United States v. Calvin Wayne Buckland

FCC, by the the court should particular resolution agency’s within erations “par- Cooper. issue is stay proceedings when the further expertise”; field discretion”; agency’s ticularly within two-year note that because the statute We danger a substantial exists and “there limitations for Brown’s federal action rulings”). inconsistent expired, see 47 U.S.C. Brown has may “unfairly disadvantaged” juris primary The doctrine court does not retain event the district confused with should not be diction resolution jurisdiction pending of exhaustion of administra requirement FCC. require does not remedies. The FCA tive plaintiff exhaust his administrative that a REMAND for fur- REVERSE and We to federal proceeding remedies before opin- proceedings ther consistent with providing a tariff. court to enforce ion. FCA, forum under the Con federal court not intend to made clear that did gress tar brought to enforce

require that suits by the FCC. Under

iffs first be decided pro may elect to plaintiffs

U.S.C. or in district the FCC

ceed either before

court. record so far It not clear from the America, UNITED STATES pres- complaint Brown’s compiled whether Plaintiff-Appellee, complex far-reaching the sort of ents the FCC’s properly that are within issues If jurisdiction. resolution primary BUCKLAND, Wayne Calvin straightforward involves a Brown’s claim Defendant-Appellant. tariff, the dis- interpretation of MCI’s filed No. 99-30285. competent to resolve the trict court will be However, to the FCC. claim without resort Appeals, Court of United States proceedings, we cannot stage at this Circuit. Ninth certainty the district say with whether Sept. Banc En Argued and Submitted eventually or all of should refer some court Francisco, 2001 — San California. to the for resolu- complaint Brown’s FCC tion. 18, 2002. Filed Jan. jurisdiction “requires the

Primary agency, a ‘referral’ to the

court to enable give as to

staying proceedings further so opportunity to seek parties reasonable Reiter v. Coo ruling.”

an administrative 258, 268,

per, (1993). Such a referral “does

L.Ed.2d 604 jurisdiction; it has deprive the court of or, jurisdiction if to retain

discretion either unfairly not be disadvan parties preju to dismiss the case without

taged, Here, 268-69, 113

dice.” Id. at court does decide that

if the district requiring issues

Brown’s claim involves Coleman,

Benjamin L. Federal Defend- Inc., CA, Diego, Diego, ers of San San support amici curiae in of the defendant- appellant. Hubachek, F.

Steven Federal Defenders Inc., CA, Diego, Diego, of San San amici support defendant-appel- curiae in lant. SCHROEDER, Judge,

Before: Chief REINHARDT, HUG, O’SCANNLAIN, TROTT, NELSON, KLEINFELD, T.G. TASHIMA, GOULD, PAEZ, and TALLMAN, Judges. Circuit TROTT; Opinion by Judge Partial by Judge Concurrence and Partial Dissent HUG; by Judge Dissent TASHIMA. OPINION TROTT, whom Judge, Circuit with SCHROEDER, Judge, Chief O’SCANNLAIN, KLEINFELD, GOULD, TALLMAN, join. and Judges, Circuit Judge joins except Circuit T.G. NELSON for Part B: IV 26, 2000, Supreme On June Court Apprendi Jersey, held in v. New 466, 490, 120 S.Ct. 147 L.Ed.2d 435 (2000),that prior “[o]ther than the fact of a conviction, any pen- fact that increases the alty for a prescribed crime statutory maximum must be submitted to jury, proved beyond and a reasonable Olbertz, Zenon P. Law Office of Zenon doubt.” Calvin Buckland asks us to con- Olbertz, Tacoma, WA, Peter for the defen- holding facially clude renders un- dant-appellant. 841(b)(1)(A), constitutional 21 U.S.C. Wilson, Douglas J. United States Attor- (B), provide the laws which in certain con- Office, Francisco, CA, ney’s plain- San for trolled for substance cases sentences be- tiff-appellee. yond 20-year imposed the basic maximum 841(b)(1)(C) Storm, by § Attorney’s for default cases where Arlen United States Office, Seattle, WA, plaintiff-appellee. sentence-determining for is not a fac- for drugs amount of gross alternative, argues Buckland In the tor. al- responsible was Buckland was examined which sentence his individualized him plain kilograms sentenced eight constituted most Apprendi light of in the appeal, re- we prison. On error, vacate months urges that we our sister conspiracy As convic- resentencing. have affirmed mand us,1 un- tions, we hold the firearm convictions circuits before vacated unconstitutional; we con- States, facially Bailey der United respect (1995), error that the clude L.Ed.2d 472 affect his did not sentence Buckland’s resentencing. and remanded Thus, his affirm rights. Buckland, 95-30147, substantial No. years. 27of U.S.App. LEXIS 28237 WL 1996) (unpublished). Cir. Oct. I remand, attempted to raise Buckland On one indicted on Buckland was objections, includ a number of metham- conspiracy to distribute count court relied on the district ing whether U.S.C. in violation phetamine, drug quantity inaccurate estimate of 841(b)(1)(A), pos- counts of three §§ level. Buck- his offense establishing base methamphetamine with intent session notwithstanding, the dis objections land’s 21 distribute, of U.S.C. in violation to a its consideration trict court limited (b)(1)(B), counts of 841(a)(1), three § issue, resen- enhancement firearm trafficking during a using a firearm months. Buckland Buckland to tenced 360 924(c). § crime, of 18 U.S.C. in violation the dis held that appealed, and we again the involvement alleged government The all of failing to consider trict erred court (1000) thousand of “one conspiracy in the We, objections. sentencing Buckland’s or a mixture substance or more of grams and remanded his again, vacated amount of meth- containing a detectable Buck v. resentencing. States United which, proved, properly if amphetamine,” 97-35687, 97-30204, land, 1998 WL Nos. As was life possible sentence. carries (9th 514852, LEXIS U.S.App. 20243 1998 however, in- jury was not customary, 1998) (unpublished). On Aug.14, Cir. any par- it had determine structed that remand, consid district court second methamphetamine ticular amount and sentenced objections ered Buckland’s jury con- The Buckland. to convict order months. him to 324 counts, on all seven victed Buckland ad- originally appeal, Buckland In this his report concluded that presentence (1) district several contentions: vanced on imprisonment based term maximum type on findings 841(b)(1)(A) court’s Using 846, was life. §§ (2) erroneous; standard, methamphetamine were evidence preponderance failing to decrease court erred district at sentenc- court determined the district 251, (6th Martinez, Cir. 00-1373, 256 n. 6 F.3d 253 Vigneau, No. v. See United States 2001); Brough, F.3d 243 273094, v. United States U.S.App. LEXIS 2001 2001 WL - denied, Cir.), 1078, (7th U.S. 13, 2001) cert. 1080 16619, (1st (unpub Cir. *3 Mar. at (2001); 203, -, 622, 151 L.Ed.2d 144 122 S.Ct. lished); Kelly, 272 v. F.3d States United 728, (8th Woods, 729 curiam); 270 F.3d Cir.2001) States v. (3rd (per United United 623 Cir.2001); Cernohyl, 255 F.3d 00-4423, v. McAllister, United States 272 F.3d v. No. States Cir.2001); 1215, (10th v. United Cir.2001); 228, (4th 1216 United States 232 (11th Candelario, Cir.2000), 16 1311 n. 581 Slaughter, 238 F.3d denied, Cir.), 121 U.S. denied, cert. 533 U.S. 532 cert. (2001). L.Ed.2d (2001); United States 149 L.Ed.2d (1997). acceptance responsibili- his sentence for 137 L.Ed.2d 718 plain Under the (3) ty; trial counsel rendered inef- standard, his error Buckland must establish supplemental fective assistance. his error, plain, that was and that affected briefs, argues Buckland Johnson, rights. his substantial See 841(b) § facially uncon- renders U.S.C. S.Ct. 1544. If Buckland stitutional and his sentence invalid. showing, may makes this exercise our discretion to correct the error if we government forthrightly acknowl- “ edges ‘seriously conclude that it hindsight the benefit of affects the fair twice, first, by ness, the district court erred integrity, public reputation judi failing drug quantity to submit the deter- proceedings.’” cial (quoting Id. finding mination to the for a beyond a Olano, 725, 732, States v. and, then, by reasonable imposing doubt (1993)). L.Ed.2d 508 unitary years sentence—27 excess —in 841(b)(l)(C)’s 20-year maximum any Ill unspecified methamphetamine. amount of DISCUSSION however, government disagrees, unconstitutional,

Apprendi makes Buckland contends that 841 is contending also that sentencing these er- facially Congress, unconstitutional. ar he and, thus, prejudicial rors were not do gues, formally intended without saying so require us to vacate and remand. drug quantity be determined preponderance evidence, II by jury beyond rather than a reasonable follows, submits, doubt. It he that be STANDARD OF REVIEW approach cause such an has Buckland’s case comes before us been by Appren rendered unconstitutional review, on direct entitling thus him to the Nordby, 1059, see 225 F.3d at those di Apprendi’s benefit of new rule. See Grif parts of the statute under which he was 314, 328, Kentucky, v. 479 U.S. 107 fith sentenced must fail. In support of his 708, (1987); S.Ct. 93 L.Ed.2d 649 United argument, correctly Buckland points out (9th Nordby, 1053, States v. 225 F.3d 1059 Apprendi virtually before everyone Cir.2000). error, plain We review routinely treated drug quantity however, object because Buckland did not “sentencing 841 as a factor” that to need the district court’s use of the preponder not be found a reason ance of the standard able doubt evidence in determin by properly Indeed, the amount methamphetamine. jury. instructed 52(b); every Fed.R.Crim.P. circuit Johnson v. United ques considered the States, 461, 466, 1544, 520 U.S. 117 own, S.Ct. including tion our so held.2 See, 953, 376, Lindia, e.g., (2000); States v. 82 F.3d United 121 S.Ct. 148 L.Ed.2d 290 1154, (1st Cir.1996); 151, 1160 Buford, United v. 108 F.3d States United v. 154 States 638, (2d Cir.1994); (8th Cir.1997); Reyes, 13 F.3d 640 Brinton, United United v. 139 States 487, Lewis, (3rd 718, (9th 1998); 113 F.3d 490 Cir. States v. F.3d 722 Cir. United States v. 1997); Dorlouis, 1317, Silvers, (10th Cir.1996); 107 F.3d United States v. 84 F.3d 1320 248, (4th Cir.1997); 1287, 252 Hester, United v. 199 F.3d States v. 1293 1272, Cisneros, (5th Cir.1997); (11th Cir.), 112 F.3d 1282 granted, judgment cert. vacated 898, 941, Caldwell, 336, 176 F.3d 900 United States v. 531 U.S. 121 S.Ct. 148 L.Ed.2d 270 (6th Cir.), 917, denied, (2000); 528 U.S. Williams, 120 S.Ct. cert. United States v. 194 F.3d 275, (1999); 100, (D.C.Cir.1999), 145 L.Ed.2d 230 denied, United States v. 102 531 U.S. cert. 910, 1178, Jackson, Cir.), 1156, 920 121 S.Ct. 148 L.Ed.2d 1017 cert. granted part, judgment 531 U.S. vacated (2001).

