UNITED STATES of America, v. Alex VAZQUEZ, Appellant.
No. 99-3845.
United States Court of Appeals, Third Circuit.
Oct. 9, 2001.
Originally Argued Dec. 15, 2000. Argued En Banc May 23, 2001.
271 F.3d 93
Peter Goldberger, (argued), Pamela A. Wilk, James H. Feldman, Jr., Ardmore, PA, Attorneys for Appellant.
Shelley Stark, Federal Public Defender, Lisa B. Freeland, (argued), Assistant Federal Public Defender, Pittsburgh, PA, Attorneys for Amicus Curiae Leroy Campbell.
Lisa Kemler, Alexandria, VA, Attorney for Amicus Curiae National Association of Criminal Defense Lawyers.
Mary Price, General Counsel, Washington, DC, Attorney for Amicus Curiae Families Against Mandatory Minimums Foundation.
Clayton A. Sweeney, Jr., Philadelphia, PA, Attorney for Amici Curiae National Association of Criminal Defense Lawyers, Pennsylvania Association of Criminal Defense Lawyers and Families Against Mandatory Minimums Foundation.
Before BECKER, Chief Judge, SLOVITER, MANSMANN, SCIRICA, NYGAARD, ALITO, ROTH, MCKEE, RENDELL, BARRY, AMBRO, FUENTES, and GARTH, Circuit Judges.
FUENTES, Circuit Judge:
This appeal requires us to apply the Supreme Court‘s recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to a drug conspiracy sentence. At sentencing, the trial court, adhering to established law and custom, itself decided the issue of drug quantity under a preponderance of the evidence standard. Based largely on this finding, the court sentenced appellant, Alex Vazquez, to a prison term of 292 months (24 years and 4 months), which exceeded, by over 4 years, the statutory maximum authorized by the jury‘s factual findings. Subsequently, the Supreme Court held in Apprendi that a criminal defendant‘s constitutional rights are violated when his prescribed statutory maximum penalties are increased by any fact, other than a prior conviction, that a jury does not find beyond a reasonable doubt. Id. at 490, 120 S.Ct. 2348. Vazquez now challenges his sentence contending that, because the court did not submit the issue of drug quantity to the jury for determination, he must be resentenced in accordance with the default 20-year statutory maximum sentence that applies to cocaine offenses of unspecified drug quantity.
Vazquez did not contest the drug quantity evidence at any stage of the proceedings. As a result, our review is for plain error. We conclude that Vazquez‘s sentence violated Apprendi, and therefore, the failure to submit drug quantity to the jury, and the imposition of a prison term in excess of 20 years, was erroneous. Nonetheless, because we remain confident that a rational jury would have found, beyond a reasonable doubt, the drug quantities that the judge found, we conclude that Vazquez is not entitled to plain error relief and we will therefore affirm his sentence.1
I.
The relevant facts are largely undisputed. On February 27, 1998, after a lengthy investigation, law enforcement authorities seized a quantity of powder cocaine and crack cocaine from a rooming house in Columbia, Pennsylvania. Vazquez‘s fingerprint was on one of the bags in which the cocaine had been stored.
The next day, officers executed a search warrant at Vazquez‘s residence. There, police seized a digital scale from Vazquez‘s bedroom, a key to the front door of the rooming house, and a stolen firearm. Thereafter, state law enforcement authorities and agents from the Federal Bureau of Investigation (“FBI“) interviewed a number of Vazquez‘s drug customers, including James Freeland, Brian Holmes, and Wayne Rice. All three gave statements implicating Vazquez and Francisco Algarin in a drug dealing operation. Algarin was identified as a “runner” for the organization.
On June 9, 1998, a grand jury for the Middle District of Pennsylvania issued an indictment charging Vazquez with conspiracy to possess and distribute “more than 5 kilos of cocaine” in violation of
The trial evidence, which included testimony based on a forensic lab analysis, established that police seized 991 grams of рowder cocaine and 859 grams of crack cocaine from the Columbia rooming house.2 According to the testimony, Vazquez had given the drugs to his coconspirator, Algarin, for storage at the rooming house, and Vazquez‘s fingerprint was found on one of the bags in which the cocaine was stored. Also, a key to the front door of the rooming house was found on Vazquez‘s person. Vazquez raised no objection to the testimony respecting drug quantity, and he presented no affirmative evidence at any time challenging the Government‘s evidence of drug quantity. Additionally, neither the Government nor Vazquez requested an instruction requiring the jury to find the quantity of drugs involved in his conspiracy offense, and the court gave no such instruction. The District Court‘s instructions concerning the drug conspiracy only required the jury to find that Vazquez conspired “to possess and distribute cocaine.” Following deliberations, the jury convicted Vazquez of conspiracy to possess and distribute cocaine, as well as obstruction of justice. However, the jury acquitted Vazquez of a conspiracy to obstruct justice charge. In addition, the jury was unable to reach verdicts on the two witness tampering counts; the District Court declared a hung jury as to those counts.
At the sentencing hearing, the District Court adopted the factual findings and sentencing recommendations in the presentence report. The court determined, without objection and under a preponderance of the evidence standard, that, based on the trial evidence and the presentence report, Vazquez had been involved with 992 grams of powder cocaine and 859 grams of crack cocaine. The court therefore assigned Vazquez a base offense level of 36 in accordance with U.S.S.G. § 2D1.1‘s Drug Quantity Table. The District Court then applied two separate 2-level upward adjustments, the first for being an organizer/leader under U.S.S.G. § 3B1.1(c), and the second for attempted obstruction of justice under U.S.S.G. § 3C1.1. An adjusted offense level of 40 and a criminal history category of I resulted in a sentencing range of 292 to 365 months. The District Court ultimately sentenced Vazquez at the bottom of that range, the guideline minimum of 292 months, for the drug conspiracy, and to a concurrent term of 120 months for the obstruction of justice charge. The court also imposed a 5-year supervised release term on the drug conspiracy count and a concurrent 3-year supervised release term on the obstruction of justice charge. With regard to the drug conspiracy, the judgment of conviction stated that Vazquez was sentenced for a conspiracy in violation of
We begin by explaining why Apprendi was violated in Vazquez‘s case. Thereafter, because Vazquez did not contest the evidence of drug quantity before the District Court, we will analyze the parties’ contentions under the plain error standard.
A.
