Amicus Curiae Brief — Goodine v. United States

(2) | FEB 6 - 2004

No. 03-596 j

IN THE

Supreme Court of the United States

BRIAN GOODINE,

Petitioner,

v,

UNITED STATES OF AMERICA,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CourRT OF APPEALS FOR THE First CIRCUIT

BritF Or NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

FAMILIES AGAINST MANDATORY MINIMUMS FOUNDATION,

AND NATIONAL ASSOCIATION OF FEDERAL DEFENDERS

As Amici Curi4eE IN Support OF PETITIONER

DoucLas W. DUNHAM

Counsel of Record

ELLEN P. QUACKENBOS

4 Times Square

New York, NY 10036

212 735-3000

Attorneys for Amici Curiae

National Association of Criminal

Defense Lawyers, Families Against

Mandatory Minimums Foundation,

and National Association

of Federal Defenders

(Additional Counsel Listed on Inside Cover)

Mary PRICE

General Counsel

FAMILIES AGAINST MANDATORY

MINIMUMS FOUNDATION

1612 K Street, N.W., Suite 700

Washington, D.C. 20006

202-822-6700

Davip M. PorTER

Co-chair, Amicus Committee

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

801 I Street, 3rd Floor

Sacramento, CA 95814

916-498-5700

CAROL BROOK

President

NATIONAL ASSOCIATION

OF FEDERAL DEFENDERS

FEDERAL DEFENDER PROGRAM, INC.

5 East Monroe Street, Suite 2800

Chicago, IL 60603

(312) 621-8300

Davip McCoLcIn

Co-chair, Amicus Committee

NATIONAL ASSOCIATION

OF FEDERAL DEFENDERS

DEFENDER ASSOC. OF PHILADELPHIA,

Fep. Cr. Div.

The Curtis Center, Suite 540W

Philadelphia, PA 19106

(215) 928-1100

ARTO IER

a

TABLE OF CONTENTS

Page

SE Oe FA es 6 a eS eee eee ees 11

ENT Reet OE AREICE CURR onc ei eee eevee ]

SUMMARY (FF ARUIUMENE .n vcs ecu sswavnecetnes 2

PEPE, os viv hs ORES Ae eee 4

I. This Court Should Grant Certioran and Clarify

Whether the Threshold Drug Quantities Set Forth in

21 U.S.C. § 841(b) Are Offense Elements, Rather

Than Merely Sentencing Factors ................. 4

A. The Statutory Language and Structure Estab-

lish That Drug Types and Quantities under

Section 841(b) Were Intended As Elements

Defining Seperate Offenses ... 2.2... cee ences 4

B. The Traditional and Statutory Context of

Section 841 Shows That Drug Quantity Is an

Element of the Offense, Not a Sentencing

ee ee ree Se pores euler Ba area rye 12

C. The Legislative History of Section 841

Shows That Drug Quantity Is an Element of

gk ere rr er rece ar eer ee 16

ll

II. The Canon of Constitutional Avoidance Requires that

Threshold Drug Quantities Set Forth in Section

841(b) Be Interpreted as Elements of Separate Of-

Ga a eee Eee eee ee er eee 18

be ee: er rere ee ae ae ee 20

iil

TABLE OF AUTHORITIES

Cases Page(s)

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

CPI Y scsiesncacveanvonscynonsssvencssiersisnnsennnssenens 8, 12, 14, 16

Apprendi v. New Jersey, 530 U.S. 466 (2000) ...... 3, 4, 6, 10,

18, 19

Arizona v. Virgo, 947 P.2d 903 (Ariz. Ct. App. 1997) ...... 12

Castillo v. United States, 530 U.S. 120 (2000) ...........+ 5,6

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Building & Construction Trades Council,

485 U.S. 568 (1988) .............scsssssscesssenseseseerensenes 17

_ Ex parte Washington, 818 So. 2d 424 (Ala. , | | 12

Graham v. United States, 317 F.3d 262 (D.C. Cir. 2003) ... 3

Hall v. Indiana, 403 N.E.2d 1382 (Ind. 1980)... 12

Harris v. United States, 536 U.S. 545 (2002) ........... ‘= Sie

15, 18, 20

Henry v. United States, 263 F. 459 (D.C. Cir. 1919) <<... 13

Jones v. United States, 526 U.S. 227 (1999) «0... » a ee

18, 19

Mallarino v. State, 379 S.E.2d 114 (Ga. App. 1990) ......... 12

McMillan v. Pennsylvania, 477 U.S. 79 (1986) «1... 20

iV

Mullaney v. Wilbur, 421 U.S. 684 (1975) v.cccccccscseccssccseesese. 20

Neal v. United States, 516 U.S. 284 ( ED disinihacabececinerebaeaes 14

Olivito v. United States, 67 F.2d 564 (9th Cir. 1933) 200... 13

Pace v. Aderhold, 2 F. Supp. 261 (N.D. Ga. 1932),

aff'd, 65 F.2d 790 (Sth Cir. 1933) oooccccccccccccssecececees 13

Patterson v. New York, 432 U.S. 917 SUE PP hinisieteninenina 20

People v. Harper, 482 N.E.2d 312 (Ill. App.

Weer NE ssiciersec hacia enceasnstbadnabnuaaautieess tian 12

Richardson v. United States, 526 U.S. 813 CRISPY escncrvavens 14

State v. Portillopayan, 977 P.2d 228 (Idaho Ct.

Py SOE winced Wena ee 12

United States ex rel. Attorney General v. Delaware &

Hudson Co., 213 U.S. 366 (1909) .o.cccccccccccsssececeeee. 18

United States v. Brough, 243 F.3d 1078 (7th Cir. 2001) ..... 3

United States v. Garcia-Rosa, 876 F.2d 209

5. Sere ee Lene ean ee en 11

Untied States v. Grandison, 783 F.2d 1152

Pe FIND aicinbiesiscsninessscnsecanescistdsaicaseiecescatesa cl. 11

United States v. Harris, 313 F.3d 1228

(10th Cir. 2002), cert. denied,

SOF Sats RAW CD sisvisasevnesnsvensarncersneeonsndccomscceccoce 7

United States v. Moreno, 899 F.2d 465

CG CO, BID) snesnveesccsssesicttinwenscsnaninssnanieniteccninnenmatiions 9

United States v. Oakland Cannabis Buyers’

Cooperative, 532 U.S. 483 (2001) .......::ceseceessreeeeees 8

United States v. Promise, 255 F.3d 150

CORE, FIED crinescvncintininicnneinameneaneans 9,10, 11

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

CPR CAR, TBE D oiccesecievansensssennstsnensihenintniecmmmaneniphane 9

United States v. Vazquez, 271 F.3d 93

(3d Cir. 2001), cert. denied,

536 U.S. 963 (2002) ...sesscecrserseees 3,5, 8,9, 11, 16, 17

Warden v. Marrero, 417 U.S. 653 (1974) ........eceeesseseeeeeees 18

Statutes, Regulations, and Guidelines Page(s)

