United States v. Calvin Wayne Buckland

stay of mandate Appellees’ motion review, remand Court will not judicial this thirty days including to and granted portions of inaudible upon case based If within Bowen, of this order. from the date F.2d v. Andres record. this clerk of (8th filed Cir.1989); v. there is with Marshall time 455-56 Cir.1982) Su- of the Clerk Schweiker, a certificate F.2d court curiam). States of the United preme Court (per has been of certiorari for writ petition what no indication gives Williams filed, shall contin- stay hereby granted omitted supposedly were facts material the case disposition final ue until transcript of the missing portion how Supreme Court. signifi case. The most her could bolster directed to continue district court is testimony in of inaudible cant instances regarding action in this matter stay any expert the medical record occur when until notification or class class certification also summary evidence presented by this court. mandate is issued As the med records. in the medical found record, the of the part are also records ical impair summary does not

omission ALJ’s ability to review the the Court’s are remaining omissions decision. do not transcript gaps small testi comprehension “interfere with fair hinder mony to an extent would Heckler, 786 F.2d review.” Ward v. curiam). (8th Cir.1986) America, (per UNITED STATES Plaintiff-Appellee, R. Accordingly, affirm. See 8th Cir. 47B. v. BUCKLAND, Wayne

Calvin Defendant-Appellant. No. 99-30285. Appeals, Court of United States Ninth Circuit. GLOVER; Dawn Lonnie En Argued and Submitted Glover, Appellees, 26, 2001 Sept. Banc 18, 2002 Filed Jan. FEDERAL STANDARD 7,May Amended BANK, Appellant.

No. 00-3611. Appeals, United States Eighth Circuit. 11, 2002.

April P, Olbertz,

Zenon Law Office of Zenon Olbertz, Tacoma, Peter WA, for the defen- dant-appellant. Wilson, Douglas

J. United States Attor- Office, ney’s Francisco, CA, San for the plaintiff-appellee. Storm,

Arlen United Attorney’s States Office, Seattle, WA, for the plaintiff-appel- lee.

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

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

Before: Judge, Chief HUG, REINHARDT, O’SCANNLAIN, TROTT, NELSON, KLEINFELD, T.G. TASHIMA, GOULD, PAEZ, and TALLMAN, Judges. Circuit TROTT; Opinion by Judge Partial Concurrence and Partial by Judge Dissent HUG; by Judge Dissent TASHIMA.

ORDER

The mandate February issued hereby is purpose recalled for the amending opinion. Opinion filed 18, 2002, January and located is 1173 amended as follows: 5G1.2(d) sentence-determining fac- not a is § “B. section

Page alternative, argues Buckland in the second tor. In reads STACKING” examined paragraph, in the first individualized sentence that his last sentence plain “However, court determined constituted light Apprendi the district 2D1.1(a)(3) sen- that his re- vacate error, urges under U.S.S.G. that we based on 324 months should be have our sister As resentencing. tence mand for level of 36 and Guide- offense combined us,1 hold that we circuits before months”, of 320 to range line unconstitutional; and we con- facially to read: amended respect error with clude that However, court determined the district not affect his did sentence to Buckland’s 2Dl.l(a)(3) that his under U.S.S.G. Thus, affirm his rights. substantial months be 324 based sentence should years. 27of sentence of 36 and level a combined offense to 405 months. range of 324 Guideline I forthwith. mandate shall issue one was indicted on Buckland to distribute metham- conspiracy count OPINION U.S.C. violation phetamine, TROTT, Judge, with whom Circuit 841(b)(1)(A), 846, pos- counts of three §§ SCHROEDER, Judge, Chief with intent methamphetamine session KLEINFELD, O’SCANNLAIN, distribute, 21 in violation of U.S.C. GOULD, C. M. and RICHARD RONALD (b)(1)(B), 841(a)(1), counts of and three § TALLMAN, join. Circuit Judges, Circuit trafficking during drug a a firearm using for Part joins except Judge T.G. NELSON 924(c). § crime, in 18 U.S.C. violation of B. IV the involvement alleged government The 26, 2000, the On June thousand conspiracy of “one Jersey, 530 U.S. v. New held or substance more of a mixture grams or 2348, 490, L.Ed.2d 435 466, 147 120 S.Ct. amount of meth- a containing detectable “[ojther prior a (2000), than the fact of which, proved, if properly amphetamine,” conviction, pen- any that increases fact As was sentence. possible life carries prescribed beyond crime alty for a however, in- jury was not customary, statutory maximum must be submitted any par- it had determine structed beyond a reasonable jury, proved methamphetamine amount ticular Buckland asks to con- Calvin us doubt.” jury con- to convict Buckland. order facially un- holding that this renders clude counts, and seven Buckland on all victed 841(b)(1)(A), § 21 U.S.C. constitutional his concluded that report presentence (B), con- provide in the laws which certain based imprisonment term maximum cases for sentences be- substance trolled 841(b)(1)(A) 846, Using the §§ life. was year imposed 20 maximum yond the basic standard, 841(b)(1)(C) evidence preponderance for default cases where Cir.2001); Brough, v. 243 F.3d Fed.Appx. United Vigneau, 2 States v. See United States — denied, Cir.), 1078, (7th U.S. 53, (1st Cir.2001) cert. 1080 (unpublished); United 54 (2001); -, 203, 622, (3rd 144 S.Ct. 151 L.Ed.2d Cir. 122 Kelly, 623 States v. 272 F.3d 728, (8th Woods, curiam); F.3d 729 2001) States v. 270 United (per United States McAllis v. Cir.2001); Cernobyl, 228, Cir.2001); 255 F.3d ter, (4th States v. United United 272 F.3d 232 Cir.2001); 1215, (10th 580, (5th v. United States Slaughter, 581 1216 238 F.3d States v. 1300, Candelario, (11th 1045, denied, n. 16 Cir.2000), 240 F.3d 1311 121 532 U.S. cert. 922, denied, Cir.), (2001); 533 U.S. cert. United S.Ct. (2001). Martinez, (6th L.Ed.2d 705 6 150 256 n. States v.

563 twice, first, the district court court determined sentenc- erred the district drugs amount of for ing gross failing drug quantity to submit the deter- responsible Buckland was al- mination to the a finding beyond for him eight kilograms and, then, and sentenced most reasonable doubt imposing a appeal, prison. to 824 months On unitary years sentence—27 excess of —in convic- conspiracy 841(b)(l)(C)’s affirmed the year 20 maximum for tions, un- the firearm convictions vacated unspecified amount of methamphetamine. States, Bailey v. United der however, government disagrees, (1995), 472 116 133 L.Ed.2d S.Ct. unconstitutional, Apprendi makes resentencing. for United and remanded contending also that these er- Buckland, 95-30147, No. States v. and, thus, prejudicial rors were not do not U.S.App. LEXIS 28237 WL require us to vacate and remand. (9th 1996) (unpublished). Cir. Oct. II remand, attempted to raise

On Buckland objections, includ a number of STANDARD OF REVIEW the district court relied on an ing whether Buckland’s case comes before us drug quantity estimate of the inaccurate review, entitling on direct thus him to the Buck- establishing his base offense level. Apprendi’s benefit of new rule. See Grif objections notwithstanding, the dis land’s 314, 328, Kentucky, v. fith trict court limited its consideration to (1987); L.Ed.2d United issue, and resen- firearm enhancement Nordby, States F.3d Buckland Buckland to 360 months. tenced Cir.2000). error, plain We review and we held that the dis again appealed, however, object because Buckland did not failing trict erred in to consider all of court preponder to the district court’s use of the We, sentencing objections. Buckland’s ance of the evidence standard determin again, vacated his sentence and remanded ing methamphetamine. the amount of resentencing. States v. Buck United 52(b); Fed.R.Crim.P. Johnson v. United land, 97-30204, 97-35687, 1998 WL Nos. States, 461, 466, 1544, 117 U.S. S.Ct. 514852, U.S.App. LEXIS 20243 (1997). plain 137 L.Ed.2d 718 Under 1998) Aug.14, (unpublished). Cir. On standard, must error Buckland establish remand, court consid second the district error, plain, an that and that affected was objections ered Buckland’s and sentenced Johnson, rights. his See substantial him to 324 months. 467, If U.S. at 117 S.Ct. 1544. Buckland originally ad- appeal, In this Buckland our showing, may makes this we exercise (1) vanced several contentions: the district only if discretion to correct the error we findings type court’s on the “ ‘seriously affects the conclude that (2) erroneous; methamphetamine were fairness, integrity, public reputation of failing to decrease district court erred ” (quoting Id. Unit judicial proceedings.’ his responsibili- acceptance sentence for Olano, 725, 732, 113 ed v. 507 U.S. States (3) ty; and his trial counsel rendered inef- (1993)). 1770, 123 S.Ct. L.Ed.2d 508 In supplemental fective assistance. his briefs, that argues Apprendi Buckland III 841(b) § facially renders 21 U.S.C. uncon- DISCUSSION and his sentence invalid. stitutional that forthrightly Buckland contends government acknowl- Congress, he ar- hindsight facially unconstitutional. edges with the benefit of (1895); formally saying L.Ed. gues, intended without so see also Miller French, 327, determined drug quantity 2246, 530 U.S. 120 S.Ct. evidence, judge by preponderance (2000) (counseling 147 L.Ed.2d 326 courts jury beyond a rather than reasonable “constitutionally to avoid doubtful con- submits, follows, It he that be doubt. structions”). Thus, “if an otherwise ac- approach cause has such ceptable construction of a statute would by Appren been rendered unconstitutional problems, raise serious constitutional Nordby, see 225 F.3d at those di interpretation where an alternative of the which he parts of the statute under ‘fairly possible,’ obligated statute is we are support fail. sentenced must his prob- to construe the statute to avoid such argument, correctly points Buckland out Cyr, lems.” INS v. St. 533 U.S. everyone Apprendi virtually before (2001) 2271, 2279, 150 L.Ed.2d 347 routinely drug quantity treated under Benson, (quoting Crowell v. 285 U.S. “sentencing 841 as a factor” that need (1932)). 52 S.Ct. 76 L.Ed. 598 beyond not be found a reasonable doubt obligation give This does not us the unfet- Indeed, jury. every a properly instructed prerogative tered to rewrite a statute question circuit in which considered the “ignore legisla- order to save it toor own, cluding our held.2 so Miller, tive will” behind it. government pre- maintains this Rather, 120 S.Ct. 2246. “[w]here Congress’s view reflects intent clear, Congress has made its intent we in enacting the federal statutes. The give must effect to that intent.” Id. at us, however, government urges to “sever” 336, 120 (quoting S.Ct. 2246 Sinclair Re- Congress’s alleged intent from the statute Atkinson, 195, 215, fining Co. v. resulting and to fill the void with the new (1962)). 82 S.Ct. procedure by Apprendi. mandated Al- “ though we hold that 841 is unconsti- starting point ‘[T]he for inter tutional respect, respectfully preting a statute language is the ” suggest government’s severance statute itself.’ Hallstrom v. Tillamook “solution” is as errant as Buckland’s at- 20, 25, County, 493 U.S. tack. explain, princi- To we resort to basic L.Ed.2d 237 (quoting Consumer ples construction. Safety Sylvania, Prod. Comm’n v. GTE Inc.,. 102, 108, 2051, 447 U.S. 100 S.Ct. 64 Court instructs us (1980)). L.Ed.2d 766 “If “every statutory lan reasonable construction must to, guage unambiguous, be in of a resorted order to save a statute absence clearly from unconstitutionality.” Hooper expressed legislative v. Cali to the intent 648, 657, 207, fornia, contrary, language 155 U.S. 15 S.Ct. 39 ordinarily must 953, 376, See, Lindia, (2000); 82 F.3d e.g., 121 S.Ct. 148 L.Ed.2d 290 United States v. 1154, (1st Cir.1996); 151, 1160 F.3d Buford, 108 154 United States v. United States v. 638, (2d Cir.1994); (8th Cir.1997); Reyes, Brinton, 13 F.3d 640 139 United United States v. 487, 718, (3rd (9th Cir.1998); Lewis, 113 F.3d 490 Cir. F.3d 722 States v. United States v. 1997); 1317, (10th Cir.1996); Dorlouis, Silvers, 107 F.3d 84 F.3d 1320 United States v. 248, (4th Cir.1997); 1287, Hester, 252 199 F.3d v. 1293 United States United States v. 1272, (5th Cir.1997); Cisneros, (11th Cir.), 112 F.3d 1282 granted, judgment by cert. vacated 898, 941, 336, Caldwell, 176 F.3d 900 United States v. 531 U.S. 121 S.Ct. 148 L.Ed.2d 270 917, Cir.), (2000); denied, Williams, 528 U.S. 120 S.Ct. 194 F.3d cert. United States v. 275, (1999); 100, (D.C.Cir.1999), denied, 145 L.Ed.2d 230 531 U.S. United States v. cert. 910, (7th Cir.), 1178, 1156, Jackson, 121 S.Ct. 148 L.Ed.2d 1017 cert. granted part, judgment in vacated (2001). plementing provisions, Reves v. Ernst & its and therefore as conclusive.” regarded 113 S.Ct. in Young, way in no U.S. rule conflicts (1993) (citations 122 L.Ed.2d 525 and inter explicit with the terms of the statute.” omitted). quotation nal marks Where Cemobyl, 255 F.3d at 1219. The Tenth dispositive, we look to the language is correctly Circuit noted that ... “Apprendi in intent “revealed the histo congressional does not hold that legislatures long- can no ry purposes and of the scheme.” er have separate statutory provisions 6655 Barrett, Fruit Co. v. U.S. Adams governing a substantive offense sen- 1384, 108 L.Ed.2d 585 factors, tencing § as is the case 841.” (1990). mind, guidance With this Id. first and foremost to the text of

