Lead Opinion
This appeal requires us to apply the Supreme Court’s recent decision in Apprendi v. New Jersey,
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.
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. Alga-rin 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 21 U.S.C. §§ 846 and 841, several related counts of obstruction of justice (including one under 18 U.S.C. § 1503), and two counts of witness tampering. The indictment specifically charged a drug conspiracy involving
The trial evidence, which included testimony based on a forensic lab analysis, established that police seized 991 grams of powder cocaine and 859 grams of crack cocaine from the Columbia rooming house.
At the sentencing hearing, the District Court adopted the factual findings and sentencing recommendations in the pre-sentence 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. § 2Dl.l’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. § 3Bl.l(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 21 U.S.C. § 846, with the object of distributing more than 5 kilograms of cocaine in violation of 21 U.S.C. § 841(b)(1)(A).
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 21 U.S.C. §§ 846 and 841. To explain the relationship between Apprendi and § 841, we will briefly review the Apprendi decision, and we will then detail how Apprendi was violated in this case.
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.
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 prescnbed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490,
In Vazquez’s case, drug quantity was neither submitted to the jury nor reflected in its verdict. Therefore, § 841(b)(1)(C) defines Vazquez’s prescribed statutory maximum sentence as 20 years. We indicated in United States v. Williams,
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 § 841(b)(l)(C)’s 20-year maximum term. According to Vazquez, the District Court committed reversible error when it imposed a more than 24-year prison term based on its own drug quantity finding, which was conducted under the less demanding preponderance of the evidence standard. As we stated previously, Vazquez neither challenged the evidence of drug quantity nor objected to the court’s failure to submit the issue to the jury. Moreover, he never argued that the sentencing court was constrained by the 20-year maximum found in § 841(b). Consequently, the plain error standard governs Vazquez’s request for relief. See Fed.R.Crim.P. 52(b); Johnson v. United States,
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,
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 Appren-di 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 Appren-di 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 Fed.R.Crim.P. 52(a)’s harmless error standard, as well as Fed.R.Crim.P. 52(b)’s plain error standard, each of which provides relief only if substantial rights are affected.
The parties dispute the nature of Ap-prendi 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 Ap-prendi 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,
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 Ap-prendi violation, drug.quantity becomes an element of the offense which a jury has not determined beyond a reasonable doubt. See Apprendi,
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
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
(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 bе harmless,” and that guidance applies here. Fulminante,
(0
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 are 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 bеtween 5 to 40 years. See 21 U.S.C. § 841(b)(l)(B)(ii)(II). Thus, the slightly more than 24-year sentence imposed here fell within the statutory limits applicable to a cocaine-only conspiracy given the drug amount established at trial. Cf. Edwards v. United States,
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 U.S.S.G. § 1B1.3 (1998); Edwards,
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:
[WJhere 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,
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,
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
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 cоnclude that the fairness, integrity, or public reputation of the judicial proceedings were seriously affected. Our holding is in accord with decisions from the First,
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 § 841(b)(1)(A), when the minimum term was actually 3 years under § 841(b)(1)(C). We note, however, that Vazquez did not raise this argument before the District Court and he did not brief and argue this issue before the panel that initially considered his appeal. Under these circumstances, we conclude that Vazquez has waived his right to pursue this issue here. See Atwater v. City of Lago Vista,
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.
V.
Accordingly, for the reasons that we have set forth above, we will affirm Vazquez’s conviction and sentence.
Notes
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
The parties originally argued this case before a merits panel of our court on December 15, 2000. However,-given the importance of the Apprendi issue, we elected to consider the case en banc priоr to the publication of the original three-judge panel opinion. See 3d Cir. I.O.P. 9.4 (2000).
. A discrepancy of 1 gram exists in the record as to the amount of powder cocaine. The trial testimony referred to 991 grams, while the District Court found the amount to be 992 grams. Because the 1 gram difference is of no substantive import in these proceedings, we will refer to the amount as 992 grams.
. Specifically, with regard to the drug conspiracy, the judgment of conviction identifies the “Title & Section” as “21 U.S.C. § 846,” and describes the "Nature of Offense” as "Conspiracy to Possess and Distribute More Than Five Kilograms of Cocaine.”
. Rule 52 provides in full:
(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.