1179 Sylvania, Safety v. GTE Prod. Comm’n pre- this maintains that government The 108, 2051, Inc., 102, 64 100 S.Ct. intent 447 Congress’s U.S. reflects view (1980)). statutory lan- statutes. “If the enacting the federal 766 L.Ed.2d us, however, to “sever” urges of a in the absence government unambiguous, guage the statute from intent alleged Congress’s to the intent expressed legislative clearly the new resulting void fill the ordinarily must be language contrary, Al- by Apprendi mandated procedure Reves v. Ernst & regarded as conclusive.” unconsti- is not 841 hold though we 1163, 170, 177, 113 S.Ct. Young, 507 U.S. respectfully we respect, tutional (1993) (citations inter- L.Ed.2d 525 severance government’s suggest omitted). Where marks ,nal quotation at- errant as Buckland’s is as “solution” we look to the dispositive, not language is princi- to basic we resort explain, To tack. in the histo- “revealed congressional intent construction. ples of statutory scheme.” purposes of the ry and Barrett, 638, 494 U.S. us Co. v. instructs Fruit Supreme Court Adams must construction 108 L.Ed.2d “every reasonable to, mind, a statute in order to save (1990). guidance resorted With this v. Cali unconstitutionality.” Hooper from to the text foremost first and look fornia, 155 U.S. § 841. (1895); Miller see also L.Ed. what it striking most 841 is Section French, 327, 336, 120 S.Ct. specify not say. The statute does does (2000) courts (counseling L.Ed.2d 326 or iden- drug quantity determine shall who con “constitutionally doubtful avoid proof for burden of tify appropriate ac structions”). Thus, otherwise “if an Cir- The Seventh determinations. these statute construction ceptable Brough: much in observed as cuit problems, constitutional serious raise interpretation say an alternative who makes does not where statute [T]he obligated we are ‘fairly possible,’ party statute bears what or which findings prob such statute to avoid Instead, to construe law persuasion. burden Cyr, 533 U.S. v. St. INS lems.” facts, it to the leaving attaches effects (2001) 2271, 2279, L.Ed.2d out who determines judiciary to sort Benson, Crowell (quoting no facts, It makes burden. under what (1932)). 285, 62, 76 L.Ed. 598 52 S.Ct. a sin- whether difference constitutional unfet give us obligation does This covers both elements gle subsection statute to rewrite a prerogative tered they are divided whether penalties, legisla “ignore or to to save it order (as § 841 subsections multiple across Miller, at U.S. it. 530 will” behind tive they scattered does), are or whether Rather, 341, “[w]here 2246. 120 S.Ct. (see 18 U.S.C. statutes multiple across clear, we its intent has made Congress 1963). 924(a), §§ Id. at to that intent.” give effect must F.3d at 243 Re 336, (quoting Sinclair 120 2246 S.Ct. 195, 215, Atkinson, 370 U.S. v. fining Co. hand, the other Apprendi, on (1962)). 1328, 440 L.Ed.2d 8 82 ex- under examination Jersey statute New “ sentenc- a hate crime provided for plicitly for inter starting point ‘[T]he based imposed to be ing enhancement of the language statute preting ” by a court the trial upon finding Tillamook Hallstrom itself.’ statute 530 See the evidence. 304, preponderance 25, 110 S.Ct. County, 493 U.S. material 2348. This at (1989) Consumer U.S. (quoting L.Ed.2d believe, difference, Yet, distinguishes sentencing judge. Buck- factors to a conceptual pigeon-holing simply land’s case. interferes itself, language with the of the statute essentially has The Tenth Circuit effectively supplementing the statute with adopted the Seventh Circuit’s view this provisions appear in print. nowhere scheme, statutory saying, “[slection federal labeling We find such in this context not 841(b) question on the itself is silent only inappropriate, misleading. but See in im- procedures courts are to use what Apprendi, 530 at U.S. S.Ct. 2348 provisions, and therefore plementing its (describing the distinction between ele- way in no the rule conflicts ments of the sentencing offense and fac- explicit terms of the statute.” with tors “constitutionally as novel and elu- at Cemobyl, 255 F.3d 1219. The Tenth sive”); but see Almendarez-Torres correctly “Apprendi noted that ... Circuit States, 224, 226, legislatures long- does not hold can no United (1998) separate provisions gov- er have (attaching L.Ed.2d 350 erning a substantive offense and sentenc- relevance to the characterization of a stat- factors, § as is the case in 841.” Id. provision ute’s as either an element of the factor). Indeed, offense or a as Although the text of the statute is recognized far back as 1984 our Circuit dispositive, Buckland directs our attention “penalty that a provision” enhancement headings appear also to the which is not an element of the crime statute, contending they support his 841(b)(6), charged, specifically § 21 U.S.C. reading respectfully it. disagree. of We can be in an included indictment and sub- headings We note that “Unlawful mitted to a for a decision as to the appear Acts” and “Penalties” that in the existence of the facts that make the en- part United States Code were not applicable hancement sentencing. As legislation by Congress. Compare enacted Judge Hug correctly observed: “[Section Comprehensive Drug Abuse and Preven 841(b)(6), provides for increased tion and Control Act of Pub.L. No. punishment 91-513, 401, quantities marijuana ex- 84 Stat. 1260 with 21 U.S.C. (b). 841(a), 1,000 ceeding pounds] headings clearly These labeled a were insert margin ed as ‘penalty1 provision, States, 227, in Jones United 526 U.S. (9th Cir.), 1167 by vacated 265 F.3d 1085 233, 119 S.Ct. 143 L.Ed.2d 311 (9th Cir.2001), Apprendi eschews the dis- (1999), the “look” of this is statute not a tinction between sentencing factors and guide congressional reliable to intentions. elements of a crime: “the relevant inquiry form, is one not of but emphasis

Buckland’s on the statu of effect—does required finding expose the defendant to a 841(a) tory divide between “elements” in punishment greater than that authorized “penalties” or “sentencing factors” in 841(b) by jury’s guilty similarly Apprendi, verdict?” unavailing. He rea sons that 530 Congress finding (emphasis committed the U.S. at 120 S.Ct. 2348 added). of elements to a and the finding of agree: “Ap- Our sister circuits [necessary facts of the jury the assessment jury- to us to submit compels prendí range penal- prescribed a de increase may to] increase that of fact questions is ex- criminal defendant to which a regardless ties penalties, to exposure fendant’s ” at Apprendi, an element posed.’ fact is labeled that of whether States, Cernobyl, 255 v. United (quoting Jones sentencing factor.” or a 227, 252-53, 1219; F.3d at 1080. 119 S.Ct. Brough, 243 526 U.S. F.3d at (1999)). indeed, is, tall splitting be It too hair semantical L.Ed.2d days of “sen a facial offense” and Buckland to mount order for “elements an tween see, Arreguin v. factors,” e.g., by asking first us challenge to tencing Cir.2000) to attack. purports F.3d he Prunty, change the face (“[T]he is whether question plastic sur- crucial exercise This recommended consti at issue here through-the- in a special engage circumstance us to gery invites a sentenc the crime or by grin tutes an element search lured looking-glass that factor.”), extent would, over. To the cat, are an adventure which an elusive contrary, it is holds to law indeed, our case be curious.

overruled. Circuit was that the Tenth We believe the heart of today’s decision it said that at for correct when support