look Although the text of the statute is § 841. dispositive, Buekland directs our attention striking 841 is most for what it Section headings also to the appear specify say. does not The statute does not statute, contending they support his drug quantity who shall determine or iden- reading respectfully disagree. of it. We proof tify appropriate burden We note that the headings “Unlawful Cir- these determinations. Seventh Acts” and “Penalties” that appear in Brough: cuit observed as much United part States Code were not of the say does not who makes statute [T]he legislation by Congress. enacted Compare findings party bears what Comprehensive Drug Abuse Preven Instead, persuasion. the law burden tion and Control Act of No. Pub.L. facts, leaving attaches effects to it to the 91-513, 401, 84 Stat. 1260 with 21 U.S.C. judiciary to out who sort determines the (b). 841(a), headings These insert were facts, under burden. It makes no what margin preponderance of evidence. See 530 841(a) §in tory divide between “elements” 468, at 120 2348. This material U.S. S.Ct. in “penalties” “sentencing or factors” difference, believe, distinguishes we Buck- 841(b) similarly unavailing. is He rea land’s case. Congress finding sons that committed essentially jury finding The Tenth elements to a and the Circuit has Yet, adopted sentencing judge. the Seventh Circuit’s view of this factors to a “[sjection scheme, saying, conceptual pigeon-holing simply federal interferes 841(b) itself, question language itself is silent on the of with the of the statute procedures effectively supplementing what are to in im- the statute with courts use 566

provisions appear print. sentencing Cemobyl, nowhere or a factor.” labeling 1219; find in this not We such context Brough, F.3d at 243 F.3d at 1080. only inappropriate, misleading. but See hair days splitting of semantical be- Apprendi 530 U.S. at 120 S.Ct. 2348 tween “elements of the offense” and “sen- (describing the distinction between ele- see, factors,” tencing e.g., Arreguin v. of the fac- sentencing ments offense Cir.2000) Prunty, 208 F.3d “constitutionally elu- tors as novel and (“[T]he question crucial is whether sive”); but see Almendarez-Torres v. at special circumstance issue here consti- States, 224, 226, United tutes an element of the crime or a sentenc- (attaching factor.”), ing are over. To the extent that relevance to the characterization of a stat- contrary, our case law holds to the it is provision ute’s as either an element of the overruled. factor). Indeed, offense or a as support today’s We find for decision recognized far back as 1984 our Circuit Evans, v. United States “penalty provision” that a enhancement (1948), 92 L.Ed. 823 a case S.Ct. which is not an element of the crime by relied on Buckland’s amici curiae. 841(b)(6), charged, specifically 21 U.S.C. case, here, parties as agreed both can be included in an indictment and sub- Congress sought objective punishing — jury mitted to a for decision as to the those who concealed harbored unautho- existence of the facts that make en- rized aliens—which did not appear applicable sentencing. hancement As text of the statute. See 8 U.S.C. Judge Hug correctly “[Section observed: Nevertheless, declined 841(b)(6), provides for increased to construe the statute to include that punishment marijuana quantities ex- missing objective because was uncertain 1,000 ceeding pounds] clearly labeled a Congress how would have drafted the rele- ‘penalty’ provision, distinguished from provisions. vant The Court reasoned: prohibited ‘unlawful acts’ Section [plug alleged To hole statute] 841(a) [making possession unlawful with indeed, go very would be to far upon the the intent to distribute].” United States v. wording sheer For it section. (9th Cir.1984). Wright, 742 F.2d would mean in effect that we would add Judge correctly As Tashima noted in his to the concluding clause the words which withdrawn, opinion panel, for the now see government’s reading It inserts.... Buckland, United States F.3d possible Congress may have in- (9th Cir.), vacated 265 F.3d 1085 this, tended but for more than one rea- (9th Cir.2001), Apprendi eschews the dis- son, we cannot be sure of that fact. tinction between factors and Evans, 333 U.S. at 634. Sim- elements of a crime: “the relevant inquiry ilarly, Buckland asks us to add a distinc- form, is one not of but of effect-does tive feature to this statute that required finding expose the defendant to a it, but, appear does not as far can greater as we punishment than that authorized tell, also was never debated or jury’s guilty discussed Apprendi, verdict?” Evans, Congress. As did the Court in 530 U.S. at (emphasis S.Ct. 2348 added). Congress decline this invitation. agree: ‘Ap- simply Our sister circuits “ prendi compels purposefully did not ‘remove from us to submit to a questions may jury [necessary of fact that increase a de- the assessment of the facts exposure penalties, fendant’s to regardless prescribed range penal- to] increase whether fact is labeled an element ties to a criminal which defendant is ex-

567 ” 490, dispose government’s posed.’ Apprendi, U.S. We States, argument easily. severance more A Jones v. United sever (quoting S.Ct. 2348 227, 252-53, ance issue arises “ when we confront 526 U.S. S.Ct. (1999)). is, indeed, ‘an act Congress containing] unobjec It too tall L.Ed.2d provisions separable tionable from those Buekland to mount a facial an order for ” found to be unconstitutional.’ Alaska challenge by asking first us to Airlines, Brock, 678, 684, Inc. v. 480 U.S. purports to attack. change the face he (1987) 107 S.Ct. 94 L.Ed.2d 661 plastic recommended in sur- This exercise Time, Inc., (quoting Regan v. gery engage through-the- invites us to a (1984) 82 L.Ed.2d 487 looking-glass by grin search lured (citation (plurality) quotation and internal cat, would, an elusive an adventure which omitted)). marks “Unless it indeed, evident be curious. Legislature would not have enact We that the Tenth Circuit believe was provisions ed those which are its within correct it said that at the heart of .when not, power, independently of that which is Cernobyl’s argu now —and Buckland’s— if part may dropped invalid what is unconstitutionally ment is an as fully operative left is a (quot law.” Id. sumption pre- are bound our Valeo, Buckley ing holdings these statutes (per cu drug quantity commit determination of to riam) (citations quotation and internal judge finding prepon for a under the omitted)). marks Cernobyl, derance standard. See present Section 841 does not a severance However, Apprendi’s F.3d at 1216. Congress did issue because not unconstitu- reading of the Due Process Clause has tionally commit drug determination of stripped holdings precedential these quantity judge finding by to a for a fact it has simple value. The is that preponderance of the evidence. As dis- judiciary, Congress, been the earlier, cussed that commitment made responsibility allocated the for determin judiciary, legislature. not the drug ing quantity under 841 to the short, nothing there is to sever from the However, important courts. the most , is, government’s position statute. process court —the therefore, without merit. has, now, until up remained si Court — Congress may acknowledge lent. and courts have un the tension We between that, accepted position expressed derstood or as a matter of our here and that There, procedure, Nordby. could be decid we reviewed the defen- §§ judge, jury. ed not a an un dant’s under 21 Such conviction U.S.C. however, derstanding, marijuana-related represent does not 846 for various offenses. pellucid legislative pur jury the same kind of The district court instructed the Jersey long government intent “as as the pose proves found the New convict Apprendi. beyond statute struck More doubt that defendants down reasonable over, identify any per Buekland fails to manufactured a measurable or detectable history marijuana.” Nordby, amount of legislative suasive shows Congress clearly procedure sentencing, judge intended the at 1056. At found Nordby responsible he now attacks as unconstitutional. for 1000 more Thus, him reading plants, exposing prison our of the statute thus to a term because life under “fairly possible,” obliged years we are to so of ten 841(b)(l)(A)(vii). de- construe it. Because Nordby termined that harvested a IV “measurable or detectable” amount marijuana triggering a maximum sen- PLAIN ERROR — 841(b)(1)(D)— years § tence of five under government The concedes that judge’s by preponder- determination error; Buckland’s sentence constituted af Nordby’s ance of the evidence increased judge’s ter determination of years maximum sentence from five to life. drug quantity which the maxi increases Indeed, him actually the court sentenced mum sentence to which the defendant is years, jury’s to ten five more than the exposed under the crime of conviction is findings supported. Johnson, “clear” and error. “obvious” Applying Apprendi, panel found (“[Wjhere 467-68, U.S. at 117 S.Ct. 1544 plain error and remanded for resentenc- the law at the time of trial was settled and decision, ing. reaching In panel clearly contrary to the law at the time of Congress “clearly held that intended appeal enough that an error be —it factor, to be a not an ‘plain’ appellate at the time of consider 841; § element of the crime under ation.”) 52(b)). (quoting Fed.R.Crim.P. is not susceptible contrary statute to a nevertheless, government argues, interpretation.” Nordby Id. at 1058. used we should not vacate and remand because “sentencing factor” label as a basis for error this did not “affect substantial concluding that Congress quan- committed rights.” Id. at S.Ct. tity to the sentencing judge finding for a words, other judge’s deter by a preponderance of the evidence. To prejudice mination did not Buekland in a Nordby the extent that is inconsistent with “ manner that ‘affected the outcome of the opinion, it is overruled. ” proceedings.’ ... United States v. Ola give Our aim remains to effect to no, 1180, 1188(9th Cir.1995) (quot Congress’s intent. appar That intent is Olano, ing United States v. ramp up punishment ent: for con