. See United States v. Patrick,
. See United States v. Green,
. See United States v. Brough,
. See United States v. Poulack,
. See Hishaw,
. See United States v. Gallego,
. See United States v. Fields,
. Examples of structural defects include: (1) the complete denial of counsel, see Gideon v. Wainwright,
. See Terry,
. See United States v. Miranda,
. See United States v. Robinson,
. See United States v. Wilson,
. See Swatzie,
. See Promise, 255 F.3d 150, 2001 WL 732389, at *8-10 & n. 9.
. The Government presents the alternative argument that Vazquez should not prevail under the plain error standard because the District Court could have justified its 292-month sentence by imposing consecutive terms. According to the Government, even if Vazquez had been sentenced to § 841(b)(l)(C)'s'20-year maximum term of imprisonment on the drug conspiracy conviction, the District Court would have been required to impose a consecutive rather than concurrent sentence on the obstruction of justice conviction. See 18 U.S.C. § 3584(a); U.S.S.G. § 5G1.2(d) (1998). Thus, the Government submits, because Vazquez would have been subject to the same 292-month term of imprisonment through the imposition of consecutive sentences on the conspiracy and obstruction of
We decline to address this contention because we have determined on other grounds that Vazquez has failed to establish that he is entitled to plain error relief.
. Vazquez asserts that (1) the District Court’s pretrial disqualification of the attorneys he initially obtained, due to their alleged involvement in the charged obstruction of justice, violated his Sixth Amendment right to counsel of his choice; (2) his assigned pretrial counsel provided ineffective representation in failing to file a motion to suppress the key to the rooming house, and the District Court abused its discretion in denying as untimely a motion raising that issue that was filed shortly before trial by counsel that Vazquez had recently retained; (3) the District Court committed reversible error in denying his motion for a mistrial, and his subsequent motion for a new trial, which were based on alleged prejudice he suffered from the jury possibly having learned about his prior arrest for possession of a stolen firearm; and (4) the evidence is insufficient to support his conviction for obstruction of justice under 18 U.S.C. § 1503.
Concurrence Opinion
concurring,
Justice Frankfurter may not have been the first to observe that “[wjisdom 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.,
The doctrinal shift at'work here emanates from Apprendi v. New Jersey,
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, ante, at 96, the Court implicitly signals that it is satisfied with our prior statutory construction of § 841, and will continue to apply it in cases where no constitutional— i.e., Apprendi — difficulty arises. Cf. Ashwander v. TVA,
It has become clear to me, however, upon reconsidering § 841 in light of Ap-prendi, that our prior statutory construction ought to be abandoned altogether. I submit that drug type and quantity are always elements of an offense under § 841, and therefore must always be submitted to the jury for proof beyond a reasonable doubt. See United States v. Gaudin,
In reaching this conclusion, I am guided primarily by the intent of Congress in drafting § 841. In my view, Congress’s intent to make drug type and quantity elements of a § 841 offense is evident from the statute’s legislative history. It is also evident from the structure of § 841, which, when interpreted according to the canons of construction used by the Supreme Court to distinguish between offense elements and sentencing factors, indicates that Congress intended for drug type and quantity to be elements of an offense. The doctrine of constitutional doubt, which requires that “constitutionally doubtful constructions be avoided where ‘fairly possible,’ ” Miller v. French,
I. Congress’s Intent
A. Legislative History
In support of our prior conclusion that drug type was not an element of a § 841 offense, this court has noted that “[w]hile Congress could have enacted separate statutes criminalizing the distribution of particular controlled substances, it did not do so.” United States v. Lewis,
Congress enacted the original version of § 841 as part of the Controlled Substances Act (“CSA”) of 1970, Pub.L. No. 91-513, § 401, 84 Stat. 1242, 1260-62. In doing so, Congress’s intent was to unify in a single statute what was at that time a “plethora of legislation” creating drug offenses in diverse public health and revenue acts. H.R.Rep. No. 91-1444, in 1970 U.S.C.C.A.N. 4566, 4571; see also 116 Cong. Rec. 33,299-300 (1970) (statement of Rep. Springer) (describing the CSA as “a comprehensive approach” to the “big[ ] problem” of “many drug laws which have come about under different circumstances and with entirely separate and diverse histories”); id. at 33,304 (statement of Rep. Rogers) (explaining how the CSA “would consolidate all of the Federal drug laws into one act ... to enable more efficient administration of the laws”). Recognizing that enacting separate statutes for each type of drug would have been a needless legislative burden, Congress opted for the more efficient double-axis prosecution scheme, under which each act in violation of what is now § 841(a) (manufacture, distribute, etc.) could be prosecuted with respect to the different drug types. See, e.g., United States v. Grandison,
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, Pub.L. No. 96-359, § 8(c)(2), 94 Stat. 1190, 1194. Both the House and Senate Reports reflect that Congress intended quantity to function as an element with respect to marijuana offenses; they state, “Individuals convicted of trafficking in over 1,000 pounds would be subject to a maximum 15-year prison sentence and/or a maximum $125,000 fine.” H.R.Rep. No. 96-936, at 13 (1980); S.Rep. No. 96-916, at 14 (1980) (emphasis added). As evidenced by the language used in 21 U.S.C. § 851, which was passed as part of the original CSA in 1970, Pub.L. No. 91-513, § 411, 84 Stat. 1269, Congress can be presumed to have been aware of the traditional legal distinction between conviction and sentencing at the time it adopted these quantity thresholds. See 21 U.S.C. § 851(b) (noting that the proceedings to establish prior convictions shall be undertaken by the court “after conviction but before pronouncement of sentence”).
