*1 knew, that Hughes or counsel that either 120 S.Ct. Martinez-Salazar, U.S. If counsel record. on the obvious is not (2000), a direct is L.Ed.2d Hughes juror because the not strike did fully I error. involves court appeal and it, not find ineffective I would requested cases, but in those the decisions with agree counsel, the unless assistance of us before the issue discuss not they do I do not insane, alleged. which is not was counsel. of here, ineffectiveness per se further failure to ask counsel’s find that asked he that Hughes asserts Although to dire or strike voir questions on Orman, there is juror to strike his counsel explanation, was counsel’s juror, without he that Hughes by statement no sworn the criteria under unreasonable objectively majority theAs to do so.1 asked counsel Washington, found Strickland later demonstrates, Hughes was opinion 80 L.Ed.2d U.S. was satisfied trial if he in the asked Otherwise, (1984). could a defendant affirma- in the counsel, replied he to which his insisting that by “sandbag” the court that be course, not let I would Of tive. then panel juror on the counsel leave hand, the issue final determination strike counsel to that he told later claim particular at that it demonstrates but Therefore, remand I would juror. trial, seem there did not during time factual determination for a Hughes and animosity between refusing pursue by counsel strategy majority Moreover, although the counsel. then for strike Orman voir dire or juror Orman the silence that conduct finds whether court to determine voir on questions under Strick- additional objectively other reasonable light of was little, justified fur- yet it still not is trial is means A new apparently land. dire record. knew counsel the current status perhaps under proof ther are which we juror about the something
not aware. testimony sworn there is no
Because juror concerning this issue record stricken, I juror not why bias America, STATES UNITED a new and order a remand think that Plaintiff-Appellee, than more relief case is trial this remand I would justified law. STAFFORD, Defendant- David court, but the district case to Appellant. ques- on hearing evidence purposes No. 99-5706. to strike decided why counsel tion of ex- never has Counsel juror Orman. Appeals, I can action. why he took plained Circuit. Sixth counsel in which scenarios think of several 1, 2000. Argued Dec. juror Orman keep might decide July and Filed Decided voir answers to with her even panel, En Banc Denied Rehearing may instance, Hughes For questions. dire 10, 2001. Sept. on the Orman remain requested have now, not under but it Hughes denies jury. been addition, may have there
oath. of Orman background
something though he cause even ny jurors for a sworn statement must been 1. There himself.” Johnson do so prompted to trial Johnson, states: "Johnson’s for the court Johnson, F.2d at 755. the Deri- attempt remove made no counsel *3 (briefed), Monica Cushing Terry M. (argued and J. Ford Wheatley, Marisa Louisville, Attorneys, briefed), Asst. U.S. KY, Plaintiff-Appellee. for In- Stafford, Federal Correctional David TN, Forg III H. stitution, John Memphis, briefed), Forg Forg, Cincin- & (argued and nati, Defendant-Appellant. OH, for CLAY, Circuit Before: NORRIS ROSEN, Judge.* District Judges; ROSEN, J., opinion delivered D. NORRIS, J., joined. court, in which 479-84), CLAY, (pp. delivered J. opinion. concurring separate * designation. sitting by Rosen, Michigan, E. The Honorable Gerald Judge the Eastern District District
OPINION termined that bag contained 235.42 grams of “cocaine freebase” and 14.48 ROSEN, Judge. District grams powder cocaine. {See Presen- Defendant/Appellant David ap- Stafford ¶ tence Investigation Report J.A. peals his posses- 188-month sentence for sion with intent to distribute cocaine in 841(a)(1), violation of 21 arguing U.S.C. B. Background Procedural that this sentence reflects an erroneously 3, 1998, On August Defendant was Yet, enhancement for “crack” cocaine. charged one-count indictment with question expressly substance in *4 possession with intent to distribute co- consistently referred to as crack cocaine caine, 841(a)(1). violation of 21 U.S.C. both at plea hearing and presen- The specify indictment did not drug quan- investigation report, tence and Defendant tities, nor any it refer did of the penalty challenged never once this characterization provisions set forth at 21 U.S.C. throughout the course of the proceedings 841(b)(1).1 in the court below. Accordingly, finding no basis to relieve Defendant of the conse- arraigned Defendant was on December quences guilty plea, his we affirm. 30, 1998, and guilty entered a plea on March 1999. In plea his agreement,
