-239 (1999);

Almendarez-Torres v. United States, 523 U.S. 224, 228

(1998). The resolution of such questions, as with all

questions of statutory interpretation, turns on the “lan-

guage, structure, subject matter, context, and history”

of the statute. Castillo, 530 U.S. at 124; Almendarez-

Torres, 523 U.S. at 228. Applying those principles to

Section 841, the court of appeals correctly reaffirmed

its prior decisions holding that drug quantity is not an

element of the crime proscribed by Section 841(a).

a. The text, structure, and history of Section 841

reflect Congress’s intent to create a single offense with

graduated penalties based on, among other things, the

type and quantity of drugs at issue.

* Petitioner does not raise any constitutional challenge to his

sentence, including the claim raised below that, for purposes of

Apprendi v. New Jersey, 530 U.S. 466 (2000), the top end of the

Guidelines range should be treated as the Statutory maximum sen-

tence. Cf. Blakely v. Washington, cert. granted, 124 S. Ct. 429

(2003).

7

First, Section 841(a) states, in relevant part, that

“it shall be unlawful for any person knowingly or

intentionally—(1) to manufacture, distribute, or dis-

pense, or possess with intent to manufacture, distri-

bute, or dispense a controlled substance.” Section

841(a) thus describes the prohibited conduct and the

accompanying state of mind required for a violation,

without reference to drug type or quantity. So long as

the indictment charges and the jury finds that a

defendant knowingly or intentionally engaged in one of

the specified prohibited acts involving any detectable

amount of “a controlled substance,” the offense defined

in Section 841(a) is complete.

The specific quantity involved in such an offense

becomes relevant only in applying Section 841(b). That

subsection states, with certain exceptions, that “any

person who violates subsection (a) of this section shall

be sentenced” according to rules that specify particular

sentences or sentencing ranges for particular types and

quantities of drugs. 21 U.S.C. 841(b)(1)-(4) (emphases

added). The statutory text thus distinguishes the ele-

ments required for conviction (in Section 841(a)) from

the factors relevant to sentencing (in Section 841(b)).

Second, the statutory history confirms that Congress

did not intend the facts identified in Section 841(b), such

as drug quantity, to be offense elements. Sections

841(a) and (b) were originally enacted as Sections 401(a)

and (b) of the Controlled Substances Act of 1970, Pub.

L. No. 91-513, Title II, §§ 401-410, 84 Stat. 1260-1269.

In that Act, those provisions appeared under the

heading “Part D—Offenses and Penalties,” and the

subheading “Prohibited Acts A—Penalties.” To the

extent that the statute’s language and structure leave

any doubt about its meaning, those headings provide

further indication that Congress was defining the

8

“offense” in subsection (a) and the “penalties” in

subsection (b). Cf., e.g., Almendarez-Torres, 523 U.S. at

234 (recognizing that statutory section headings may be

considered in clarifying Congress’s intent).

Such a reading accords with the House Report

accompanying the Controlled Substances Act of 1970.

The Report describes Section 401(a) as “mak[ing] it

unlawful” knowingly or intentionally to engage in

certain prohibited acts involving drugs, and describes

Section 401(b) as “establish[ing] the following penalties

for anyone who violates [S]ection 401(a).” H.R. Rep.

No. 1444, 91st Cong., 2d Sess. Pt. 1, at 46 (1970) (em-

phasis added). The Report’s explanation reinforces the

conclusion that Congress intended to create a single

offense-defining provision (in Section 841(a)) and a

separate penalty provision (in Section 841(b)).’

b. Before Apprendi v. New Jersey, 530 U.S. 466

(2000), all 12 regional courts of appeals, applying varia-

tions of the foregoing analysis, concluded that Congress

* Petitioner erroneously contends that the Department of

Justice interpreted drug quantity to be an offense element in a

publication issued contemporaneously with the enactment of

Section 841 in its current version. Pet. 10-11; see US. Dep’t of

Justice, Handbook on the Anti-Drug Abuse Act of 1986

(Handbook) (Mar. 1987). The Handbook, which was “not intended

to have the force of law or of a United States Department of

Justice directive,” simply “recommend[ed]” that drug type and

quantity “be specified in the indictment and proven at trial.”