Alla. Code § 13 A+ 12231) .nccesncnccsosnssinsssncsnsneansnsoransnvneneen 12

Arsiz. Rev. Stat. 6 13-S4OSIR) .sensccvcerososnnsesinsserenssnatarenmnnesen 12

21 CBR. & USB AY ccvinverercsscsenvessnsicerianenansitanneinisnienveiaaes 1]

Del. Code tit. 16, § STSSA. escnsssnssserescxssvcvipesorssesmivensueeienrens 12

Ga. Cote Ama: § 16-23-58 on.csccsicsnasconisescisaniamnscentsinsnessnesvns 12

FLR. Rep. No. 96-936 (1980) ........-0ccccsosersnnserssseeseoossnnes 17

V1

FL. Rep. No. 99-845 (1986) ......c..sccssesosessssesssssssceseosnceroees 17

SARIN © ST 6Z TIO sccesscvcsssiviixiincinsciisasidcieccsaune 12

Pat es SD. I, SI wispesecanenscceteusrmccee 12

Burns Ind. Code Ann. § 35-48-4-1 0 ooocccccccccsccssescsceceecevees 12

SG CD OB TIN EE aciiecccsecrsiinaeneaeneaee 12

Ky. Rev. Stat, F STEP TeEe scccosicunaennee 12

S BOP. THO. DO-DEG (LGD) osivicnsccsscsasscscserconscsvirecsernoesssicnses 17

i MRM. BU, SETSS CITED: cinsssnisscsscnsercssrsemettnieumacionatinne 17

© Whites | LU ceccshersevienionaaiandensiane maaan ene 16

BO APPA EEF ivcvictc dente 11, 16, 18

BG SA. § TE sssiscssccirssnniosodseen ee 14

ED Wav: & Sie viiiniivsenseesseeanacaaaee 8,14

BUA. GEE cisniceruenrceetneneeeee eee 19

AG ULE. § DOa0 winisicihineineneamasianaae 5, 13,14

Ob WR 9 OIE o.sccsniiecomnmeiielaen ee 1]

ee WR BOGE niikicccncusammamnaeeee Passim

21 U.S.C. § 860(a) ............. onastescivnnsaienesaniouiiagimaitiamaan 7,10

ISUGSG. § MES -cicae 15

Vil

Other Authorities Page(s)

J. Bishop, Statutory Crimes (3d ed. 1901) ......:eceseceeeesesees 13

David A. Nicolaisen, Proving Elements Beyond a

Reasonable Doubt, Twenty-Ninth Annual

Review of Criminal Procedure, 88 Geo. L.J.

1471 (Mary, 2000) ...........rcecscocsovsserscecssecsensseseonsenee 18

Herbert Packer, The Limits of the Criminal Sanction

(19GB) ..ereersscecresnsvorsersessoassnosiesnesevasaseceensennetnonteomionnes 8

Wayne R. LaFave, Criminal Law (4th ed. 2003) ........:00+ 8

Mark D. Knoll & Richard G. Singer, Searching for

the "Tail of the Dog": Finding "Elements"

of Crimes in the Wake of McMillan v.

Pennsylvania, 22 Seat tle Univ. L. Rev.

1057, 1095-96 (1999) ...........ccccosersessseeees 9, 12, 13, 16

INTEREST OF AMICI CURIAE'

Amicus curiae National Association of Criminal Defense

Lawyers (NACDL) is a District of Columbia nonprofit cor-

poration with more than 10,000 attorney-members nation-

wide and 80 state and local affiliate organizations with

28.000 members in all 50 states. The American Bar Associa-

tion recognizes NACDL as an affiliate organization and

awards it full representation in its House of Delegates.

Founded in 1958, NACDL promotes study and research in

the field of criminal law and prcecedure, disseminates and

advances legal knowledge in the a.ea of criminal justice and

practice, and encourages the integrity, independence and ex-

pertise of criminal defense lawyers in the state and federal

courts.

Amicus curiae Families Against Mandatory Minimums

Foundation (FAMM) is a nonprofit, nonpartisan organization

with 28,000 members and 44 chapters nationwide. FAMM

conducts research, promotes advocacy, and educates the pub-

lic regarding the excessive financial and social cost of man-

datory minimum sentencing. The cost is not limited to pub-

lic expenditures but includes the perpetuation of unwarranted

sentencing disparities and disproportionate sentences.

FAMM does not argue that crime should go unpunished, but

that the punishment should fit the crime and the culpability

of the offender. FAMM therefore has a special interest in

ensuring that sentencing law and practice result in just out-

comes and that sentences be arrived at in a manner consistent

with statutory and constitutional mandates.

Amicus curiae National Association of Federal Defenders

(NAFD) is a nationwide, non-profit, volunteer organization

whose membership includes attorneys and support staff of

the Federal Defender Offices. The NAFD was formed in

1995 to enhance the representation provided under the Crim-

inal Justice Act and the Sixth Amendment of the United

States Constitution. One of the NAFD’s missions is to file

amicus curiae brie® to ensure that the position of indigent

' Counsel for a party did not author this brief in whole or in part, and no

person or entity other than amici curiae or their counsel has made a mon-

etary contribution to the preparation or submission of the brief. The par-

ties have consented to the filing of this brief, and copies of those consents

have been filed with the Court.

=

2

defendants in the criminal justice system is adequately repre-

sented. A large percentage of the clients served by NAFD

members are charged under 21 U.S.C. § 841, the statute at

issue in this case.

Amici have a strong interest in issues affecting defendants

charged under section 841. The question presented in this

case by the Petition for Certiorari, whether under section 841

drug quantity is an element of the offense or instead a sen-

tencing factor, is in urgent need of resolution by this Court,

given the uncertainty and confusion on this question in the

lower courts and given the very significant effect that judicial

fact-finding can have on the sentences meted out to drug of-

fenders. Amici believe that this brief will assist the Court in

evaluating the issues of Statutory interpretation raised by the

Petition and the constitutional implications of these issues, as

well as provide perspective on the practical consequences of

these issues for the courts, defendants, and the criminal jus-

tice system.