Vazquez was indicted and tried for conspiracy to possess and distribute more than 5 kilograms of cocaine in violation of
In Apprendi, the defendant had fired several shots into the home of an African American family that had recently moved into a New Jersey neighborhood. 530 U.S. at 469, 120 S.Ct. 2348. After his arrest, he reportedly stated that he did not know the occupants personally but did not want African Americans in his neighborhood. Id. at 469, 120 S.Ct. 2348. He later, however, denied making such a statement. Id. at 469, 471, 120 S.Ct. 2348. He pled guilty in state court to two counts of second-degree possession of a firearm for an unlawful purpose, each of which carried a sentencing range of 5 to 10 years. Id. at 469-70, 120 S.Ct. 2348. Subsequently, the prosecutor filed a motion to enhance the defendant‘s sentence pursuant to New Jersey‘s hate crime statute, which authorized an increased punishment for first-degree offenses based upon a trial judge‘s finding, by a preponderance of the evidence, that the defendant had committed the crime with a purpose to intimidate a person or group because of race. Id. at 470, 491-92, 120 S.Ct. 2348 (discussing
The Supreme Court granted certiorari and reversed, holding that the New Jersey sentencing procedures violated the Due Process Clause of the Fourteenth Amendment. In doing so, the Court articulated a new rule of constitutional law: “Other 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.” Id. at 490, 120 S.Ct. 2348 (emphasis added). Further, with the exception for prior convictions, the Court endorsed the following concept: “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.” Id. (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (Stevens, J., concurring)).
In Vazquez‘s case, drug quantity was neither submitted to the jury nor reflected in its verdict. Therefore,
In this case, the District Court sentenced Vazquez to more than 24 years’ imprisonment, specifically 292 months.
B.
We now turn to the consequences of the Apprendi violation. Vazquez‘s strongest argument is that his jury did not make a finding beyond a reasonable doubt as to drug quantity, and thus, he must be resentenced in accordance with
1.
The trial court committed error in Vazquez‘s case. As we explained above, the District Court violated Apprendi when it increased Vazquez‘s sentence beyond the prescribed statutory maximum, based on its own factual finding concerning drug quantity, instead of submitting the issue to the jury for its determination. Further, Apprendi applies retroactively because Vazquez‘s direct appeal was pending at the time Apprendi was decided. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (“new rule[s] for the conduct of criminal prosecutions [are] to be applied retroactively to all cases ... pending on direct review ... with no exception for cases in which the new rule constitutes a ‘clear break’ with the past“); see also Johnson, 520 U.S. at 467, 117 S.Ct. 1544.
2.
As even the Government concedes, the Apprendi violation that oc-
3.
Vazquez must next satisfy the third plain error factor, which asks whether his substantial rights were affected. Before resolving this issue, we will address several preliminary matters raised in the parties’ arguments because our resolution of those matters will significantly affect how we conduct the substantial rights inquiry. First, we will consider whether an Apprendi violation should be deemed a sentencing error (as opposed to a trial error), or a combination of a trial and sentencing error. We conclude that the latter approach is more consonant with the realities of Apprendi violations, as well as Supreme Court precedent. Second, we will consider whether an Apprendi violation is per se prejudicial because it constitutes a structural defect in the proceedings. If so, our plain error analysis would come to an end, and we would be compelled to grant Vazquez relief. We conclude that Apprendi violations do not constitute structural defects. Third, we will proceed to consider whether the Apprendi violation that occurred in Vazquez‘s case affected his substantial rights. We conclude that Vazquez‘s substantial rights were not affected. Fourth, we also hold that, even if Vazquez‘s substantial rights were affected, we decline to exercise our discretion to notice the Apprendi violation under the final plain error factor because the drug quantity evidence was overwhelming. Therefore, Vazquez is not entitled to plain error relief even though an Apprendi violation occurred during his criminal proceedings.
Parenthetically, in addressing the substantial rights inquiry, we will rely on precedent applying
The parties dispute the nature of Apprendi violations. Vazquez claims that the Apprendi violation that adversely affects the defendant‘s rights in most drug cases, including this one, is the sentencing decision, not any trial error. According to Vazquez, a properly conceived substantial rights inquiry, in the context of an Apprendi violation, requires an appellate court to ask whether it can say, beyond a reasonable doubt, that the sentence would have been the same absent the sentencing error, which occurred when a sentence was imposed in excess of the prescribed statutory maximum. See Nordby, 225 F.3d at 1060. Under Vazquez‘s approach, every Apprendi violation with respect to drug quantity in a cocaine case will automatically result in a resentencing in accordance with the 20-year maximum sentence under
The Government advocates a different approach, urging us to recognize that an Apprendi violation involves not just a sentencing error but also a trial error. This approach emphasizes that, due to the Apprendi violation, drug quantity becomes an element of the offense which a jury has not determined beyond a reasonable doubt. See Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348; Nordby, 225 F.3d at 1060. When we conduct plain error review under this paradigm, the substantial rights inquiry turns on whether we can say beyond a reasonable doubt that the sentence would have been the same absent the trial error, which occurred when drug quantity was not submitted for a jury determination. See Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (in case of trial error resulting from failure to submit element to jury, substantial rights inquiry asks whether it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error“); Sochor v. Florida, 504 U.S. 527, 540, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992) (harmless error asks whether error ” ‘did not contribute to the[sentence] obtained’ “) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Thus, under the Government‘s approach, the remedy for an Apprendi violation will depend upon the entire record, and no remedy may be available if the court determines that the evidence was sufficiently conclusive to support the sentence actually imposed. However, substantial rights will be affected if, for example, “the defendant contested the omitted element and raised evidence sufficient to support a contrary finding.” Neder, 527 U.S. at 19, 119 S.Ct. 1827.
We are persuaded that the Government‘s approach must prevail for two reasons. First, the Government‘s position better reflects the realities concerning the nature of Apprendi violations. In Apprendi, the Supreme Court recognized a new constitutional right grounded in the Due Process Clause and the Sixth Amendment‘s notice and jury trial guarantees. See 530 U.S. at 476, 120 S.Ct. 2348. Consistent with the Supreme Court‘s pronouncement of this new constitutional right, in an Apprendi violation, the sentencing error (imposing a sentence beyond the prescribed statutory maximum) is inextricably intertwined with a trial error (failing to submit an element of the offense to the jury). On the one hand, the trial error exists only because of the sentencing error. On the other hand, the sentencing error cannot occur without the trial error. Thus, an appropriate remedy must recognize that each Apprendi violation is both a trial and a sentencing error. But see United States v. Promise, 255 F.3d 150, 2001 WL 732389, at *5 (4th Cir. June 29, 2001) (en banc) (concluding that Apprendi
Second, we find the Government‘s approach is more consonant with Supreme Court precedent. In both Neder and Johnson, the Supreme Court confronted a failure to submit an element of the offense to the jury. The omitted element in each case was the materiality of a falsehood; a tax fraud in Neder and a perjury in Johnson. See 527 U.S. at 6-7, 119 S.Ct. 1827, 520 U.S. at 463-65, 117 S.Ct. 1544. The Court in Neder and Johnson agreed that the error was of a constitutional dimension. See 527 U.S. at 12, 119 S.Ct. 1827, 520 U.S. at 465, 117 S.Ct. 1544 (citing United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). Further, each decision addressed whether substantial rights were affected; the Neder Court applied harmless error review, while the Johnson Court applied plain error review. See 527 U.S. at 7-10, 119 S.Ct. 1827, 520 U.S. at 466-67, 117 S.Ct. 1544. The trial error presented here is comparable to the errors in both Neder and Johnson because in those cases the trial error resulted in a constitutional defect, necessitating an inquiry as to whether the defendant‘s substantial rights were affected. Thus, Neder and Johnson apply because we are presented with thе same substantive issue, namely, the consequence of failing to submit to the jury an element of an offense.