findWe Evans, argu- 68 Cernobyl’s 333 U.S. now Buckland’s— —and (1948), a case unconstitutionality is an as- 92 L.Ed. 823 ment pre- amici curiae. our by Buekland’s are bound sumption on that we relied here, case, parties agreed as both these statutes holdings objective punishing sought drug quantity an Congress commit determination — unautho- harbored prepon- concealed or finding who under those for a appear not did Cemobyl, aliens—which rized See standard. derance § 144. However, 8 U.S.C. Apprendi’s statute. See text of the at 1216. F.3d Nevertheless, Court declined Supreme Process Clause has of the Due reading to include the statute holdings precedential construe these stripped it was uncertain objective because it missing is that has simple fact value. The the rele- have drafted Congress Congress, would which judiciary, how not been reasoned: The Court determin- provisions. responsibility vant allocated § 841 to the ing drug quantity statute] in the alleged hole [plug To indeed, However, important the most upon the go very far courts. be to Supreme process For in this wording of the section. court sheer —the now, si- has, add remained up that we would until in effect would mean Court — may un- the words courts have concluding Congress clause to the lent. that, It a matter of reading accepted inserts.... government’s derstood may have in- be decid- Congress could possible procedure, this, one rea- un- jury. for more than but not a Such judge, tended ed that fact. son, however, represent sure of cannot be does derstanding, legislative pur- pellucid kind of the same Evans, 634. Sim- Jersey in the New intent found pose and add a distinc- asks us to ilarly, Buckland More- Apprendi. down statute struck that not this statute feature to tive identify any per- over, fails to Buckland it, but, as we can as far appear does not shows history legislative suasive in discussed tell, or was never debated also procedure clearly intended Evans, Congress in As did the Court Congress. as unconstitutional. attacks he now simply Congress this invitation. decline “ the statute Thus, reading of our because from the ‘re move purposefully not did 841(b)(1)(A)(vii). § obliged jury we are to so Because the deter “fairly possible,” it. Nordby construe mined harvested a able” amount of “measurable detect government’s dispose We marijuana triggering a maximum sen- — easily. A more sever argument severance 841(b)(1)(D)— years tence of five under only when we confront arises ance issue “ by judge’s preponder- determination containing] unobjec Congress ‘an act of Nordby’s ance of the evidence increased separable from those provisions tionable ” years maximum sentence from five to life. unconstitutional.’ Alaska found to be Indeed, actually the court him sentenced Brock, 678, 684, Airlines, 480 U.S. Inc. years, jury’s to ten five more than the (1987) 1476, 94 L.Ed.2d 661 107 S.Ct. Time, Inc., findings supported. Regan U.S. (quoting (1984) 82 L.Ed.2d 487 104 S.Ct. Applying Apprendi, panel found (citation quotation and internal (plurality) plain error and remanded for resentenc- omitted)). marks “Unless is evident decision, In ing. reaching panel would not Legislature that the have enact Congress “clearly drug held that intended provisions ed those which are within its factor, quantity sentencing to abe not an not, independently of that power, which is 841; element of the crime under part may dropped if the invalid be what is susceptible contrary statute is not to a fully operative (quot left is as a law.” Id. interpretation.” Nordby Id. at 1058. used Valeo, 1, 108, ing Buckley v. “sentencing factor” label as basis (1976) (per 46 L.Ed.2d 659 cu concluding Congress quan- committed riam) (citations quotation and internal tity judge finding for a omitted)). marks preponderance of the evidence. To present Section does not severance Nordby the extent that is inconsistent with Congress issue because did not unconstitu- opinion, it is overruled. tionally commit determination of judge to a for a finding by a aim to give Our remains effect to preponderance of the evidence. As dis- Congress’s That appar intent. intent earlier, cussed that commitment was made ramp up punishment ent: for con judiciary, legislature. trolled substance offenders based on the short, nothing there is to sever from the type illegal and amount of substance in is, government’s position statute. The volved the crime. honor We the intent therefore, without merit. Congress requirements and the of due acknowledge We the tension between process by treating drug quantity and position expressed our here and that type, which fix the maximum sentence for There, Nordby. we reviewed the defen- conviction, any as we would other mate §§ dant’s conviction under 21 U.S.C. prosecution: rial fact in a criminal it must marijuana 846 for various of- —related indictment, charged submitted to fenses. The district court instructed the jury, subject evidence, to the rules of long “as government convict as the proved beyond a reasonable doubt. proves beyond a reasonable doubt Harris, generally See United States v. defendants manufactured a measurable or — (4th Cir.), granted, F.3d 806 cert. marijuana.” Nordby, detectable amount of -, (2001) L.Ed.2d 578 225 F.3d at 1056. At sentencing, (granting “brandishing” review on whether Nordby responsible found for 1000 of a firearm as plants, exposing or more thus him to a used 18 U.S.C. 924(c)(1)(A) prison years term of ten to life alleged must be the in-

1183 approximately eight a quantity of reasonable nation beyond a proved dictment submitting issue doubt). kilograms without substantially affect the jury did not IV govern- The proceedings. outcome of the not even one need also notes that ment ERROR PLAIN ' his disputed testimony of ac- consider that concedes government The this decision because complices making error; af constituted sentence Buckland’s methamphetamine seized amount of judge’s determination Apprendi, ter from Buekland officers enforcement law maxi increases the which drug quantity gram the 500 threshold himself exceeded is the defendant to which mum sentence containing a or for a mixture substance conviction is crime of under the exposed drug. amount of detectable Johnson, 520 error. “clear” “obvious” (“[W]here 467-68, 1544 117 S.Ct. U.S. at argument second government’s The was settled and time of trial at the the law mandatory consecutive that at the time clearly contrary to law 5G1.2(d) § would re provisions U.S.S.G. an error be enough appeal if even Buck- —it in a 324 month sentence sult consider of appellate time ‘plain’ at the charged had been land 52(b)). ation.”) Fed.R.Crim.P. (quoting 841(b)(1)(C), per-count carries a which nevertheless, that argues, government The (240 years 20 sentence maximum because and remand vacate should not months). govern proposition, the For this substantial did not “affect this error decision Unit relies on our recent ment 468, 1544. 117 S.Ct. Id. at rights.” (9th Kentz, 835, 842 F.3d 251 ed States deter words, sentencing judge’s other 05, Cir.2001), Nov. petition cert. filed in a Buekland prejudice did not mination 01-7238). (No. agree with the We 2001 “ of the outcome ‘affected the manner contentions. basic government’s ” v. Ola States proceedings.’ ... Cir.1995) (quot no, F.3d A. Olano, 507 ing United L.Ed.2d EVIDENCE RELIABLE (1993)). QUANTITY OF two argument of first government’s The sepa- on three arrested Buekland was evidence the uncontested is that tendered 1993; Febru- December occasions: rate doubt beyond a reasonable proves February 16, 1994; ary of meth- in an amount trafficked Buekland pos- of a the basis became occasion Each that needed far excess amphetamine count in intent to distribute session statutory maximum trigger conspir- and the core indictment 841(b)(1)(A). imprisonment under of life him as convicted allegation. acy section, who commits person Under Report, un- The Presentence charged. or grams “50 involving act an unlawful that on respect, reflects challenged in this ... or methamphetamine more of 7, 1993, possession had his he December substance or more of mixture grams on methamphetamine, Feb- grams of metham- amount containing a detectable on 16, 1994, grams, he had ruary ... be sentenced shall phetamine additional 100 February may not be imprisonment term of these amounts total of grams. than life.” or more years less than the 500 grams 841(b)(l)(A)(viii). Thus, main- alone—over U.S.C. —exceeds produces trigger gram judge’s determi- government, tains the only did Buekland B. of life.3 Not maximum objection an to these register fail to 5G1.2(d) § STACKING amounts, “Objections in his formal to but Report and Government’s the Presentence yet There exists another basis on April dated Sentencing Memorandum” to conclude that Buckland’s sentence did for Buekland’s third prepared rights. affect his not substantial counsel Mr. sentencing hearing, his Obertz him, conspira convicted addition to the wrote, assuming appropriate “Even com- counts, cy charge, of three substantive amounts claimed position the various [of which, given Apprendi and the circum by accomplices], his the defendant asserts case, exposed him at stances of this sen calculation appropriate guide lines tencing on each count to a maximum stat kilograms 32 i.e. 1-3 would be level (240 months). utory years term of 20 added). methamphetamine.” (emphasis However, the district court determined Furthermore, the district court asked 2D1.1(a)(3) § that his under U.S.S.G. sen attorneys beginning at the Buckland’s tence should be 324 months based on a if sentencing hearings each of the three combined offense level of 36 and Guide they evidentiary hearing, wanted range line of 320 to 405 months. As response nega- each time the was in the (4th Angle, United States F.3d tive. — Cir.) (en denied, banc), U.S. -, cert. As we said United States v. (2001), 122 S.Ct. 151 L.Ed.2d 230 Romero-Rendon, Sentencing Guide “[t]he judges rely lines to at on allow the district court [h]ad been aware when any long information ... so as it has suffi it sentenced the maxi- [Buekland] reliability support cient indicia of its penalty mum drug trafficking for his We find such reliable indicia to make Buekland tence. tion and internal course, equals amount required under probable accuracy.” 220 F.3d One kilogram Cir.), 148 L.Ed.2d 546 cert. quotation denied, eligible methamphetamine, grams, marks for a life sen (b)(1)(A)(viii) (2000) (cita this record. twice omitted). 1161— ing a term of 240 months or terms to be served by the Guidelines. achieve the total count of conviction and conviction court 5G1.2(d) ^[324] ] to achieve the months [per would have imprisonment by impos- count] punishment guideline consecutively was 20 ordering obligated less mandated on each years, those [the process Id. at 518. This is known as Thus, only whether we look at the un- “stacking,” previously and we have ac- challenged methamphetamine amount of Kentz, knowledged validity its authorities, by taken from Buekland any where we held that error in a at the amount conceded attor- his 160 month sentence was harmless for a ney respect testimony to the of the counts, twenty-one defendant convicted of witnesses, accomplice appears beyond all maximum, five-year with a each because doubt error in this case 5G1.2(d) require consecutive sen- did not proceed- affect outcome of the and, ings, accordingly, punishment tences achieve the total cal- did affect Buck- rights. land’s substantial culated the Guidelines. government’s Sentencing any 3. The Memorandum amount where in the record is 565.4 grams, grams, weight fixes the amount at 749 also in excess identified as the total net gram methamphetamine possession. threshold. The smallest seized from his Thus, for that count. maximum Kentz, on United relied denied, (4th Cir.), implicated. cert. is not White, F.3d 537 238 L.Ed.2d 150 532 U.S. White, is a controlled substance which (2001). the it clear that makes White count conspiracy one involving case process are understanding this keys to intent to distribute possession with the one in First, calculating in sentences two. count, stacking explains and distribution cases, findings drug of separate two 5G1.2(d) § follows: made, the one under must be quantity statute, under then another relevant multiple counts of con- In the case of that Apprendi dictates Guidelines. the viction, that if the guidelines instruct the statute must be under the drug quantity by mandated the punishment total (in case), jury but by the found statutory highest the guidelines exceeds authority the not alter Apprendi does maximum, im- court must the district statutory the to sentence within judge the imprisonment pose consecutive terms by Congress. See United range provided necessary to achieve the to the extent Lewis, 218-19 States v. See punishment. total U.S.S.G. — denied, U.S. -, Cir.2000), cert. 5G1.2(d). example, suppose a de- § For (2001) (holding L.Ed.2d offenses, three is convicted of fendant Ap- announced rule the constitutional statutory maximum term of each court prohibit a district does not prendi months) (60 If imprisonment. years five of the finding, by preponderance from the the district court determines evidence, application to the facts relevant guide- under the sentence appropriate lines). where To determine of the Guide 5G1.2(d) months, requires § lines is imposed, sentence to be fix the actual terms on imposition of consecutive the the calculates under the guide until the each count of conviction yields in turn offense which Guidelines is achieved. punishment lines a number months level and here, is principles Applying these by determined If the sentence sentence. rights substantial that White’s evident maxi- statutory exceeds the Guidelines imposition by the were not affected count, on the sentence given on a mum on imprisonment term 360-month course, count, by is limited Even if White of conviction. each count hand, if Guide- ceiling. On other penalty for maximum correct that the is exceeds the lines calculation months, the was 240 of his offenses each involving in a case any count maximum have been obli- would still district court counts, provi- mandatory then the multiple guideline gated to calculate 5G1.2(d) play regard- into come sions of quan- finding regarding by making a consecutive question sentences. to White. of narcotics attributable tity understanding key to This is the second And, light of its determination 5G1.2(d) solely is concerned stacking: punishment total White’s multiple sentencing on question of with the impris- months should be 360 guide lines counts, consecutive including sentences. would have onment, district court 3D1.5, fact, grouping covers that total to reach sen- obligated been cases, count refers multiple imprison- a term of by imposing tence once the combined Chapter Five judge to or less on each months ment of 240 has been determined. When offense level ordering those count of conviction followed, not one approach consecutively to to be served terms exceeds consecutive sentences stacked It punishment implicated. mandated would not be follows as the total achieve guidelines. night day any failure of the indict- allege quantity ment in this case to added). (emphasis Id. possession counts was immaterial. See understanding of this inside-the- Our Price, 265 F.3d at 1108. the Su- approach fortified Guidelines holding United States preme Court’s