SUMMARY OF ARGUMENT

The Petition for Certiorari in this case presents the excep-

tionally important question of whether the threshold drug

quantities set forth under 21 U.S.C. § 841 are elements of

separate offenses, or are merely sentencing factors. In af.

firming Petitioner's sentence in this case, the United States

Court of Appeals for the First Circuit held that the statutory

threshold drug quantities are not elements of the offense, but

are sentencing factors to be determined by the trial judge un-

der a preponderance of the evidence standard. Under the

First Circuit's interpretation, the key factual determinant of

the severity of the sentence is not required to be submitted to

the jury and is not subjected to a requirement of proof be-

yond a reasonable doubt. The interpretation given section

841 by the First Circuit is incorrect as a matter of statutory

construction and raises serious constitutional issues regard-

ing the Sixth Amendment right to a jury trial and the due

process requirement that all the elements of the crime be

proved beyond a reasonable doubt.

Amici submit that the threshold drug quantities established

in section 841 should properly be construed as elements of

the offense, not as sentencing factors. This result is com-

3

pelled both by the language and structure of section 841 and

by its legislative history, as well as by the historic under-

standing of the role of quantities and/or value as elements in

drug and other crimes. Furthermore, the doctrine of constitu-

tional doubt requires that the statute be interpreted so as to

avoid the serious constitutional questions raised by First Cir-

cuit's treatment of drug quantities under section 841 as sen-

tencing factors.

This Court should grant certiorari and resolve this issue

now rather than later. At present, conflicting approaches

among the United States Courts of Appeals have created sig-

nificant confusion and difficulties with regard to when and

what factual determinations under section 841 must be

proved to the jury beyond a reasonable doubt. The D.C. Cir-

cuit interprets section 841 as establishing multiple offenses,

with drug quantity an element. See Graham v. United States,

317 F.3d 262, 274 (D.C. Cir. 2003). Under the interpretation

of drug quantities as sentencing factors, which has been

adopted by a number of other circuits, including the First

Circuit, drug quantity must sometimes be determined by the

jury beyond a reasonable doubt and sometimes not, depend-

ing upon the circumstances of the case and upon the particu-

lar court's interpretation and application of this Court's deci-

sion in Apprendi v. New Jersey, 530 U.S. 466 (2000). In a

third and novel approach, the Seventh Circuit has heid that in

drafting section 841, Congress, by failing to specify whether

drug quantities were sentencing factors or elements, inten-

tionally "I[eft] it to the judiciary to sort out who determines

what facts, under what burden." United States v. Brough, 243

F.3d 1078, 1079 (7th Cir. 2001). See generally Pet. at 9-10.

Requiring a jury determination as to the threshold drug

amounts set forth in section 841 and recognizing drug quan-

tity as an element of the offense would result in a uniform

rule of easy application. Moreover, adopting such as statu-

tory interpretation will not result in a material increase in the

workload of the trial courts. It is already the practice of fed-

eral prosecutors in many jurisdictions to charge drug type

and quantity in indictments and to present that issue to the

jury. See United States v. Vazquez, 271 F.3d 93, 114 (3d Cir.

2001) (en banc) (Becker, J., concurring) (noting that "[s]ince

Apprendi, federal district courts have . . . submitt[ed] special

4

interrogatories to the jury for determination of drug type and

quantity"), cert. denied, 536 U.S. 963 (2002). Indeed, the

issue of drug quantity was submitted to the jury in this case,

but the district court, applying a preponderance standard, de-

termined that a larger amount than found by the jury was in-

volved in the offense, resulting in the doubling of Petitioner's

sentence.

Interpretation of the threshold drug quantities in section

841 as elements of the offense would eliminate anomalous

and unfair results such as occurred in the present case. It

would also simplify and/or eliminate the recurrent issues pre-

sented under section 841 on appeal under Apprendi. Treat-

ment of drug quantity as an element of the offense will result

in a fairer administration of the nation's drug laws and will

accord with the intent of Congress in enacting section 841.

For these reasons and the reasons set forth below, amici re-

spectfully urge the Court to grant the Petition for Certiorari.

ARGUMENT

I. This Court Should Grant Certiorari and Clarify

Whether the Threshold Drug Quantities Set Forth in

Section 841(b) Are Offense Elements, Rather Than

Merely Sentencing Factors

A. The Statutory Language and Structure Establish

That Drug Quantities under Section 841(b) Were

Intended As Elements Defining Separate Offenses

The First Circuit in this case incorrectly held that subsec-

tion (a) of 21 U.S.C. § 841 defines the elements of a single

generalized offense of unlawfully distributing, manufacturing

or dispensing a controlled substance and that the drug quanti-

ties set forth in subsection (b) are merely sentencing factors,

subject to judicial fact-finding under a preponderance stan-

dard. Amici submit that the content, structure and wording of

section 841 compel the conclusion that subsection (a) lists

elements common to offenses of manufacturing, distributing

and dispensing controlled substances, while subsection (b)

establishes multiple separate specific offenses based upon the

additional elements of drug type and quantity.

The wide range of penalties provided for by subsection (b)

for offenses involving different quantities of different drugs

5

evidences Congress's intent to make drug quantity an element

of the offense. Subsection (b) not only authorizes penalties

ranging from probation to life imprisonment, but also estab-

lishes widely different maximum penalties for violations in-

volving different quantities and/or types of drugs. Those

penalties include a one-year maximum under section

841(b)(3), a three-year maximum under section 841(b)(2), a

five-year maximum under section 841(b)(1)(D), a 20-year

maximum under section 841(b)(1)(C), a 40-year maximum

under (b)(1)(B), and a maximum of life under (b)(1)(A). The

different violations possible under section 841(b) range from

misdemeanor (section 841(b)(3)) to "serious drug offense"

(section 841(b)(1)(A)). See 18 U.S.C. § 3559. Even with

respect to the same drug type, penalties can vary signifi-

cantly. Compare, e.g., § 841(b)(1)(B)(vii) (providing a maxi-

mum of 40 years imprisonment for a violation involving

"100 kilograms or more of a mixture or substance containing

a detectable amount of marijuana") with § 841(b)(1)(D) (pro-

viding a maximum of 5 years imprisonment "in the case of

less than 50 kilograms of marijuana"). As Judge Becker of

the United States Court of Appeals for the Third Circuit has

concluded, these "dramatic differences in the severity of pun-

ishment . . . signal Congress's intent to make drug type and

quantity elements of the several offenses established under

§ 841." Vazquez, 271 F.3d at 113 (concurring opinion).

In Jones v. United States, 526 U.S. 227 (1999), this Court

looked to the wide variations in penalties under the federal

carjacking statute in determining that the subsections of that

statute establish three separate offenses. The Court empha-

sized that the subsections at issue provided "steeply higher

penalties" and "condition[ed]" those steeply higher penalties

upon "further facts." Jones, 526 U.S. at 233. The Court rea-

soned that it was questionable that Congress would have in-

tended that the "specification of facts sufficient to increase a

penalty range by two-thirds, let alone from 15 years to life,

. . . carry none of the [due] process safeguards that elements

of an offense bring with them for a defendant's benefit." /d.;

see also Castillo v. United States, 530 U.S. 120, 131 (2000)

("the length and severity of an added mandatory sentence...

weighs in favor of treating such offense-related words as re-

ferring to an element"). Like the carjacking statute at issue in

Jones, section 841 provides for wide variations in sentencing

6

and conditions "steeply higher" penalties upon further facts,

namely the amount and type of drug involved. As in Jones,

these considerations support the conclusion that Congress

intended subsection (b) of section 841 to establish separate

offenses defined by the elements of drug type and amount.

