Opposition Brief — Clark v. United States (No. 08-673)

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Supreme Court, U.S.

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FED 20.2299

No. 08-673 OFFICE OF THE CLERK

Jn the Supreme Court of the Gnited States

Se)

RICKEY CLARK, PETITIONER

2.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

EDWIN S. KNEEDLER

Acting Solicitor General

Counsel of Record

RITA M. GLAVIN

Acting Assistant Attorney

General

KIRBY A. HELLER

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the rule of Apprendi v. New Jersey, 530

U.S. 466 (2000), is violated where a sentencing court

finds a fact that, as a statutory matter, exposes a defen-

dant to an enhanced sentence but where the actual sen-

tence imposed does not exceed the maximum sentence

that would have been authorized by the jury’s verdict or

the defendant’s admissions alone.

2. Whether drug quantity is an element of the of-

fenses of possessing a controlled substance with the in-

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

conspiring to distribute and to possess a controlled sub-

stance with the intent to distribute, in violation of 21

U.S.C. 846.

3. Whether this Court’s decision in Harris v. United

States, 536 U.S. 545 (2002), should be overruled.

(1)

TABLE OF CONTENTS

Page

EEE Re EE FN ey eee PE ee 1

EE ea cobs cade aia te ea yee ose Cae 1

I ed Oe a eas we ek aa alta e hat aa g ar ana We am 1

SAE ESOT CT CT eee ETS ee eer reer Ts 5

EN Coke ale he ea ECR aes De wine ww palaes 17

TABLE OF AUTHORITIES

Cases:

Apprendi v. New Jersey, 530 U.S. 466 (2000) ..... iain

Barnes v. United States, 128 S. Ct. 647 (2007) .......... 15

Blakely v. Washington, 542 U.S. 296 (2004) ..... 7, 8, 12, 16

Butterworth v. United States, 129 S. Ct. 37 (2008) .... 5,15

Cunningham v. California, 549 U.S. 270 (2007) ....... 6,7

Goodine v. United States, 541 U.S. 902 (2004) .......... 11

Harris v. United States, 586 U.S. 545 (2002) ........ 15, 16

Kimbrough v. United States, 128 S. Ct. 558 (2007) ...... 16

Landers v. United States, 547 U.S. 1099 (2006) ......... 15

Liparota v. United States, 471 U.S. 419 (1985) ......... 13

Malouf v. United States, 549 U.S. 1305 (2007) .......... 15

O’Neal v. United States, 541 U.S. 960 (2004) ............ 5

Oregon v. Ice, 129 S. Ct. 711 (2008) ...... cece cece cececs 7

Ring v. Arizona, 536 U.S. 584 (2002) ............ 7, 12,16

Rita v. United States, 127 S. Ct. 2456 (2007) ......... 8,17

Roberson v. United States, 549 U.S. 1214 (2007) ........ 15

Sattazahn v. Pennsylvania, 537 U.S. 101 (20038) ......... 7

Seymour v. United States, 129 S. Ct. 507 (2008) ......... 5

Shepard v. United States, 544 U.S. 13 (2005) ............ 7

(IIT)

IV

Cases—Continued: Page

Simmons v. United States, 547 U.S. 1022 (2006) ........ 5

Speller v. United States, 1278S. Ct. 3005 (2007) ......... 15

Staples v. United States, 511 U.S. 600 (1994) ........... 13

Tidwell v. United States, 129 S. Ct. 762 (2008) ......... 15

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

i ee ee ee ee ce ee iw ce wwe ll

United States v. Alvarez, 358 F.3d 1194 (9th Cir.),

cert. denied, 543 U.S. 887 (2004) ................... 10

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

2001), cert. denied, 537 U.S. 1049 (2002) ............ 14

United States v. Booker, 543 U.S. 220 (2005) ............ 7

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

cert. denied, 534 U.S. 889 (2001) ................... 12

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

cert. denied, 498 U.S. 947 (1990) .......... 20. ceeaee 11

United Stotes v. Copeland, 321 F.3d 582 (6th Cir.

AI ERR SR nae Se oe Aa og Nock 2 er 6

United States v. Cotton, 535 U.S. 625 (2002) ............ 7

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

cert. denied, 519 U.S. 857 (1996) ................... 11

United States v. Gonzalez, 420 F.3d 111

I Ne od Vanek eas 8, 9, 13, 14

United States v. Goodine, 326 F.3d 26 (1st Cir.