(b)
Next, Vazquez argues that the Apprendi violation constitutes a structural
We reject Vazquez‘s contention that Apprendi violations constitute structural defects. As we have already explained, Apprendi violations result in both trial and sentencing errors, albeit ones that rise to a constitutional dimension. However, the Supreme Court has instructed that “most constitutional errors can be harmless,” and that guidance applies here. Fulminante, 499 U.S. at 306, 111 S.Ct. 1246 (opinion of Rehnquist, C.J.); see also West v. Vaughn, 204 F.3d 53, 60 n. 7 (3d Cir.2000), abrogated sub nom. on other grounds by Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). Trial errors resulting from a failure to submit an element of an offense to the jury are not structural defects, but instead, are subject to harmless or plain error analysis. That is, “an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder, 527 U.S. at 9, 119 S.Ct. 1827. Similarly, sentencing errors can also be harmless. See, e.g., Jones v. United States, 527 U.S. 373, 402-05, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (applying harmless error review to federal death sentence); United States v. Stevens, 223 F.3d 239, 242-46 (3d Cir.2000) (applying plain error review to sentencing judge‘s failure to assure that defendant had read and discussed presentence investigation report with his attorney), cert. denied, 531 U.S. 1179, 121 S.Ct. 1157, 148 L.Ed.2d 1018 (2001). Thus, we hold that an Apprendi violation is not a structural defect. As far as we are aware, our holding is in accord with every court of appeals decision that has addressed this issue. See, e.g., United States v. Smith, 240 F.3d 927, 930 & n. 5 (11th Cir.2001) (per curiam); United States v. Westmoreland, 240 F.3d 618, 634 (7th Cir.2001); Anderson, 236 F.3d at 429.
(c)
Having concluded that the Neder and Johnson frameworks apply to this case, and that Apprendi violations do not constitute structural defects, we address wheth-
We assess Vazquez‘s challenge to his sentence by determining whether it would have been the same absent the failure to submit drug quantity for a jury determination. We аre confident that Vazquez‘s sentence would have been the same had the jury made the drug quantity finding. In his case, the evidence established beyond a reasonable doubt that Vazquez had been involved with 992 grams of powder cocaine and 859 grams of crack cocaine. Indeed, the sentencing judge, explaining that Vazquez‘s sentence was driven by the quantity of drugs involved, stated that “[t]he lab report which was admitted into evidence in this case substantiates the amount, and there has never been any question about the amount.”
In these circumstances, we can say without a doubt that Vazquez conspired to possess and/or distribute the 992 grams of powder cocaine and 859 grams of crack cocaine the authorities found at the Columbia rooming house. Solely on the basis of the uncontested 992 grams of powder cocaine, Vazquez would have faced a statutory sentencing range of between 5 to 40 years. See
Further, Vazquez‘s sentence would not have changed because the court would have considered the 859 grams of crack cocaine for sentencing guideline purposes under the Guidelines’ relevant conduct provisions. See
Vazquez‘s failure to dispute the amount of cocaine at trial or sentencing supports our conclusion that he cannot show an effect on his substantial rights. Indeed, he presented no challenge to, or affirmative evidence against, the Government‘s evidence of drug quantity. As a result, the sentencing judge stated that “there has never been any question about the [drug] amount.” In a comparable situation, the Supreme Court observed:
[W]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless. We think it beyond cavil here that the error “did not contribute to the verdict obtained.”
Neder, 527 U.S. at 17, 119 S.Ct. 1827 (quoting Chapman, 386 U.S. at 24, 87 S.Ct. 824).
In addition to attacking his sentence, Vazquez relies upon Apprendi to
Vazquez‘s arguments are unavailing. The discrepancy between the amount of cocaine stated in the indictment—more than 5 kilograms—and the amount of powder cocaine upon which we uphold Vazquez‘s sentence—992 grams—is, for purposes of the substantial rights inquiry, immaterial. It is immaterial because the indictment charged the 5-kilogram amount, and it is well settled that courts “may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense.” Rutledge v. United States, 517 U.S. 292, 306, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996); accord
4.
Even if we were to assume that the Apprendi violation affected Vazquez‘s substantial rights, he cannot establish the final plain error factor, namely, that the violation seriously affected the fairness, integrity, or public reputation of judicial proceedings. In Johnson, the Supreme Court held that, when the evidence of an element wrongly taken from a jury “overwhelming[ly]” supports the trial court‘s finding with regard to that element, “there is no basis for concluding that the error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings,’ ” and therefore, plain error relief is unavailable. See 520 U.S. at 470, 117 S.Ct. 1544.
The evidence at trial showed that Vazquez was the leader of a drug trafficking operation that distributed powder and crack cocaine in Lancaster County, Pennsylvania. Here, the Government presented overwhelming evidence that Vazquez
Under these circumstances, the evidence concerning drug quantity was “overwhelming,” and, as we explained in the preceding section, because Vazquez‘s sentence would not have changed absent the trial error, there is no reasonable basis upon which to conclude that the fairness, integrity, or public reputation of the judicial proceedings were seriously affected. Our holding is in accord with decisions from the First,13 Fifth,14 Seventh,15 Tenth,16 and Eleventh17 Circuits, in which panels considered the evidence adduced at trial and, under the fourth plain error factor, denied relief for Apprendi violations where the evidence was conclusive. Our holding is also in accord with a recent en banc decision of the Fourth Circuit.18 We therefore conclude that, in light of the undisputed evidence of drug quantity attributable to Vazquez and our determination that his sentence did not exceed the statutory maximum for the cocaine amount introduced at trial, the fairness, integrity, or public reputation of judicial proceedings were not seriously affected even though an Apprendi violation occurred in his case.19
Vazquez also challenges the supervised release term that the District Court imposed. He contends that the court incorrectly applied the 5-year minimum term of supervised release under
IV.