Watts, C. (1997). The Court held L.Ed.2d 554 INTEGRITY, FAIRNESS, AND sentencing judge, in deter- that a case apply en- mining whether to PUBLIC REPUTATION hancement, consider conduct of could Finally, we to even were assume acquitted, had so which the defendant been that the error here did affect substantial adequately had long as that conduct been rights, would affirm nonetheless be we preponderance of the evi- proved cause, given the evidence and the record The dence. Id. at S.Ct. 633. to, have referred the error did not we allowing for an enhance- Court’s reason fairness, “seriously integrity, affect the ment to be added to the defendant’s base public reputation judicial proceedings.” an notwithstanding acquittal level offense Johnson, 469-70, 520 at 117 was that a sentence enhancement does Cotton, 1544. But see United States v. 261 punish a “not defendant crimes 397, Cir.2001), F.3d 403-04 cert. convicted, which he was not but rather — 803, U.S. -, granted, 122 S.Ct. 151 his sentence because of the man- increases (2002) (holding that L.Ed.2d 689 “failure to in which he committed the crime of ner charge drug quantity in the indictment and 154, conviction.” Id. S.Ct. 633. jury” seriously it to submit affects the imposition Similarly, of consecutive fairness, integrity public reputation and sentences, each for a term not in excess of judicial proceedings so that the court maximum, punishes the de- recog should discretion to “exercise[its] fendant for manner in which com- he error”). holding in nize the Our this re objective mitted the crimes based on the gard analysis follows our quantity standard of determined under United States 2Dl.l(a)(3)(C)(2) (9th Cir.1998) (en Quanti- § (Drug Keys, U.S.S.G. 133 F.3d 1282 Table).4 ty banc), as amended 143 F.3d 479 and denied, 891, 153 F.3d cert. 525 U.S. conclude, therefore, if We that even (1998), L.Ed.2d 173 Buckland had been indicted where concluded that the failure of the 841(b)(1)(C), § judge, U.S.C. the trial us- district court to submit element of the 5G1.2(d), ing the Guidelines and inconsequential offense to the was him required have been sentence to 324 (1) proving because the evidence that ele sentences, up months made of consecutive (2) overwhelming, ment was the defen each which would not have exceeded 20 rule, therefore, years. part dant did not contest of his de- Price, (6th Cir.2000), Page, 4. See also United States v. 265 F.3d 232 F.3d cert. (10th Cir.2001) ("Because denied, 5G1.2(d) mandatory provision is a ... [t]he (2001) 5G1.2(d) (using L.Ed.2d 1032 required impose district court would be stacking approach despite Apprendi to affirm twenty-year terms on defendant’s seven Ervasti, error); United States v. convictions and to run these sentences ... (8th Cir.2000) (explaining 1045-46 consecutively, resulting in a total consecutive 5G1.2(d)). implementing § years."); United States type dence was insufficient to establish the failure of Buckland’s fense. Given issue until any quantity methamphetamine, they have no merit. counsel to raise then his sentencing hearing and third AFFIRMED.' minimum amount was that the concession no- of the conditions kilogram, both one HUG, Judge, Concurring Circuit in this case. Keys appear ticed Dissenting. Judges Circuit REINHARDT join part Judge and T.G. NELSON V of accomplices testimony of Buckland’s Hug’s opinion: conspired he drugs about the the intent possessed to distribute Basically, agree majority I with the certainty re- strengthens our to distribute B, exception with the of Section IV fairness, public integrity garding I I from which dissent. concur in the judicial proceedings. of the reputation judgment. fairly indicates that Buck- The evidence opinion correctly III Section de- nine directly responsible over land was termines that Section 841 is constitutional however, court, kilograms. The district 841(b)(1)(A) and that Sections and conservatively discounted wisely and 841(b)(1)(B), forth increased which set of the record on a review amount based drug quantity maximum sentences for and concluded, any discrepancies resolving and charged in the indictment type, must be favor, figure that the should in Buckland’s jury beyond a proved to a reasonable The dis- kilograms. than seven be more I with section III is doubt. Where differ respect, calculations in this trict court’s I that those believe sections preponderance stan- although based on the offenses, prescribe separate aggravated dard, fully supported by the record appear though they penalties, are labeled as even court’s number and accurate. The district quantities specified and the are elements gram fourteen times the 500 is least aggravated offenses. The of those threshold. fall appears to conclude these sections Buckland has failed to Accordingly, category into a new denominated “sentenc- sentencing error that the show charged in the ing factors” that must be proceedings of these affected the outcome jury beyond to a proved indictment and we affirm his requires resentencing, or doubt, reasonable but are not elements of months. sentence aggravated crimes. I believe this unneces- V sarily complicates inquiry this case application Section 841 in future and the CONCLUSION cases. sum, “fairly possi- that it is In we hold Supreme applying recent Court provi- give § 841 and its various ble” to cases, proper inquiry is whether the a constitutional construction. Our sions crime” or “elements of a statute describes facially the statute is not decision factors,” though they “sentencing even course, unconstitutional, of results in felici- may sentencing as factors be labeled' unanimity among the United States tous is that Appeal. penalties. importance We conclude of this Circuit Courts determining Buck- any case, error in also criminal such as this any federal land’s 324 month sentence was harmless. one, the statute once we determine offense, it is then describes elements of (1) claims that he

As to Buckland’s other federal criminal of- any treated as other points acceptance was entitled charged must be (2) fense. The elements ineffective responsibility, he received (3) indictment, jury beyond counsel, proved to that the evi- assistance of and is responsible grams for over 500 doubt, conviction the is upon reasonable 841(b)(1)(A). under the United of a violation of Section guilty sentenced defendant quanti- Sentencing jury Guidelines. not instructed to find was States overwhelming there was evi- ty, however precedent as Supreme Court Treating grams possessed that he over 500 dence “sentencing category of establishing a new (he grams with 749 personally was found jury to a proved must be factors” that 1,000 not grams). He did and admitted than as doubt rather beyond a reasonable jury on object to the failure to instruct the crimes, has of certain recognizing elements thus, under the we review quantity, cir- opinions other judges some led jury standard. Because charging quantity plain error indicate that cuits to necessary, or that grams is not have found over 500 in an indictment to a doubt, submitted quantity must be did a reasonable the error I not on others. occasions and on some rights his substantial under affect Supreme that the Court it is clear believe plain error doctrine. simple distinction concerned with justified in sen- judge 4. The was then and sentenc- crime between elements un- tencing aggravated him for the crime it has found occasions and that factors 841(b)(1)(A), which carries der Section actually involved es- in which the statutes prison. maximum of life in though of a crime even elements tablished required to sentence 5. The was factors. they are labeled Sentencing him case as my approach I to this outline Guidelines, properly which he did. He follows: at an offense level of 36 with a arrived majority opinion agree 1. I with IV, pro- history category criminal of in 21 quantities specified U.S.C. sentencing range a of 324 months to vides (B) 841(b)(1)(A) §§ facts that state defendant 405 months. He sentenced the in an charged indictment must be months, to 324 which is within the statuto- jury beyond a proved to the reasonable ry prison, maximum sentence of life in doubt, though they labeled as even are 841(b)(1)(A). provided in Section sentencing factors. is all that decided and 6. This need be 841(a) combined with Sec- 2. Section the decision of the district court should be 841(b)(1)(C) one offense when tion states affirmed on this basis. methamphetamine is less

the amount of standpoint 7. From an administrative 841(b)(1)(B) grams. than 50 Section states this works well for the review cases when the amount of meth- another offense already key tried. The which have been grams and is amphetamine exceeds less (a) 841(b)(1)(A) inquiries aggravated are whether the grams. than 500 Section indictment, charged amount of offense was in the states a third offense when the (b) methamphetamine grams. jury reasonably exceeds 500 find or whether did quantities methamphetamine The beyond a could have found reasonable grams of the basic Section exceed the quantity required for the of- doubt 841(a) aggravated are elements of offense requirement If is not met fense. either alleged that must in the indict- crimes be only then the defendant can be sentenced jury beyond a rea- proved ment and to a for which he was indicted for the offense sonable doubt. jury guilty. found him which the This would be the basic offense charged of Buckland

3. The indictment 841(a) provided 1,000 Section with methamphet- grams him with 841(b)(1)(C). charge This is sufficient to that he under Section amine. 841(b) proved jury must be to a standpoint Section From an administrative