Contrary to the First Circuit's conclusion in this case, sec-

tion 841(b) does not establish "a typical sentencing scheme."

Pet. App. at 12a. Indeed, the range of penalties provided by

section 841 -- probation to life imprisonment -- is not what is

commonly understood to be a "sentencing range" at all. A

sentencing range is commonly understood to be "limits fixed

by law" within which a judge traditionally may exercise dis-

cretion "to determine the type and extent of punishment."

Apprendi, 530 U.S. at 481-82. A range from probation to

life imprisonment does not in fact. limit judicial discretion.

Section 841 establishes a typical sentencing scheme only if

the various subparagraphs under section 841(b) are construed

as setting separate sentencing ranges for separate, specifically

defined offenses, the seriousness of which is measured by the

elements of quantity and type of drug involved.

Further evidence of Congress's intent to establish separate

offenses based on the elements of drug type and quantity is

provided by the structure and wording of the relevant subsec-

tions under section 841(b). Each of these subsections has a

two-part structure typical of complete criminal statutes, i.e., a

separate clause that defines the offense followed by sentenc-

ing provisions. For example, subparagraph (b)(1)(A) defines

an offense that incorporates the elements of a violation of

subsection (a) and "involv[es]" the additional elements of

drug type and quantity as set forth in separately numbered

subclauses (b)(1)(A)(i) to (viii). Significantly, under the

language of subparagraph (A) ("in the case of a violation . . .

involving — (i) 1 kilogram or more . . ."), the drug types and

quantities set forth in (i) to (vill) are grammatically linked to

and describe the defendant's "violation." 21 U.S.C. §

; Cf. Castillo, 530 U.S. at 124 (interpreting statutory language as "incor-

porating by reference the initial phrases that relate the basic elements of

the crime and creating a different crime containing one new element, i.e.,

the use of carrying of a ‘machinegun' during and in relation to a crime of

violence").

5

841(b)(1)(A). The described violations are then followed by

sentencing provisions set forth in unnumbered text beginning

"such person shall be sentenced... ." /d. As is often the

case in federal criminal statutes, the sentencing provisions

are placed after the word "shall" and the elements of the vio-

lation precede the word "shall." See Jones, 526 at 233; Har-

ris v. United States, 536 U.S. 545, 552 (2002).

Confirming that the first portion of subparagraph

(b)(1)(A), with its numbered subclauses, is intended to set

forth elements of the offense is the reference in the second

portion of the subparagraph to "a violation of this subpara-

graph." That language is incompatible with the notion that

the subparagraph merely sets forth sentencing factors.

Rather, by referring to "a violation of this subparagraph,” the

subparagraph itself confirms that its function is to define a

particular offense.

Subparagraph (b)(1)(B) has a structure identical to that of

(b)(1)(A). Subparagraphs (b)(1)(C) and (D), as well as

(b)(2), (3), (4), are similarly divided between initial phrases

that set forth drug type and/or quantity so as to define a spe-

cific type of violation of subsection (a), and concluding

clauses that set forth sentencing ranges.* Subparagraph

(b)(1)(D), for example, begins with the offense-defining

phrase "[i]n the case of less than 50 kilograms of marihuana .

_.," and sets forth the applicable penalties in language begin-

ning, "such person shall . . . be sentenced to a term of impris-

onment....”

Moreover, although subsection (a) is a complete grammat-

ical sentence, it is not a complete definition of a crime. As

one legal scholar has stated:

What we mean by "crime" or an "offense" is simply

: Significantly, the structure of these provisions is similar to that of 21

U.S.C. § 860(a), which provides for a greater penalty for persons who

violate section 841 within 1000 feet of a school. Section 860(a), which

is given the heading "Penalty," has uniformly been held to define an of-

fense, and the defendant's location within 1000 feet of a school has uni-

formly been held to be an element that must be proved to the jury beyond

a reasonable doubt. See United States v. Harris, 313 F.3d 1228, 1238-39

(10th Cir. 2002) (citing cases), cert. denied, 537 U.S. 1244 (2003).

8

conduct that is forbidden by law and to which conse-

quences, called punishment, will apply on the occur-

rence of stated conditions and following a stated pro-

cess. A crime is not merely any conduct forbidden by

law; it is forbidden conduct for which punishment is

prescribed and which is formally described as a crime .

Herbert Packer, The Limits of the Criminal Sanction 18

(1968) (emphasis added).* Section 841(a) merely declares

certain general conduct unlawful.° Accordingly, subsection

(a) "alone does not define a complete offense because it in-

cludes no punishment." Vazquez, 271 F.3d at 112 (Becker J.,

concurring). The statute contains no basic penalty or catchall

minimum. Hence, "[a] jury verdict finding only that the de-

fendant had committed the acts described in subsection (a),

without more, would not render the defendant guilty of a

crime requiring any ascertainable punishment." /d. It is only

subsection (b) that defines particular categories of conduct as

crimes and sets the range of penalties applicable to each.°

Some United States Courts of Appeals, in holding that

drug quantities under section 841(b) are sentencing factors,

' Indeed, it is black-letter law that a prohibition without a specified pen-

alty does not create a crime. See, e.g., Wayne R. LaFave, Criminal Law

§ 1.2(d), at 12-13 (4th ed. 2003) ("[A] crime is made up of two parts,

forbidden conduct and a prescribed penalty. The former without the lat-

ter is no crime.").

> Section 841(a)'s prohibition is enforceable not only through criminal

penalties, but through injunctive proceedings. See, e.g., United States v.

Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001).