We have reviewed the additional points on appeal, which we identify in the margin and none of which require extended discussion. We find them all to be without merit.20
V.
Accordingly, for the reasons that we have set forth above, we will affirm Vazquez‘s conviction and sentence.
BECKER, Chief Judge, concurring, with whom Judge AMBRO joins.
Justice Frankfurter may not have been the first to observe that “[w]isdom too often never comes, and so one ought not to reject it merely because it comes too late,” Henslee v. Union Planters Nat‘l Bank & Trust Co., 335 U.S. 595, 600, 69 S.Ct. 290, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting), but he was surely right in so declaring. Had he the occasion, he might also have observed that sometimes belated wisdom does not arrive until a doctrinal
The doctrinal shift at work here emanates from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that “any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. This holding in turn exposed the instability of our prior holding that under
Today the Court partially retreats from our prior position in holding that, at least when drug quantity increases the statutory maximum penalty, it must, per Apprendi, be submitted to the jury and proved beyond a reasonable doubt. By not re-examining Gibbs and its progeny, however, the Court lets stand our interpretation of drug type and quantity as sentencing factors in all other instances. Indeed, by deciding this case on constitutional rather than statutory grounds, see opinion of the Court, antе, at 96, the Court implicitly signals that it is satisfied with our prior statutory construction of
It has become clear to me, however, upon reconsidering
In reaching this conclusion, I am guided primarily by the intent of Congress in drafting
I. Congress‘s Intent
A. Legislative History
In support of our prior conclusion that drug type was not an element of a
Congress enacted the original version of
Congress first included drug quantity as an operative fact in determining penalties for marijuana manufacture and distribution in its 1980 amendments to the CSA. See Infant Formula Act of 1980,
In 1984 Congress again amended the CSA to account for drug quantity for ille-
The last relevant major changes to the CSA occurred in 1986 when Congress, using the internal structure of subparagraph (b)(1)(A) of the 1984 amendments, created new subparagraphs (b)(1)(A) and (b)(1)(B) and included mandatory minimum sentences for offenses under those subparagraphs. See Narcotics Penalties and Enforcement Act of 1986,
Furthermore, the record reflects that Congress did not consider subparagraph (b) to lay out all of the elements of a
Immediately following the 1986 amendments, the Justice Department itself, which had been consulted by Congress throughout the amendment process, see H.R.Rep. No. 99-845, at 12 (1986), seemed to conclude that drug type and quantity were elements of separate offenses defined in
In addition to what Congress did, what Congress did not do in adding drug type and quantity in the 1980, 1984, and 1986 amendments is also informative. Specifically, Congress never expressly denoted drug type and quantity as sentencing factors to be determined by the judge and not the jury. See United States v. Brough, 243 F.3d 1078, 1079 (7th Cir.2001) (“[T]he statute [§ 841] does not say who makes the findings or which party bears what burden of persuasion.“). In contrast, in the aforementioned
In sum, Congress‘s failure to include drug type and quantity within its express sentence-enhancement provisions indicates its intent to treat these factors as elements of a crime. See United States v. McQuilkin, 78 F.3d 105, 108 (3d Cir.1996) (“It is a canon of statutory construction that the inclusion of certain provisions implies the exclusion of others.“) (“inclusio unius est exclusio alterius“).
B. Nomenclature and Structure of the Statute
In construing drug type and quantity as sentencing factors rather than elements, this court, as well as the other courts of appeals, have relied on the presence of the labels “Unlawful Acts” and “Penalties” preceding subsections (a) and (b) of the statute. See, e.g., United States v. Lewis, 113 F.3d 487, 490-91 (3d Cir.1997). This approach is deeply flawed. Although one of our sister courts has noted that this approach “took Congress at its caption,” Brough, 243 F.3d at 1079, a close examination reveals that the caption was never really Congress‘s at all. The original version of the CSA passed by Congress and signed by the President did not affix the label “Unlawful Acts” to
Even if the subsection titles had been оfficially adopted by Congress, we would be wrong to ascribe to subsection (b)‘s “Penalties” label the talismanic power to indicate that drug type and quantity are sentencing factors rather than elements of separate crimes. See Castillo v. United States, 530 U.S. 120, 125, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (noting that the
Furthermore, the wide variation in penalties for the manufacture and distribution of different combinations of drug type and quantity counsels in favor of construing these factors as elements. In two recent cases, Jones and Castillo, the Supreme Court observed that the degree to which the commission of a proscribed act increases the maximum penalty reflects Congress‘s intent to make the particular act an element or a sentencing factor. In Castillo, the Government argued that under
Likewise, in Jones, the Court considered “serious bodily injury” an element of the crime of carjacking rather than a sentencing factor under
II. Constitutional Doubt
Undergirding my interpretation of
Although I believe that the legislative history and statutory structure indicate that drug type and quantity are elements of a
Furthermore, in this case we cannot assume that Congress might have adopted such an unusual approach simply to avoid an Apprendi violation. See Rust v. Sullivan, 500 U.S. 173, 191 (1991) (explaining that the canon of constitutional doubt “is followed out of respect for Congress, which we assume legislates in the light of constitutional limitations“). Congress enacted the most recent relevant structural changes to
III. Administrability
While the foregoing discussion explicates my position, it is necessary that I respond to the suggestion that “the sky will fall” if my interpretation prevails. Requiring the prosecution to prove drug type and quantity to the jury beyond a reasonable doubt will not needlessly complicate the trial process. See Promise, 255 F.3d at 157 n.6 (“It will not be unduly difficult for juries to determine whether an offense involved a specific threshold drug quantity.“). Since Apprendi, federal district courts have proceeded in this manner, submitting special interrogatories to the jury for determination of drug type and quantity, and many have been operating in this manner since Jones. In the Appendix to this opinion I attach an example of a special interrogatory on drug quantity prepared by the Office of the United States Attоrney for the Eastern District of Pennsylvania and used without incident or problem by the judges of the district court since Jones. Furthermore, in some state systems, juries have been routinely performing this function for at least five years. See Promise, 255 F.3d at 157 n.6 (citing State v. Virgo, 190 Ariz. 349, 947 P.2d 923, 926 (1997); State v. Moore, 304 N.J. Super. 135, 698 A.2d 1259, 1264 (1997)).