trolled substance offenders based on the (1993)). type and amount illegal substance in government’s argument first of two volved in the crime. We honor the intent tendered the uncontested evidence Congress requirements and the of due proves beyond a reasonable doubt process by treating drug quantity and in Buekland trafficked an amount of meth- type, which fix the maximum sentence for amphetamine far excess of that needed conviction, as we would other mate trigger maximum sentence rial fact a criminal prosecution: it must 841(b)(1)(A). imprisonment of life indictment, under charged submitted to section, evidence, person Under that jury, subject who commits to the rules of act proved beyond involving grams unlawful “50 a reasonable doubt. Harris, generally methamphetamine See more of ... or 500 United States v. — (4th Cir.), grams F.3d 806 or more of a granted, cert. mixture or substance -, containing 151 L.Ed.2d a detectable amount of metham- (granting “brandishing” phetamine review on whether ... shall be sentenced to a of a firearm as used term imprisonment may U.S.C. not be 924(c)(1)(A) alleged must be in years less than 10 or more than life.” 21 841(b)(l)(A)(vm). Thus, dictment proved beyond a reasonable U.S.C. main- doubt). government, judge’s tains the determi- eight grams. The total of these amounts approximately of a of alone- nation submitting grams-exeeeds gram kilograms trig- without issue over the 500 ger jury substantially produces did not affect maximum of life.3 proceedings. govern- only regis- of the The Not did Buckland fail to outcome amounts, objection notes that one need not even ter an to these but in ment also testimony “Objections ac- his formal disputed consider the of his to the Presentence complices making Report Sentencing this decision because Government’s 29, 1999, methamphetamine April the amount of seized Memorandum” dated prepared sentencing law enforcement officers from Buckland for Buckland’s third wrote, gram hearing, exceeded the 500 threshold his counsel Mr. himself Obertz containing assuming appropriate a mixture or substance “Even composition drug. amount of the the various claimed by [of detectable amounts his accomplices], ap- the defendant asserts the argument The second government’s propriate guidelines calculation would be mandatory consecutive kilograms methamphet- level 32 i.e. 1-3 of 5G1.2(d) of would re provisions U.S.S.G. added). Furthermore, (emphasis amine.” if Buck- sult a 324 month sentence even the district court asked Buckland’s attor- charged only land had been under neys at the beginning each the three 841(b)(1)(C), per which carries a count if sentencing hearings they wanted an evi- (240 years of 20 maximum sentence dentiary hearing, and each time the re- months). proposition, govern For this sponse negative. relies our recent decision in Unit ment on (9th Kentz, ed States As we said United States v. Cir.2001), cert. Nov. petition for filed Romero-Rendon, Sentencing “[t]he Guide (No. 01-7238). agree We with the judges rely lines on allow government’s basic contentions. long information ... so as it has suffi reliability support cient indicia of its A. probable accuracy.” 220 1161— F.3d (9th denied, Cir.), cert. 531 U.S. RELIABLE EVIDENCE (2000) (cita QUANTITY OF omitted). quotation tion and internal marks sepa- Buckland was arrested on three find such reliable indicia in this record. We 7, 1993; rate occasions: December Febru- kilogram methamphetamine, One 16, 1994; ary February 1994. course, equals grams, twice a pos- Each occasion became basis of 841(b)(l)(A)(viii) required amount under session with intent to distribute count eligible to make Buckland for a life sen conspir- the indictment and the core of the tence. acy allegation. him as The convicted Thus, charged. only un- we look at the un- Report, Presentence whether methamphetamine amount of challenged respect, challenged reflects that authorities, 7,1993, possession December he had in his taken from Buckland grams methamphetamine, on Feb- at the amount conceded his attor- 16, ruary grams, ney respect testimony he had 200 and on with to the 24, 1994, witnesses, beyond all February accomplice appears an additional 100 anywhere government’s Sentencing in the record is 565.4 Memorandum amount weight grams, grams, total net fixes the amount at 749 also in excess identified as the gram methamphetamine possession. of the 500 threshold. The smallest seized from his Kentz, error in this case we relied on United States v. doubt denied, proceed- White, Cir.), did not affect the outcome of the 238 F.3d 537 cert. and, ings, accordingly, did not affect Buck- 150 L.Ed.2d rights. land’s substantial (2001). White makes clear that keys understanding process are to

B. First, calculating two. in sentences in cases, 5G1.2(d) separate findings drug two § STACKING made, quantity must be one under the yet There exists another basis on which statute, relevant and then another under to conclude that Buckland’s sentence did Apprendi the Guidelines. dictates that rights. jury not affect his substantial drug quantity under the statute must be him, conspira convicted addition to the (in case), by jury found but counts, cy charge, of three substantive authority does not alter the which, given Apprendi and the circum judge statutory to within the sentence case, exposed stances of this him at sen range provided by Congress. See United tencing on each count to a maximum stat Lewis, States v. 235 F.3d 218-19 (240 months). utory years term of 20 — denied, Cir.2000), U.S. -, cert. However, the district court determined 2D1.1(a)(3) 151 L.Ed.2d 12 (holding § under U.S.S.G. that his sen Ap- constitutional rule announced in tence should be 324 months based on a prendi prohibit does not combined offense level of 36 and a Guide district court range line of 324 finding, by preponderance to 405 months. As from of the (4th evidence, Angle, United States v. 254 F.3d 514 application facts relevant to the — Cir.) (en banc), denied, —, Guidelines). cert. To determine where to (2001), fix the actual imposed, sentence to be judge [h]ad the district court been aware when calculates under the Guide it sentenced maxi- yields [Buckland] lines which turn an offense level penalty mum drug trafficking for his and a number of months for the sentence. [per years, conviction was 20 count] If the by sentence determined the Guide 5G1.2(d) § would have obligated [the lines exceeds the maximum on a guideline count, to achieve the count, court] sentence given sentence on imprisonment by impos- [324] months course, ceiling. is limited On the ing a term of 240 months or less on each hand, if other the Guidelines calculation ordering count of conviction and those statutory maximum any exceeds the terms to be consecutively served to counts, count in a case involving multiple achieve the total punishment mandated mandatory provisions then by the Guidelines. 5G1.2(d) § play regarding come into question of consecutive sentences. This is process Id. at 518. This is known as key understanding stacking: the second “stacking,” and have ac- previously 5G1.2(d) § solely is concerned with the Kentz, knowledged its validity counts, question of sentencing multiple where we held that error in a fact, including consecutive sentences. 160-month sentence was harmless for 3D1.5, counts, grouping multiple defendant covers twenty-one convicted of cases, maximum, five-year sentencing judge each with a count refers the because 5G1.2(d) require Chapter would Five once the combined offense consecutive sen- punishment tences to achieve the total cal- level has been determined. ap When this followed, culated proach the Guidelines. not one of the stacked guidelines exceeds the statuto- should be 360 impris- consecutive sentences months Thus, onment, ry Ap- maximum for that count. the district court would have obligated prendi implicated. is not been to reach that total sen- by imposing tence a term imprison- White, which is a controlled substance ment of 240 months or less on each involving conspiracy count and case one count of ordering conviction and those the intent to distribute possession one with terms to consecutively be served count, explains stacking and distribution achieve the total punishment mandated 5G1.2(d) as follows: guidelines. multiple In the case of counts of con- added). (emphasis Id. at 543 viction, that if the guidelines instruct punishment understanding total mandated Our of this inside-the- highest statutory guidelines approach exceeds the Guidelines is fortified the Su- maximum, preme holding the district court must im- Court’s in United States v. Watts, pose imprisonment consecutive terms of 519 U.S. (1997). necessary to achieve the

to the extent L.Ed.2d 554 The Court held in punishment. sentencing total See U.S.S.G. that case a judge, deter- 5G1.2(d). § example, suppose mining apply For a de- whether to en- offenses, hancement, fendant is convicted of three could consider conduct of statutory with a maximum term of which the defendant acquitted, each had been so (60 months) years imprisonment. long five If as that adequately conduct had been proved by preponderance the district court determines that of the evi- appropriate guide- sentence under the dence. Id. at 117 S.Ct. 633. The 5G1.2(d) months, § requires lines is 156 allowing Court’s reason for an enhance- imposition of consecutive terms on ment to be added to the defendant’s base guide- notwithstanding acquittal each count of conviction until the level offense punishment lines is achieved. was that a sentence enhancement does punish “not a defendant for crimes of here, Applying principles these it is convicted, which he was not but rather rights evident that White’s substantial increases his sentence because of the man- imposition were not affected of a ner in which he committed the crime of imprisonment 360-month term conviction.” Id. at 117 S.Ct. 633. if each count of conviction. Even White Similarly, of consecutive imposition penalty is correct that the maximum sentences, months, each for a term not excess each his offenses was 240 maximum, punishes the de- district court would still have been obli- gated to calculate a for the manner in which he com- guideline sentence fendant by making finding regarding quan- objective mitted the crimes on the based tity quantity of narcotics attributable to White. standard of determined under And, 2Dl.l(a)(3)(C)(2) light Quanti- § (Drug of its determination that U.S.S.G. Table).4 punishment ty total White’s under Price, (6th Cir.2000), Page,