I. FACTUALAND PROCEDURAL Defendant acknowledged that he was BACKGROUND charged with a violation of 21 U.S.C. § 841(a)(1), fully that he Leading A. The Incident understood to Defen- nature and elements of the charged of- dant’s Indictment fense, and that this charge carried a “mini- An account of DefendanVAppellant mum term imprisonment years, of 10 David Stafford’s arrest is set forth in his [and] maximum term of life imprison- Investigation Report, Presentence and this (Plea 9.) ment.” Agreement at J.A. at incorporated same account is without ob- plea agreement that, further stated at jection into Defendant’s appeal. brief on the time sentencing, the Government 24, 1998, On March at p.m., around 1:45 would “recommend a imprison- sentence of police the Louisville observed a motor ve- ment at the lowest end of applicable traveling hicle in excess of 60 per miles [Sentencing] Range, Guideline but less not hour in per a 35 mile hour zone. The any than mandatory minimum term of im- being vehicle was Dorsey, driven Lois prisonment law,” required by and that the riding Defendant was in the front stipulate Government would quanti- to the passenger seat. As officers stopped the ty of drugs involved as being “235.42 investigate violation, vehicle to a traffic grams grams pow- cocaine-base and 14.48 Defendant exited the car bag with white 3-4, 11-12.) der {Id. cocaine.” J.A. at hand, attempted his to flee the During chase, scene foot. the ensuing At the March 1999 change-of-plea the officers observed throwing Defendant hearing Judge before District Edward H. bag away. appre- Johnstone, Assistant Attorney U.S. Monica hended, bag was recovered. As Wheatley plea summarized the agreement below, laboratory analysis discussed de- as follows: argument, oralAt years counsel imprisonment. Government’s life Counsel con- ceded, penalty page however, stated that a to the penally attached page that this not a indictment, specifying sentencing range part of the record before us. sentencing, Defendant’s In advance of Mr. Stafford’s exchange B. Kathryn Jarvis Officer indictment, Probation which U.S. one-count
guilty
Investi-
a Presentence
841(a)(1)
and filed
prepared
possession
charge an
does
(“PSIR”). As
of her
part
count,
gation Report
the United
distribute
intent
conduct,
relevant offense
of the
recommending the low discussion
will
the re-
Jarvis recounted
Probation Officer
range
guideline
appropriate
end
of the white
laboratory analysis
of a
mandatory mini-
sults
than
but
less
shortly before
by Defendant
bag discarded
off for
three levels
recommending
mum
earlier,
analysis
noted
arrest. As
stipulating
responsibility,
acceptance of
approxi-
bag contained
that “the
case is
revealed
in this
freebase
of cocaine
base,
mately
grams
235.42
also
of cocaine
grams
235.42
(See
powder cocaine.”
grams of
14.48
crack,
grams
and 14.48
known as
Based on
J.A.
PSIR
powder....
conduct,
Officer de-
the Probation
offense
27-28.)
2-3,
(Plea
Tr. at
J.A.
Hearing
offense
Defendant’s
base
termined
Defendant’s
Wheatley and
Both AUSA
*5
Guidelines
Sentencing
the U.S.
level under
Haworth,
counsel,
confirmed
Jamie
34,
three-point
a
reduction
minimum
a
specified
plea agreement
(See id.
responsibility.
of
acceptance
for
(id. at
years,
of ten
imprisonment
term of
42-43.)
PSIR ex-
2-3,
at
The
J.A.
at
stat-
28),
himself
3,
and Defendant
at
J.A.
computation:
for this
the basis
plained
he under-
points that
at two different
ed
a violation of USC
for
guideline
The
30).
29,
(id.
5,
The
this,
4,
at
at
J.A.
stood
841(a)(1)
2D1.1 and
is found
Section
informed Defendant
also
Judge
District
be deter-
offense level
directs
life
of
maximum term
that he faced
Quantity
Drug
utilizing the
mined
29.)
(Id.
4,
Nei-
at
J.A. at
imprisonment.
(c). As
forth
Subsection
Table set
raised
his counsel
nor
ther Defendant
cocaine
powder
involves both
this case
character-
Government’s
objection to the
convert-
shall be
each
and crack
plea agreement.
ization of the terms
to obtain
marijuana equivalent
ed to its
factual basis
as to the
questioned
When
grams
The
level.
235.42
single
offense
testified:
guilty
Defendant
plea,
(“crack”)
marijua-
have
of cocaine base
4,708.4 kilograms.
equivalency
na
police.
stopped
Louisville
I was
have
powder
cocaine
grams
14.48
me,
The
eight-
I had
stopped
they
And when
2,896 grams
marijuana equivalency
[a]
base and
ounces
cocaine
and-a-half
There-
(2.896
marijuana).
kilograms
pos-
my
powder cocaine
half-ounce of
equiv-
fore,
(marijuana
quantity
the total
and
by police
subdued
I was
session.
alent)
4,711.296 kilograms of
be
would
arrested.
2Dl.l(e)(3) directs
marijuana. Section
30.)
(Id.
5,
at
Government’s
at
J.A.
3,000
involving at least
that for cases
that,
the matter
“[h]ad
counsel then stated
10,000kilograms
less than
kilograms but
trial,
the officers
proceeded
level shall
the base offense
marijuana,
being seized
... about
testified
as lab evidence
as well
Mr. Stafford
from
42.)