Nor will requiring drug type and quantity to be proved to the jury unduly burden the defendant. Justice Breyer and others have objected to the interpretation I offer because it “could easily place the defendant in the awkward (and conceivably unfair) position of having to deny he committed the crime yet offer proof about how he committed it, e.g., ‘I did not sell drugs, but I sold no more than 500 grams.‘” Apprendi, 530 U.S. at 557 (Breyer, J., dissenting); see also United States v. Buckland, 259 F.3d 1157, 2001 U.S. App. LEXIS 17867, at *29-30 (9th Cir. Aug. 9, 2001) (quoting same). However, if drug quantity were classified as a sentencing factor for which preponderance of the evidence is the burden of proof, the defendant would lose the advantage of forcing the government to prove this oft-disputed
Even if the defendant would be advantaged by having the issue decided by a judge rather than a jury, as Justice Breyer contends, such is not the system envisioned by our Constitution. That system puts its faith in the fairness of a trial by a jury of one‘s peers. See Apprendi, 530 U.S. at 498 (Scalia, J., concurring) (“[I]t is not arguable that, just because one thinks [having a judge determine the facts that affect the length of a sentence] is a better system, it must be, or is even more likely to be, the system envisioned by a Constitution that guarantees trial by jury.“).
Additionally, I do not believe that my construction of
IV. Conclusion
APPENDIX
8. Drug case special interrogatories and verdict form re quantity
COUNT 1 (Conspiracy)
_______ Guilty
_______ Guilty
Jury Interrogatory Number One—Count 1 (Conspiracy) If you find the defendant guilty of the conspiracy charged in Count 1, please answer the following question:
—Do you unanimously agree, by proof beyond a reasonable doubt, that the quantity of cocaine base (“crack“) which was distributed and/or intended to be distributed as part of the conspiracy was 50 grams or more?
_______ Yes
_______ No
If your answer to this question is “yes,” that concludes Jury Interrogatory Number One. Do not go on to the next question on this page. Proceed to Count 2 of this verdict form.
If your answer to this question is “no,” please answer the following question:
—Do you unanimously agree, by proof beyond a reasonable doubt, that the quantity of cocaine base (“crack“) which was distributed and/or intended to be distributed as part of the conspiracy was five (5) grams or more?
_______ Yes
_______ No
COUNT 2 (Distribution)
_______ Guilty
_______ Not Guilty
Jury Interrogatory Number Two—Count 2 (Distribution)
If you find the defendant guilty of the distribution charged in Count 2, please answer the following question:
—Do you unanimously agree, by proof beyond a reasonable doubt, that the quantity of cocaine base (“crack“) which was distributed was 50 grams or more?
_______ Yes
_______ No
If your answer to this question is “yes,” that concludes Jury Interrogatory Number Two. Do not go on to the next question on this page.
If your answer to this question is “no,” please answer the following question:
—Do you unanimously agree, by proof beyond a reasonable doubt, that the quantity of cocaine base (“crack“) which was distributed was five (5) grams or more?
_______ Yes
_______ No
JURY FOREPERSON
SLOVITER, Circuit Judge, dissenting, with whom Judges MANSMANN, NYGAARD, and McKEE join, and with whom Judges ROTH and RENDELL join as to Part I.
The majority‘s opinion is based on the following logic: Vazquez was convicted after a jury trial of conspiracy to pоssess
There are many bases on which one might take issue with the logic of the majority‘s opinion, but I begin by approaching the majority‘s opinion on its own terms. That requires consideration of whether the Apprendi violation can meet the plain error inquiry.
I.
A.
The Apprendi Decision
Apprendi, who had fired several shots into the home of an African-American family, was charged in state court with, inter alia, two counts of second-degree possession of a firearm for an unlawful purpose and one count of third-degree unlawful possession of an antipersonnel bomb. Under New Jersey law, a second-degree offense carries a penalty range of 5 to 10 years of imprisonment. After Apprendi pleaded guilty to these counts pursuant to a plea agreement, the prosecutor, as permitted by that agreement, filed a motion to enhance Apprendi‘s sentence under New Jersey‘s hate crime statute which authorized an enhanced sentence upon the finding of a trial judge, by a preponderance of the evidence, that the defendant committed the crime with a purpose to intimidate a person or group because of race. See
The United States Supreme Court reversed. In reaching its conclusion, the Court noted among the “constitutional protections of surpassing importance” the provision of the Fourteenth Amendment that liberty can be deprived only with due process and the Sixth Amendment guarantee of a trial by jury, which entitle the defendant to a jury determination that s/he is guilty of every element of the crime beyond a reasonable doubt. Apprendi, 530 U.S. at 476. The Court cited to its earlier decision in In re Winship, where it stated: “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
The Apprendi Court examined the historical underpinnings of these principles and, while recognizing that discretion had been accorded to trial judges in their sentencing decisions, reasoned that such discretion cannot deprive a defendant at the time of sentencing “of protections that have, until that point, unquestionably attached.” Id. at 484.
Finding that the New Jersey statutory scheme under which a judge may enhance the punishment based on a finding by a preponderance of the evidence violated due process, the Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. In doing so, the Court rejected New Jersey‘s argument that racial bias was only a sentencing factor and not an element of the crime, stating: “the relevant inquiry is one not of form, but of effect—does the required finding expose the defendant to a greater punishment than that authorized by the jury‘s guilty verdict?” Id. at 494.
B.
Vazquez‘s Sentence
The count of the Superseding Indictment on which Vazquez was tried and found guilty, and which is at issue here, charges him with conspiracy to possess with intent to distribute, and to distribute, more than 5 kilos of cocaine in violation of
The majority concedes that
I do not understand why the majority‘s disposition is appropriate, necessary, or just. I note that in Apprendi, the Supreme Court, after finding that the procedure that led to the enhancement of Apprendi‘s sentence was unconstitutional,
The majority, however, after noting that Vazquez did not challenge the evidence of drug quantity or object to the court‘s failure to submit the issue to the jury,1 sustains the sentence that was unconstitutionally enhanced by applying the plain error standard. Under
The majority agrees that in sentencing Vazquez, the court committed error and that it was plain. It concludes that the error was harmless because Vazquez cannot show that the error affected his substantial rights. The majority bases that conclusion on its determination that the evidence established that Vazquez sold more than 5 grams, which is sufficient to carry a statutory maximum penalty under
Completing its plain error inquiry, the majority holds that even if the Apprendi violation affected Vazquez‘s substantial rights, he cannot establish the fourth factor, i.e., that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. The majority so holds because, it says, Vazquez was the leader of a drug trafficking operation that distributed cocaine in Lancaster County, and a rational jury would certainly have found that he conspired to possess and distribute more than the amount necessary to support a “slightly more than 24-year sentence pursuant to
C.