4. See also United States v. 265 F.3d 232 F.3d cert. (10th Cir.2001) ("Because denied, 1.2(d) mandatory provision § 5G is a ... 5G1.2(d) [t]he (using § L.Ed.2d 1032 required impose district court would be despite stacking approach Apprendi to affirm twenty-year terms on defendant’s seven Ervasti, error); United States v. run these convictions and to sentences ... (8th Cir.2000) (explaining 1045-46 resulting consecutively, in a total consecutive 5G1.2(d)). implementing years."); sentence of 208 United States v. conclude, therefore, failure of Buckland’s that even if fense. Given the We any quantity issue until Buekland had been indicted under counsel to raise 841(b)(1)(C), judge, the trial us- and then his hearing U.S.C. the third 5G1.2(d), would ing the Guidelines minimum amount was concession that the him to 324 required have been to sentence no- kilogram, both of the conditions one sentences, up made of consecutive months Keys case. appear ticed of which would not have exceeded each testimony accomplices of Buckland’s rule, therefore, years. drugs conspired he about the It implicated. not be follows would with the intent possessed to distribute and any failure of the indict- night day certainty re- strengthens to distribute our allege quantity ment in this case to fairness, integrity public garding immaterial. possession counts was See reputation judicial proceedings. Price, 265 F.3d at 1108. that Buck- fairly The evidence indicates directly responsible land was for over nine C. however, court, kilograms. The district INTEGRITY, FAIRNESS, AND wisely conservatively and discounted this PUBLIC REPUTATION amount on a review of the record based Finally, even were we to assume concluded, resolving any discrepancies and that the error here did affect substantial favor, in figure Buckland’s should affirm be rights, we would nonetheless kilograms. be more than seven The dis- cause, given the evidence and the record respect, trict court’s calculations in this to, we have referred the error did not although preponderance on the stan- based fairness, “seriously integrity, affect the or dard, by the appear fully supported record judicial public reputation proceedings.” of and accurate. The district court’s number 469-70, Johnson, 520 U.S. at S.Ct. gram is least fourteen times Cotton, v. 1544. But see United States threshold. Cir.2001), F.3d 403-04 cert. Accordingly, Buekland has failed to — U.S. -, granted, Apprendi sentencing show that the error (2002) (holding L.Ed.2d that “failure to of proceedings affected outcome these charge drug quantity the indictment and requires resentencing, and we affirm his jury” seriously submit it to the affects the of 324 sentence months. fairness, integrity public reputation and of judicial proceedings so that the court recog should discretion to “exercise[its] Y error”). holding

nize the in this re Our gard analysis our follows United States CONCLUSION (9th Cir.1998) (en Keys, 133 F.3d 1282 sum, “fairly that it possi- we hold banc), as amended and F.3d 479 denied, give provi- ble” to 841 and its various cert. a constitutional construction. Our (1998), sions facially decision that the statute is not where we that the failure of the concluded unconstitutional, course, results in felici- district court to submit element of the unanimity among the jury inconsequential offense to the was tous United States (1) Appeal. that ele conclude proving because evidence Circuit Courts We (2) overwhelming, any determining ment was and the defen also that error in Buck- part dant did not contest it as of his de- land’s 324 month sentence was harmless. (1) offense, Buckland’s other claims that he As to describes elements of an it is then points acceptance entitled to for treated as other federal criminal of- (2) responsibility, he ineffective received fense. The elements must charged counsel, and that the evi- assistance indictment, proved jury beyond to a type dence was insufficient to establish the doubt, upon and conviction the reasonable they have no merit. methamphetamine, defendant is sentenced under the United Sentencing States Guidelines. AFFIRMED. Treating Supreme precedent Court HUG, Judge, Concurring and Circuit establishing a new category “sentencing Dissenting. Judges Circuit REINHARDT proved factors” that must be jury to a join in part Judge and T.G. NELSON V of beyond a reasonable doubt rather than as Hug’s opinion: recognizing crimes, elements of certain has Basically, agree majority I with judges opinions led in some in other cir- B, opinion exception with the of Section IV charging cuits to indicate that the quantity I I concur in the from which dissent. in an necessary, indictment is not or that

judgment. quantity must be submitted to a III opinion correctly Section de- on some occasions and not on others. I termines Section constitutional believe it is clear that the 841(b)(1)(A) Sections simple is concerned with the distinction 841(b)(1)(B), which set forth increased between elements of a crime and sentenc- maximum sentences ing factors and that it has found occasions type, charged must be the indictment actually which the statutes involved es- proved jury beyond to a a reasonable though tablished elements of a crime even I doubt. Where differ with section III is they are labeled as factors. I that that believe those sections my approach I outline to this case as offenses, prescribe separate aggravated follows: though they even are penalties, labeled as agree 1.- I with the majority opinion quantities and the specified are elements quantities specified in 21 U.S.C. aggravated of those offenses. The opinion 841(b)(1)(A) (B) §§ state facts that appears to conclude that these sections fall charged must be in an indictment and category into a new denominated “sentenc- proved jury beyond reasonable ing that charged factors” must be doubt, though they even are labeled proved jury beyond indictment and to a sentencing factors. doubt, reasonable but are not of elements aggravated crimes. I believe this unneces- 841(a) 2. Section combined with Sec- sarily complicates inquiry in this case 841(b)(1)(C) tion states one offense when application and the of Section 841 in future methamphetamine amount of is less cases. 841(b)(1)(B) than grams. Section states

In applying recent another offense when the amount of meth- cases, proper inquiry amphetamine grams is whether the exceeds 50 and is less 841(b)(1)(A) statute describes “elements of a crime” or than grams. Section factors,” “sentencing though they a third of even states offense when amount may be labeled as factors or methamphetamine grams. exceeds 500 penalties. importance The that quantities methamphetamine this is case, federal grams criminal such as this exceed the 50 of the basic Section 841(a) one, aggravated once we determine the statute are offense elements is not met requirement If either alleged in the indict- fense. crimes that must be only beyond a rea- the defendant can be sentenced proved jury to a then ment and the offense for which he was indicted doubt. for sonable him jury guilty. found and of which charged The indictment of Buckland 3. under the basic offense This would be 1,000 grams methamphet- him with 841(a) provided with the sentence Section he charge This sufficient to amine. is 841(b)(1)(C). under Section grams and is responsible for over 841(b)(1)(A). guilty of a violation Section standpoint From an administrative 8. jury quanti- not instructed to find was also would work well for approach overwhelming there was evi- ty, however would prosecutions. future The defendant grams possessed dence that he over indictment with the charged (he grams personally was found with 749 the three of- required for one of 1,000 grams). He not and admitted to did (Section fenses embodied'in Section object jury to instruct the to the failure 841(b)(1)(A), 841(a), Section Section thus, we review under quantity, 841(b)(1)(B)). quantity charged If the was jury Because the plain error standard. offense, for a violation of the most serious grams quantity have found over 500 would 841(b)(1)(A), only quantity required but doubt, did beyond a reasonable the error prov- either of the lesser offenses was rights under the not affect his substantial en, guilty could find the defendant plain error doctrine. under a lesser includ- lesser offense judge instruction. The would ed offense justified in judge

4. The was then sen- Sentencing sentence under the Guidelines. tencing aggravated him for the crime un- 841(b)(1)(A), der Section which carries a I from the alternate basis for dissent in prison. maximum sentence of life speci- court the affirmance of the district majority opin- B of fied Section IV required to judge 5. The sentence ion, unnecessary, but because Sentencing him under the United States Guidelines, questionable also it is of sound- he because properly did. He ness. arrived at an offense level of 36 with a IV, history category pro-

criminal of which sentencing range vides a of 324 months I. 405 months. He sentenced the defendant The Provisions Section months, to 324 which is within the statuto- are Constitutional. in ry prison, maximum sentence of life 841(b)(1)(A). in provided Section majority opinion I agree with the statute, 6. This is all that need be decided and if interpret reasonably we should decision the district court should be un- possible, so as to save a statute from affirmed on constitutionality. majority this basis. opinion As the out, Supreme recently points standpoint 7. From an administrative Cyr, in emphasized this INS Enrico St. well for the works review cases 2271, 2279, already key have been tried. The (2001),stating: L.Ed.2d 347 (a) inquiries aggravated are whether the indictment, acceptable in and an otherwise construction charged [I]f offense was (b) jury reasonably did or of a statute would raise serious constitu- whether find an alternate beyond problems, could found a reasonable tional and where have “fairly the statute is quantity required interpretation doubt the for the of- ... are possible,” obligated to con- I hasten to note that this is not true of problems. strue the statute to avoid such the majority opinion, which states: honor the Congress We intent of and the It is from the statute that apparent Con- requirements process by of due treating gress’ overarching provide intent was to drug quantity type and which fix the greater punishment offenses maximum sentence for a conviction as quantity drugs larger. when is we would other material fact in a agree majority I with the opinion’s analy- prosecution: criminal it charged must be sis that can reasonably Section 841 and indictment, jury, submitted to the constitutionally be interpreted to mean subject evidence, to the rules of separate quantities in identified proved beyond a reasonable doubt. 841(b) proved Section must be to a This is beyond a the exact treatment Although necessary reasonable doubt. Sec- 841(b) prove crime, an tion element of a I is- contained under the label and thus “Penalties,” it puzzling opinion find the statute does not specify does not simply acknowledge that judge whether the or the jury is to make those determination or under circumstances is an what burden of element an aggravated problem crime. The proof, open interpreta- thus to a fair with treating that, separate this as a category, tion in order to avoid unconstitution- nei- ther element of a ality, quantities must be determined crime nor a sentenc- factor, ing arises not from jury beyond majority a reasonable doubt. opinion which it treats the indictment proof of these exactly they factors II. they would be treated if were elements of Elements Crimes. problem crime. The arises with the My disagreement first with majority opinions treatment in other they where opinion is that it indicates that the Su- may not have to charged be in the indict- preme category Court eases create a new may ment or required proved be to be to a of criminal penalties that jury beyond a reasonable doubt in some enforcement — charged must an indictment and circumstances but not others.