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 subpara-graphs. See Narcotics Penalties and Enforcement Act of 1986, Pub.L. No. 99-570, § 1002, 100 Stat. 3207-2. The legislative record indicates that during its discussion of the proposed amendments, Congress understood that prosecutors would be required to introduce evidencе of drug quantity during trial in order to obtain a conviction. See H.R.Rep. No. 99-845, at 12 (1986) (explaining that Congress had been informed by U.S. Attorneys that they would be able to meet the evidentiary burden for proving quantity to the jury).
Furthermore, the record reflects that Congress did not consider subparagraph (a) to lay out all of the elements of a § 841 offense; rather, Congress deemed drug type and quantity essential elements of a crime as specified in subparagraphs (b)(1)(A) & (B). The House Report, for instance, specifically notes that “[a] person convicted under those subparagraphs [ (b)(1)(A) & (B) ] shall not be eligible for parole until the individual has served the minimum sentences required by such sub-paragraphs.” Id. at 19 (emphasis added). Again, as noted above, Congress can be presumed to have been aware of the traditional legal distinction between conviction and sentencing. If Congress had intended for the drug types and quantities listed in § 841(b)(1)(A) & (B) to be sentencing factors, the accompanying legislative record would have referred to a person sentenced — rather than convicted' — under those subparagraphs.
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 § 841(b). See Handbook on the Anti Drug Abuse Act of 1986, at 20-21 (Dep’t of Justice Mar. 1987) (“1986 Handbook”). Notably, the 1986 Handbook repeatedly referred to “convictions” under the subpar-agraphs of § 841(b)(1), which lay out the penalties for the different drug types and quantities. Id. at 3-4, 6-7. Most importantly, the Department “recommend[ed] that where the enhanced and mandatory minimum penalty provisions of 21 U.S.C. §§ 841(b)(1) and 960(b), as amended, are based on the kind and quantity of drug involved in particular offenses ... both the kind and the quantity of the drug be specified in the indictment and proven at trial.’’ Id. at 20 (third emphasis added). I acknowledge that the Department only “recommend[edj” such an approach, and that it later retreated from this position. See, e.g., United States v. Jenkins,
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,
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,
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,
Even if the subsection titles had been officially 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,
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 18 U.S.C. § 924(c), which prohibits the use or carrying of a firearm in relation to a crime of violence, the particular type of firearm used by the defendant was a sentencing factor for the judge to determine. In rejecting this argument, the Court deemed it important that the mandatory penalty for using or carrying a machinegun was “six times more severe” than the penalty for using or carrying a mere “firearm,” such as a pistol, thereby demonstrating Congress’s intent to make each of these a “separate crime.”
Likewise, in Jones, the Court considered “serious bodily injury” an element of the crime of carjacking rather than a sentencing factor under 18 U.S.C. § 2119 in large part because it increased the authorized penalty by two-thirds.