2003), cert. denied, 541 U.S. 902 (2004) ........... 6, 13

United States v. Hernandez, 330 F.3d 964

(7th Cir. 2003), cert. denied, 541 U.S. 904,

woe RR ee er 4

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

cert. denied, 540 U.S. 1019 (2003) ................. 14

Cases—Continued: Page

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

ee iw woes vee wb o alwae 11

United States v. Kelly, 519 F.3d 355 (7th Cir. 2008) ...... 6

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

cert. denied, 523 U.S. 1108 (1998) .................. 11

United States v. Lindia, 82 F.3d 1154 (1st Cir. 1996) .... 11

United States v. Lizardo, 445 F.3d 73 (1st Cir.),

cert. denied, 549 U.S. 1007 (2006) ................... 6

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

2002), cert. denied, 537 U.S. 1146 (2003) ............ 14

United States v. Morgan, 835 F.2d 79 (5th Cir. 1987) ... 11

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

ee lu bw tals eoeeceeese as ll

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

2001), cert. denied, 535 U.S. 942 (2002) ........ 6, 12, 13

United States v. Serrano-Lopez, 366 F.3d 628

(8th Cir. 2004) ..... ahah aaa alts one he 6, 13

United States v. Smith, 308 F.3d 726 (7th Cir. 2002) .... 18

United States v. Sotelo-Rivera, 931 F.2d 1317 (9th

Cir. 1991), cert. denied, 502 U.S. 1100 (1992) ........ 11

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

EN EE ES 9, 10

United States v. Thomas, 355 F.3d 1191 (9th Cir.

Dee ee ig a awenieeaesccaawns 13

United States v. Todd, 920 F.2d 399 (6th Cir. 1990) ..... 11

United States v. Toliver, 351 F.3d 423 (9th Cir. 2003),

cert. denied, 541 U.S. 1079 (2004) .................. 13

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

Ne Ain dnc wcssbeueveenenes 11

Vi

Cases—Continued: Page

United States v. Velasco-Heredia, 319 F.3d 1080

ee rr 8,9

United States v. Webb, 545 F.3d 673 (8th Cir. 2004) ...... 6

United States v. Williams, 235 F.3d 858 (3d Cir.

2000), cert. denied, 534 U.S. 818 (2001) .............. 6

United States v. Wood, 834 F.2d 1382 (8th Cir. 1987) .... 11

Washington v. Recuenco, 548 U.S. 212 (2006) ........... 6

Constitution, statutes and rule:

U.S. Const.:

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Jn the Supreme Court of the Gnited States

No. 08-673

RICKEY CLARK, PETITIONER

Vv,

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-22a)

is reported at 538 F.3d 803. The order of the district

court (Pet. App. 23a-28a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

August 19, 2008. The petition for a writ of certiorari was

filed on November 17, 2008. The jurisdiction of this

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

STATEMENT

Petitioner pleaded guilty to one count of conspiring

to possess cocaine with the intent to distribute it, in vio-

lation of 21 U.S.C. 846, and one count of possessing co-

caine with the intent to distribute it, in violation of

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

(1)

2

imprisonment, to be followed by five years of supervised

release. Pet. C.A. App. SA16-SA18, SA22, SA235-

SA2388. The court of appeals affirmed. Pet. App. la-22a.

1. Juan Corral was a drug dealer who trafficked in

multi-kilogram quantities of cocaine. At a hearing held

to determine the quantity of drugs involved in peti-

tioner’s offenses, Corral estimated that, between Sep-

tember 2001 and June 2002, he purchased more than 250

kilograms of cocaine. Corral sold drugs in quantities

that ranged from a few ounces to several kilograms at

atime. Repeat customers generally purchased larger

quantities. Pet. App. 3a; Pet. C.A. App. SA92, SA97,

SA99-SA100, SA102-SA107, SA109-SA110.

Petitioner was one of Corral’s repeat, multi-kilogram

customers. Between February 2002 and June 2002, Cor-

ral sold petitioner approximately 17 kilograms of co-

caine, in quantities ranging from three to eight kilo-

grams. Pet. App. 3a-4a; Pet. C.A. App. SA119, SA121,

SA126-SA127.

2. a. A grand jury in the Northern District of Illi-

nois returned a multi-count indictment charging peti-

tioner and 11 others with conspiring to distribute and to

possess with intent to distribute “in excess of 5 kilo-

grams of mixtures and substances containing cocaine

and in excess of 50 grams of mixtures and substances

containing cocaine base.” Pet. C.A. App. SA16-SA33.

Petitioner was also charged with “knowingly and inten-

tionally possess[ing] with intent to distribute a con-

trolled substance, namely mixtures and substances con-

taining cocaine.” /d. at SA22.

b. Petitioner pleaded guilty to both counts against

him without the benefit of a plea agreement. Pet. App.