proven jury beyond to a a reasonable my opinion Court has I doubt. believe that the Supreme Court quite made- it clear that inquiry saying opinions its recent that certain these cases is between elements of a crime statutes contain elements of a crime even factors, acknowledging though they penalties are mislabeled as elements of a can crime be mislabeled as sentencing factors. sentencing factors. In Castillo v. United States, 120, 2090, 530 U.S. S.Ct. importance of this distinction is two (2000), opening L.Ed.2d 94 the (1) paragraph opinions fold: Some in other circuits opinion point very plain. of that makes this have category also treated this as a new and have indicated that quantity again the need In this case we once decide wheth- indictment; alleged not be in the some er words a federal criminal statute (determined opinions have also treated this as a new by create offense elements (deter- category and concluded that quantity jury) sentencing a or factors need be submitted to the if by judge). mined a See Jones United maximum, States, sentence exceeds a statutory 526 U.S. S.Ct. (1999); thus need be submitted in some L.Ed.2d 311 Almendarez-Torres States, cases and others. v. United 118 S.Ct. (1998). of ten a maximum sentence The stat- that bore L.Ed.2d 350 (1988 924(c) an- pursuant 18 U.S.C. enhanced question, years, ute in but was V), car- ed., the use or supp. prohibits judge allowed the state statute that other a crime in relation to rying a “firearm” if it involved increase the sentence violence, penalty and increases apparent It is also hate crime. weapon used or dramatically when justices that were Apprendi opinion is, example, “machinegun.” carried be- drawing with a distinction concerned used the that the statute We conclude crime and tween elements of a words) (and similar “machinegun” word clearly set forth factors. This is most of- separate an element of a to state Thomas, concurring opinion Justice fense. on the he wrote “This case turns which significant 2090. It is Id. at 120 S.Ct. question of what consti- seemingly simple Castillo, Jones and Almendarez-Tor- 499, 120 a ‘crime.’” Id. at S.Ct. tutes dealing with the inter- res were all cases the constitu- He then related all of criminal statutes. pretation of federal are afforded to a protections tional cases the distinction was each of these charged been with defendant who has and a sen- an element of a crime between stated, crime, “All of these constitu- factor, creation of a new tencing not the determining turn on protections tional criminal enforcement of a category for the ‘crime’—that which facts constitute proven jury.” factor to be to a “sentencing ‘ingredi- facts are the ‘elements’ Jones, stated in crime.” Id. at ents’ of a 232,119 at S.Ct. U.S. further em- 2348. Justice Thomas then that a Much turns on the determination phasized that the essential determination an offense rather fact is an element of a crime and sen- is between elements of consideration, given than a tencing factors. charged must be that elements may be new Sentencing enhancements indictment, jury, and submitted to a creatures, they question but beyond a proven by the Government have create for courts is not. Courts think reasonable doubt.... While we which facts are long had to consider reading the fairest of Section 2119 treats in order to determine the suffi elements bodily fact of serious harm as an (usually in an element, enhancement, ciency of an accusation not a mere indictment). the other The answer that courts recognize possibility Any prompt- be might regarding view. doubt that the accusation provided have for that other read- arguments is, ed and it is then tells us what an element should, however, against resolved ing be apply matter to answer simple affirmed, rule, repeatedly under may right whatever constitutional susceptible that “where a statute is Winship [In re] issue in a case—here constructions, by grave one of which two 25 L.Ed.2d [397 questions and constitutional arise and (1970)] right and the to a trial questions the other of which such are jury. essentially A line of uniform long avoided, duty adopt our is to the latter.” accusations, authority addressing 239, 119 Id. at 1215. S.Ct. reported the earliest stretching from into founding after the until well cases Similarly Apprendi, 530 U.S. that the (2000), Century, the 20th establishes 2348, 147 L.Ed.2d 435 S.Ct. are understanding of which facts charge original issue of a firearms was conviction elements was even than the rule broader definition of an ‘element’ of the offense. adopts today. post (THOMAS, J., See at 2368-2369 concurring) (reviewing the relevant au- authority

This establishes that a thorities). every “crime” fact that is includes imposing a for or increasing law basis Id. at 494 n. 120 S.Ct. 2348. The (in punishment contrast with a fact that majority opinion Apprendi also stated: Thus, mitigates punishment). if the point [The that labels do not afford an legislature defines some core crime and acceptable applies as answer] well to the provides increasing punish- then for constitutionally novel and elusive distinc- upon finding ment of that crime tion between ‘elements’ ‘sentencing aggravating some fact—of whatever factors.’ ... Despite what appears to sort, including prior the fact of a con- us the clear ‘elemental’ nature of the aggra- viction—the core crime and the here, factor inquiry relevant is one vating together ag- fact constitute an form, not of but of effect—does the re- crime, gravated just much grand as as quired finding expose the defendant to a larceny aggravated is an petit form of greater punishment than that authorized larceny. The fact aggravating is an el- jury’s guilty verdict? ement of the aggravated crime. Simi- 494, 120 Id. at

larly, legislature, if the rather than cre- Confusion has arisen in interpreta- crimes, ating grades of provided has for tion of Apprendi case because of the setting punishment of a crime based recognize failure to that it is determining on some fact—such as fact is constitutionality of a state criminal proportional to the value of stolen statute, whereas Castillo and Jones are goods fact is also an element. —-that dealing interpretation with the of federal statutes, No multi-factor parsing of criminal statutes. It is clear that both the sort that we have attempted since Jones, in dealing Castillo and with federal Pennsylvania, McMillan [v. statutes, criminal determining are whether provision the statute anis element of (1986)7, necessary. is One need the crime or is a sentencing factor. The kind, look degree to the or range of I passages just quoted have from punishment to which the prosecution is Apprendi Apprendi make clear that also is by law entitled a given set of facts. concerned with the distinction ele- between necessary Each fact for that entitle- ments of a crime and factors. ment is an element. in Apprendi gives statement rise 600-501, Id. at 120 S.Ct. 2348. misinterpretation to a

Justice Thomas’s statement in- creating category a new criminal of sen- quiry is whether a factor is an element tencing proved factors that have to be the crime is confirmed footnote 19 of the beyond a jury, reasonable doubt to a majority opinion where it is stated: opposed simply being elements of crime that are mislabeled as the term

[W]hen ‘sentence enhancement’ the following: factors is beyond to describe an increase used sum, the maximum authorized sen- reexamination of our cases our tence, equivalent area, it is the functional in this of the history upon greater an element they offense than the rely, opinion confirms the one jury’s guilty covered verdict. expressed that we Jones. Other than Indeed, conviction, squarely fits within the usual a prior fact of fact jury a factors that have to be submitted to penalty the for a crime

that increases stat- prescribed are those that exceed “the statutory maxi- beyond prescribed the Instead, Id. the con- utory maximum.” jury, mum to a must be submitted passage of that is the trolling segment doubt. proved beyond a reasonable un- from Jones: is quotation “[I]t broader the exception, that we endorse With legislature for a to remove constitutional the rule set forth the statement of that jury from the the assessment of facts concurring opinions in that case: is ‘[I]t range penalties prescribed increase the legislature for a to re- unconstitutional exposed.” criminal defendant is to which a jury the the assessment of move from According Apprendi, one such un- Id. to prescribed range facts that increase constitutional act is for a state to increase a criminal defen- penalties to which penalty beyond pre- for a crime exposed. equally dant is It is clear that a statutory having maximum and scribed by proof facts must be established such issue, the fact rather than judge decide beyond a reasonable doubt.’ submitting jury. it to a That is not the 490, 120 Id. at provi- in which a only circumstance such important parse It is statement sentencing a factor is re- sion labeled as meaning to determine the full order jury. a quired to be submitted to cre- Apprendi the Court. The belief confirmed a This broader view is category, simply rather than ates a new majority opinion: of the passage later a determining statutory provision whether Despite appears to us the clear what just an element of a crime and not a here, ‘elemental’ nature of the factor factor, following flows from the inquiry relevant is one not of form but quotation: sentence from that “Other than required finding expose effect—does the conviction, prior any the fact of a fact that a greater punishment the defendant to penalty beyond increases the for a crime jury’s guilty then that authorized prescribed statutory maximum must verdict? jury, proved beyond submitted to a (emphasis a reasonable doubt.” Id. add- 494, 120 Id. at S.Ct. 2348.