8. also would work well approach Although a reasonable doubt. Sec- The defendant would prosecutions. 841(b) future tion is contained under the label with the charged in the indictment “Penalties,” specify does not the statute the three of- required for one of judge jury whether the or the is to make (Section in Section 841 fenses embodied or the determination under what burden of 841(b)(1)(A), 841(a), or Section Section proof, open interpreta- thus it is to a fair 841(b)(1)(B)). quantity charged If was that, tion in order to unconstitution- avoid offense, a of the most serious for violation ality, quantities must be a determined 841(b)(1)(A), only quantity required but jury beyond a reasonable doubt. prov- of the lesser offenses was for either en, guilty could find the defendant II. offense under a lesser includ- of that lesser offense instruction. ed Elements Crimes. Sentencing Guidelines. sentence under My disagreement majority first with the I dissent from the alternate basis opinion is that it indicates that the Su- speci- of the district court the affirmance preme category Court cases create a new majority opin- B TV of the fied Section penalties of criminal enforcement — ion, unnecessary, it is but because charged in an must be indictment and questionable sound- also because proven jury beyond reasonable ness. Supreme that the doubt. I believe Court I. saying opinions its recent that certain statutes contain elements of crime even The Provisions Section 811 they though penalties are mislabeled as are Constitutional. sentencing factors. majority opinion agree I statute, interpret reasonably if we should importance of this distinction is two un- possible, so as to save a statute from (1) opinions fold: in other circuits Some majority opinion constitutionality. As the category this as a new have also treated out, Supreme recently points the Court quantity and indicated that the need have Cyr, emphasized this in INS v. St. 533 U.S. (2) indictment; alleged not in the some be 2271, 2279, 150 L.Ed.2d 347 a opinions have also treated this as new (2001), stating: category quantity and concluded that the acceptable an construction [I]f otherwise if jury only to the the need be submitted of a statute would raise serious constitu- maximum, sentence exceeds a an problems, tional and where alternate in quantity thus need be submitted some interpretation “fairly of the statute is not in others. cases and obligated ... we to con- possible,” are not true of I hasten to note that this is problems. strue the statute to avoid such majority opinion, which states: the apparent from statute that Con- It is the Congress honor intent of and the We the overarching provide intent was to gress’ by requirements process treating of due greater punishment offenses fix drug quantity type the quantity drugs larger. the when maximum sentence for a conviction as majority opinion’s analy- I agree with the any material fact in a we would other reasonably and sis that Section 841 can prosecution: charged criminal it must be constitutionally interpreted be to mean indictment, jury, in in the submitted to separate quantities that identified significant It is Id. evidence, at 2090. S.Ct. rules of subject Castillo, and Almendarez-Tor- Jones a doubt. that beyond reasonable proved dealing with the inter- res were all cases necessary to treatment the exact This is In statutes. criminal pretation of federal crime, a and thus I an element prove was the distinction each of these cases opinion does not puzzling it find and a sen- of a crime acknowledge between an element simply factor, is an element an of a new circumstances the creation tencing those problem with crime. The aggravated of a criminal enforcement category for nei- category, separate this as a treating proven jury.” to a “sentencing factor to be a of a crime nor sentenc- ther an element Jones, stated Supreme Court majority factor, from the arises not ing 232, 119 at S.Ct. the indictment it treats in which opinion a on the determination that Much turns exactly they as factors proof of these an fact is an element of offense rather they if were elements of treated be consideration, sentencing given a than arises with the problem a crime. charged be elements must they opinions where in other treatment indictment, jury, to a submitted charged in the indict- may not have be beyond a proven by the Government required proved to be may or be ment think While we reasonable doubt.... doubt some jury beyond reasonable 2119 treats reading the fairest Section but not others. circumstances bodily harm fact of serious has Supreme Court my opinion In enhancement, element, not a mere inquiry clear that quite it made possibility of the other recognize the of a crime is between elements these cases prompt- Any might view. doubt factors, sentencing acknowledging that arguments for that other read- by ed a crime be mislabeled as can elements should, however, against be resolved Castillo v. United sentencing factors. In rule, affirmed, repeatedly States, susceptible (2000), that “where statute opening paragraph L.Ed.2d 94 very plain. constructions, point grave makes this one of which two questions arise and wheth- and constitutional again case we decide once in a criminal statute are questions er words federal the other of which such (determined by create offense elements avoided, adopt latter.” duty our is to (deter jury) factors Id. See Jones United by judge). mined Apprendi, Similarly in 530 U.S. States, 227, 119 526 U.S. S.Ct. (2000), L.Ed.2d (1999); Almendarez-Torres L.Ed.2d 311 charge of a firearms issue was conviction States, 224, 118 S.Ct. ten a sentence of that bore maximum (1998). 1219, 140 L.Ed.2d 350 The stat- pursuant to an- years, was but enhanced 924(c) (1988 question, ute in 18 U.S.C. allowed the other state statute that V), ed., the use or car- supp. prohibits if it a to increase the involved a rying a “firearm” relation to crime apparent in the hate crime. It is also violence, penalty and increases Apprendi opinion justices were dramatically weapon used or when drawing a distinction be- concerned with is, “machinegun.” example, carried for a crime and tween elements of conclude that statute used We clearly set forth factors. This is most (and words) “machinegun” word similar Thomas, concurring opinion of Justice separate of a of- to state element “This case turns on the in which he fense. wrote simple question larceny aggravated what consti- is an seemingly petit form of ” at tutes a ‘crime.’ Id. larceny. aggravating fact is an el- all of the constitu- 2348. He then related aggravated ement of the crime. Simi- that are afforded to a protections tional if larly, legislature, rather than cre- charged defendant who has been with a crimes, ating grades provided has stated, crime, “All of these constitu- setting punishment of a crime based protections determining turn on tional on some fact—such as a fact that is ‘crime’—that which facts constitute the is proportional to the value of stolen ‘ingredi- which facts are the ‘elements’ or goods fact is also an element. —that ents’ of a crime.” Id. at statutes, parsing No multi-factor 2348. Justice Thomas then further em- the sort attempted that we have since phasized that the essential determination McMillan, necessary. is One need is between elements of crime and sen- kind, degree look to the or range of tencing factors. punishment prosecution to which the Sentencing may enhancements be new by law entitled creatures, given set of facts. question they but create for courts is not. have necessary Courts Each fact for that entitle- long had consider which facts are ment is an element.

elements in order to determine the suffi- 500-501, 120 Id. at S.Ct. 2348. ciency (usually of an accusation in an indictment). The answer that courts Justice Thomas’s statement that the in- provided regarding have the accusation quiry is whether a factor anis element of is, tells us what an element and it is then crime is confirmed footnote 19 of the simple apply matter to that answer to majority opinion where it is stated: right may whatever constitutional the term [W]hen ‘sentence enhancement’ Winship

issue in a case—here and the is used to describe an increase right by jury. long to a trial A line of essentially authority uniform addressing- the maximum authorized sen- accusations, stretching from the ear- tence, it equivalent is the functional reported the founding liest cases after greater an element of a offense than the Century, until well into the 20th estab- jury’s guilty one covered verdict. original understanding lishes Indeed, squarely it fits within the usual which facts are elements was even definition of an ‘element’ of the offense. adopts broader than the rule the Court (THOMAS, J., post See at 2369-2370 today. concurring) (reviewing the relevant au- authority This establishes thorities). every “crime” includes fact that imposing increasing law a basis for Id. at 494 n. 120 S.Ct. 2348. The (in punishment a fact contrast with that majority also stated: Thus, mitigates punishment). if the point that labels do not afford an [The legislature defines some core crime and acceptable applies as well to the answer] provides increasing punish- then for the constitutionally novel elusive distinc- that upon finding ment of crime a ‘sentencing tion between ‘elements’ aggravating some fact—of whatever Despite appears ... factors.’ what to sort, including prior the fact of a con- us the clear ‘elemental’ nature of the aggra- viction—the core and the crime here, inquiry factor the relevant is one vating fact together ag- constitute an crime, form, gravated just grand much re- as as not of but of effect—-does the by proof must be established to a such facts expose the defendant finding quired beyond reasonable doubt.’ a than authorized that punishment greater verdict? jury’s guilty by the 490, 120 2348. Id. at Id. at parse to that important It is statement meaning the full in order to determine interpreta- has arisen the Confusion Apprendi that cre- the Court. The belief case because Apprendi tion of the simply rather than category, ates a new determining that it is recognize to failure statutory provision whether a determining a constitutionality of state the criminal just and not a of a crime is element are statute, and Jones Castillo whereas factor, following from the sentencing flows interpretation federal the dealing with than quotation: that “Other sentence from It is that both clear statutes. criminal conviction, any fact that prior a the fact of Jones, federal dealing Castillo beyond a penalty the crime increases whether statutes, determining are criminal must prescribed the maximum is an element provision the statute a proved beyond jury, to a be submitted sentencing a factor. the or is crime (emphasis add- doubt.” Id. a reasonable just quoted from that I have passages ed). is also Apprendi Apprendi make clear'that the It be remembered that issue must ele- with the distinction between concerned a statute which re- was Apprendi before sentencing factors. crime and of a ments of fact that did increase quired finding a gives rise Apprendi that The statement beyond for a state crime penalty misinterpretation that is to a mean statutory maximum. That does not category criminal sen- creating a new crim- general applicability it has federal proved factors that have tencing offenses, that inal with the limitation jury, beyond a reasonable doubt to sentencing only provisions labeled as such simply being elements of opposed to jury have to be submitted to factors that sentencing that are mislabeled as crime prescribed that exceed “the stat- are those following: factors is the Instead, con- utory Id. maximum.” passage that is the trolling segment of sum, reexamination of our cases our is un- “[I]t broader from Jones: quotation area, history upon and of the in this legislature for a to remove constitutional they rely, confirms the jury the assessment of facts from than expressed in Jones. Other prescribed range of penalties increase the conviction, any fact prior fact of a exposed.” a criminal defendant is to which penalty for a crime increases the un- According Apprendi, Id. one such statutory maxi- beyond prescribed act for a state to increase constitutional jury, must be submitted to mum penalty pre- for a crime beyond a doubt. proved reasonable having a statutory maximum and scribed exception, we endorse With issue, than the fact rather decide in the of the rule set forth statement jury. it to a That is not the submitting opinions in that case: concurring ‘[I]t provi- in which such a circumstance legislature to re- unconstitutional as a is re- sion labeled -factor from the move assessment jury. submitted to a quired to be prescribed range increase facts by a defen- view is penalties to which criminal This broader confirmed majority opinion: of the equally passage It clear that later exposed. is dant 15, (quoting clear 490 n. appears to us the S.Ct. United Despite what here, Reese, 214, 232-33, factor the nature of the States v. 92 U.S. ‘elemental’ (1875)). not of form but inquiry Similarly, opinion relevant one L.Ed. 563 the finding expose required effect—does in Castillo states that if the fac- punishment greater crime, the defendant to a separate tors define a “the indict- jury’s by guilty authorized than that identify ment must a [element] and verdict? proved beyond must find that element Castillo, a reasonable doubt.” 530 U.S. at at 2348. Id. 123, Supreme 120 S.Ct. 2090. The Court importance recognizing that we also “that after an indictment has said has determining the elements of an offense are charges may been returned its not be criminal is that it is in this federal statute through except broadened amendment any other federal criminal to be treated as U.S., grand jury itself.” Stirone v. indict- charged It must be offense. 270, 215-16, L.Ed.2d ment; jury beyond proved it must be (1960). case) (in jury doubt a reasonable imposed must be accordance Promise, In United States v. 255 F.3d Sentencing Guidelines.1 with the U.S. (4th Cir.2001) (en banc), 161-164 Judge acknowledged require- Wilkins A. ment, it a requirement but concluded was Necessity an Indictment plain that could be avoided under the er- right Judge per- has a constitutional to ror standard. Motz wrote a A defendant charges elaborating on suasive dissent on the essen- be tried and convicted requirement tial of an element of the presented in an indictment and returned being charged by grand jury. Apprendi, As noted crime the indictment and allega- inability constitutionally contain an to convict a indictment must “[T]he legally a crime for which he was not every tion of fact which is essential defendant of inflicted,” charged. judges Id. at 186. Three con- punishment to the to be Id. agree labeling pen- At our circuits these elements of crimes as least two of sister penalty provisions of Section declaring the various alties results in them to be unconsti- 841(b) crimes with differ constitute different tutional. In the Jones case the Court noted Strayhorn, ent elements. See States v. United support legislative history that some from (6th Cir.2001); 250 F.3d Congress provi- the enhancements intended Doggett, States v. 164-65 sentencing factors. Committee sions to be Cir.2000). Judge opinion also Tashima’s reports referred to the bill as and floor debate 841(b)(1)(A) agrees provisions single penalties apparently for an "enhanced However, (B) are elements of the offense. Jones, carjacking 526 U.S. at offense.” requires opinion states that this a conclu acknowledged 119 S.Ct. 1215. The Court sion that those sections are unconstitutional. possible interpretations other that there were my important aspect view the of the statute statute, wording of the but resolved is that it does not state whether the essential interpretation repeated oft rule its "trader the by facts for those sections are to be decided susceptible of two 'where a statute is jury. can be or a Thus statute constructions, by grave one of which interpreted to avoid doubt. constitutional questions doubtful constitutional arise and regard legislative history, With to the it is questions other which such are avoid- Congress quite punish intended to clear ed, duty adopt (quoting our is to the latter.' greater larger quanti offenders to a extent for Attorney United States ex rel. General v. Dela- Congress drugs. ties of It is not clear that Co., 366, 408, & Hudson ware having was determined intent on (1909)).” Id. at my knowledge 53 L.Ed. 836 judge. To cir no other 119 S.Ct. 1215. cuit court reaches conclusion not jury to indict grand A will have cuit. and three others dissent in her eurred crime, for cer- of a but only the con- for elements but affirmed point, agreed on this Thus, factors, jury seven of the will sentencing grounds. tain on other viction Judge only agreed with to find not judges instructed the have to be the eleven regard point crime, to sen- this certain on of a but also Motz’s dissent elements doubt. beyond a tencing the indictment. factors reasonable complication should unnecessary be This every element of a firmly agree I identi- Supreme the Court’s given avoided charged in an indictment must be crime sentencing fac- mislabeled fication of these so cannot be overcome to do a failure of crimes.2 tors as elements my In doctrine. plain error under the view, the States a simple it is United —in B. of a crime for convicted person cannot be properly charged. not been he has which “Beyond Interpretation Brough, v. 243 F.3d States United Statutory the Prescribed ” (7th Cir.2001), opinion the Maximum. should post-Apprendi “a indictment states noted, misinter- As I have in- must be the trier fact specify, and only if the sen- meaning that preted as determine, only the ele- not structed to statutory “beyond prescribed the tence is appear offense, which ments of the be submitted maximum” need 841(a), listed in also the events but example of this is jury. An to the 841(b) relies prosecutor to on which ease, States Circuit recent Third maximum This sentence.” establish Cir.2001) (en (3rd F.3d 93 Vazquez, 271 process complicates unnecessarily stated, banc). opinion majority “The expected is not grand when a occurred when the Apprendi violation crime, of a but also identify the elements jury, than the determined judge, rather factors. types sentencing This certain Vazquez and then sentenced drug quantity when, I unnecessary as completely have sentence, 24-year to a more term than out, Supreme identifies pointed Court prescribed 20-year statuto- in excess his as ele- factors sentencing these mislabeled 811(b)(1)(C).” Id. ry maximum Thus, the indictment ments of a crime. added). Thus, the viola- (emphasis at 99 identify the elements of merely has to the sen- Apprendi depended upon tion of crime, jury is to find and the instructed maximum, exceeding the tence whether the beyond reasonable doubt prior with a Third which was in accordance charged, crime guilty of the defendant is Circuit case. confused with the awk- need fac- determining “sentencing wardness of opinion, concurring Judge Becker’s tors” a reasonable doubt. (which neces- joined by Judge Ambro was majority decision of en sary for the majority I opinion, I believe As read court), that: cir- stated would banc this awkwardness exist However, even in Judge Hug, of a crime. majority element opinion me, however, It has become clear to verdict?” guilty Apprendi, 530 upon reconsidering § in light Ap- of 494, 120 S.Ct. 2348. inquiry The should prendi, prior statutory that our con- governed by not be whether judge’s ought struction to be abandoned alto- sentence exceeded statutory maximum. gether. I drug type submit that and quantity always are elements of an of- III. I