Handbook at v (citing United States v. Caceres, 440 U.S. 741

(1979)); id. at 20 (citing three lower court decisions construing

predecessor statutes). The Handbook followed those citations

with a “but see” reference to this Court’s then-recent decision in

McMillan v. United States, 477 U.S. 79 (1986), thereby at least

raising the question whether McMillan’s holding that sentencing

factors could be proved to the judge by a preponderance standard

would have relevance to Section 841. Handbook 20-21.

9

did not intend drug quantity to be an element of an

offense under Section 841. See, é.g., United States v.

Lindia, 82 F.3d 1154, 1160 (1st Cir. 1996) (“Drug

quantity * * * is not an element of the offense of

conviction.”); United States v. Campuzano, 905 F.2d

677, 679 (2d Cir.) (“Section 841(a) of Title 21 prohibits

the distribution of any amount of cocaine and in no way

requires proof of a particular quantity of narcotics as an

element of the conspiracy to distribute.”), cert. denied,

498 U.S. 947 (1990); United States v. Lewis, 113 F.3d

487, 490-491 (3d Cir. 1997) (“[S]ection 841(a) is entitled

‘Unlawful acts,’ suggesting that the section completely

sets forth the elements of the offenses it creates.’’), cert.

denied, 523 U.S. 1108 (1998); United States v. Fletcher,

74 F.3d 49, 53 (4th Cir.) (“[Q]Juantity is not a substan-

tive element of the crime.”), cert. denied, 519 U.S. 857

(1996); United States v. Morgan, 835 F.2d 79, 81 (5th

Cir. 1987) (“(Q]uantity is not an element of the crimes

proscribed by sections 841(a)(1) and 846.”); United

States v. Todd, 920 F.2d 399, 407 (6th Cir. 1990) (“[T]he

amount of drug determined pursuant to section 841(b)

is not an element of the offense stated in section

841(a).”); United States v. Acevedo, 891 F.2d 607, 611

(7th Cir. 1989) (“Section 841(b) has nothing to do with

the substantive elements of the underlying offense.”);

United States v. Wood, 834 F.2d 1382, 1388 (8th Cir.

1987) (“[T]he quantity of cocaine is not an element of a

‘separate offense.’”); United States v. Sotelo-Rivera,

931 F.2d 1317, 1319 (9th Cir. 1991) (“Section 841(a) does

not specify drug quantity as an element of the

substantive offense of possession with intent to

distribute.”), cert. denied, 502 U.S. 1100 (1992); United

States v. Jenkins, 866 F.2d 331, 334 (10th Cir. 1989)

(“[T]he quantity of the substance in the possession of

the defendant * * * is not an element of the

10

substantive offense upon which the charge is based.”);

United States v. Van Hemelryck, 945 F.2d 14938, 1503

(11th Cir. 1991) (“[Q]Juantity is not an element of 21

U.S.C. 841(a)(1) because quantity is not included as an

element in the definition of the offense under that

subsection.”); United States v. Patrick, 959 F.2d 991,

995 n.5 (D.C. Cir. 1992) (“[T]he quantity of drug

possessed is not a constituent element of the offense of

possession with intent to distribute under 21 U.S.C.

841(a).”). Relying on the statutory text and structure,

the legislative history, and other interpretive clues,

those courts concluded that Congress intended for drug

quantity to be a sentencing factor found by the court by

a preponderance of the evidence.’

2. In Apprendi, 530 U.S. at 490, this Court held, as a

matter of constitutional law, 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 Court subSequencly elaborated

that, “{iJn federal prosecutions, such facts must also be

charged in the indictment.” United States v. Cotton,

535 U.S. 625, 627 (2002).

The Court’s decision in Apprendi concerns the

requirements of the Constitution, not the interpretation

of a statute. As the Eleventh Circuit has explained,

“Apprendi did not announce any new principles of

statutory construction,” and, consequently, “does not

° Several of those courts relied, in part, on the fact that, in the

United States Code, Section 841(a) is titled “[u]nlawful acts” while

Section 841(b) is titled “[p]Jenalties.” As petitioner notes (Pet. 10),

those subheadings were not enacted by Congress. The statutory

text, structure, and history nevertheless support the conclusion

that Section 841 creates separate offense and penalty provisions.