2a; Pet. C.A. App. SA56-SA84. At the plea hearing, peti-

tioner did not specifically admit that his offenses in-

3

volved any particular quantity of cocaine. Pet. App. 2a.

During the hearing, however, the prosecutor stated that

“(t]he mandatory minimum penalty is ten years impris-

onment,” based on the government’s view that petitioner

was “accountable for at least 15 kilograms of cocaine.”

Pet. C.A. App. SA65; see id. at SA66; see also 21 U.S.C.

841(b)(1)(A)(ii).

Defense counsel disagreed with the government’s

drug-quantity estimates, Pet. C.A. App. SA68, and took

the position “that, at most, a mandatory minimum of

five years is applicable,” id. at SA67; see id. at SA65.

Defense counsel also stated, however, that petitioner

“kn{ew] that the sentence is driven or caused to a great

extent by the amount of narcotics that the Court finds,”

rd. at SA67, and did not dispute the court’s ability to

make findings that would trigger a ten-year mandatory

minimum sentence. Petitioner also answered “[y]les”

when the district judge asked him if he understood that

the court “ha[d] to make these fact findings” and that,

“if it turn[ed] out the Government is right,” he would be

facing a sentence of “between ten years and life.” /d. at

SA71-SA72. The court accepted petitioner’s guilty plea.

Id. at SA81.

ce. The district court held a hearing to determine the

quantity of drugs attributable to petitioner. Pet. App.

3a-4a. At the conclusion of the hearing, the court found,

by a “preponderance of the evidence,” that the amount

of cocaine attributable to petitioner in the drug conspir-

acy was “more than fifteen kilograms.” Pet. C.A. App.

SA209; see Pet. App. 6a.

_ d. At petitioner’s sentencing hearing, the attorney

for the government—who was not the same prosecutor

who had represented the government at petitioner’s plea

and drug-quantity hearings—stated that petitioner was

4

not subject to a mandatory minimum penalty and noted

that petitioner had not “plead[ed] to a specific amount

that would invoke the mandatory minimum.” Pet. C.A.

App. SA245; see id. at SA244. At the conclusion of the

hearing, the district court sentenced petitioner to 48

months of imprisonment, which was 60 months below the

bottom end of the advisory Guidelines range of 108 to

136 months of imprisonment. Pet. App. 7a; Pet. C.A.

App. SA260-SA261.

e. The next day, the government filed a motion

to correct petitioner’s sentence in light of the ten-year

mandatory minimum that is specified in 21 U.S.C.

841(b)(1)(A)(ii) for any offense involving “5 kilograms or

more of” cocaine. See Pet. App. 8a; see also Pet. C.A.

App. SA266-SA269; Fed. R. Crim. P. 35(a). The district

court granted the government’s motion and re-sen-

tenced petitioner to 120 months of imprisonment. Pet.

App. 28a. Although the court stated that it did “not be-

lieve that the evidence [at the drug-quantity hearing]

would have been sufficient to sustain a decision beyond

a reasonable doubt,” the court reiterated its previous

determination, made “by a preponderance of the evi-

dence, that [petitioner] had purchased between fifteen

and fifty kilograms of cocaine.” /d. at 24a.

3. The court of appeals affirmed. Pet. App. la-22a.

As relevant here, the court reiterated its previous hold-

ings “that judges may find facts, by a preponderance of

the evidence, that subject a defendant to a statutory

mandatory minimum,” and that this Court’s decision in

Apprendi v. New Jersey, 530 U.S. 466 (2000), “has no

application where a drug dealer is given a.sentence at or

below the [20-year] maximum provided in” 21 U.S.C.

841(b)(1)(C). Pet. App. 16a (quoting United States v.

Hernandez, 330 F.3d 964, 980 (7th Cir. 2003), cert. de-

5

nied, 541 U.S. 904, and 541 U.S. 1040 (2004)). The court

of appeals also stated that it had “carefully analyzed

whether drug quantity constitutes an element of an

§.841 offense that must be proven to a jury beyond a

reasonable doubt, and ha[d] decided time after time that

neither the statute, nor Apprendi and its progeny, dic-

tates such a result.” Jd. at 17a. The court of appeals

also concluded that “the district court did not clearly err

in finding by a preponderance of the evidence that [peti-

tioner’s] § 841 offense involved more than 15 kilograms

of cocaine.” /d. at 21a.