The Substantial Rights Inquiry
I agree with the majority that there was error in sentencing Vazquez and that it1
I find it curious that the majority never acknowledges that additional time in prison could affect substantial rights. In other contexts, courts of appeals have not hesitated to conclude that an error resulting in an increase in the defendant‘s sentence affected the defendant‘s substantial rights. See, e.g., United States v. Anderson, 201 F.3d 1145, 1152 (9th Cir. 2000) (“An error that results in a longer sentence undoubtedly affects substantial rights.“); United States v. Martinez-Rios, 143 F.3d 662, 676 (2d Cir. 1998) (finding clerical error which increased defendant‘s sentence by several months to affect substantial rights). Indeed, the Supreme Court recently held in Glover v. United States, 531 U.S. 198 (2001), that an increase in a defendant‘s sentence of at least six months was prejudicial in relation to an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984). Of relevance here, the Court noted that “any amount of actual jail time has Sixth Amendment significance.” Glover, 531 U.S. at 203; see also United States v. Knight, 2001 WL 1042458, (3d Cir. Sept. 6, 2001) (holding application of an incorrect sentencing guideline range affected substantial rights and was plain error even though sentence was also within correct range).
In Apprendi violation cases, numerous courts have recognized that extra prison time affects substantial rights. In United States v. Nordby, the Ninth Circuit stated that “[f]ive additional years of imprisonment were imposed beyond that authorized by this verdict, which easily affected [defendant‘s] substantial rights.” 225 F.3d 1053, 1060 (9th Cir. 2000). It reiterated that holding the following year in United States v. Buckland, 259 F.3d 1157, 2001 WL 893440, *9, reh‘g en banc granted, 2001 WL 1091167 (9th Cir. 2001) (“Imposing a sentence that is seven years more than the maximum sentence constitutionally permitted under the facts as found by the jury undoubtedly ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ “). Moreover, the Tenth Circuit in United States v. Jones, 235 F.3d 1231 (10th Cir. 2000), recognized that it “regularly has found reversible error when the sentence imposed by the district court exceeded the statutory maximum penalty applicable to the offense of cоnviction.” Id. at 1238. Even courts that did not ultimately reverse on the basis of an Apprendi error have recognized that prison sentences in excess of the applicable maximum affect substantial rights. See United States v. Promise, 255 F.3d 150, 150, 160-61 (4th Cir. 2001); see also United States v. Mietus, 237 F.3d 866, 875 (7th Cir. 2001) (assuming that Apprendi error that increased defendant‘s sentence by over 7 years affected his substantial rights); Nance, 236 F.3d at 825-26
Because the majority opinion would leave intact a sentence beyond the statutory maximum that was not based on a jury finding under the beyond-a-reasonable-doubt standard, thereby ignoring established constitutional principles, I cannot see how the effect could be other than to impugn the “fairness, integrity and public reputation” of the judicial process. The fact that the majority condones a process by which a judge usurped a determination within the jury‘s province strikes at the reputation of the judicial proceedings here. Cf. Apprendi, 530 U.S. at 498 (Scalia, J. concurring) (“Judges, it is sometimes necessary to remind ourselves, are part of the State.... The founders of the American Republic were not prepared to leave [criminal justice] to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.“) (parenthesis omitted).
In determining that Vazquez‘s substantial rights were not affected, the majority relies on the Supreme Court‘s decisions in Johnson v. United States, 520 U.S. 461 (1997), and Neder v. United States, 527 U.S. 1 (1999), where the Court held that erroneous jury instructions did not require reversal. However, the substantial rights inquiry in those cases was not the same as it is here.
In Johnson, the trial judge had instructed the jury that the materiality of the statements was an issue for the judge and not the jury to decide, and the defendant did not object to this instruction. Johnson, 520 U.S. at 463. After Johnson‘s conviction, the Supreme Court decided United States v. Gaudin, 515 U.S. 506 (1995), which held that the materiality of a false statement must be decided by a jury. Johnson, 520 U.S. at 463. The Supreme Court held that Johnson had not established the fourth prong of the plain error standard—that the error seriously affected the fairness, integrity or public reputation of judicial proceedings. In so holding, the Court noted that the evidence supporting materiality was overwhelming and that the defendant presented no plausible argument that her false statements under oath were not material. See id. at 470.
In Neder, thе error was similar, i.e., the trial court‘s failure to charge the jury on the materiality of the false statements or omissions for which the defendant was convicted. The defendant in Neder had objected to the instruction, so the Court‘s discussion on prejudice was in the context of a harmless error analysis. See 527 U.S. at 6-7, 15. The Court held there was overwhelming evidence of the materiality of the statements, and hence the omission of the charge was harmless error. See id. at 16-20.
In neither case was the sentence at issue; rather the issue was whether to uphold or reverse the jury‘s verdict of guilt. Here, we must decide whether an increase in prison time as a result of the error affects the defendant‘s substantial rights. As a result, those cases are inapposite here.
Instead of affirming the sentence on the ground that Vazquez‘s substantial rights were not affected, as the majority does, I
II.
In reaching its conclusion to affirm Vazquez‘s sentence, the majority rejects Vazquez‘s argument that the Apprendi error was a structural defect. Structural defects are per se prejudicial and pretermit the substantial rights inquiry. Johnson v. United States, 520 U.S. 461, 468 (1997). The majority reasons that ”Apprendi violations result in both trial and sentencing errors, albeit ones that rise to a constitutional dimension,” Maj. Op. at 104; that the Supreme Court has instructed that most constitutional errors can be harmless; that both trial errors and sentencing errors have been subjected to harmless or plain error analysis; and that therefore “an Apprendi violation is not a structural defect.” Maj. Op. at 104.
I believe the majority‘s syllogism is flawed and that the issue of an Apprendi violation as a structural defect merits more analysis than has been given to it in the cases, including even those cases that have reversed sentences imposed in violation of Apprendi and remanded for resentencing.
In Chapman v. California, 386 U.S. 18 (1967), even though the Court held that constitutional errors could be harmless, it also recognized that there are some constitutional errors that are not subject to harmless error analysis. Chief Justice Rehnquist referred to them in Arizona v. Fulminante, 499 U.S. 279 (1991), as involving rights “so basic to a fair trial that their infraction can never be treated as harmless error.” Id. at 308 (quoting Chapman, 386 U.S. at 23). Structural defects occur in a limited class of cases, such as where there has been a complete denial of counsel, see Gideon v. Wainwright, 372 U.S. 335 (1963), a biased trial judge,
Perhaps the Sullivan case best illustrates a structural error. As explained in Justice Scalia‘s opinion for a unanimous Court, a constitutionally defective reasonable-doubt instruction violated the Sixth Amendment right to trial by jury, a right that is ” ‘fundamental to the American scheme of justice.’ ” 508 U.S. at 277 (quoting Duncan v. Louisiana, 391 U.S. 145, 149 (1968)).
Sullivan was convicted by a jury following a charge that definеd a reasonable doubt in terms of “a grave uncertainty,” a definition that did not meet constitutional standards. Justice Scalia began his discussion why such an error was not amenable to harmless-error analysis with the principle that the most important element in the Sixth Amendment right to trial by jury is “the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty.’ ” Id. He continued, “although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence.” Id. (emphasis added).