ed). that we importance recognizing determining are the elements of an offense

It must be remembered that issue a re- in this federal statute is that it is before statute which criminal criminal quired finding of fact that did increase to be treated as other federal beyond charged It in the indict- penalty state crime offense. must be ment; proved jury beyond maximum. That not mean it must be to a does (in case) general applicability it has to federal crim- a reasonable doubt and the offenses, imposed that the must be in accordance inal with the limitation sentence Sentencing provisions such labeled as with Guidelines.1 agree are 1. At least two of our sister circuits sion that those sections unconstitutional. penalty provisions my important aspect the various of Section view the of the statute 841(b) that it not state whether the essential constitute different crimes with differ does Strayhorn, decided ent elements. See United States v. facts for those sections are to be Cir.2001); (6th judge jury. F.3d or a Thus the statute can be United Doggett, interpreted avoid doubt. States v. 164-65 constitutional Cir.2000). legislative history, Judge opinion regard it is Tashima’s also With 841(b)(1)(A) Congress punish agrees provisions quite clear that intended to However, (B) greater larger quanti- offenders to a extent for are elements offense. Congress opinion requires drugs. states that this a conclu- ties of It is not clear A. defendant a crime for which he was not charged. Id. at 186. Three judges con- Necessity an Indictment curred in her dissent and three others A defendant has a right constitutional to agreed on point, this but affirmed the con- be tried only and convicted charges viction on grounds. Thus, other seven of presented in an indictment and returned the eleven judges agreed with Judge grand jury. As noted Apprendi, Motz’s dissent on this point with regard to “[T]he indictment must contain an allega- the indictment. tion of every fact which is legally essential I firmly agree every element of a punishment to the inflicted,” to be at Id. crime must be charged in an indictment 15, 490 n. 120 S.Ct. (quoting United and a failure to do so cannot be overcome Reese, States v. 232-33, 92 U.S. 23 under plain the error doctrine. my In (1875)). L.Ed. 563 Similarly, opinion view, simple it is the United States a —in

in Castillo that if states the statutory fac- person cannot be convicted of a crime for separate crime, tors define a “the indict- which he has not properly been charged. ment must identify the and a [element] In United States v. Brough, 243 F.3d jury must find that proved element beyond Cir.2001), the opinion Castillo, a reasonable doubt.” at U.S. states “a post-Apprendi indictment should 123, 120 S.Ct. 2090. specify, and the trier fact must be in- has also said “that after an indictment has determine, structed to only not the ele- been returned its charges may not be offense, ments of the appear broadened through except by amendment 841(a), but also the events listed in grand jury U.S., itself.” Stirone v. 841(b) on which prosecutor relies to 212, 215-16, 4 L.Ed.2d establish maximum sentence.” This (1960). unnecessarily complicates the process In Promise, United States v. grand jury when expected (4th Cir.2001) (en 161-164 banc), crime, identify of a elements but also Judge acknowledged Wilkins require- certain types of sentencing factors. This ment, but concluded it requirement was a is completely when, unnecessary Ias have that could be avoided plain under the er- out, pointed the Supreme Court identifies ror Judge standard. Motz wrote a per- these mislabeled sentencing factors as ele- suasive dissent elaborating on the essen- Thus, ments of a crime. the indictment requirement tial of an element of the merely has to identify the elements of the crime being charged in crime, the indictment and and is instructed to find the inability constitutionally to a beyond convict a reasonable doubt whether having was intent on determined possible there were interpretations other by judge. my knowledge To no other cir- statute, wording of the but it resolved opinion cuit court reaches the conclusion that interpretation its repeated the oft "under rule labeling these elements pen- crimes as 'where a susceptible statute is of two alties declaring results in them to be unconsti- constructions, by grave one of which tutional. Jones case Court noted questions doubtful constitutional arise support legislative some from history that questions other of which such are avoid- Congress intended the provi- enhancements ed, duty adopt our is to (quoting the latter.'

sions to be factors. Committee Attorney United States ex rel. General Dela- reports floor debate referred to the bill Co., ware & Hudson penalties "enhanced apparently single for an (1909)).” 53 L.Ed. 836 Id. Jones, carjacking offense.” 526 U.S. at 119 S.Ct. 1215. 119 S.Ct. 1215. acknowledged The Court Third Cir- prior in accordance with charged, crime guilty of the defendant is cuit case. the awk- confused with need not be and “sentencing fac- determining of wardness concurring opinion, Becker’s Judge beyond a reasonable doubt. tors” (which was neces- joined by Judge Ambro en majority decision of the sary for the I believe majority opinion, As I read court), stated that: banc in this cir- exist would this awkwardness however, to indict not jury me, A will have grand cuit. It clear has become crime, but for cer- of a only light Ap- for elements 841 in of reconsidering upon factors, jury will sentencing statutory and prior tain con- that our prendi, only find not instructed to have to be alto- ought to be abandoned struction crime, certain sen- of a but also drug type elements and gether. I submit that beyond a reasonable doubt. tencing factors of- always elements of an are quantity should be unnecessary complication This I believe that fense under 841.... identi- Court’s given avoided not be quantity and should drug type fac- of these mislabeled only fication factors as element-like treated elements of crimes.2 tors as statu- they prescribed increase the when

tory maximum. B. ex- at He then did an extensive Id. 108. legislative 841’s histo- of Section amination “Beyond Interpretation The legislative history and ry stated Statutory the Prescribed ” statutory indicate that and structure Maximum. of a quantity are elements Sec- type and noted, is misinter- Apprendi As I have acknowledged He tion 841 offense. if meaning the sen- preted as intended oth- Congress possibly could have statutory “beyond prescribed tence erwise, concluded with this comment. but be submitted quantity maximum” need the however, to assert credulity, It strains An of this is the jury. example to the Congress type intended case, United States recent Third Circuit sentencing fac- treated as Cir.2001) (en (3rd 271 F.3d 98 Vazquez, and as elements tors in cases some banc). stated, “The majority opinion I of no statute written others. know when the violation occurred Apprendi manner, any I nor am aware such jury, determined judge, rather than the way. construed this statutes Vazquez drug quantity and then sentenced at 113. Id. sentence, year a term to a more than I very As expresses my This view well. statutory prescribed year his excess of mentioned, (b)(1)(C).” the misin- have the reason for Id. at maximum under added). Thus, is because terpretation the violation (emphasis interpreting that it is recognize failure to the sentence Apprendi depended upon losing maximum, and thus state criminal statute exceeding statutory However, even in Judge Hug, of a crime. majority opinion element doubt, sonable and sentenced under the er, if convicted, the defendant is the Sentencing Guidelines. judge’s ultimate sentence would exceed the statutory maximum? The same standard IV.

should applied be prospectively and retro- Applicability to Buckland. spectively. required “[D]oes the finding expose the defendant to a greater punish- The indictment of Buckland charged him than ment authorized jury’s the with conspiracy to distribute methamphet- guilty verdict?” Apprendi, 530 U.S. at amine in violation of 21 §§ U.S.C. 846 and 494, 120 S.Ct. inquiry 2348. The should 841(b)(1)(A) specifying that the conspiracy governed not be by whether the judge’s 1,000 involved grams or more of a mixture sentence exceeded the statutory maximum. of, or substance containing a detectable of, amount methamphetamine. He was

III. charged also with three posses- counts of 841(a) (b). sion under Sections with intent to methamphet- distribute Offenses amine. jury was not instructed to earlier, I 841(a) As mentioned Sections find quantity and the defendant did not (b) set forth three separate offenses request Thus, such an instruction. we re- 841(a) applicable to this case. Section is view the failure to instruct on an element basic punishable offense under Section of the offense for plain error. There is no 841(b)(1)(C) unspecified for amounts of doubt this was error and the error was methamphetamine up grams. to 50 plain. question The essential is whether it next most serious offense is under Section affected his substantial rights. The evi- 841(b)(1)(B) when the amount of metham- dence overwhelming was per- that he was phetamine grams exceeds 50 but is less sonally found with grams, and admit- grams. than 500 The most serious offense 1,000 ted to grams. I agree with the 841(b)(1)(A) is under Section when the majority opinion would have amount of methamphetamine exceeds grams found the 500 quantity beyond a grams. If the only indictment for a doubt, reasonable and thus his substantial 841(a) violation of Section with no quantity rights affected, were not and that the er- specified, then a sentence under Sec- ror seriously fairness, did not affect 841(b)(1)(C) tion is applicable, for which integrity, public reputation judicial of years. maximum is 20 If the proceedings. .841(a) indictment is under Section an with alleged quantity grams from 50 to 500 The judge justified was thus in sentenc- grams, then a sentence under Section ing him for aggravated crime under 841(b)(1)(B) applicable, with a 841(b)(1)(A), maximum Section which carries a maxi- years. of 40 If the indictment is under mum sentence of in prison. life In sen- 841(a) Section alleged with an quantity Buckland, tencing free, he was howev- 500 grams, over er, sentence under Section to anywhere sentence within range indict- Buckland was This assumes of life to a maximum up that section 841(a) of Section a violation only for ed to required he was instead but prison, under calculated to sentence with the Sentenc- with in accordance sentence charge 841(b)(1)(C). Under Section ing Guidelines. consid- required to only be jury would sentencing guidelines the 1994 Under for a responsible Buckland was whether er time, offi- probation at that applicable up methamphetamine amount trace level of an offense cer recommended only be Thus, jury could grams. quantity upon combined based beyond a reason- found have considered methamphetamine. (12.47 kg.) pounds 49 grams maximum doubt a able the prop- judge concluded The district deter- In order to counts. of the four each led kilograms eight er under appropriate sentence mine a criminal of 34 with level offense sentencing guidelines applicable then the offense enhanced VI. He history of to deter- 3D1.5 to Section would turn aof possession points by two level these for punishment” the “total mine of which level an offense weapon to requires Commentary offenses. yielded history VI of criminal with a of- four for the quantities the combine 405 months. range of 324 to each of on quantity the Thus fenses. months, = of imposed sentence togo He x We then grams. grams course, than the maxi- was, less of falls which this 2D1.1 and determine Section The judg- prison. of life in grams mum sentence of at least 100 category the within af- be should court denomi- the district which grams, ment of less than but judge this of 26. firmed on basis. level an offense nates fire- of a possession two levels added outset, when we at the I mentioned As then level to We arm, the bringing as quantities of the determination view and find Chapter 5 charge in to the turn the offense, Ias believe the of elements criminal with a level for offense Jones, Castillo did Supreme Court VI, sentencing range would of the history to treat the court it enables Apprendi, turn to Sec- then months. We 140-175 be just the same 841 offenses these Section Multiple Counts “Sentencing on 5G1.2 tion greatly simplifies any other offense (c), ap- Subsection of Conviction” the already tried of review of cases the in this case. plies future. trial of cases the count on imposed If the sentence statutory maximum highest the carrying V. the to achieve adequate months] [240 months], the then [175 punishment total Sentences. Stacking Consecutive concur- shall run on all counts sentences otherwise to the extent rently, except alternate gives an majority opinion by law. required sen- of Buckland’s affirmance for the basis 5G1.2(e). Thus, hypo- in this that even It Section assumes of 324 months. tence SG of con- stacking no be conspir- there would indicted for thetical not if Buckland was n pun- “total 841(b)(l)A the awith sentences because secutive Section acy to violate not exceed does of 175 months 1,000 grams, than ishment” more quantity 240 months. statutory maximum upheld can still 324 months sentence (d) it applicable because Subsection sentences stacking consecutive punish- if the total play only into comes to Section pursuant counts possession statutory maximum. exceeds ment 5G1.2(d) sentencing guidelines. If, however, we quantity take the total that the jury amine could have found be- found by judge eight kilograms, and yond a doubt, reasonable because of the firearm, the two-level increase for the this limited charge indictment, or wheth- leads to an offense level of 36. With a er it is the judge found after history criminal the applicable VI sen- the trial by a preponderance of the evi- tencing range is 324-405 months. The dence. If former, is the the maximum “total punishment” judge imposed of punishment total that could be imposed 324 months does exceed the statutory max- under hypothetical is 175 months and (d) imum and thus subsection would be there is no for stacking. basis If it is the applicable: latter, the punishment total of 324 months If the imposed sentence on the count could be sustained stacking consecutive carrying highest statutory maximum sentences.4 [240 months] is than less the total pun-