See pp. 6-8, supra.

11

change [pre-Apprendi] precedent interpreting Section

841.” United States v. Sanchez, 269 F.3d 1250, 1268

(11th Cir. 2001) (en banc), cert. denied, 535 U.S. 942

(2002). Instead, Apprendi imposes a “constitutional

restraint,” ibid., that is “external to” the particular

“statutory scheme under which a prosecution occurs.

United States v. Brough, 248 F.3d 1078, 1079 (7th Cir.)

(explaining that Apprendi’s “constitutional require-

ments are external to Section 841”), cert. denied, 534

U.S. 889 (2001).

Apprendi thus does not hold that, in order for a fact

to be used to increase the statutory maximum sentence,

the fact must have been intended by the legislature to

be an element of the offense. To the contrary, the

Court emphasized in Apprendi that it makes no dif-

ference how the legislature structures a statute or what

the legislature calls a fact that increases the statutory

maximum sentence, because “the relevant inquiry is

one not of form, but of effect—does the required finding

expose the defendant to a greater punishment than that

authorized by the jury’s guilty verdict?” 530 U.S. at

494; see Ring v. Arizona, 536 U.S. 584, 602 (2002) (“If a

State makes an increase in a defendant’s authorized

punishment contingent on the finding of a fact, that

fact—no matter how the State labels it—must be found

by a jury beyond a reasonable doubt.”). The Court

explained that such facts, whether or not intended by

the legislature to.be elements, are the “functional

equivalent” of elements when they are used to enhance

a sentence, and thus must be subject to the same

constitutional requirements when so used. Apprendi,

530 U.S. at 494 n.19; see Harris v. United States, 536

U.S. 545, 562 (2002) (plurality opinion) (explaining that

the fact at issue in Apprendi “functioned more like a

‘traditional element’” than a sentencing factor). But

12

that does not mean that the legislature itself must be

deemed to have intended the fact to be an element; it

simply means that the Constitution requires that the

fact be treated as if the legislature so intended.

3. Petitioner asserts that, in the wake of Apprendi,

the courts of appeals have disagreed about whether

Congress intended for drug quantity to be an offense

element under Section 841. Pet. 4-10. Petitioner states

that one court of appeals has held that Section 841

“makes drug quantity an element,” others have held

that “Section 841(b) sets forth sentencing factors,” and

still others have “adopted a hybrid statutory inter-

pretation” under which drug quantity is an “element”

when it affects the statutory maximum penalty. Pet.

6, 9. The cases on which petitioner relies, understood in

context, do not support his suggestion of a circuit

conflict on whether Congress meant for drug quantity

to be an element of a Section 841 offense.

a. In light of Apprendi’s constitutional holding, the

courts of appeals have consistently recognized that, in

order to support a sentence in excess of the otherwise

applicable statutory maximum under Section 841(b),

the threshold drug quantities specified in that sub-

section must be treated as if they are offense elements.

That is, in order for an enhanced sentence to be

imposed, the threshold drug quantity must be alleged in

the indictment and submitted to the jury for deter-

mination beyond a reasonable doubt. That requirement

exists not because Congress made drug quantity an

element of a federal drug offense, but because the

Constitution requires such protections whether drug

quantity is an element or not. See, e.g., United States v.

Jackson, 327 F.3d 273, 285 (4th Cir.) (“Apprendi and its

progeny have identified a circumstance in which a fact

that the legislature characterized as a sentencing factor

13

must, as a matter of constitutional imperative, be

treated as an element—i.e., when that fact increases

the potential punishment beyond the statutory

maximum.”), cert. denied, 124 S. Ct. 566 (2003); United

States v. Minore, 292 F.3d 1109, 1116 (9th Cir. 2002)

(stating that, when an enhanced sentence is sought,

“drug quantity—even though usually labeled a

sentencing factor—is the ‘functional equivalent’ of an

element”), cert. denied, 587 U.S. 1146 (2003); United

States v. Barbosa, 271 F.3d 438, 457 (3d Cir. 2001)

(“Under Apprendi, drug identity must be treated as an

element only when it results in a sentence beyond the

relevant statutory maximum.”), cert. denied, 537 U.S.