(Id.
2,
at
J.A. at
drugs are of
to confirm the
found
Officer next
The Probation
stipulated
type
are
and
arrests
prior
31.)
lengthy record
(Id.
6,
Fol- Defendant’s
at
at
J.A.
agreement.”
his-
him in
placed
criminal
convictions
this,
pled guilty, the
lowing all
Defendant
3-15,
(See
J.A.
id. at
tory category VI.
plea.
accepted this
District Court
43-55.) These
First,
determinations of Defen-
we are to consider whether an
dant’s offense level and criminal history
error occurred in the district court. Ab-
resulted in a
any error,
Guidelines
sent
sentencing range
inquiry
our
is at an end.
However,
of 188 to
imprisonment.
occurred,
235 months of
if an error
we then
(See
58.)
id. at
J.A. at
if
is,
consider
the error
plain.
Probation Offi-
If it
cer
proceed
Jarvis also
then we
statutory
inquire
cited the
penalty
whether the
provision
plain
841(b)(1)(A),
error
21 U.S.C.
affects
rights.
substantial
Finally, even if all
exist,
observed that it
for a
three factors
called
“term im-
we
prisonment
then
must
consider
years
not less than ten
whether to
[of]
exercise
(Id.
our
up
discretionary power
to life.”
[Fed.
J.A.
52(b),
words,
R.Crim.P.]
or in other
we
appeared
for sentencing on
must decide
whether the
error af-
April
1999. Neither
Wheatley
AUSA
fecting
rights
substantial
affected the
nor Defendant’s
any objec-
counsel stated
fairness, integrity
public
reputation of
(see
PSIR,
tions to the
Sentencing Hearing
judicial proceedings.
2-3,
34-35),
Tr. at
J.A. at
objec-
and no
Thomas,
United States v.
tions were filed on Defendant’s behalf.
(6th Cir.1993),
denied,
cert.
511 U.S.
Accordingly, the District
adopted
(1994).
S.Ct.
§ and in the U.S. Sentencing II. ANALYSIS Guidelines, through given which a of one form of equated, is cocaine for A. The Governing Ap- Standards This sentencing purposes, to one hundred times peal this amount of cocaine another form. The sole issue before us whether instance, is For federal imposes law the District Court properly De sentenced same range penalties for drug offenses fendant under the Sentencing (i) Guideline involving either grams 50 of “a mixture provision governing cocaine, crack or or substance ... which contains cocaine whether, contends, as (ii) base,” Defendant the Gov one hundred times this ernment failed to show that amount, the “cocaine or 5 kilograms, of “cocaine.” See base” him was, attributed to in this (in). §§ case 841(b)(1)(A)(ii), U.S.C. Like fact, crack cocaine. proce wise, As the above the drug quantity table found at dural clear, 2Dl.l(c) recitation makes § of the Sentencing Guidelines never drug type contested this determina establishes the same base offense level for tion in the court below. Consequently, grams we of “cocaine and 500 grams base” review the District Court’s sentencing de 2Dl.l(c)(7). “cocaine.” § See U.S.S.G. cision for only. error Thus, See United the characterization of a substance Owusu, (6th States v. as either “cocaine” or “cocaine base” can Cir.2000). analysis This has compo four have a substantial effect sentencing. nents: The Government bears the burden of es- hydrochloride, in a coca leaves into cocaine at issue tablishing that substance base,” thereby trig- scientifically is “cocaine is a base form given case crack) sentencing range. higher See but it is not will be treated as gering the Owusu, F.3d cocaine. matters, complicate the Sen-
To further
C,
U.S.S.G.App.
amend. 487.2
tencing
equate “cocaine base”
Guidelines
Against
backdrop,
this definitional
For exam-
term “crack.”
with
street
argues that
the Govern
Defendant here
equivalency table which follows
ple, drug
showing
ment has not met its burden of
“cocaine
§ 2D1.1 uses the terms
U.S.S.G.
that the substance identified
a laborato
and a
interchangeably,
“crack”
base” and
was,
ry
as
report
“cocaine freebase”
quantity table at
note
fact,
“cocaine base” or “crack” within
2Dl.l(c) explains:
§
2D1.1(c),
§
meaning of
as neces
U.S.S.G.
base,”
purposes
“Cocaine
If
sary
justify his 188-month
sentence.
guideline,
“crack.” “Crack”
this
means
qualify
as
substance does
“cocaine
name for a form of
street
Sentencing
base” or “crack”
base,
by processing
usually prepared
co-
Guidelines, then the total amount of “co
hydrochloride
caine
and sodium bicarbo-
Defendant,
chargeable
caine”
in both
nate,
usually appearing
lumpy,
in a
form,
would be
powder
“freebase”
rocklike form.