Having established the constitutional principle, he then considered whether the Court could uphold the jury verdict on the basis of harmless error, stating that “[h]armless-error review looks ... to the basis on which ‘the jury actually rested its verdict.’ ” Id. at 279 (alteration in original) (quoting Yates v. Evatt, 500 U.S. 391, 404 (1991)). The inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Id. “That must be so, because to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee.” Id.
It appears that the majority in this case rejects the possibility that the Apprendi violation was a structural defect by reliance on the Supreme Court‘s decisions in Johnson and Neder. Johnson had argued that the error, the failure to instruct the jury that it must decide the materiality of the false statements, was a structural defect and therefore outside the scope of
In Neder, the Court undertook the analysis of structural defects it avoided in Johnson. The Court considered and rejected the defendant‘s argument that the error—the trial court‘s omission of an element of the offense from the jury instruction—was a structural defect. 527 U.S. at 8-15. The Court reviewed the numerous cases in which it held that various trial errors were not structural defects. Among those were cases dealing with improperly instructing the jury on an element of the offense, see California v. Roy, 519 U.S. 2 (1996), erroneous mandatory conclusive presumptions, see Carella v. California, 491 U.S. 263 (1989), and erroneous mandatory rebuttable presumptions, see Yates v. Evatt, 500 U.S. 391 (1991). Similarly, it noted that the Court had previously held that harmless-error analysis applies to the erroneous admission of evidence in violation of the Fifth Amendment‘s guarantee against self-incrimination, see Arizona v. Fulminante, 499 U.S. 279 (1991), and the erroneous exclusion of evidence in violation of the Sixth Amendment right to confront witnesses, see Delaware v. Van Arsdall, 475 U.S. 673 (1986).
The error in Neder‘s case was not a structural defect because it “[did] not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder, 527 U.S. at 9 (emphasis omitted). That is, “where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” Id. at 17.
Therefore, if the majority is correct that the error here was the failure to submit an element of the offense to the jury, then there would be no basis to argue that the error in this case was a structural defect. However, I believe that an Apprendi error is an error of a different dimension. There were at least two constitutional violations identified in Apprendi. One dealt with the issue of the respective roles of the jury and judge. See Apprendi, 530 U.S. at 477. The other dealt with the standard of proof, the requirement that the government prove a criminal defendant guilty beyond a reasonable doubt. See id. at 478. It is arguable that after Neder, a trial error that enables a judge, rather than a jury, to determinе one of the elements of the offense is not a structural defect, although Justice Scalia‘s dissent in Neder persuades me (albeit not a majority of the Court) that it should be so regarded.
In his Neder opinion, Justice Scalia characterized Johnson as standing “for the proposition that, just as the absolute right to trial by jury can be waived, so also the failure to object to its deprivation at the point where the deprivation can be remedied will preclude automatic reversal.” Neder, 527 U.S. at 35. Following Justice Scalia‘s reading of John
Nothing in either Johnson or Neder, or any other case of which I am aware, justifies treating the failure to apply the beyond-a-reasonable-doubt standard to drug quantity as anything other than a structural defect. That failure, I believe, is comparable to the structural defect in the constitutionally deficient beyond-a-reasonable-doubt instruction found in Sullivan. The Due Process Clause, Sullivan explains, requires that the prosecution persuade the factfinder “beyond a reasonable doubt” of the facts necessary to establish all elements of the offense. 508 U.S. at 277-78. If there is no jury verdict finding petitioner guilty beyond a reasonable doubt, “[t]he most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt.” Id. at 280. “That,” said the Court in Sullivan, “is not enough.” Id. And further, “[t]he Sixth Amendment requires more than appellate speculation about a hypothetical jury‘s action, or else directed verdicts for the State would be sustainable on appeal.” Id.
In Apprendi, the Court discussed separately the two rights—the one that requires trial by jury and “the companion right to have the jury verdict based on proof beyond a reasonable doubt.” 530 U.S. at 478. The Court commented, “The ‘demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula “beyond a reasonable doubt” seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.’ ” C. McCormick, Evidence § 321, pp. 681-682 (1954); see also 9 J. Wigmore, Evidence § 2497 (3d ed. 1940). Id. (quoting In re Winship, 397 U.S. 358, 361 (1970)). Apprendi reaffirmed the pronouncement in Winship that ” ‘the reasonable doubt’ standard among common-law jurisdictions ‘reflect[s] a profound judgment about the way in which law should be enforced and justice administered.’ ” Id. (quoting Winship, 397 U.S. at 361-62) (quotation omitted).
In the Supreme Court cases discussing structural defects, the Court consistently lists among the errors that it has found to be structural the defective reasonable-doubt instruction in Sullivan. It did so in Johnson and it did so in Neder. See Neder, 527 U.S. at 8; Johnson, 520 U.S. at 469. In contrast, in Vazquez‘s case, the trial judge made the finding of drug quantity by a
While it is true that the jury made findings sufficient to sustain a
RENDELL, Circuit Judge, dissenting.
I agree with Part I of Judge Sloviter‘s dissent. I write separately to express my4 view that the majority has written a new chapter in the book of plain error review of sentencing, and, I further suggest, has re-written Apprendi and Williams.
In Apprendi, the Supreme Court held that the New Jersey statutory scheme “cannot stand,” because, after the jury convicted the defendant of a second degree offense, the statute allowed a judge to impose punishment identical to what New Jersey provides for crimes of the first degree, provided that the judge found, by a preponderance of the evidence, that the defendant‘s purpose for unlawfully possessing the weapon was to intimidate his victim on the basis of a particular characteristic the victim possessed. 530 U.S. at 491-92. In Williams, we determined that an Apprendi error will only be found to have occurred if the judge actually imposes a sentence that is above a certain threshold, namely, the maximum sentence allowable for the crime of which the defendant was convicted. 235 F.3d at 863.
I submit that we ignore the teachings of both of these cases in issuing the majority opinion today. I say this because we are advocating the judicial determination of the proof that supports a certain sentence, contrary to the specific dictates of Apprendi, and we are forgetting that, in
Today, we are not requiring a new sentencing proceeding, nor are we even saying that a new trial should occur, which could arguably follow from the logic and language of Apprendi. Rather, we search for a way to uphold an offensive, unconstitutional sentence, although there is no intimation in Apprendi that such a sentence can ever be countenanced, in the first instance, let alone preserved by the jurists’ view of what may have occurred.