ARGUMENT

1. Petitioner argues (Pet. 14-20) that the Fifth and

Sixth Amendment rights associated with Apprendi v

New Jersey, 530 U.S. 466 (2000), are violated whenever

a criminal defendant “is ‘exposed’ to the risk of a” high-

er sentence as the result of a fact found by a judge ap-

plying a preponderance-of-the-evidence standard, re-

gardless of whether the sentence that is ultimately 7m-

posed is within the maximum that would have been au-

thorized by the jury’s verdict or the defendant’s admis-

sions alone. Pet. 19 (emphasis added). This Court re-

cently denied a petition for a writ of certiorari «.at

sought review of the same question and relied on the

same conflict in lower-court authority that petitioner

identifies. See Butterworth v. United States, 1298S. Ct.

37 (2008) (No. 07-10067); see also Seymour v. United

States, 129 S. Ct. 527 (2008) (No. 07-1608); Simmons v.

United States, 547 U.S. 1022 (2006) (No. 05-7336) (case

on collateral review); O’Neal v. United States, 541 U.S.

960 (2004) (No. 03-7686). There is no reason for a differ-

ent result here. Sieve

6

a. As the majority of courts of appeals have cor-

rectly held, no Apprendi error occurs so long as the sen-

tence actually imposed does not exceed the maximum

sentence that would have been authorized based on the

jury’s verdict or the defendant’s admissions alone.’

Apprendi holds that, as a matter of constitutional law,

“Co]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” 530 U.S. at 490

(emphases added). In Apprend? itself, the 12-year sen-

tence imposed by the trial court on the relevant count

was two years higher than would have been authorized

in the absence of the relevant judge-found fact. See 7d.

at 474. The same is true of all of the subsequent deci-

sions in which this Court has found a violation of the

Fifth and Sixth Amendment rights recognized in Ap-

prendi: in each of those cases, the sentence ultimately

imposed exceeded what would have been the legal maxi-

mum in the absence of any judge-found facts. See

Cunningham v. California, 549 U.S. 270, 275-276 (2007)

(defendant sentenced to 16 years of imprisonment; maxi-

mum sentence in the absence of judge-found facts would

have been 12 years of imprisonment); Washington v.

Recuenco, 548 U.S. 212, 215 (2006) (39 and 15 months of

' See, e.g., United States v. Webb, 545 F.3d 673, 678 (8th Cir. 2004);

United States v. Kelly, 519 F.3d 355, 363 & n.3 (7th Cir. 2008); United

States v. Lizardo, 445 F.3d 73, 89-90 (1st Cir.), cert. denied, 549 U.S.

1007 (2006); United States v. Serrano-Lopez, 366 F.3d 628, 638 & n.9

(8th Cir. 2004); United States v. Goodine, 326 F.3d 26, 27-32 (1st Cir.

2003), cert. denied, 541 U.S. 902 (2004); United States v. Copeland, 321

F.3d 582, 604-605 (6th Cir. 2003); United States v. Sanchez, 269 F.3d

1250, 1279 (11th Cir. 2001) (en banc), cert. denied, 535 U.S. 942 (2002);

United States v. Williams, 235 F.3d 858, 863 (3d Cir. 2000), cert.

denied, 534 U.S. 818 (2001).

7

imprisonment, respectively); United States v. Booker,

543 U.S. 220, 227 (2005) (as to defendant Booker, 360

and 262 months of imprisonment, respectively); Blakely

v. Washington, 542 U.S. 296, 298-300 (2004) (90 and 53

months of imprisonment, respectively); Ring v. Arizona,

536 U.S. 584, 597 (2002) (death penalty and life impris-

onment, respectively); United States v. Cotton, 525 U.S.

625, 628-629 (2002) (80 and 20 years of imprisonment,

respectively).

Petitioner cites (Pet. 14-15, 17) isolated statements

from this Court’s cases that he asserts establish that

“Apprendi rights attach upon exposure to a higher stat-

utory maximum penalty.” Pet. 17. But the holdings of

those cases do not support petitioner’s view: none found

a constitutional violation in a case where the defendant

did not receive a sentence that was greater than that

authorized by the jury’s verdict alone. See pp. 6-7, su-

pra; accord Shepard v. United States, 544 U.S. 13 (2005)

(see Pet. 17); Sattazahn v. Pennsylvania, 537 U.S. 101,

111 (2003) (see Pet. 17). And this Court has also repeat-

edly stated—including in some of the decisions relied

upon by petitioner—that the Sixth Amendment inquiry

turns on the sentence that is “impose[d].” Cunningham,

549 U.S. at 275; see ibid. (stating that Apprendi estab-

lishes that a judge may not “impose a sentence above

the statutory maximum based on a fact, other than a

prior conviction, not found by a jury or admitted by the

defendant”) (emphasis added); Booker, 543 U.S. at 245

(stating that the “Sixth Amendment is violated by the

wmposition of an enhanced sentence under the United

States Sentencing Guidelines”) (citation omitted; em-

phasis added); see also Oregon v. Ice, 129 S. Ct. 711, 716

(2009) (repeating Court’s statement in Apprendi that

the constitutional rule in question applies to “any fact

8

that increases the penalty for a crime beyond the pre-

scribed statutory maximum”) (quoting Apprendi, 530

U.S. at 490) (emphasis added); Rita v. United States,

127 S. Ct. 2456, 2466 (2007); see zd. at 2477 (Scalia, J.,

concurring in part and concurring in the judgment)