fense 841.... believe that 8Ul(a) (b). under Sections and Offenses drug type quantity and should not be I earlier, 841(a) As mentioned treated as Sections only element-like factors (b) they set forth prescribed separate when increase the statu- three offenses tory maximum. applicable 841(a) to this case. Section is the basic punishable offense under Section Id. at 108. He then did extensive ex- 841(b)(1)(C) unspecified for amounts of of legislative amination Section 841’s histo- methamphetamine up ry grams. to 50 legislative and stated that the The history statutory next most serious structure indicate that offense is under Section 841(b)(1)(B) type quantity are elements of a Sec- when the of amount metham- tion 841 offense. acknowledged He phetamine grams exceeds 50 but is less Congress possibly could have intended oth- grams. than 500 The most serious offense erwise, but concluded this comment. with 841(b)(1)(A) is under Section when the credulity, however,

It strains to assert of methamphetamine amount exceeds 500 that Congress type intended for If grams. only indictment is for a quantity to be sentencing treated as fac- 841(a) violation Section quantity with no tors some cases and as elements in specified, then a sentence under Sec- I others. know of no statute written in 841(b)(1)(C) tion is applicable, which manner, such a nor I any am aware of statutory maximum years. is 20 If the way. statutes construed this 841(a) indictment is under Section with an Id. at 113. alleged quantity grams- from 50 to 500 then a grams, sentence under Section expresses my very

This view well. As I 841(b)(1)(B) applicable, is mentioned, with a maximum have reason the misin- years. If terpretation indictment is under is because of the 841(a) recognize failure to with an interpreting alleged quantity that it is a Section state criminal losing grams, statute and thus over sentence under Section message 841(b)(1)(A) quoted broader and endorsed applicable, awith maximum Jones, from which interpreting was a fed- in prison. life criminal eral statute. Once we acknowledge these are interpretation is to be offenses, separate then we treat those jury only submitted to a if judge’s any offenses like other federal criminal sentence exceeds the maximum they charged must in an in- offenses— could applied prospectively. not be How dictment, proved to a jury a rea- one know at of trial time wheth- doubt, sonable and sentenced under the er, if convicted, the defendant the Sentencing Guidelines. judge’s ultimate sentence would exceed the

statutory maximum? The same standard IV. applied should be prospectively and retro- Applicability Buckland. spectively. required finding “[D]oes expose the greater punish- charged defendant The indictment of Buckland him than ment jury’s conspiracy authorized methamphet- to distribute months. to 405 range of 324 §§ 846 21of U.S.C. in violation amine months, a sentence imposed He conspiracy that the 841(b)(1)(A)specifying maxi- course, than the was, less of a mixture or more 1,000 grams involved judg- prison. of life mum containing a detectable of, or substance be af- should court the district ment of He was methamphetamine. of, amount basis. on this firmed posses- of three counts charged with also methamphet- distribute to outset, intent with we sion at the when I mentioned As to instructed was not jury The as quantities amine. of the determination view not the defendant did the quantity offense, the Ias believe find the of elements Thus, re-we instruction. Jones, such an request in Castillo did Supreme Court on an element instruct to treat the failure court to view it enables the nois error. There plain just for the same of the offense 841 offenses Section these was the error simplifies error this was greatly doubt offense any other is whether question the of already The essential tried and plain. cases review of the The evi- rights. his substantial future. affected the trial of cases per- he overwhelming that was dence was V. admit- grams, with sonally found the agree I "with 1,000 grams. ted to Sentences. Stacking Consecutive have jury that the would majority gives an alternate majority opinion The beyond grams quantity the 500 found sen- of Buekland’s affirmance for the basis doubt, his substantial and thus reasonable even assumes that It of 324 months. tence affected, er- and that the rights were not conspir- for a not indicted if Buckland was fairness, the seriously affect did not ror 841(b)(l)A awith Section acy to violate judicial of reputation integrity, public 1,000 grams, the of more than quantity proceedings. upheld can still be months of 324 sentence justified in thus sentenc- judge was on sentences stacking consecutive crime under aggravated him for the to Section pursuant possession counts maxi- 841(b)(1)(A), carries a Section 5G1.2(d) guidelines. sentencing sen- prison. of life sentence mum indict- was that Buckland This assumes free, Buckland, howev- he was tencing 841(a) of Section a violation only for ed range er, anywhere within to sentence to calculated sentence be with the life up to maximum section of that 841(b)(1)(C). charge Under Section required he was instead prison, but consid- required to only be jury would the Sentenc- with sentence accordance for a responsible Buckland was er whether ing Guidelines. up to methamphetamine trace amount guidelines Thus, only could grams. Under time, offi- reason- probation found have applicable considered on grams level of 36 of 49 an offense maximum doubt a recommended cer able deter- In order to quantity counts. combined four upon a each based under the (12.47 methamphetamine. sentence kg.) appropriate mine pounds sentencing guidelines prop- applicable judge then district concluded deter- 3D1.5 to led to Section kilograms which would turn eight was er for these punishment” a criminal mine the “total of 34 with offense level to an that we requires Commentary offenses. He enhanced offense history of VI. the four of- quantities of a possession combine points two level 49of quantity on each Thus which fenses. weapon to an offense level = go to x We then grams. grams yielded history of VI a criminal Section 2D1.1 and determine that this falls [240 months] is less than pun- the total category grams within the of at least 100 ishment [324 then months] the sentence grams, but less than 400 which denomi- imposed on one or more of the other nates offense level of 26. The counts shall run consecutively, but possession added two levels for of a fire- to the necessary extent produce arm, bringing the level to 28. We then combined equal to the total turn charge Chapter to the 5 and find punishment. In all respects other sen- that for offense level with a criminal tences on all counts shall run concur- VI, history sentencing range rently, except to the extent otherwise be 140-175 months. turn We then to Sec- required by law. tion “Sentencing Multiple 5G1.2 on Counts 5G1.2(d). Thus, SG Section one of the (c), ap- of Conviction” Subsection which possession sentences on a count would run in plies this case. consecutively to the extent of 84 months imposed If the sentence on the count (324-240). important It is to note that this carrying the highest statutory maximum calculation is not based on the combined adequate [240 months] is to achieve the years máximums of 60 of the other counts months], punishment total [175 then the as is in opinions.3 advanced some sentences on all run counts shall concur- judge could never have sentenced to 60 rently, except to the extent otherwise years for offenses, these federal criminal required by law. because he is by confined the 5G1.2(c). Thus, SG Section hypo- this guidelines. Instead it is the actual sen- thetical there would be no stacking of con- imposed tences he has on the other counts secutive pun- sentences because the “total 5G1.2(d) that are used in the Section calcu- ishment” of 175 months does not exceed lation as I have illustrated. statutory the maximum of 240 months. The difference ap- between these two (d) applicable Subsection is not because proaches is question of whether it is play only punish- comes into if the total the maximum quantity methamphet- statutory ment exceeds the maximum. jury amine that the could have found be- If, however, quantity we take the total doubt, yond a reasonable because of the by found the judge eight kilograms, indictment, charge limited or wheth- firearm, the two-level increase for the er it is the found after leads offense level of 36. With a by the trial preponderance of the evi- history criminal the applicable VI sen- former, If dence. it is the the maximum tencing range is 324-405 months. The total punishment imposed could be punishment” “total judge imposed hypothetical under this is 175 statutory months does exceed the months and max- (d) imum and thus subsection would be there is no basis for If stacking. it is the applicable: latter, punishment the total of 324 months