ishment [324 then months] I noted, the sentence As have imposed on one more of the other stated Apprendi, “[T]he inquiry relevant shall run counts consecutively, but is not form, one of but of effect—does the extent necessary produce required finding expose the defendant to a combined equal sentence to the total greater punishment than that authorized punishment. In all other respects sen- by the jury’s guilty verdict.” Apprendi tences on all counts shall run concur- 530 U.S. at 120 S.Ct. 2348. In the rently, except to the extent otherwise majority opinion’s hypothetical conviction required by law. 841(a) of a offense, Section it is ines- ,5G1.2(d). Thus, SG Section one of the capable that the 324 month sentence would possession sentences on a count run would exceed the punishment by authorized consecutively to the extent of 84 months jury’s guilty verdict. (324-240). It is important to note that this The Supreme pointed Court out in Jones calculation is not based the combined the seriousness of the Sixth Amendment máximums of years of the other counts requirement that certain findings as is must be advanced in opinions.3 some The jury made and the judge importance could never have sentenced to 60 years submitting to a jury for these “a offenses, criminal fact that federal sets the because he Jones, range.” confined the 526 U.S. at guidelines. Instead it is the actual sen- 119 S.Ct. 1215. The Court then illustrated tences imposed he has on the other counts the importance in the case under consider- 5G1.2(d) are used in the Section calcu- ation. There the basic offense car- lation as I have illustrated. jacking, punishable by a maximum of 15

The years prison. difference between two ap- provided these statute for proaches is the question of an whether it is increased up sentence of years, to 25 if maximum of methamphet- bodily resulted, serious harm in- example An is the opinion in United States v. 4. Even if Buckland were sentenced to Price, (10th Cir.2001), 265 F.3d statutory maximum for each of his Section cited majority opinion. opinion That 841(a) offenses, punishment the total states judges required would be to would statutory not exceed the maximum impose 20-year consecutive result- sentences 5G1.2(c) 5G1.2(d). thus apply, would ing in a total consecutive sentence of 208 There stacking. would no basis for years order to punish- achieve the total ment. Cir.), granted, banc reh’g en life, if death up sentence creased Cir.2001). all restate Rather than The Court stated:

resulted. I to which my position, for the reasons from 15 might rise penalty potential If a only a few adhere, I emphasize continue jury determina- a non life on years to points. salient correspond- role tion, jury’s would usual- significance from the ingly shrink overarching principle guilt to determinations ly carried finding a stat not to avoid construction ga- of low-level importance the relative Rather, costs. at all ute unconstitutional cases, jury finding some tekeeping: “[wjhere acknowledges, majority as the 15- a maximum necessary for of fact clear, ‘we intent has its made Congress merely open would sentence year ” Miller v. to that intent.’ must effect give finding judicial door to for sufficient 120 S.Ct. French, 530 U.S. imprisonment. life (2000) (quoting Sinclair 147 L.Ed.2d (emphasis 243-44, Id. at Atkinson, Co. v. Ref. to the added). parallel ais close There (1962)). Thus, 8 L.Ed.2d opinion. majority holding alternate avoid we should agree that although I and a in an indictment charge A constructions” doubtful “constitutionally Section of a violation conviction fairly possible, where 841(a) offense, maximum carries give does not of construction this canon “merely open years, would of 20 sentence ignore prerogative a court finding sufficient judicial ato the door constitu- to avoid in order will legislative prison.”5 life in “[ajlthough adjudication; tional VI. legis- to construe strain will often constitu- against save it as to lation so Conclusion will not not and attack, it must tional I concur in IV B. from -Section I dissent perverting point of this to the carry opinion, majority much of the rest judicially ...” or of the statute purpose judgment. all, I concur and but it. rewriting whom TASHIMA, Judge, with Circuit 833, 841, 106 Schor, 478 U.S. v. CFTC PAEZ, Judges, Circuit and (emenda- (1986) REINHARDT 3245, 92 L.Ed.2d 675 S.Ct. dissenting: join, v. Aptheker (quoting original) tions in 500, 505, S.Ct. State, 84 378 U.S. Sec’y majority, purporting while of Because (internal quo- 1659, 992 12 L.Ed.2d statutory of principles the “basic to follow omitted)). In citation marks and tation 564, to do construction,” fails Maj. op. clear, is and case, congressional intent this that U.S.C. so, My position I dissent. carries avoid it attempt majority’s fully facially unconstitutional § judicially rewrit- point of to the opinion its United opinion. See panel in forth set (9th ing § 841. Buckland, v. States offense, closely parallels the Jones much more upon United opinion relies majority 5. The Ap- extent 633, To the case. 148, Watts, case than Watts 117 S.Ct. 519 U.S. v. States guidance provide additional Jones prendi and (1997). Supreme Court The 136 L.Ed.2d ato be submitted must to what facts as Apprendi in in 1999 and Jones decided doubt, the beyond a reasonable proven aof Section conviction hypothetical The pronouncements determining recent offense, most 841(a) judge awith govern decision. our should for that exceeds the maximum sentence The Court’s decisions in (2000), L.Ed.2d Cas every circuit in the States, v. 120, tillo United 530 U.S. 120 country treated drug as a sen- 2090, (2000), 147 L.Ed.2d 94 Jones v. tencing factor. Maj. See op. at 564 & 2n. States, 227, United 119 S.Ct. cases). (citing Yet, the majority insists (1999), 148 L.Ed.2d 311 and Almen § 841 is ambiguous because it does States, v. darez-Torres United 523 U.S. not specify that drug quantity is to be 118 S.Ct. determined judge at sentencing. (1998), set forth the principles majority, fact, The twists logic by con- construction should guide us in this cluding that the statute’s silence somehow The majority case. explains nowhere why means that “the text of the statute is we ignore should the analyses in three dispositive” in support position. its Id. High recent Court cases directly ad at 565. The text of the is disposi- statute dress the very issue we face. tive; clearly sets forth elements question is whether the statute 841(a) § and sentencing considerations in “treat[s] facts that lead increase 841(b).1

the maximum sentence a sentencing as majority’s position rests on the fact factor” and is therefore unconstitutional. that “[t]he statute does not specify Castillo, who 530 U.S. at 120 S.Ct. 2090. shall determine drug quantity or identify making determination, In Court, the appropriate of proof burden by example, these shows us that our task is first determinations.” Id. at 565. case, to examine In such the statute’s language” “literal course, accepted and its rules of statutory “overall structure.” Id. Like con- struction require U.S.C. the statute the court to at issue Castil- examine the lo, § 841’s clearly legislative structure statute’s history in differentiates order to de- between the elements of the Congress’ offense termine intent in enácting the factors to be See, considered at sentencing. e.g., statute. Toibb v. Radloff, 501 Castillo, the Court had no 157, 162, trouble find- U.S. 111 S.Ct. 115 L.Ed.2d ing that the structure of (1991) (“ “Where, “clarifie[d] 145 here, the resolu- any ambiguity” regarding congressional in- tion question of a federal law turns on a tent because part “[t]he first of the open- statute of Congress, intention ing sentence clearly and indisputably es- look first to the statutory language and tablishes the elements the basic federal then to legislative history if the statu- ” offense,” while the next three sentences tory language is unclear.’ (quoting Blum directly “refer to sentencing.” Id. at Stenson, 120 S.Ct. 2090. (1984))). Yet, rather 841(a)

Similarly, § than following “clearly accepted principles and of indis statu- putably” tory the construction establishes elements of and attempting the to ascer- offense, 841(b) § and tain directly refers Congress to what intended in light of sentencing. why, This is majority the this ambiguity, the majority goes on to acknowledges, prior to Apprendi v. New construe this silence as a license for the Jersey, 530 120 S.Ct. 147 court legislate to its own solution. Notwithstanding 1. majority's the reluctance (quoting S.Ct. 1219 Bhd. R.R. Train- of rely headings to on the R.R., contained in the stat- men v. Baltimore & Ohio " ute, 528-29, ‘the title of a statute and the heading of (1947)). 91 L.Ed. 1646 section' Moreover, a are Castillo, 'tools available for the resolu- § as in 841's structure is of a meaning tion about doubt' the of a easily stat- ascertainable even the without aid of Almendarez-Torres, ute.” 523 U.S. at statutory headings. Acevedo, (2000); F.2d conclusion, v. States it United majority’s

Contrary to the Cir.1989) (“the (7th quantity of 607, 611 judiciary, has been the that “it is untrue sentencing a substance is respon- the controlled the Congress, which allocated issue”). un- drug quantity determining sibility for at Maj. op. § the courts.” der 841 to why it us no clue majority gives The See, e.g., history is legislative clear. The prior silentio that concludes sub now (1990), 101-681(1), H.R.Rep. No. (that congressional intent reading of in U.S.C.C.A.N. reprinted drug make the intended to judges were judges to the need (noting 6514-15 determination) by all courts was quantity fashioning sen- “flexibility when have accepted to the happened mistaken. What 841(b)); H.R.Rep. No. 91- under tence” construction, especially rules (1970), in reprinted ascertaining legislative rule of the cardinal (describing the 4566, 4576 U.S.C.C.A.N. strip pri- Why Apprendi does our intent? that, noting §of 841 and penalties section value? See holdings precedential sentencing procedures foregoing “[t]he does not Maj. op. at 567. flexibility judges, permit- to give maximum statutory con- change principles period imprison- them to tailor ting struction, congres- change it nor does fine, circum- ment, to the as well as that is undeniable from sional intent case”) individual involved stances history of the legislative structure added); States v. United (emphasis cf. Now, long- application of statute. because Cir.1987) 79, 81 Morgan, 835 F.2d statutory construc- standing principles history supported legislative that (noting federal important tion will invalidate quanti- drug that then-prevailing view statute, jettisons majority conveniently offense not an element ty was own and fashions its principles those fact, 841). conceded government, solution, though solu- even that makeshift Congress intended argument that at oral contrary congressional clearly tion sentencing factor to be a quantity to drug intent. judge by prepon- be determined the distinction be majority finds we, like all And of the evidence. derance sentencing factors and elements tween circuits, difficulty in had no other of the “misleading,” term “inappropriate” be Congress intended concluding that Maj. op. pigeonholing.” ing “conceptual finding. drug quantity make the