The majority‘s discussion of the “substantial rights” or “prejudice” inquiry that we must make under plain error review does not focus on the tenor and logic of the Supreme Court‘s opinion in Apprendi,3 but, rather, it reaches out and follows the reasoning of Johnson and Neder. However, in doing so, the majority overlooks the fact that the Supreme Court in Apprendi never alludes to Johnson or Neder, and we, in Williams, never intimated that this is an appropriate exercise. I submit that we were right in not doing so, since Johnson and Neder involved trial errors rather than sentencing errors such as that implicated in Apprendi and the instant case.4 Thus, the Court‘s method of analysis in those cases cannot be so easily imported into this distinctly different situation.
Neder involved the same error—the failure to submit the element of materiality to the jury—and the Court there determined that the error was subject to harmless error review. 527 U.S. at 8-9. In conducting its harmless error/prejudice inquiry, the Court applied the following test in view of the nature of the error at issue: “whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at 15 (emphasis added). The Court answered that question by reference to the trial record, and concluded that “no jury could reasonably find” that the defendant‘s actions were not material. Id. at 16.
Based on the Court‘s analysis in Neder, the majority pretends to ask the same question in assessing prejudice to the defendant, but it actually asks a different one: “whether [the sentence] would have been the same absent the failure to submit drug quantity for a jury dеtermination.” Maj. Op. at 104. However, given that I view the Apprendi error as having occurred at sentencing, and given the question asked in Neder (if we really are to draw on Neder as a guide), the appropriate question to ask in assessing the third element of the plain error analysis under Olano is whether, in the context of the sentencing proceedings, it appears beyond a reasonable doubt that the Apprendi error complained of—sentencing a defendant to a greater term of imprisonment than that permitted under the law—contributed to the sentence obtained. E.g., Sochor v. Florida, 504 U.S. 527, 540 (1992) (applying harmless error analysis and asking whether, in the context of the sentencing proceedings, a sentencing error ” ‘was harmless beyond a reasonable doubt’ in that ‘it did not contribute to the sentence obtained’ “) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)); Richmond v. Lewis, 506 U.S. 40, 49 (1992) (explaining when a sentencing error occurs, such as consideration of invalid aggravating circumstance, harmless error review requires courts to “actually perform a new sentencing calculus, if the sentence is to stand“); Parker v. Dugger, 498 U.S. 308, 319 (1991) (describing harmless error analysis in the context of sentencing proceedings as requiring a determination of whether the sentencing error “would have made no difference to the sentence“); Clemons v. Mississippi, 494 U.S. 738, 753 (1990) (stating that harmless
Similarly, in assessing whether we should correct the error under the last prong of Olano, the issue is not, as it was in Johnson, whether the trial proofs indicate that the fairness and integrity of the trial proceedings would not be impugned by the fact that judge rather than the jury made the determination at issue, given the strength of the evidence. Rather, given the language and logic of Apprendi, we should ask whether the error affected the sentencing in a way that affects the fairness and integrity of the judicial proceedings. And, unlike the situation presented in Johnson, our correction of the error would not result in the reversal of a conviction; rather, the remedy for the unconstitutionally imposed sentence is a remand for resentencing in accordance with the jury‘s verdict.
Clearly, one cannot read Apprendi without realizing that, not only are substantial rights affected by the Apprendi sentencing error,5 but also the public reputation of judicial proceedings is affected by the sentencing of a defendant to more prison time than the maximum permissible based on the crime charged and the jury‘s verdict. In Apprendi, the focus was on New Jersey‘s statutory scheme, and the Court was not faced with having to apply
To my mind, in order to read Apprendi in a way that would be what the majority holds today, we would have to read into, or add to, the Court‘s closing statement the following:
Of course, on the other hand, if reasonable jurists can determine from the record that the jury would have found the necessary element or sentencing factor beyond a reasonable doubt, then the jury‘s actual finding on that element, and its verdict, is not such an indispensable part of our criminal justice system. In such circumstances, the otherwise unconstitutional sentence may nevertheless stand.
I believe the tone and language of Apprendi preclude any such reading. In fact, the very language of Apprendi quoted by the majority seems to negate this idea. Maj. Op. at 98-99 (stating that the Court in Apprendi “endorsed the following concept: ‘It is unconstitutional for the legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.’ “) (quoting Apprendi, 530 U.S. at 490) (internal quotation marks omitted).
If we follow the logic of the majority, the government can charge and convict a defendant of manslaughter, but sentence him for murder, and, as long as the government produced evidence at trial that would support that sentence, we would not notice or correct the error under
For these reasons, I join in Judge Sloviter‘s dissent in Part I.
However I disagree with Judge Sloviter‘s conclusion that the error is structural, because it is, again, a sentencing error. It did not occur until the sentence exceeding the maximum allowed was pronounced. The error did not “infect the entire trial process” and “unnecessarily render [the] trial fundamentally unfair.” Neder, 527 U.S. at 8. I can find no Supreme Court opinion that suggests that a sentencing error can be “structural.” In fact, Judge Sloviter appears to fall some6
Richard GILLMAN, Appellant,
v.
WATERS, McPHERSON, McNEILL, P.C.; Estate of Jack Rosen, The.
No. 00-2111.
United States Court of Appeals,
Third Circuit.
Argued May 9, 2001.
Filed Oct. 24, 2001.
Notes
Id.(1) Sentence and disposition—If the court of appeals determines that the sentence—(1) was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate....
530 U.S. at 128. I fail to see any principled distinction between[I]nasmuch as the prosecution‘s case under
§ 924(c) usually will involve presenting a certain weapon (or weapons) to the jury and arguing that the defendant used or carried that weapon during a crime of violence within the meaning of the statute, the evidence is unlikely to enable a defendant to respond both (1) “I did not use or carry any firearm,” and (2) “even if I did, it was a pistol, not a machinegun.”
507 U.S. at 734 (alteration in original) (quotingThe third and final limitation on appellate authority under
Rule 52(b) is that the plain error “affec[t] substantial rights.” This is the same language employed inRule 52(a) , and in most cases it means that the error must have been prejudicial: It must have affected the outcome of the judicial proceedings.
(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
Justice Scalia closes his Neder dissent with the following quote from Blackstone,Neder, 527 U.S. at 39-40 (quoting 4 Blackstone, Commentaries *350). The majority states that we are presented with a combination of trial and sentencing errors. I am not sure what that means, and the majority has provided no supporting authority for its new category of error. Maj. Op. at 101. Clearly, we have a sentencing error, probably due to someone‘s error at trial—most likely, the government‘s—but I submit that there is no argument that the District Court actually committed error during the trial itself, and there has been no request for a new trial on that basis.However convenient [intrusions on the jury right] may appear at first, (as doubtless, all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread to the utter disuse of juries in questions of the most momentous concern.