° In contrast, subsection (a) of 8 U.S.C. § 1326, the statute examined by

this Court in Almendarez-Torres v. United States, 523 U.S. 224 (1998),

both defines the offense and prescribes penalties, thus facilitating the

conclusion that subsection (b) of section 1326 merely sets forth addi-

tional penalties based upon the sentencing factor of recidivism. See

Almendarez-Torres, 523 U.S. at 230-3]. Likewise, subsection (i) of 18

U.S.C. § 924(c)(1)(A), the statute at issue in Harris, also sets forth a min-

imum sentence for the basic offense, supporting the interpretation that

subsections (ii) and (iii), which increase the minimum penaliy if certain

facts are present, contain sentencing factors, not elements. See Harris,

536 U.S. at 552-53. The fact that, unlike these statutes, section 841 con-

tains no basic penalty or catchall minimum supports the conclusion that

section 841(b) sets forth different violations with different elements.

ir aw tba bw RESORT OR TES oT cae ee

9

have erroneously relied upon the headings "Unlawful Acts"

and "Penalties" that appear in section 841 in the United

States Code. See, e.g., United States v. Lewis, 113 F.3d 487,

489-91 (3d Cir. 1997); United States v. Sotelo-Rivera, 931

F.2d 1317, 1319 (9th Cir. 1991); United States v. Moreno,

899 F.2d 465, 471-74 (6" Cir. 1990); see also United States

v. Promise, 255 F.3d 150, 170-71 (4th Cir. 2001) (Luttig, J.,

concurring). These headings, however, were not part of the

statute as enacted by Congress, but "can be traced to the Of-

fice of the Federal Register, National Archives and Records

Services, which added a reference to ‘penalties’ as a margin

note to the predecessor of § 841(b) in the Statutes at Large

simply for user convenience." Vazquez, 271 F.3d at 111

(Becker, J., concurring). When the Controlled Substances

Act was reproduced in the United States Code, "the margin

notes were converted into subsection headings by the codifi-

cation committee, but have never been officially adopted by

the Congress." Id.

Indeed, even if Congress itself had officially adopted the

headings in section 841, judicial reliance upon them to hold

that drug quantities and types are merely sentencing factors

would be misplaced. As two legal scholars have stated with

particular reference to section 841,

[t]he insertion into some statutes of the word "penal-

ties," in conjunction with the McMillan ruling, has led

the circuits to conclude that all factual findings within

"penalty" provisions are to be decided by the district

court at sentencing. In fact, much like the Pennsylvania

legislature declaring in the body of the statute itself that

visible possession of a weapon is not an element of the

offense, the courts have concluded that Congress has,

by placing quantity determinations in the penalty sec-

tion, accomplished the same thing without resorting to

such explicit language. This seems clearly wrong —

surely it is not too much to ask Congress to be explicit

when serious additional penalties are at stake, particu-

larly since traditional interpretation would mandate a

contrary result.

‘Mat D. Knoll & Richard G. Singer, Searching for the "Tail

of the Dog": Finding "Elements" of Crimes in the Wake of

McMillan vy. Pennsylvania, 22 Seattle Univ. L. Rev. 1057,

10

1095-96 (1999) (footnotes omitted).’

Judge Luttig of the Fourth Circuit has argued that section

841 establishes a single offense with a statutory maximum

penalty of life imprisonment and that accordingly there can

never be an Apprendi problem because application of drug

quantity and type as sentencing factors will never will result

in a penalty in excess of that statutory maximum. See Prom-

ise, 255 F.3d at 169-70 (Luttig, J., concurring). Judge

Luttig's concurrence bluntly states the logical consequences

of interpreting the drug quantities and types set forth in sub-

section (b) as sentencing factors. That reasoning, however,

in fact highlights the impossibility that such an interpretation

could be correct. Judge Luttig offers no other example of a

statute that purportedly sets intermediate sentencing catego-

ries ranging from "not more than one year" for a misde-

meanor drug offense, § 841(b)(3), to up to life imprisonment,

conditioned on factual findings to be made by the sentencing

judge, and amici know of no such statute. The "single of-

fense" interpretation of section 841 supposes that Congress

intended to do something it has never done before or since.’

In any case, the interpretation of section 841 as setting

forth a single offense with a single overall sentencing range

is a tortured reading of the statute. In fact, the statute sets

forth a separate sentencing range, specifying both minimum

and maximum sentences for each of the violations described

in its subsections. Thus, for example, a violation "involving"

100 grams or more of heroin is subject to a minimum of 5

years imprisonment, and a maximum of 40 years, while a

violation involving less than 50 kilograms of raarihuana is

subject to imprisonment for a term of "not more than 5

: Cf. 21 U.S.C. § 860(a), which is headed "Penalty," but which has uni-

formly been held to define both the offense and the basic penalty. See n.3

supra.

. Moreover, the maximum penalty of life imprisonment is simply not

available under the statute for every violation of subsection (a). Life is

the maximum statutory penalty oniy for certain violations of subsection

(a). There is little sense or meaning in asserting that under the statute life

imprisonment is somehow theoretically the maximum penalty available

for distributing, e.g., less than 50 kilograms of marijuana or of a con-

trolled substance in schedule V, when the statute clearly sets maximum

penalties of five years and one year respectively.

a

11

years." 18 U.S.C. § 841(b)(1)(B) & (D). The statute provides

no possibility for a life term in such cases. The statute's es-

tablishment of multiple sentencing ranges — as opposed to a

series of increased minimums within an overall basic sen-

tencing range, such as was at issue in Harris — supports an

interpretation of the statute as setting forth different offenses,

with separate additional elements.

In its decision in this case, the First Circuit, relying upon

Judge Luttig's concurrence in Promise, opines that if section

841(b) is interpreted as defining separate offenses based on

elements of drug type and quantities, the statute "would de-

fine as many as 350 different offenses." Pet. App. at 12a.

According to the First Circuit, such an interpretation would

somehow cause some unspecified practical "difficulty we

think Congress did not intend." /d. Since drug types and

threshold quantities are already routinely charged and sub-

mitted to the jury, see Vazquez, 271 F.3d at 114 (Becker, J.,

concurring), it is clear that no practical difficulty would re-

sult. Moreover, most drug types are not treated individually

by section 841(b), but are referenced according to their

grouping under five "schedules" initially set forth in 21

U.S.C. § 812 and refined from time to time in 21 C.F.R. §

1308.11 et seq. Indeed, one of Congress's primary purposes

of section 841 was to simplify and consolidate the "plethora"

of federal drug laws governing distributing and manufactur-

ing offenses. See Vazquez, 271 F.3d at 108-09 (Becker, J.

concurring). This goal was accomplished, however, not by

establishing a single general offense, but by setting forth the

elements common to all such offenses in subsection (a), and

grouping offenses on a "double axis" of the additional ele-

ments of drug types and quantities in the various subpara-

graphs of subsection (b). See id. at 108-09. Under that rela-

tively simple system, no "difficulty" is caused by holding that

drug types and quantities are separate elements.

® The simultaneous possession of two types of drugs has uniformly been

held to constitute two separate offenses for double jeopardy and other

purposes. See, e.g., United States v. Garcia-Rosa, 876 F.2d 209, 216-17

(1st Cir. 1989); United States v. Grandison, 783 F.2d 1152, 1156 (4th

Cir. 1986).