II. Constitutional Doubt
Undergirding my interpretation of § 841 is the time-honored maxim that “constitutionally doubtful constructions should be avoided where ‘fairly possible.’ ” Miller v. French,
Although I believe that the legislative history and statutory structure indicate that drug type and quantity are elements of a § 841 offense, it is possible that Congress intended them to be sentencing factors for the judge to determine. See United States v. Buckland,
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,
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,
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,
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,
Additionally, I do not believe that my construction of § 841 will result in the overturning of the myriad convictions obtained where drug type and/or quantity were not proved to the jury beyond a reasonable doubt, thereby imposing huge burdens on the court system. Any appeal from such a conviction is likely to be reviewed under the plain error standard. Evidenced by the decision of this court today, plain error analysis will rarely result in the overturning of a conviction. Most of the other courts of appeals engaging in plain error review have similarly declined to exercise them discretion to reverse convictions that have violated Ap-prendi by not proving drug type and quantity to the jury beyond a reasonable doubt. See cases cited in opinion of the Court, ante, at 20 nn. 102-105. Even under the harmless error standard, the evidence of drug quantity adduced at trial, as the cases I have seen in the last decade suggest, is usually so overwhelming as to have not affected the defendant’s substantial rights. See, e.g., United States v. Lawson,
Construing § 841 in the manner explained, I nonetheless join the judgment of the Court because I believe, as set forth in Section II.B of the Court’s opinion, that the failure to submit drug quantity to the jury did not affect Vazquez’s substantial rights and that, even if it did, it did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.
APPENDIX
8. Dmg 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
. In Almendarez-Torres v. United States,
. Moreover, it seems to me that the kind of scenario feared by Justice Breyer is often intrinsic to criminal statutes in which penalties vary according to different elements. In Castillo, the Court concluded that the type of weapon used in violation of 18 U.S.C. § 924(c), which prohibits the use or carrying of a "firearm” in relation to a crime of violence, was an element of an offense under the statute. In an opinion written by Justice Breyer himself, the Court noted:
[IJnasmuch 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.”
. In this case, the indictment alleged drug type and quantity, so Vazquez cannot (and does not) raise the argument that the failure to allege drug type and quantity in the indictment raises different issues on review than failure to prove these factors to a jury beyond a reasonable doubt. Cf. United States v. Gonzalez,
Dissenting Opinion
dissenting,
The majority’s opinion is based on the following logic: Vazquez was convicted after a jury trial of conspiracy to possess
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 Ap-prendi pleaded guilty to these counts pursuant to a plea agreement, the prosecutor, as permitted by that agreement, filed a motion to enhance Apprendi’s sentenсe 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 N.J. Stat. Ann. § 2C:44-3(e) (West Supp.1999-2000). Based on Ap-prendi’s own statements made after his arrest, the trial court found that the shooting was racially motivated and sentenced him to 12 years of imprisonment. Appren-di appealed his sentence through the New Jersey courts, contending that the Due Process Clause requires that racial bias be proven to a jury beyond a reasonable doubt, but they upheld the enhanced sentence.
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,
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 “[ojther 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 prоved beyond a reasonable doubt.” Id. at 490,
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 21 U.S.C. § 841, and, following the setting forth of 10 paragraphs constituting the Overt Acts, states, “All in violation of Title 21 United States Code, Section 846.”
Section 841(a) is entitled “.Unlawful acts” and provides that “it shall be unlawful for any person knowingly or intentionally' — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” Section 841(a) does not prescribe penalties. It is § 841(b), entitled “Penalties,” that prescribes the range of penalties for certain quantities of controlled substances. Under § 841(b)(l)(A)(iii), the sentence for a defendant convicted of violating § 841(a) with 50 grams or more of a mixture containing cocaine base (i.e., crack cocaine) is not less than 10 years of imprisonment and no more than life. The sentence under § 841(b)(l)(B)(iii) for a defendant with 5 grams or more of a mixture containing cocaine base is not less than 5 years and not more than 40 years of imprisonment. Section 841(b)(1)(C), often referred to as the catch all provision, contains no drug quantity requirement and provides a maximum possible sentence of 20 years of imprisonment.
The majority concedes that § 841(b)(1)(C) “defines Vazquez’s prescribed statutory maximum sentence as 20 years.” Maj. Op. at 99. The majority then states: “The Apprendi violation occurred when the judge, rather than the jury, determined drug quantity and then sentenced Vazquez to a more than 24-year sentence.” Maj. Op. at 99. Surprisingly, it does not remand so that Vazquez can be resentenced to a sentence that does not exceed the maximum authorized by the statute. Instead, it devises a rаtionale to affirm the sentence that was arrived at in an unconstitutional manner.