(“We have repeatedly affirmed the proposition that

judges can find facts that help guide their discretion

within the sentencing range that is authorized by the

facts found by the jury or admitted by the defendant.”);

Blakely, 542 U.S. at 304 (stating that the Sixth Amend-

ment is violated “[wlhen a judge inflicts punishment

that the jury’s verdict alone does not allow”) (emphasis

added).

Petitioner’s sentence of 120 months of imprisonment

is less than the 240 months of imprisonment that would

have been authorized for an offense involving an unspec-

ified quantity of cocaine. See 21 U.S.C. 841(b)(1)(C).

Accordingly, petitioner’s Sixth Amendment claim fails.

b. Petitioner cites United States v. Gonzalez, 420

F.3d 111, 125-127 (2d Cir. 2005), and United States v.

Velasco-Heredia, 319 F.3d 1080 (9th Cir. 2003), as sup-

port for his argument that Apprendi prohibits any judi-

cial factfinding that authorizes, but does not result in,

punishment greater than that which would have been

authorized by the defendant’s admissions or a jury’s ver-

dict alone. Although petitioner is correct that there is a

conflict, that conflict does not warrant this Court’s re-

view.

Velasco-Heredia was a pre-Booker drug distribution

case in which the Ninth Circuit held that the district

court could not make post-verdict findings on drug

quantity using a preponderance of the evidence standard

for purposes of triggering a mandatory minimum sen-

tence, because under 21 U.S.C. 841(b)(1)(A) and (B) such

9

findings also trigger increases in the statutory maximum

sentence. 319 F.3d at 1085. Based on the guilt-phase

verdict, the defendant was subject to a maximum sen-

tence of five years; if the trier of fact had found the

quantity of marijuana that the judge later found at sen-

tencing, the maximum would have been 40 years. Even

though the defendant was sentenced only to the manda-

tory minimum of five years, the Ninth Circuit thought

that the judicial factfinding that underlay the manda-

tory-minimum finding also “exposed” the defendant to a

higher maximum sentence and thus was a Sixth Amend-

ment violation. /d. at 1085-1086.

In Gonzalez, the Second Circuit considered whether

a district court erred in refusing to permit a defendant

to withdraw his guilty plea for conspiring to distribute

50 grams or more of cocaine base when the defendant

contested drug quantity during the plea allocution. The

court of appeals held that the guilty plea could not be

deemed “knowing, voluntary, or sufficient to support a

judgment of conviction on a § 841(b)(1)(A) charge,” 420

F.3d at 116, because the defendant had not been in-

formed that he had a right to a jury determination of

drug quantity and because he failed to admit the ele-

ment of drug quantity, ibid. In so holding, the court

reaffirmed its ruling in United States v. Thomas, 274

F.3d 655 (2d Cir. 2001) (en banc), that drug quantity is

an element of a Section 841(a) offense, and it concluded

that a defendant’s exposure to an enhanced statutory

maximum raises Apprendi concerns. Gonzalez, 420 F.3d

at 125-131.

Velasco-Heredia and Gonzalez incorrectly applied

the constitutional principles set forth in this Court’s de-

cisions. As explained above, the Sixth Amendment in-

quiry turns on the sentence actually imposed, not on

10

whether the same facts that trigger a mandatory mini-

mum sentence would also, as a statutory matter, autho-

rize a higher maximum sentence. See pp. 6-8, supra.

Although the incorrect constitutional analysis con-

tained in Velasco-Heredia and Gonzalez conflicts with

the court of appeals’ correct constitutional analysis in

this case, further review is not warranted here. First,

because petitioner did not seek to withdraw his guilty

plea or to challenge the factual basis for his plea, the

principal holding ot Gonzalez is not implicated.

Second, it is far from clear that the exposure-versus-

imposition question has significant practical importance.