1049 (2002); United States v. Mietus, 237 F.3d 866, 875

(7th Cir. 2001) (stating that, under Apprendi, facts that

trigger an increased statutory maximum sentence

“must be treated as elements of the offense”).

b. No court of appeals has purported to overrule its

pre-Apprendi holding that Congress did not make drug

quantity an element of a Section 841 offense. To the

contrary, those courts of appeals that have revisited the

statutory construction issue since Apprendi have re-

affirmed their earlier conclusions that Congress did not

intend for drug quantity to be an offense element. See

Sanchez, 269 F.3d at 1268 (stating that “Apprendi

* * * does not change our precedent interpreting

Section 841” to create sentencing factors); United

States v. Smith, 308 F.3d 726, 740-741 (7th Cir. 2002);

Pet. App. 2a, 9a-12a; see also United States v. Toliver,

351 F.3d 428, 430 (9th Cir. 2003) (discussed at pp. 16-17,

infra).°

° Petitioner asserts that the Third and Fourth Circuits have

“avoided resolving the statutory construction question.” Pet. 10

(citing United States v. Vazquez, 271 F.3d 93 (3d Cir. 2001) (en

14

Petitioner contends that the D.C. Circuit in United

States v. Graham, 317 F.3d 262 (2003), “definitively

held that Section 841 makes drug quantity an element”

for all purposes. Pet. 6. But there is nothing at all

“definitive” in Graham on the question of statutory con-

struction presented here. In that case, the court of

appeals held that the district court could not sentence

the defendant under Section 841(b)(1)(A) in the absence

of a jury finding that his drug conspiracy offense in-

volved the requisite threshold quantity of cocaine base.

Observing that post-Apprendi circuit precedent had

banc), cert. denied, 536 U.S. 963 (2002), and United States v.

Promise, 255 F.3d 150 (4th Cir. 2001) (en banc), cert. denied, 535

U.S. 1098 (2002)). Petitioner’s choice of the term “avoid[ance]” is

questionable. In Vazquez, having held that Apprendi requires

drug quantity to be treated as an offense element when an en-

hanced sentence is sought under Section 841(b), the Third Circuit

had no occasion to revisit its pre-Apprendi decisions holding that

drug quantity is a sentencing factor. See Vazquez, 271 F.3d at 99;

id. at 108 (Becker, C.J., concurring) (explaining that the majority’s

conclusions concerning Apprendi “implicitly signal[] that it is

satisfied with our prior statutory construction of Section 841 [as a

sentencing factor] and will continue to apply it in cases where no

constitutional—i.e., Apprendi—difficulty arises”). In Promise, a

majority of the Fourth Circuit appeared to accept the continued

validity of its pre-Apprendi construction of Section 841(b) as not

creating offense elements. See Promise, 255 F.3d at 156-157

(plurality opinion of Wilkins, J.) (“[WJe have previously held, as

three of my colleagues reiterate now, that Congress intended [for

drug quantities] to be sentencing factors.”); id. at 169 (Luttig, J.,

concurring) (“I would hold without any hesitation whatsoever that

Congress’ manifest intent is that the sole offenses established in

section 841 are those set forth in sections 841(a){1) and (a)(2).”); id.

at 167 (Niemeyer, J., concurring, joined by Gregory, J.) (“I would

conclude that the only rational reading of 21 U.S.C. § 841 is that

elements of the offense are stated in §.841(a) and the sentencing

factors are provided in § 841(b).”).

Ao / cemcemasal

15

“implicitly treated § 841 as a tripartite statute” (i.e., as

one “establishing three separate offenses, with dif-

ferent maximum sentences based on drug quantity”),

the court of appeals concluded that, when the jury does

not make a drug quantity finding, the térm of imprison-

ment as well as the term of supervised release must be

imposed under Section 841(b)(1)(C). 317 F.3d at 274-

275. Because it was unclear whether the defendant’s

five-year term of supervised release in Graham

was imposed under Section 841(b)(1)(A) or Section

841(b)(1)(C), the court of appeals remanded for

resentencing. Jd. at 275.

