Defendant Bobby Dion Woods was convicted by a jury of conspiracy to distribute, and to possess with intent to distribute, over fifty grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and of possession with intent to distribute over fifty grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The jury acquitted Woods of three other drug counts. In addition to the drug amounts for which Woods was convicted, the district court 1 attributed to him, under a preponderance of the evidence standard, amounts associated with counts on which he was acquitted. He was sentenced under 21 U.S.C. § 841(b)(1)(A) to 210 months’ imprisonment on each conviction, to be served concurrently.
Woods appeals his conviction and sentence, challenging the constitutionality of the statute under which he was convicted because it does not require the government to prove drug amount as an element of the offense and thereby violates
Apprendi v. New Jersey,
In
Apprendi,
the Supreme Court held that any fact other than a prior conviction that increases a penalty for a crime beyond the prescribed statutory maximum must be charged and proven beyond a reasonable doubt.
Here, Woods was indicted for and convicted of drug charges that specified drug quantities. Also, the provision under which he was sentenced provides a statutory maximum of life imprisonment, which his 210-month concurrent sentences are obviously well within. 21 U.S.C. § 841(b)(1)(A). Woods concedes as much, yet asserts that the statute under which he was convicted was facially unconstitutional because it requires no drug quantity to be proven.
In
Apprendi,
the Court was not concerned with statutory structure but with sentencing.
See
Woods further argues that his sentences are improper because, at sentencing, the district court took into account drug amounts specified in charges of which he had been acquitted, holding him responsible for such quantities based on a preponderance of the evidence. However, “even acquitted conduct can be considered when determining a sentence under the Sentencing Guidelines, so long as that conduct has been proved ... by a preponderance of the evidence.”
United States v. Madrid,
Next, Woods presents an equal protection challenge, arguing that 21 U.S.C. § 841(b) disparately punishes drug offenses involving crack cocaine as compared to those involving other cocaine forms. We have found this premise to be without merit on numerous occasions and do so here as well.
E.g., United States v. Patterson,
We also refrain from entertaining Woods’ ineffective assistance of counsel claim at this stage. Except where a miscarriage of justice would obviously result or the outcome would be inconsistent with substantial justice, ineffective assistance of counsel issues are more appropriately raised in collateral proceedings because they normally involve facts outside the original record.
United States v. Martin,
Finally, Woods challenges the sufficiency of the evidence underlying his conviction. He contends that he was convicted on evidence of his mere presence at drug-buy locations and that the only other evidence directly implicating him was testimony by the government’s co-conspirator witness, which, Woods asserts, the jury rejected as incredible based on its acquitting him of other counts. When reviewing claims of insufficient evidence, we examine the evidence in a light most favorable to the government, giving the government the benefit of reasonable inferences, and reverse only if we conclude that a reasonable fact-finder must have entertained a reasonable doubt about the government’s proof of an essential element of the offense.
United States v. Ivey,
A jury may acquit a defendant as to one or more charges for a variety of reasons, yet reasonably conclude that the defendant was guilty of other related charges.
Madrid,
The conviction and sentences are affirmed.
Notes
. The Honorable David S. Doty, United States District Judge for the District of Minnesota.