If could be sustained imposed stacking sentence on the count consecutive carrying highest statutory maximum sentences.4 example

3. An opinion is the in United States v. 4. Even if Buckland were sentenced Price, (10th Cir.2001), statutory maximum for each of his Section majority cited opinion. in the That 841(a) offenses, punishment the total judges states that the required would be would not exceed the maximum and impose year consecutive sentences result- 5G1.2(c) 5G1.2(d). apply, thus would not ing in a total consecutive sentence of 208 stacking. There would be no basis for years punish- in order to achieve the total ment. jury and a in an indictment charge A noted, Court Supreme I have

As inquiry of the Section relevant of a violation Apprendi, “[T]he conviction stated form, 841(a) offense, but of effect—does carries a maximum is not one of to a defendant expose the finding required “merely open years, would of 20 jury’s by the authorized than greater judicial finding sufficient the door to Apprendi, 530 U.S. verdict.” guilty prison.”5 life in majority opinion’s In the VI. a Section conviction hypothetical offense, inescapable that 841(a) it is Conclusion pun- exceed the month sentence B. I concur TV I dissent from Section jury’s guilty authorized ishment majority opinion, much of the rest of verdict. judgment. all, concur in the and I but pointed out Jones Court Supreme Amendment of the Sixth the seriousness TASHIMA, Judge, with whom Circuit must be findings that certain requirement PAEZ, Judges, Circuit REINHARDT and importance jury and by a made join, dissenting: “a fact that sets the submitting to Jones, 243, 526 U.S. at range.” majority, purporting while the Because The then illustrated 1215. Court 119 S.Ct. statutory principles of to follow the “basic under consider- in case importance the 1179, construction,” Maj. fails do op. at to was car- offense There the basic ation. 21 so, My position that U.S.C. I dissent. 15 by a maximum of jacking, punishable fully facially § unconstitutional 841 is provided for statute years prison. in The opinion. panel in the See United set forth up years, of to 25 if an increased sentence Buckland, 259 F.3d 1157 v. resulted, and an in- harm bodily serious Cir.), 265 F.3d 1085 reh’g granted, en banc life, to if death up of creased sentence (9th Cir.2001). restate than all Rather The stated: resulted. Court I to which my position, the reasons 15 might rise from potential penalty If a adhere, I few emphasize a continue to jury a non determina- years to life on points. salient tion, correspond- jury’s role overarching principle The significance usual- from ingly shrink finding a stat- to avoid construction not guilt to by determinations ly carried Rather, at all costs. unconstitutional ute ga- importance of low-level the relative “[wjhere majority acknowledges, cases, jury finding in a tekeeping: some clear, ‘we its intent Congress has made year a maximum 15 necessary of fact ” intent.’ v. effect Miller give must to merely open the door to sentence would 2246, French, 327, 341, 120 530 S.Ct. im- U.S. finding judicial sufficient for life (2000) (quoting Sinclair 326 prisonment. 147 L.Ed.2d 195, 215, Atkinson, v. 370 U.S. Co. 243-44, (emphasis Id. at S.Ct. Ref. (1962)). Thus, 1328, 8 L.Ed.2d added). S.Ct. parallel a close to the There is I that we should avoid although agree majority opinion. holding alternate offense, closely parallels the Jones much upon United more majority opinion relies 5. he 633, Ap- Watts, 148, case. To the extent case than Watts 117 S.Ct. States v. 519 U.S. guidance (1997). provide additional prendi and Jones Supreme The Court 136 L.Ed.2d submitted to what facts must be Apprendi in as to 1999 and 2000. decided Jones in doubt, proven a reasonable hypothetical of a Section conviction offense, pronouncements of Court 841(a) determining most recent govern decision. should our the maximum for that sentence that exceeds “constitutionally doubtful constructions” by example, shows us that our task is first fairly possible, where to examine the statute’s “literal language” give this canon of construction does and its “overall structure.” Id. Like 18 prerogative to ignore court 924, § U.S.C. the statute at issue Castil- legislative will order to constitu- avoid lo, § clearly 841’s structure differentiates adjudication; “[although tional this between the elements of the offense and legis- Court will often strain to construe factors to be considered at sentencing. In against lation so as to save it constitu- Castillo, the had no Court trouble find- attack, it tional must not and will not ing that the structure of 924 “clarifie[d] point carry perverting this to the any ambiguity” regarding congressional in- ...” purpose judicially the statute tent because part open- “[t]he first rewriting it. ing clearly indisputably es- Schor, 838, 841, CFTC v. 478 U.S. 106 tablishes the elements of the basic federal (1986) (emenda- 92 L.Ed.2d 675 offense,” while the next three sentences original) tions in the (quoting Aptheker “refer to directly sentencing.” Id. at State, Sec’y 120 S.Ct. 2090. (1964) (internal quo- 12 L.Ed.2d 992 841(a) Similarly, § “clearly and indis- omitted)). tation marks and citation putably” establishes the elements of the case, congressional clear, intent is offense, 841(b) directly refers majority’s attempt to avoid it carries sentencing. why, majority This is as the point its judicially rewrit- acknowledges, prior New Jersey, Supreme Court’s decisions Cas (2000), L.Ed.2d 435 every circuit in the States, 120, tillo v. United 530 U.S. 120 country drug quantity treated aas sen- 2090, (2000), S.Ct. 147 L.Ed.2d 94 Jones v. tencing Maj. op. factor. See at 1178-79 & States, 227, 526 United U.S. 119 S.Ct. cases). Yet, n. 2 (citing majority the in- 1215, (1999), 143 L.Ed.2d 311 and Almen § sists ambiguous that 841 is because it States, darez-Torres v. United 523 U.S. specify does not that drug quantity is to 224, 1219, 118 S.Ct. 140 L.Ed.2d 350 by be the at judge sentencing. determined (1998), set forth principles statutory the of guide construction that should inus this fact, majority, The in logic by twists majority ease. The why nowhere explains concluding that the statute’s silence some- ignore analyses we should in the three how means that “the text of the statute is High recent Court directly cases that ad dispositive” support in position. of its Id. very dress the issue we face. at 1180. The text of disposi- the statute is question The is whether the statute tive; clearly it sets forth elements in facts that “treat[s ] lead to an increase in 841(a) § sentencing in considerations the maximum sentence a sentencing as 841(b).1 § factor” and is therefore unconstitutional. Castillo, 124, position U.S. at The majority’s S.Ct. 2090. rests on the fact In making determination, Court, this the that statute specify “[t]he does not who Notwithstanding majority’s the (quoting reluctance 118 Bhd. R.R. Train- rely R.R., 519, headings to on the contained the stat- men v. & Ohio Baltimore " ute, 528-29, heading 'the title of a statute (1947)). and the 67 S.Ct. 91 L.Ed. 1646 Moreover, Castillo, a section' are 'tools available for resolu- as in 841's structure is easily tion of doubt' about the meaning of stat- ascertainable even without the aid of Almendarez-Torres, ute.” statutory headings. 523 U.S. at intended Congress that argument identify at oral drug quantity shall determine to sentencing factor to be drug quantity proof for these burden appropriate prepon- In such Id. at 1179. determined