Seizing on Graham’s “tripartite statute” language,

petitioner asserts that the D.C. Circuit has construed

Section 841 as making drug quantity an offense ele-

ment. Pet. 6-7. At best for petitioner, however,

Graham is equivocal on that point. Graham did not

present a pure question of statutory construction. And

neither Graham nor the cases it relied on addressed

Congress’s intent in enacting the statute or otherwise

applied tools of statutory construction to determine

whether Section 841(b) creates offense elements. Cf.,

e.g., United States v. Williams, 194 F.3d 100, 102-107

(D.C. Cir. 1999) (applying traditional tools of statutory

construction, before Apprendi, to reaffirm circuit

precedent holding that drug quantity is not an offense

element under Section 841), cert. denied, 531 U.S. 1178

(2001).

Although the D.C. Circuit has referred to drug

quantity after Apprendi as an “element,” that charac-

terization is properly understood to mean not that Con-

gress intended it to be an element, but that the

Constitution requires that it be treated as if it were an

element when an enhanced sentence is sought. The

cases that Graham cites are consistent with that under-

a

16

standing. See United States v. Webb, 255 F.3d 890, 896

(D.C. Cir. 2001) (observing that after Apprendi, “if

Section 841 were interpreted as a tripartite statute

* * * then the drug quantity thresholds effectively are

elements that must be decided by a jury”) (emphasis

added); United States v. Fields, 242 F.3d 393, 396 (D.C.

Cir. 2001) (“In light of Apprendi, it is now clear that, in

drug cases under 21 U.S.C. §§ 841 and 846, before a

defendant can be sentenced to any of the progressively

higher statutory maximums that are based on progres-

sively higher quantities of drugs specified in sub-

sections 841(b)(1)(A) or (B), the Government must state

the drug type and quantity in the indictment, submit

the required evidence to the jury, and prove the

relevant drug quantity beyond a reasonable doubt.”).

Although petitioner initially contended that ‘the

Ninth Circuit, as well as the D.C. Circuit, “holds that

drug quantity is an element of the offense under

Section 841” (Pet. 7), petitioner no longer presses that

contention. See Letter of Thomas C. Goldstein to Hon.

William K. Suter (Jan. 6, 2004). As petitioner acknowl-

edges, “the Ninth Circuit’s intervening decision in

United States v. Toliver is consistent with the decision

below” in this case. Jbid. (internal citation omitted).

As the court of appeals explained in Toliver:

[D]rug quantity and type need only be treated as

“functional equivalent(s]” of formal elements of an

offense when a particular drug type or quantity

finding would expose a defendant to an increased

maximum statutory sentence, as they do not con-

stitute formal elements of separate and distinct

offenses under section 841(b)(1). When drug

quantity or type would not have such an effect, they

need not be accorded this special treatment. Thus,

17

while we may label a fact as the “functional equi-

valent of an element” for purposes of Apprendi, that

does not transform the fact into an offense

“element” for purposes of [Jn re] Winship[, 397 U.S.

358 (1970)].

351 F.3d at 430. The Ninth Circuit reiterated the same

point in United States v. Thomas, No. 02-10409, 2004

WL 112644, at *4 (Jan. 26, 2004) (“[D]rug type and

quantity ‘do not constitute formal elements of separate

and distinct offenses under section 841(b)(1).’”) (quot-

ing Toliver, 351 F.3d at 430). In view of the categorical

rejection in Toliver and Thomas of the suggestion that

drug quantity and type are elements of a Section 841

offense, there is no merit to petitioner’s new assertion

that “the precedent of the Ninth Circuit is presently

simply confused” on the question presented. Letter

at 1.

c. Petitioner also contends that, while several other

courts of appeals have “h[{e]ld that Section 841(b) sets

forth elements of the offense,” they have done so only

when a sentence exceeds the statutory maximum. See

Pet. 9 (citing United States v. Darwich, 337 F.3d 645,

655 (6th Cir. 2003), United States v. Mendoza- Gon-

zalez, 318 F.3d 663, 673 (5th Cir.), cert. denied, 123 S.

