# Amicus Curiae Brief — Goodine v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 902

## Text

(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2304%3A4. Public record. Not legal advice.