Outside the context of a mandatory minimum sentence,

the government is unaware of any case in which the Sec-

ond Circuit has reversed a sentence for Apprendi error

on the ground that the sentencing court’s finding of drug

quantity “exposed” the defendant to an increased maxi-

mum sentence when the sentence imposed did not ex-

ceed the term of imprisonment supported by the jury’s

verdict or the defendant’s admissions. Cf. Thomas, 274

F.3d at 664 (“The constitutional rule of Apprendi does

not apply where the sentence imposed is not greater

than the prescribed statutory maximum for the offense

of conviction.”). The Ninth Circuit has repeatedly found

any such error harmless. See, e.g., United States v.

Alvarez, 358 F.3d 1194, 1212 (stating that defendant’s

Apprendi claim was “wholly without merit” because the

defendant was sentenced below the statutory maximum

authorized by the jury’s verdict”), cert. denied, 543 U.S.

887 (2004). As a result, it appears that the first question

upon which petitioner seeks review has little practical

importance outside the context of the imposition of man-

datory minimum sentences under 21 U.S.C. 841. And, as

11

discussed in the next sections, see pp. 11-15, infra, those

issues do not warrant this Court’s review at this time.

2. Petitioner also contends (Pet. 20-25) that, as a

matter of statutory construction, drug quantity is an

element of the offense under 21 U.S.C. 841. This Court

has previously denied petitions for writs of certiorari

that sought review of that question, including a petition

that relied on all but one of the authorities upon which

petitioner relies here and that was supported by an ami-

cus brief joined by the same amicus (the Nationai Asso-

ciation of Criminal Defense Lawyers) that urges the

Court to grant this petition for a writ of certiorari. See

Goodine v. United States, 541 U.S. 902 (2004) (No.

03-596). Compare Pet. 21-23, with Pet. at 4-11, Goodine,

supra (No. 03-596). Further review is not warranted.

a. Before Apprendi, all 12 regional courts of appeals

concluded that Congress did not intend for drug quan-

tity to be an element of the offense under Section 841.

Relying on the statutory text and structure, legislative

history, and other interpretive clues, those courts con-

cluded that Congress intended for drug quantity to be a

sentencing factor.”

* See, e.g., United States v. Lindia, 82 F.3d 1154, 1160-1161 (1st Cir.

1996); United States v. Cumpuzuno, 905 F.2d 677, 679 (2d Cir.), cert.

denied, 498 U.S. 947 (1990); United States v. Lewis, 113 F.3d 487,

490-491 (3d Cir. 1997), cert. denied, 523 U.S. 1108 (1998); United States

v. Fletcher, 74 F.3d 49, 53 (4th Cir.), cert. denied, 519 U.S. 857 (1996);

United States v. Morgan, 835 F.2d 79, 81 (Sth Cir. 1987); United States

v. Todd, 920 F.2d 399, 407 (6th Cir. 1990); United States v. Acevedo, 891

F.2d 607, 611 (7th Cir. 1989); United States v. Wood, 834 F.2d 1382,

1388 (8th Cir. 1987); United States v. Sotelo-Rivera, 931 F.2d 1317,

1319 (9th Cir. 1991), cert. denied, 502 U.S. 1100 (1992); United States

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

Hemelryck, 945 F.2d 1493, 1503 (11th Cir. 1991); United States v.

Patrick, 959 F.2d 991, 995 n.5 (D.C. Cir. 1992).

12

The Court’s decision in Apprendi concerns the re-

quirements of the Constitution, not the interpretation

of a statute. As the Eleventh Circuit has explained,

“Apprendi did not announce any new principles of statu-

tory construction,” and, eda eau

[pre-Apprendi] precedent interpreting [Section] 841.”

United States v. Sanchez, 269 F.3d 1250, 1268 (2001)

(en bane), cert. denied, 535 U.S. 942 (2002). Rather,

Apprendi imposes a “constitutional restraint,” zbid.,

that is “external to” the particular statutory scheme

under which a prosecution occurs. United States v.

Brough, 243 F.3d 1078, 1079 (7th Cir.), cert. denied, 534

U.S. 889 (2001). Thus, while Apprendi now requires

that certain facts (such as drug quantity) be found by

the jury beyond a reasonable doubt to support an sen-

tence above an otherwise-applicable maximum, that con-

stitutional holding does not alter Congress’s intention to

make drug quantity a sentencing factor.

This Court has repeatedly emphasized that it makes

no difference for Apprendi purposes how the legislature

structures a statute, what it calls a fact that increases

the statutory maximum sentence, or whether it intends

for that fact to be treated as an element of the offense.

See Ring, 536 U.S. at 602 (“If a State makes an increase

in a defendant’s authorized punishment contingent on

the finding of a fact, that fact—no matter how the State

labels it—must be found by a jury beyond a reasonable

doubt.”); see also Blakely, 542 U.S. at 303 (“(T]he ‘statu-

tory maximum’ for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the

defendant.”); Apprendi, 530 U.S. at 494 (“[T]he relevant

inquiry is one not of form, but of effect—does the re-

13

quired finding expose the defendant to a greater punish-

ment than that authorized by the jury’s guilty verdict?”).