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,
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 21 U.S.C. § 841(b)(l)(B)(iii) of 40 years imprisonment, more than the 24 plus years to which he was sentenced. The majority states that based on its consideration of the evidence “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.” Maj. Op. at 103-104. Therefore, the majority concludes that the Apprendi error did not affect Vazquez’s substantial rights.
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 § 841(b)(l)(B)’s 5-to-40-year sentencing range.” Maj. Op. at 105.
C.
The Substantial Rights Inquiry
I agree with the majority that there was error in sentencing Vazquez and that it
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,
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.”
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,
In determining that Vazquez’s substantial rights were not affected, the majority relies on the Supreme Cоurt’s decisions in Johnson v. United States,
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,
In Neder, the 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
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 preter-mit the substantial rights inquiry. Johnson v. United States,
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,
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.’ ”
Sullivan was convicted by a jury following a charge that defined 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 “[hjarmless-error review looks ... to the basis on which ‘the jury actually rested its verdict.’ ” Id. at 279,
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 Rule 52(b). The Johnson Court stated that “{i]t is by no means clear” whether the failure to submit an element of the offense to the jury was a structural error.
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.
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,
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,
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,
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.
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.”
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,
While it is true that the jury made findings sufficient to sustain a § 841(b)(1)(C) verdict under a beyond-a-reasonable-doubt standard, it did not so find as to the amount of drugs under any other provision of § 841(b). It is this defect, which, while it did not “infect the entire trial process,” Brecht v. Abrahamson,
. Because Apprendi was decided after Vazquez's conviction and sentence, it is understandable that Vazquez did not timely object in the District Court either before or after the instruction on the ground that drug quantity should be submitted to the jury. In United States v. Nance,
. In affirming the sentences, these courts shifted the inquiry from the effect on substantial rights to the discretionary question referred to in Olano, which was whether the error was one that "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings,”
. As the Neder majority observed, appellate inquiry into “whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element .... ‘serve[s] a very useful purpose insofar as [it] block[s] setting aside convictions for small errors or defects that have little, if any likelihood of having changed the result of the trial.' ” Neder,
. Justice Scalia closes his Neder dissent with the following quote from Blackstone,
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.
Neder,
. Although I believe that Chief Judge Becker’s concurrence may have much to commend it, it is not the rationale adopted by the majority opinion. I would therefore leave the question of the interpretation of the relevant drug statutes for decision in another case where the defendant's sentence is not inconsistent with the teaching of Apprendi, as the government concedes in this case.
Dissenting Opinion
dissenting.
I agree with Part I of Judge Sloviter’s dissent. I write separately to express my view that the majority has written a new chapter in the book of plain error review of sentencing, and, I further suggest, has rewritten 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.
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 Appren-di, 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,
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.
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 determination.” 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,
Similarly, in assessing whether we should correct the error under the last prong of Olcmo, 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,
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 Appren-di 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,
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 Rule 52(b) and require resentencing in accordance with the jury’s verdict. That result is not what Johnson and Neder stand for, nor is it what the Supreme Court envisioned. E.g., United States v. Promise,
For these reasons, I join in Judge Slovi-ter’s dissent in Part I.
However I. disagree with Judge Slovi-ter’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,
. 18 U.S.C. § 3742(0(1) provides:
(0 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....
Id.
. For example, we previously have addressed sentencing errors such as those implicated by a trial court's improper guideline calculation, and have found that such mistakes are sufficiently prejudicial to warrant relief under the plain error standard. E.g., United States v. Felton,
. As the Supreme Court explained in Olano\
The 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 in Rule 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.
. 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.
. As Judge Sloviter’s dissent points out, several of our sister circuits have recognized that an Apprendi violation constitutes an error that affects a defendant’s substantial rights. E.g., United States v. Buckland,
. As an aside, I should note that by concentrating on our divergence from Apprendi and Williams, I do not downplay the constitutional significance of the fact that Vazquez was never indicted for the crime for which he has been sentenced. As eloquently stated by Judge Motz in her powerful partial dissent in United States v. Promise,