12

B. The Traditional and Statutory Context of Section

841 Shows That Drug Quantity Is an Element of

the Offense, Not a Sentencing Factor

A statute's "context" is also relevant to the determination

of its meaning. See Almendarez-Torres, 523 U.S. at 228.

The traditional and statutory context of section 841 supports

interpreting drug quantity as an element of the offense, not a

sentencing factor. Traditionally, amounts and values set

forth in analogous criminal statutes such as those governing

larceny and liquor sales were deemed elements of the of-

fense. Furthermore, the interrelationship estabiished by Con-

gress between section 841 and certain other federal criminal

statutes demonstrates Congress's intent to make drug quanti-

ties elements of separate offenses under section 841(b).

In its interpretation of section 841 in this case, the First

Circuit, citing the federal sentencing guidelines, relied on the

erroneous notion that drug quantity is a "classic" sentencing

factor. Pet. App. at lla. In fact, drug statutes themselves are

a creation of the modern era, and, in any case, state drug laws

typically treat threshold drug quantities as elements.'® More-

over, drug quantities under the Controlled Substances Act are

analogous to threshold quantities and values in other federal

and state statutes, which historically have been treated as ele-

ments of the offense and required to be submitted to the jury

and proved beyond a reasonable doubt. See generally Knoll

& Singer, supra, at 1067-79.

For example, the Jones Act, as amended in 1931, included

a proviso that made a violation of the National Prohibition

10 See, e.g., Ala. Code § 13A-12-231(2); Ex parte Washington, 818 So.

2d 424 (Ala. 2001) ; Ariz. Rev. Stat. § 13-3405(B); Arizona v. Virgo, 947

P.2d 923 (Ariz. Ct. App. 1997); Del. Code Ann. tit. 16, § 4753A; Ga.

Code Ann.§ 16-13-31; Mallarino v. State, 379 S.E.2d 114 (Ga. App.

1990); Idaho Code § 37-2732B; State v. Portillopayan, 977 P.2d 228,

231 (Idaho Ct. App. 1998); 720 IICS 570/401; People v. Harper, 482

N.E.2d 312 (Ill. App. Ct. 1985) ("Where the grade of the offense depends

on the amount of the drug involved . . . then the amount possessed by a

defendant becomes an essential element of the offense"); Burns Ind. Code

Ann. § 35-48-4-1; Hall v. Indiana, 403 N.E.2d 1382, 1390 (Ind. 1980);

Iowa Code § 124.401; KRS § 218A.1421. Cf Jones, 526 U.S. at 236-37

(looking to "state practice" in distinguishing between elements and sen-

tencing factors).

13

Act by a sale of not more than one gallon of an alcoholic

beverage punishable by a sentence not to exceed six months,

while a violation that involved more than one gallon was

punishable by five years in prison. See id. at 1071-72. Un-

der these provisions, it was held that the fact that more than

one gallon of liquor was involved was an "essential ele-

ment[] of the offense." E.g., Pace v. Aderhold, 2 F. Supp.

261, 263 (N.D. Ga. 1932), aff'd, 65 F.2d 790 (Sth Cir. 1933);

see also Olivito v. United States, 67 F.2d 564, 565 (9th Cir.

1933). This federal precedent is in accord with traditional

practice under earlier state laws criminalizing the sale of li-

quor. When such statutes "ma[d]e the offense or punishment

vary with the quantity sold," it was necessary to allege and

prove quantity. See J. Bishop, Statutory Crimes §§ 1039,

1047 (3d ed. 1901) (citing cases).

Likewise, under larceny and embezzlement statutes pro-

viding for sentences based upon the value of the property at

issue, value was considered a "material element of the of-

fense charged" such that "it must not only be alleged, but

like all other statutory elements defining the crime, it must be

proved by competent evidence to the satisfaction of the jury

beyond a reasonable doubt.” Knoll & Singer, supra, at

1074-75 (quoting Henry v. United States, 263 F. 459, 461

(D.C. Cir. 1919)). Thus, the traditional "rule pervading the

entire procedure in larceny is that the value of the thing sto-

len must be alleged and proved when the punishment or its

degree depends on value." Bishop, Statutory Crimes § 427.

Such statutes provide the traditional precedent for section

841.

The interaction of section 841 with other federal statutes

also confirms that drug quantities under section 841 function

as traditional elements, defining levels of offenses. In partic-

ular, a prior conviction under section 841(b)(1)(A) -- the

most serious of the drug violations defined in 841(b) — may

result in enhanced penalties if a defendant is later convicted

under another federal statute. For example, under the "three

strikes" law, a person convicted under federal law of a seri-

ous violent felony shall be sentenced to life imprisonment, if

he or she has earlier been convicted of "one or more serious

violent felonies and one or more serious drug offenses." 18

U.S.C. § 3559(c)(1)(A)Gi). For this purpose, 2 "serious drug

14

offense" includes an offense punishable under section

841(b)(1)(A). 18 U.S.C. § 3559(c)(2)(H). For a prior convic-

tion to be used in this way, "an earlier factfinder (e.g., a

unanimous federal jury in the case of a federal crime) [must

have] found that the defendant in fact committed that carlier

individual crime." Richardson v. United States, 526 U.S.

813, 822 (1999). Thus, section 3559 clearly contemplates

that the drug quantity necessary to constitute a violation un-

der section 841(b)(1)(A) will have been proved beyond a rea-

sonable doubt to the jury.

Similarly, prior convictions under section 841 "for which a

maximum term of imprisonment of ten years or more is pre-

scribed by law" may result in enhanced penalties if the defen-

dant is later convicted of a violation of 18 U.S.C. § 922(g).

See 18 U.S.C. § 924(e). Again, under Richardson, for this

provision to be operative, the facts (i.e., drug type and quan-

tity) that suffice for a maximum term of ten years or more

under section 841 must have been proved to a jury beyond a

reasonable doubt. Thus, the consequences Congress has pre-

scribed for certain prior convictions under section 841 dem-

onstrate Congress's intention to establish multiple separate

offenses based upon the elements of drug type and quantity.

The First Circuit in this case erroneously concluded that if

it ruled that the threshold drug quantities listed in section

841(b)(1)(A)-(C) constituted elements, it "would essentially

abolish the [federal sentencing guidelines] because the jury

would be required to make findings as to all facts that may be

relevant to sentencing ranges and potential adjustments."

Pet. App. 15a. To the contrary, Congress’ use of threshold

drug quantities as statutory elements of drug offenses does

not preclude concomitant use of drug quantities as sentenc-

ing factors under the sentencing guidelines."! Indeed, drug

quantities under the federal sentencing guidelines are cali-

brated so as to mesh precisely within the larger quantity

"In any event, the views of the United States Sentencing Commission

cannot change the meaning of a Congressional enactment. See Neal v.