The Court has stated that facts that trigger Ap-

prendv’s rule, whether or not intended by the legislature

to be elements, are the “functional equivalent of” ele-

ments when they are used to enhance a sentence, and

thus must be subject to the same constitutional require-

ments when they are so used. Apprendi, 530 U.S. at 494

n.19. But that does not mean that such facts must be

treated as statutory elements. Whether drug quantity

is an “element” of a Section 841 offense does not “de-

pend(] on the actual sentence imposed,” Pet. 25 (quoting

Gonzalez, 420 F.sd at 124 n.10), but on whether Con-

gress intended for it to be so. See Staples v. United

States, 511 U.S. 600, 604 (1994) (“{T]he definition of the

elements of a criminal offense is entrusted to the legisla-

ture, particularly in the case of federal crimes, which are

solely creatures of statute.”) (quoting Liparota v.

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

b. Since Apprendi, all but one of the court of appeals

that have revisited the issue have reaffirmed their previ-

ous conclusion that drug quantity is not an element of

the Section 841 offense.* In contrast, petitioner is cor-

rect that the Second Circuit has held, post-Apprendz1,

that drug quantity is an element of a Section 841(a) of-

* See Serrano-Lopez, 366 F.3d at 638; United States v. Toliver, 351

F.3d 423, 430 (9th Cir. 2003), cert. denied, 541 U.S. 1079 (2004); Good-

ine, 326 F.3d at 31-82; United Stutes v. Smith, 308 F.3d 726, 740-741

(7th Cir. 2002); Sanchez, 269 F.3d at 1268-1269. To the extent that peti-

tioner suggests that the Ninth Circuit’s decision in Velasco-Heredia

should be understood as stating that drug quantity is an element of the

offense under 21 U.S.C. 841(a), see Pet. 21-22, the Ninth Circuit’s sub-

sequent decisions refute that contention. See United States v. Thomas,

355 F.3d 1191, 1194 (2004) (“Drug Quantity Is Not an Element Under

21 U.S.C. § 841.”) (emphasis omitted); accord Toliver, 351 F.3d at 430.

14

fense. See Gonzalez, 420 F.3d at 122-125. That conflict

in the circuits, however, has little practical significance

and thus does not merit this Court’s review.

In light of Apprendi’s constitutional holding, the

courts of appeals have consistently recognized that, in

order to support a sentence in excess of the otherwise-

applicable statutory maximum under 21 U.S.C. 841(b),

the threshold drug quantities specified in that subsec-

tion must be treated as if they are offense elements.

That is, in order for an enhanced sentence to be im-

posed, the threshold drug quantity must be alleged in

the indictment and submitted to the jury for determina-

tion beyond a reasonable doubt. See, e.g., United States

v. Jackson, 327 F.3d 278, 285 (4th Cir.), cert. denied, 540

U.S. 1019 (2003); Unzted States v. Minore, 292 F.3d

1109, 1116 (9th Cir. 2002), cert. denied, 537 U.S. 1146

(2003); United States v. Barbosa, 271 F.3d 438, 457 (3d

Cir. 2001), cert. denied, 537 U.S. 1049 (2002). In cases

where the government intends to seek an increase in the

otherwise applicable statutory maximum sentence, fed-

eral prosecutors now routinely assure that the requisite

drug quantity levels are charged in the indictment and

submitted to the jury for determination beyond a rea-

sonable doubt. Cf. Pet. C.A. App. SA17 (charging that

the conspiracy with which petitioner was charged in

Count 1 involved “in excess of 5 kilograms of * * *

cocaine and in excess of 50 grams of * * * cocaine

base”). Similarly, the Department of Justice has advised

federal prosecutors that, during plea allocutions, defen-

dants should be required to admit facts that increase the

statutory maximum. Cf. 2d. at SA73 (prosecutor stating,

without contradiction from defense counsel, that the

facts petitioner was required “to admit in order to plead

_ ea . ° .

guilty to these-two counts of the indictment” included

15

that he “conspired to knowingly and intentionally con-

spire to possess with intent to distribute and to distrib-

ute controlled substances, namely, in excess of five kilos

of mixtures and substances containing cocaine”). Thus,

although petitioner himself did not admit to any particu-

lar drug quantity at his plea hearing, the question of

whether Congress intended for drug quantity to be an

element of the offense under Section 841 is ordinarily of

little tangible significance in drug prosecutions nation-

wide. That is confirmed by the rarity with which the

issue presented in the petition for a writ of certiorari

has arisen.