judges Yet, determining whether Con at 565. Nordby, 225 F.3d States v. See United a fact to be an element or gress intended (9th Cir.2000) (stating, 1058-59 precisely the Su factor “Congress ... shortly Apprendi, after determining approach preme Court’s clearly intended issue constitutionality of the statutes at factor, not an element Jones, Castillo, and Almendarez-Tor cases); 841,” see listing under crime Castillo, 123-31, 120 530 U.S. at res. See Jackson, also, e.g., United States Congress (discussing whether S.Ct. 2090 (7th Cir.) (stating, only a few F.3d in 18 U.S.C. statutory references intended Apprendi, “[i]t prior months constitute ele types § 924 to to fire-arm type Congress intended the apparent that factors, ments of offense or an by a drugs quantity and of the distributed treating the facts sen 841(a) that as noting and convicted under section defendant signifi rise to give “would tencing factors sentencing”), judg- at to determined Jones, 526 questions”); cant constitutional and ment vacated remanded for further 232, (stating 1215 at U.S. light Apprendi, 531 in consideration “[mjuch that a the determination 290 953, 121 148 L.Ed.2d turns S.Ct. U.S. fact is an element of an offense rather proscribe than conduct power within its to make consideration,” a sentencing criminal, and going on ... every reasonable presump- to congressional determine intent in enact tion to attaches the proscription require to statute); ing Almendarez-Torres, the 523 the courts to make it effective in accord 226-35, (where U.S. at S.Ct. the with the evident purpose.” Id. at specify statute did not a provision whether Nonetheless, S.Ct. 634. the reject- separate “defíne[d] crime or simply au ed government’s the request to decide for penalty,” thorize[d] enhanced the Court itself the penalty Congress would have “look[ed] the statute before us imposed, and reasoning that “there are limits intended”). Congress ask[ed] what In Ap- beyond which we go cannot in finding what prendi, the Court did reject analy- its Congress put has not into so many words in ses and Jones Castillo. The statute in in or making certain what it has left unde- specify did that the fact at issue fined or vague too for reasonable assur- was to be by determined judge the at ance of its meaning.” Id. sentencing; 841 does not. Rather than contrast, By here, Congress’ where in supporting majority’s position, the this dif tent to have drug quantity by decided ference requires that we follow the Court’s judge at sentencing is clear from the stat Castillo, analysis Jones, and Almenda ute’s structure and legislative history, as rez-Torres, where, §to similar none government conceded, has majority of the at statutes issue specified who was takes the statute’s silence as a license to to find the fact at issue and what superimpose on the statute a requirement standard.2 Where the Supreme Court was contrary to clear congressional intent. faced with ambiguity we face in Maj. See op. at 568 (stating did the Court ignore therefore legislative must now be submitted to a history and construe the statute proven and beyond doubt). a reasonable

wished, regardless of congressional intent? Evans, Similar to Congress where failed not, Of course because that would violate numerous times to address the ambiguity basic of statutory tenets construction. issue, the statute at during many Yet, exactly that is what majority has years that the courts universally interpret done here. 841(b) §ed as encompassing sentencing

Mysteriously, the majority finds support considerations to be determined for its conclusion in United States v. judge by Ev- a preponderance evidence, ans, Congress L.Ed. never legislation enacted to cor (1948), case in which the Court de- rect perception. United States v. Cf. clined to do exactly,what the majority Kelly, does (S.D.Cal. 105 F.Supp.2d Evans, here. 2000) statute issue that, indi- (noting “[djespite perva Congress’ cated intent to make concealing 841(b) siveness conviction [that or harboring crime, unauthorized aliens a by Congress intended to set forth sentenc but the penalty for the offense was un- ing among courts, factors] the federal Con clear. See id. at 68 S.Ct. 634. gress has never amended the statute to that, Court acknowledged “where provide Con- otherwise. rational in gress has exhibited clearly purpose to terpretation of congressional idleness Although Judge Hug, concurring which, Congress his although an intent different dissenting Castillo, opinion, Jones, interprets from Congress the intent ascribed to way the same majority, Almendarez-Torres I equally, wholly unsupported by do, in applying that understanding §to legislative Congress record—that intended he, majority, like the completely ignores separate con- define criminal offenses in enact- gressional Instead, 841(b)(1)(A) intent. he ing §§ 841(b)(1)(B). attributes

588 as much history so legislative that precedent of voluminous the face intent Congress’ that was that hint[ed]” assume straight is to to set power has v. statute); United States enacting the agrees.”). Congress that Cir.2001) (en (3d 93, 113 Vazquez, by the clear its intent Congress made (“It concurring) C.J., banc) (Becker, history. legislative and structure statute’s that however, assert to credulity, strains (“Congress 1058 225 F.3d at Nordby, See and type for intended Congress drug quantity clearly that intended ... in some sentencing factors as to be treated of the factor, an not element a I know in others. and as elements cases sus- not 841; statute is § under crime manner, nor a in such written noof statute interpretation.”). contrary to ceptible construed any statutes of am I aware unclear, conclude to were if its intent Even Furthermore, as cannot ... we way.... Congress would that, Apprendi, light adopted have might Congress that sume an ele- to be drug quantity intended have simply to avoid approach unusual an such proceed tobe offense “would of the ment violation.”). an Apprendi for the manner legislative essentially in an unanimity “felicitous while Finally, criminal of the specification and definition may be appeals the courts 490-91, among” 68 S.Ct. Evans, at U.S. 333 acts.” sake for its own “conformity goal, laudable for desirable necessary nor is neither the bounds outside a task This is differences because appeals, courts for It is better interpretation. judicial im ventilating the effect have opinion with its in accord more Congress, and creating a questions legal portant for than us function, the statute to revise background against make. it would at the revision to guess an issue resolve ultimately can We precision. it can do task with That v. Walker a whole.” country as speculation make no more than do could (7th Cir.), cert. O’Brien, F.3d 634 216 law. 531 Finfrock, Hanks v. sub nom. denied v. 634; States United 68 S.Ct. Id. at 518 L.Ed.2d 148 121 S.Ct. U.S. Cranch) 32-33, (7 3 Hudson, 11 U.S. Breyer for (2000). O’Connor Justices “[t]he (holding that it L.Ed. reasoning Ap- majority’s esaw [that] of the Union authority legislative stat unconstitutional render would prendi crime”). an act ... make must Apprendi, § 841. See as utes such a consti- of what solution Ultimately, the J., (O’Connor, S.Ct. U.S. at should sentencing scheme tutional consequences (stating dissenting) Congress. prerogative encompass sentenc terms of rule “in majority’s jerry-build function the courts’ It is not today’s decision ing schemes invalidated might Congress scheme 550-51, 120 severe”); id. at likely be will intended, had it foreseen have might not majority’s (recognizing that S.Ct. between collision that deter suggests” “strongly reasoning (B). 841(b)(1)(A) States See United & are unconstitu minate-sentencing schemes 576-78, Jackson, (Breyer, 565, 120 tional); id. at (1968) (rejecting the L.Ed.2d 138 majority’s (stating “the J., dissenting) U.S.C. that 18 argument government’s uncertainty about serious rule creates convening of a 1201(a) authorized as such statutes of’ constitutionality impose whether decide special 841). there because penalty death our status majority “end[ed] has con- Congress indication slightest “the Walker, but F.3d at outlier,” Not a word scheme. such templated pnce ignoring congressional intent every circuit acknowledged has to be ignoring statutory clear and basic tenets of recently applied by

construction the Su- Castillo, Jones, preme and Al- mendarez-Torres. “It one thing to fill a

minor gap extrapolate a statute —to

from general design its details were inadvertently quite omitted. It is another

thing to” construe the statute a manner

clearly contrary congressional intent

“for the purpose rescuing sole a statute charge from a of unconstitutionality.” Jackson, 390 U.S. at 88 S.Ct. 1209. beyond

“[T]here are limits which we can- go” Evans, construction. 68 S.Ct. 634. Because the majority clearly limits, has passed those I

respectfully dissent.

BARCAMERICA INTERNATIONAL TRUST, Trust,

USA a California Plaintiff-counter-defendant-Appel

lant,

v. IMPORTERS, INC., TYFIELD corpo ration; Cantine Leonardo Da Vinci Coop., a.r.l., entity Italy,

Soc. Defendants-counter-claimants-Appel

lees,

George Barca, Gino Third-

party-defendant.

No. 01-15973. United Appeals, States Court of

Ninth Circuit. Argued April Submitted 6,May

Filed ed as notes Office constitutional difference whether a sin- Register, Federal National Archives and gle both subsection covers elements Services,- Records and became subsection penalties, they whether are divided headings when the Controlled Substances (as § multiple across subsections transposed Act of 1970was into the United does), they or whether are scattered Congress States Code. has amended (see multiple across statutes 18 U.S.C. since, opted numerous times but has never 1963). 924(a), §§ Thus, headings to enact these into law. 243 F.3d at 1079. States, Jones United hand, Apprendi, on the other Jersey New statute under examination ex- (1999), the “look” of this statute is not plicitly provided for a hate crime sentenc- guide congressional reliable intentions. ing imposed enhancement to be based upon finding of the trial court statu emphasis Buckland’s on the

Notes

notes Wright, correctly F.2d opinion in United States v. did determine that Cir.1984), clear- found that an item charged properly in the indictment factor was charged ly penalty been in an labeled as a had Judge Hug jury. were submitted to the If for de- and submitted to indictment time, opinion he amend the 1984 opinion years termination. This 1984 simply add "because it is an element would Jones, Apprendi, which before Castillo a crime.” type factor as an identified this message quoted broader 841(b)(1)(A) and endorsed applicable, with a maximum Jones, from which was interpreting a fed- of prison. life in eral criminal statute. Once we acknowledge that these are The interpretation that quantity is to be separate offenses, then we treat those jury only submitted to a if the judge’s offenses like other federal criminal sentence exceeds the maximum they must be charged in an in- offenses— could not be applied prospectively. How dictment, proved to a jury beyond a rea- would one know at the time of trial wheth-

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: 289 F.3d 558

Docket Number: 99-30285

Court Abbreviation: 9th Cir.