United States, 516 U.S. 284, 291-95 (1996).

15

ranges set forth in section 841 2 Accordingly, the statute and

guidelines function together, with the statute setting forth

threshold drug quantities that are necessary elements of the

offense, and the guidelines making finer distinctions within

the larger statutory gradations.'* Moreover, in contrast to the

large gradations in threshold drug amounts in section 841(b),

the "incremental" gradations in the sentencing guidelines "are

precisely what one would expect to see in provisions meant

to identify matters for the sentencing judge's consideration."

See Harris v. United States, 536 U.S. 545, 554 (2002). Thus,

the fact that the federal sentencing guidelines define base

offense levels for drug violations by reference to drug quanti-

ties does not support the argument that the drug amounts set

forth in section 841(b) are only sentencing factors and not

elements of the offense. Contrary to the First Circuit's asser-

tion, a statutory interpretation of section 841(b) as establish-

ing drug quantity and type as elements of different levels of

offenses would not disrupt the functioning of the federal sen-

tencing guidelines. Rather, the jury's finding as to drug quan-

tity would simply confine the sentencing judge's factual find-

ings to the "finer" guideline quantity ranges applicable to the

offense of which a defendant had been convicted.

In short, far from "abolishing" the guidelines, under the

'2 For example, with regard to violations involving cocaine base, section

841(b)(1)(A) applies to amounts of 50 grams or more. Within offenses

under section 841(b)(1)(A), the federal sentencing guidelines distinguish

between (i) at least 50 grams of cocaine base but less than 150, (ii) at

least 150 grams but less than 500, and (iii) at least 500 grams but less

than 1.5 kilogram. See USSG. § 2D1.1. Simularly, section

841(b)(1)(B) applies to amounts of cocaine base from at least 5 grams to

less than 50. Within offenses under that subsection, the federal sentenc-

ing guidelines distinguish between (i) at least 5 grams but less that 20, (ii)

at least 20 grams but less than 35, and (iii) at least 35 grams but less than

50. See id.; see also id., Commentary, "Background" (stating that "[t}he

base offense levels in § 2D1.1 are either provided directly by the Anti-

Drug Abuse Act of 1986 or are proportional to the levels established by

statute," but provide "finer distinctions").

'3 Significantly, the Guidelines themselves expressly contemplate that a

defendants are "convicted under" the various subparagraphs of section

841(b)(1)(A), (B), and (C), and specifically treat "death or serious bodily

injury" resulting from an offense under those subparagraphs not as an

"offense characteristic” but as something that must be established by the

"offense of conviction." See U.S.S.G. § 2D1.1(a).

a

16

interpretation of section 841 urged by Petitioner and amici,

the statute would operate together with the guidelines. The

statute would define various levels of offenses based on

threshold quantities, and the guidelines would permit a sen-

tencing judge to make finer factual determinations by a pre-

ponderance of the evidence as to actual drug quantity, consis-

tent with the statutory threshold amount found by the jury.

Moreover, such an interpretation of section 841 accords with

traditional categories of "elements" and with the relationship

between section 841 and other criminal statutes.

C. The Legislative History of Section 841 Shows That

Drug Quantity Is an Element of the Offense

The legislative history of section 841 confirms that it is

correct to interpret threshold drug quantities as offense ele-

ments. The legislative history of section 841 contrasts mark-

edly with the legislative history of 8 U.S.C. § 1326, de-

scribed by this Court in Almendarez-Torres. In that case,

this Court held that, under section 1326, a defendant's prior

felony convictions were merely sentencing factors and not

elements of the crime of illegal reentry to the United States

following a previous deportation. The legislative history of

section 1326, as described by this Court, was entirely devoid

of any indication that prior felony convictions were meant to

be anything other than sentencing factors. Indeed, this Court

emphasized the fact that the legislative history of that statute

"speaks about, and only about, the creation of new penalties"

and "contains no language at all" indicating that Congress

intended to create separately defined substantive crimes.

Almendarez-Torres, 523 U.S. at 234 (emphasis added).

Unlike the legislative history of section 1326, the iegisla-

tive history of section 841 contains numerous instances of

language indicating that Congress understood that different

drug types and different threshold drug quantities defined

different substantive offenses. See Vazquez, 271 F.3d at 109-

10 (Becker, J., concurring). For example, in 1980 when

Congress amended the statute to include provisions relating

to the quantity of marijuana involved in an offense, both the

House and Senate Reports reflect that Congress intended

quantity to function as an element with respect to marijuana

offenses. The Reports state: "Individuals convicted of traf-

ficking in over 1,000 pounds would be subject to a maximum

E 17

15 year prison sentence..." H.R. Rep. No. 96-936, at 13

(1980) (emphasis added); S. Rep. No. 96-916, at 14 (1980)

(emphasis added). in 1984 when Congress amended section

841 to account for drug quantity for controlled substances

other than marijuana, the Senate Report indicates that Con-

gress created "a new subparagraph (A) under section

841(b)(1) that would provide, for offenses involving large

amounts of particularly dangerous drugs, higher penalties

than those now provided under section 841." S. Rep. No. 98-

225, at 258 (1983) (emphasis added). As Judge Becker

stated, the "use of the plural ‘offenses’ indicates Congress's

intention to create within the single statute a multitude of

separate crimes depending on drug type and quantity. "

Vazquez, 271 F.3d at 110 (Becker, J., concurring).

In 1986 when Congress amended section 841 to create

separate subparagraphs (A) and (B) under section 841(b)(1),

and to include mandatory minimum sentences under those

subparagraphs, the legislative history indicates that Congress

understood that prosecutors would be required to introduce

evidence of drug quantity during trial in order to obtain a

conviction. See id. (citing H.R. Rep. No. 99 -845, at 12

(1986) (Congress had been informed by U.S. Attorneys that

they would be able to meet the evidentiary burden for prov-

ing quantity to the jury)). Moreover, like the 1980 House

and Senate Reports, the 1986 House Report specifically re-

fers to persons "convicted under" subparagraphs (b)(1)(A)

and (B), again indicating the Congressional understanding

that those subparagraphs set out separate substantive of-

fenses. See H.R. Rep. No. 99-845, at 12 (1986). It can be

presumed that Congress was aware of the legal distinction

between the phrases "convicted under" and "sentenced un-

der" and would have used the latter had it meant drug quan-

tity and type to be sentencing factors, rather than elements of

substantive offenses. See Vazquez, 271 F.3d at 110 (Becker,

J., concurring).

In short, the legislative history contains definite and re-

peated indications that Congress intended the threshold drug

quantities specified under section 841(b) to be elements of

particular offenses. The legislative history contains no such

Ol

18

indications,'* much less any express statement, that Congress

intended drug quantities to function as sentencing factors to

be decided by the sentencing judge under a preponderance of

the evidence standard.