3. Petitioner contends (Pet. 25-30) that this Court

should overrule its constitutional holding in Harris v.

United States, 536 U.S. 545 (2002), that the Fifth and

Sixth Amendment rights recognized in Apprendi do not

apply to judge-found facts that are used solely to in-

crease a defendant’s minimum sentence. The Court

has repeatedly denied petitions for writs of certiorari

that asked it to overrule Harris or to declare that its

more recent Apprendi decisions have already done so

implicitly. See, e.g., Tidwell v. United Siates, 1298S. Ct.

762 (2008) (No. 07-11458); Butterworth, supra (No.

07-10067); Barnes v. United States, 128 8. Ct. 647 (2007)

(No. 06-12085); Speller v. United States, 127 S. Ct. 3005

(2007) (No. 06-10260); Malouf v. United States, 549 U.S.

1305 (2007) (No. 06-1154); Roberson v. United States,

549 U.S. 1214 (2007) (No. 06-7738); Landers v. United

States, 547 U.S. 1099 (2006) (No. 05-8774). There is no

reason for a different result here.

In Harris, this Court held that the constitutional rule

announced in Apprendi does not preclude the use of

facts found by a judge at sentencing to increase a defen-

dant’s mandatory minimum sentence. See 536 U.S. at

16

565, 567-568 (plurality opinion); id. at 569, 572 (Breyer,

J., concurring in part and concurring in the judgment).

As the plurality in Harris explained, the Apprendi rule

rests on the Court’s determination that use of a judge’s

factual findings to increase a defendant’s sentence be-

yond the otherwise-applicable statutory maximum would

eontravene the “prevailing historical practice” that

formed the backdrop for the Fifth and Sixth Amend-

ments. /d. at 568. The Harris plurality further ex-

plained that “[t]here [iJs no comparable historical prac-

tice of submitting facts increasing the mandatory mini-

mum to the jury, so the Apprendi rule d[oes] not extend

to those facts.” /bid. The Fifth and Sixth Amendments

“ensure that the defendant ‘will never get more punish-

ment than he bargained for when he did the crime,’ but

they do not promise that he will receive ‘anything less’

than that.” /d. at 566 (plurality opinion) (quoting Ap-

prendi, 530 U.S. at 498 (Scalia, J., concurring)).

This Court’s subsequent decisions have not disturbed

the Court’s constitutional ruling in Harris. In Blakely,

for example, this Court extended Apprendi to invalidate

a sentencing enhancement based on judge-found facts

that “involved a sentence greater than what state law

authorized on the basis of the verdict alone.” 542 U.S. at

305. The Court distinguished Harris on the ground that

it “involved a sentencing scheme that imposed a statu-

tory minimum if a judge found a particular fact.” Jd. at

304; see Ring, 5386 U.S. at 604 n.5 (noting the Court’s

conclusion in Harris that “the distinction between ele-

ments and sentencing factors continues to be meaningful

as to facts increasing the minimum sentence’). That

distinction holds true today. See Kimbrough v. United

States, 128 S. Ct. 558, 573 (2007) (stating that “sentenc-

ing courts remain bound by the mandatory minimum

17

sentences prescribed in” 21 U.S.C. 841(b)(1)); Rita, 127

S. Ct. at 2477-2478 n.2 (Scalia, J., concurring in part and

concurring in the judgment) (recognizing that “eliminat-

ing discretion to impose low sentences is the equivalent

of judicially creating mandatory minimums, which are

not a concern of the Sixth Amendment” and citing Har-

ris).‘

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

EDWIN S. KNEEDLER

Acting Solicitor General

RITA M. GLAVIN

Acting Assistant Attorney

Genera!

KIRBY A. HELLER

Attorney

FEBRUARY 2009

* Petitioner also asserts that this Court’s review is needed in order

“to clarify the scope of Harris” because “the circuit courts are divided

over whether Harris applies where the judicially found facts not only

trigger a mandatory minimum but also increase the maximum penalty

to which the defendant is exposed.” Pet. 29-30. That argument is simp-

ly areprise of petitioner’s earlier claims that this Court’s holding in Ap-

prendi applies to any factual determination that would, as a statutory

matter, authorize an increase in the maximum penalty and that. Con-

gress intended for drug quantity to be an element of the offense under

Section 841. In fact, the two court of appeals decisions upon which pe-

titioner relies in this section of the petition for a writ of certiorari (the

Second Circuit’s decision in Gonzalez and the Ninth Circuit’s decision

in Velasco-Heredia) are the same two decisions upon which he relies

with respect to the first two questions presented as well.