Ct. 2114 (2003), and United States v. Thomas, 274 F.3d

655, 663-664 (2d Cir. 2001) (en banc)). Aithough those

courts have occasionally referred to drug quantity as an

“element” of a Section 841 offense, see, e.g., Thomas,

274 F.3d at 663-664, that description cannot plausibly

be understood to encompass a sub silentio conclusion

that drug quantity is a legislatively mandated “ele-

ment.” The decisions that petitioner cites do not

analyze whether Congress intended drug quantity to be

an offense element. Nor do they overrule or repudiate

|

18

pre-Apprendi precedent holding that Congress did not

intend to create elements.

Rather, the courts’ use of the term “element” is most

naturally understood as a shorthand way of expressing

the concept that, when an enhanced sentence is sought,

the Constitution requires that drug quantity be treated

as if it were an element. Indeed, the Second Circuit has

cautioned against reading too much into the language in

Thomas upon which petitioner relies: “In Apprendi

and Thomas,” the court explained, “the term ‘element’

was used simply as a shorthand for a set of procedural

requirements” that must be adhered to when an

enhanced sentence is seught. Coleman v. United

States, 329 F.3d 77, 86 (2d Cir. 2003); ef. Illinois v.

Lidster, 124 S. Ct. 885, 889 (2004) (“We must read this

* * * general language * * * as we often read

general language in judicial opinions—as referring in

context to circumstances similar to the circumstances

then before the Court and not referring to quite

different circumstances that the Court was not then

considering.”). Thus, petitioner’s assertion that those

cases reflect an anomalous “hybrid statutory

interpretation” (Pet. 9 (emphasis added)), under which

supposedly statutorily mandated elements are only |

elements some of the time, is untenable. The cases

instead embody a rational synthesis of congressional

intent (not to treat drug quantity as an element for all

purposes) and constitutional command (to treat drug

quantity as an element when necessary to support an

enhanced sentence).

Accordingly, because no court of appeals has clearly

held, either before or after Apprendi, that Congress

intended for drug quantity to be an offense element,

there is no square circuit conflict on that question.

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4. It is unclear whether, or to what extent, the

question presented in the petition has prospective

significance. After Apprendi, in cases in which the

government intends to seek an increase in the other-

wise applicable statutory maximum sentence, federal

prosecutors routinely assure that the threshold drug

quantity needed for an enhanced sentence is charged in

the indictment and submitted to the jury for determi-

nation beyond a reasonable doubt. Consequently, the

question whether Congress itself intended for drug

quantity to be an offense element is ordinarily of little,

if any, prospective importance in cases like this one,

because drug quantity is being treated as if Congress

had intended it to be an element. The question pre-

sented would recur in cases in which the jury finds that

a threshold quantity of drugs was not proved beyond a

reasonable doubt (thereby precluding an increase in the

statutory maximum sentence), but the court then finds

that the threshold quantity was proved by a pre-

ponderance of the evidence (thereby requiring the

court to impose the mandatory minimum sentence

associated with that finding). To date, this appears to

be the only case to present that precise scenario. This

Court’s review is not warranted absent any indication

that the same scenario will arise with any frequency in

the future.’

’ The distinction between offense elements and sentencing

factors may also affect guilty plea practice when a defendant seeks

to plead guilty to a violation of Section 841(a) while contesting the

drug quantity alleged in the indictment as a basis for imposing an

enhanced sentence under Section 841(b). See Thomas, 2004 WL

112644, at *6 (holding that, “even where due process requires that

a drug quantity allegation be pleaded in an indictment and proved

to a jury beyond a reasonable doubt, a defendant can plead guilty

to the elements of the offense without admitting the drug quan-

20

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

CHRISTOPHER A. WRAY

Assistant Attorney General

MICHAEL A. ROTKER

Attorney

FEBRUARY 2004

tity,” which the defendant could not do if drug quantity were an

element). The impact of the distinction under Section 841 between

offense elements and sentencing factors in the guilty plea context

is unclear, however, since it has been addressed to date rarely, if at

all, apart from the recent decision in Thomas.