Il. The Canon of Constitutional Avoidance Requires

Interpreting the Drug Quantities in Section 841 as

Elements Defining Separate Offenses

It is a "cardinal principle" of federal statutory construction

that "where a statute is susceptible of two constructions, by

one of which grave and doubtful constitutional questions

arise and by the other of which such questions are avoided,

[the Court's] duty is to adopt the latter." United States ex rel.

Attorney General v. Delaware & Hudson Co., 213 US. 366,

408 (1909); Edward J. DeBartolo Corp. v. Florida Gulf

Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575

(1988); Jones, 526 U.S. at 239. Amici respectfully submit

that this principle of statutory construction requires the drug

types and threshold drug amounts set forth in section 841(b)

to be treated as elements of the offense.

Under this Court's constitutional jurisprudence, "[o]ther

than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory max1-

mum,' whether the statute calls it an element or a sentencing

factor, 'must be submitted to a jury and proved beyond a rea-

sonable doubt." Harris, 536 U.S. at 550 (quoting Apprendi,

530 U.S. at 490). Under that standard, there are indisputably

instances in which it is unconstitutional to treat the drug

4 The First Circuit points to the fact that, when section 841 was first

enacted in 1970, the House Conference Report referred to the sentencing

procedures as giving "maximum flexibility to judges." Pet. App. at 11a.

Section 841 as passed in 1970 contained no drug quantities, but set possi-

ble penalties solely in accordance with the type of controlled substance

involved in the violation. The reference to "maximum flexibility" ap-

pears to refer to the fact that the statute permitted a judge to impose either

fines or prison terms (with no statutory minimums) or both, abolishing the

prior mandatory sentences. See Warden v. Marrero, 417 U.S. 653 (1974)

(describing pre-1971 federal drug sentencing); see also 18 U.S.C. §

841(b) (1970). Contrary to the First Circuit's assertion, the phrase quoted

from 1970 legislative history sheds no light on Congress's intent in

amending the statute more than a decade later to include drug quantities.

19

types and amounts set forth in section 841(b) as sentencing

factors, because such sentencing factors would imp-r-

missibly "swell the penalty" above the maximum provided

for the acts proved to the jury beyond a reasonable doubt. Jd.

at 561-62. Under Jones and Apprendi, an interpretation of

the drug amounts and drug types set forth in the statute as

sentencing factors is subject to grave constitutional doubt

In Jones, this Court looked to the doctrine of constitu-

tional doubt in holding that the federal carjacking statute, 18

US.C. § 2119, set forth basic and ageravated offenses, ‘lis-

tinguished by the elements of "serious bodily injury" and

"death." 526 U.S. at 239. In refusing to interpret "serious

bodily injury" and "death," as mere sentencing factors, the

Court stated

If a potential penalty might rise from 15 years to life on

a nonjury determination, the jury's role would corre-

spondingly shrink from the significance usually carried

by determinations of guilt to the relative importance of

low-level gatekeeping: in some Cases, a jury finding of

fact necessary for a maximum 15-year sentence would

merely open the door to a judicial finding sufficient for

life imprisonment.

Id. at 243-44. The same serious constitutional doubt raised

in Jones exists if drug amounts under section 841 are treated

as mere sentencing factors. Under section 841, a jury finding

of fact necessary for a maximum five year sentence — namely

a violation involving less than 50 kilograms of marihuana

under section 841((b)(1)(D) — would open the door to judi-

cial factfinding sufficient for a sentence of 40 years or life

under subsections (b)(1)(B)(vii) (100 kilograms or more of

marijuana) and (b)(1)(A)(vii) (1000 kilograms or more).

Under Jones, the fact that section 841 contemplates such

increases in the maximum sentence available based upon

drug quantity requires that the statute be interpreted as set-

ting forth separate offenses based upon the elements of drug

type and quantity. Because it is not reasonable to suppose

that Congress intended some drug quantities under the statute

to be elements and others to be sentencing factors, the doc-

trine of constitutional doubt requires that all drug quantities

under the statute be interpreted as elements.

20

Moreover, such an interpretation accords with the tradi-

tional understanding of the "constitutional limits beyond

which [Congress] may not go" in defining the elements of a

crime, which had been addressed by this Court only a few

years before Congress's 1980 amendment of section 841 to

include drug quantities. Patterson v. New York, 432 US.

197, 210 (1977); Mullaney v. Wilbur, 421 U.S. 684 (1975).

Congress in amending section 841 should be presumed to

have "legislate[d] in light of such constitutional limitations.

Harris, 536 U.S. at 556. In Mullaney, this Court found un-

constitutional a Maine statute under which Maine established

a "single generic offense of felonious homicide" with "three

distinct punishment categories," distinguished by the facts of

intent or criminal recklessness. Under Maine law, "these

facts of intent" were "not general elements of the crime" but

"b[ore] only on the appropriate punishment category." 421

U.S. at 698-99. The result was that under the Maine statute,

"once the State proved the elements which Maine required it

to prove beyond a reasonable doubt the defendant faced 'a

differential in sentencing ranging from a nominal fine to a

mandatory life sentence." McMillan v. Pennsylvania, 477

U.S. 79, 87 (1986) (quoting Mullaney, 421 U.S. at 700; con-

trasting the provision of the Pennsylvania Mandatory Mini-

mum Sentencing Act upheld in McMillan with the Maine

statute invalidated in Mullaney). Congress in light of

Mullaney's strictures on "redefining the elements that consti-

tute different crimes, characterizing them as factors that bear

solely on the extent of punishment," 421 U.S. at 698, must be

held to have intended the drug amounts specified in section

841 to be elements of the offense to be submitted to the jury

and found beyond a reasonable doubt.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Mary Price

General Counsel

Families Against Mandatory

Minimums Foundation

1612 K Street, N.W.

Suite 700

Washington, D.C. 20006

202-822-6700

David M. Porter

Co-chair, National

Association of Criminal

Defense Lawyers

Amicus Committee

801 I Street, 3rd Floor

Sacramento, CA 95814

916-498-5700

Douglas W. Dunham

Counsel of Record

Ellen P. Quackenbos

Four Times Square

New York, NY 10036

212-735-3000

Carol Brook

President,

National Association of

Federal Defenders

Federal Defender

Program, Inc.

5 East Monroe Street

Suite 2800

Chicago, IL 60603

312-621-8300

David McColgin

Co-chair,

National Association of

Federal Defenders

Amicus Committee

Defender Assoc. of |

Philadelphia, Fed. Ct.

Div.

The Curtis Center

Suite 540W

Philadelphia, PA 19106

215-928-1100

Attorneys for Amici Curiae