determinations.” we, like all And rules of evidence. course, accepted of the derance case, of difficulty circuits, to examine the court had no require the other construction in order history to that legislative Congress intended concluding that the statute’s enacting intent Congress’ finding. drug quantity determine make judges Radloff, 501 See, v. e.g., Toibb Nordby, 225 F.3d statute. States v. See United 2197, 115 L.Ed.2d Cir.2000) 111 S.Ct. (9th (stating, U.S. 1053, 1058-59 here, resolu- (“‘Where, (1991) as ... “Congress Apprendi, shortly after turns on a of federal law question tion of a quantity be a intended that clearly Congress, the intention statute factor, of the an element not sentencing statutory language and first to look cases); see 841,” listing crime under history if the statu- legislative to the then Jackson, 207 v. also, e.g., United States ” Blum (quoting is unclear.’ language tory Cir.) (7th only a (stating, few 910, 920 F.3d Stenson, 465 U.S. “[i]t Apprendi, to prior months Yet, (1984))). rather 1541, L.Ed.2d 891 type intended Congress apparent of statu- principles accepted following than by a drugs distributed ascer- attempting to tory construction 841(a) section convicted defendant light intended Congress tain what judg- sentencing”), to be determined on majority goes ambiguity, and remanded ment vacated for further license this silence construe light Apprendi, consideration own solution. legislate its court 953, 121 148 L.Ed.2d conclusion, it majority’s Contrary to Acevedo, 891 F.2d (2000); judiciary, “it has been the is untrue Cir.1989) (“the quantity of respon- allocated Congress, is a substance the controlled un- determining drug quantity sibility for issue”). at 1181. Maj. op. the courts.” der why on majority gives us no clue See, e.g., history is clear. legislative prior sub silentio now concludes (1990), 101-681(1), at 110 H.R.Rep. No. (that intent congressional reading 6472, 1990 U.S.C.C.A.N. in reprinted to make intended judges were judges to (noting need for 6514-15 determination) by all courts was fashioning sen- “flexibility when have accepted to happened What mistaken. 841(b)); No. 91- H.R.Rep. § tence” under construction, especially statutory rules (1970), in 1970 reprinted 1444 legislative ascertaining rule of the cardinal (describing the 4576 U.S.C.C.A.N. strip pri- our Apprendi Why does intent? that, noting § and 841 penalties section See precedential value? holdings of or sentencing procedures foregoing “[t]he does not Apprendi Maj. at 1181. op. permit- flexibility judges, to give maximum statutory con- change principles imprison- period of tailor the ting to them congres- struction, change it nor does fine, the circum- to ment, as the well from the undeniable that sional intent case”) the individual involved in stances history legislative and structure added); States United (emphasis cf. Now, long- application because statute. Cir.1987) Morgan, statutory construc- principles standing supported history (noting legislative that important federal invalidate tion will drug quanti- view then-prevailing jettisons conveniently statute, majority offense in not an element ty was own its fashions fact, principles those 841). in conceded government, The solution, though even that solu- of the specified makeshift statutes at issue who was clearly contrary congressional to tion to find the fact at issue what intent. Supreme standard.2 Where the Court was faced ambiguity with the in we face majority finds the distinction be did the Court ignore legislative therefore sentencing factors and tween elements history and construe the statute as it “inappropriate” “misleading,” term wished, regardless of congressional intent? “conceptual pigeonholing.” Maj. it op. not, Of course because that Yet, would violate determining at 1180. whether Con statutory basic tenets of a fact construction. gress intended to be an element or a Yet, exactly that is precisely majority factor was the Su what the has in preme approach determining Court’s done here. constitutionality of the statutes at issue Mysteriously, majority finds support Castillo, Jones, and Almendarez-Tor conclusion for its Ev- Castillo, res. See 123-31, 530 U.S. at 120 ans, 92 L.Ed. (discussing Congress S.Ct. 2090 whether (1948), a case in which the Court de- intended references in 18 U.S.C. clined to do exactly majority what the does types 924 to firearm to constitute ele- Evans, here. In the statute at issue indi- factors, ments of an offense or sentencing Congress’ cated intent to make concealing noting treating the facts as sen- or harboring crime, unauthorized aliens a tencing give signifi- factors “would rise to penalty but the for the offense was un- Jones, questions”); cant constitutional clear. See id. at S.Ct. at 1215 (stating that, acknowledged Court “where Con- “[mjuch turns on the determination that a gress has exhibited clearly purpose fact is an element of an offense than rather proscribe power within its to make conduct consideration,” a sentencing and going on criminal, ... every presump- reasonable congressional to determine intent enact- tion to the proscription require attaches statute); Almendarez-Torres, ing the the courts to make effective in accord 226-35, (where U.S. at Id. purpose.” with the evident specify provision statute did not whether a Nonetheless, S.Ct. 634. reject- the Court separate simply “define[d] crime or au- government’s ed the request to decide for penalty,” an enhanced thorize[d] the Court penalty Congress itself the would have “look[ed] to the statute before us and imposed, reasoning “there are limits intended”). Ap- Congress ask[ed] what go finding which we cannot what prendi, reject analy- the Court did not its Congress has put many into so words Jones Castillo. The statute in ses in making certain what it has left unde- did specify fact at issue fined or too vague for reasonable assur- by was to be judge determined the at Id. meaning.” ance of its § sentencing; 841 does not. Rather than contrast, here, By Congress’ where in-

supporting majority’s position, the this dif drug ference tent to have requires quantity by that we follow decided the the Court’s Castillo, Jones, analysis in Almenda is clear from the stat- sentencing and at rez-Torres, where, § similar to none legislative history, ute’s structure and as which, Although Judge Hug, 2. concurring Congress in his although and an intent different Castillo, Jones, dissenting opinion, interprets Congress by from the intent ascribed to the and way majority, in the same equally, wholly unsupported by that I Almendarez-Torres do, applying understanding § in that legislative Congress to the record—that intended he, majority, completely ignores like separate the con- to define criminal in offenses enact- Instead, gressional 841(b)(1)(A) 841(b)(1)(B). ing §§ intent. he attributes to speculation make more than do no conceded, majority- could the has government the to a license as law. silence statute’s the takes requirement a statute the on superimpose 634; States v. United at Id. intent. congressional clear contrary to (7 Cranch) 32, 34, 3 L.Ed. Hudson, 11 U.S. drug (stating that 1182-83 at Maj. op.

See legisla- (1812) it is (holding “[t]he that jury ato be submitted now must quantity must ... [that] the authority of Union tive doubt). a reasonable and proven crime”). an act make failed Evans, Congress where to Similar a consti- of what Ultimately, the solution ambiguity the to address times numerous sentencing scheme should drug tutional many issue, during the at in statute Congress. prerogative is the encompass universally interpret courts that the years jerry-build to courts’ function It sentencing 841(b) encompassing as § ed might Congress that scheme sentencing by be determined to considerations intended, foreseen had it not have might evidence, of the preponderance judge by Apprendi between collision cor legislation to enacted never Congress (B). 841(b)(1)(A) States v. See United & § United States perception. rect that Cf. 570, 576-78, 88 S.Ct. Jackson, (S.D.Cal. 1107, 1115 F.Supp.2d Kelly, 105 (1968) (rejecting the L.Ed.2d that, perva “[djespite the 2000) (noting 841(b) U.S.C. that 18 argument is government’s [that conviction of this siveness convening of a 1201(a) sentenc to set forth Congress authorized intended courts, Con impose the federal among to whether factors] to decide special to the statute amended has never gress there was not because .penalty death in only rational otherwise. provide Congress con- that indication slightest “the idleness congressional terpretation a word Not any such scheme. templated precedent of voluminous face much as history so legislative is to assume straight power to set has the Congress’ intent in that that was hint[ed]” Congress agrees.”). statute); enacting the clear (3d Cir.2001) (en made its intent Congress 271 F.3d Vazquez, history. legislative (“It statute’s structure banc) C.J., concurring) (Becker, (“Congress at 1058 Nordby, See however, to credulity, assert strains quantity be clearly ... intended type intended Congress factor, not an element sentencing some factors treated be 841; sus- is not the statute crime I in others. know and as elements cases interpretation.”). contrary to a ceptible manner, nor such written of no statute unclear, conclude if were its intent Even any statutes construed this I am aware Congress would that, Apprendi, light of Furthermore, cannot as- ... we way.... ele- an drug quantity have intended adopted might Congress have sume proceed be to “would of the offense ment simply to avoid approach an unusual such manner for essentially legislative in an violation.”). criminal specification definition unanimity Finally, while “felicitous 490-91, Evans, acts.” may appeals be a among” courts own sake “conformity for its goal, laudable outside bounds is a task This for the necessary nor desirable neither It is better judicial interpretation. differences in because appeals, courts its more in accord with Congress, im- ventilating effect have the than for us function, revise the statute creating a questions portant legal make. it would at the revision to guess Supreme against background We precision. it can do with task That ultimately an Court can resolve issue for Bobby country FIELDS, as whole.” Walker Joe Petitioner-

O’Brien, 626, Cir.), cert. Appellant, denied sub nom. Hanks v. Finfrock, 531 606, S.Ct. 148 L.Ed.2d 518 (2000). Breyer Justices O’Connor and for Gary GIBSON, Warden, L. Oklahoma majority’s reasoning Ap- esaw Penitentiary, State Respondent-

prendi render unconstitutional stat Appellee. utes Apprendi, such 841. See (O’Connor, J„ U.S. at No. 00-6145.

dissenting) (stating consequences that the of Appeals, States Court

of majority’s rule “in terms of sentenc Tenth Circuit. by today’s schemes invalidated decision severe”); likely 550-51, will id. at Jan. 2348 (recognizing majority’s that the reasoning “strongly suggests” that deter

minate-sentencing schemes are unconstitu

tional); id. at (Breyer, S.Ct. 2348

J., dissenting) (stating that majority’s “the

rule uncertainty creates serious about the

constitutionality of’ statutes such as 841). majority has our “end[ed] status as outlier,” Walker, 216 F.3d at but at price ignoring congressional intent

that every circuit has to be acknowledged

clear ignoring statutory basic tenets of recently

construction applied by the Su Castillo,

preme Jones, Court and Al

mendarez-Torres. “It is one fill thing to

minor gap extrapolate a statute —to

from general design its to details that were

inadvertently omitted. It quite another

thing to” construe the statute in a manner

clearly contrary congressional intent purpose

“for the sole rescuing a statute

from a charge of unconstitutionality.”

Jackson, 390 U.S. at 88 S.Ct. 1209.

“[Tjhere are limits which we can go” Evans, construction.

333 U.S. at 68 S.Ct. 634. Because limits, clearly passed has

majority those I

respectfully dissent. notes the Office of the as distinguished from Federal Register, National Archives and prohibited by the ‘unlawful acts’ Section Services, 841(a) Records and became subsection [making possession unlawful headings when Controlled Substances the intent to distribute].” States v. transposed Act of 1970was into the United (9th Cir.1984). Wright, 742 F.2d Congress States Code. has amended Judge correctly As Tashima noted his since, numerous but opted times has never withdrawn, panel, now see headings Thus, to enact these into law. Buckland, United States v.

Notes

2. The notes Wright, correctly opinion did in United determine (9th Cir.1984), an item clear- found charged in the was indictment properly factor charged in ly penalty had labeled been Hug jury. Judge were If submitted jury for de- and submitted time, indictment to the opinion at this he amend years was termination. This simply add is an element of “because it Jones, Apprendi, Castillo before a crime." type of factor as an identified this

Case Details

Case Name: United States v. Calvin Wayne Buckland

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 7, 2002

Citation: 277 F.3d 1173

Docket Number: 99-30285

Court Abbreviation: 9th Cir.