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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0826%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

“a

Supreme Court, U.S.
| J : riLeo

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.:

ie ane hy aw ys eas oa ee Sw We eee 5, 6, 15, 16

ge ch ae kao ha ee AKA KO Owe N passim
Ee alysis Woaw ees bs sees eo 4s 10, 11, 18, 15
ec ceceeccecccteccetcess 9,13
ES a er 1
re ee yc dk wea bates nea v eee 14
cnc e es wee scse de nsensearneves 17
ERD occ te eevee ese ceeeessecvccs 8
ee re 3, 4
ee 8
a 4,8
Ning gow eW-k' > WH asia 'e owes oe o's 1

ES LE 4

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0826%3A3. Public record. Not legal advice.