This,
turn,
grams.
249.90
would result
2Dl.l(c),
adding
§
note d. In
U.S.S.G.
level of
see
base offense
U.S.S.G.
2Dl.l(c),
Sentencing
Com-
note to
2Dl.l(c)(10), and,
with a three-level re
explained:
mission
acceptance
responsibility
duction for
addresses an inter-cir
amendment
history,
category
criminal
VI
Compare, e.g., United
cuit conflict.
produce
sentencing range
of 70 to 87
Shaw,
Cir.
States v.
cir
imprisonment. Under these
months of
crack)
1991) (cocaine base means
cumstances,
Defendant asserts that
Jackson,
than
cert.
506 U.S.
(1992).
error,
664,
any
oth-
sort of
121
589
committed
L.Ed.2d
amendment,
accept
argument
To
Defendant’s
forms of cocaine
erwise.
Under this
to
contrary
us
disre-
{e.g.,
paste,
require
to
base
than crack
coca
the
other
gard
instances which the substance
step in the
the
processing
an intermediate
Palacio,
statutes)
Unfortunately,
attempt
drug
with United States v.
to resolve one
in its
150,
(2d Cir.1993)
Sentencing
ap
(finding that
split, the
Commission
circuit
F.3d
154-55
engendered
Specifical
parently has
another.
did not undermine
the Guidelines amendment
disagreement
ly,
as to whether
there is some
rulings
vitality
prior
the
Second Circuit
amendment,
subject
this Guideline
which
statutory
"cocaine base” encom-
that the
term
review,
judi
congressional
inform
to
should
cocaine).
just
We
passes more than
crack
interpretation
the term
base”
cial
"cocaine
weighed
ques-
yet squarely
in on this
have not
such as
appears
as it
in federal
statutes
tion,
only
might
we
hinted that
but
841(b)(1).
e.g.,
Compare,
United States v.
ap-
the
Circuit’s
to follow
Second
inclined
375,
Munoz-Realpe, 21 F.3d
377-78
Cir.
Jones,
proach.
See United States v.
1994)
allowing
(holding
Congress, by
that
(6th Cir.1998).
For
n.
reasons
effect,
go
to
for the
amendment
into
meant
clear,
need not resolve
will become
we
apply
to
same definition of "cocaine base"
issue in this case.
Sentencing
Guidelines and the
under both
issue
expressly
(i)
at
characterized as Such declarations can be found
in De-
below,
“crack” in
proceedings
and
agreement,
fendant’s
provided
consistent failure of Defendant or his coun-
charged
that the
offense carried a “mini-
any
objection
sel to raise
sort of
to this mum
imprisonment
term of
years,
of 10
First,
terminology.
at the March
a maximum
imprison-
[and]
term of life
change-of-plea hearing,
(Plea
ment,”
Government’s
Agreement
9);
at
J.A. at.
(ii)
counsel
plea agreement
summarized the
at Defendant’s change-of-plea hearing,
parties,
reached between the
including the
during which defense
expressly
counsel
agreement
stipulate
Government’s
to
confirmed that
plea agreement
speci-
quantity
“the
this case is 235.42 fied a
prison
minimum
years,
term of 10
base,
grams of cocaine
also known as
and Defendant himself also stated on the
crack, and
twice,
14.48
of cocaine
grams
powder.”
in fact—his understanding
record —
(Plea
2-3,
Hearing Tr. at
J.A. at
10-year
27-28
faced a
sentence,
he
minimum
added).)
(emphasis
(Plea
Neither
3-5,
Hearing
28-30);
at
at
J.A.
and
(iii)
any objection
nor his counsel voiced
any
PSIR,
to
which stated that
part of
summary. Next,
applicable
PSIR
statutory penalty provision, 21
expressly stated that
841(b)(1)(A),
“this case
involves U.S.C.
called for a “term of
powder
cocaine,”
both
and
cocaine
crack
imprisonment
years
[of]
less than ten
grams
(PSIR
“[t]he 235.42
cocaine
up
to life.”
at
J.A. at
(‘crack’)
marijuana
base
have a
equivalen-
repeated
These
references
a 10-year
4,708.4
(PSIR
cy of
kilograms.”
J.A.
statutory minimum prison term take on
added).)
42 (emphasis
Again, neither
particular significance when it is recalled
objected
Defendant nor his counsel
to this
10-year
that this
minimum could
ap-
(or
other)
portion of the PSIR. To the
ply if Defendant’s drug offense involved
contrary, defense counsel affirmatively
“cocaine base” within
meaning
represented
April
1999 sentenc-
federal
statute. The total amount of
ing hearing that Defendant had reviewed
chargeable
Defendant,
cocaine
in any
the PSIR
objections,
and had no
and the
form, was
grams.
249.90
If this entire
District
proceeded
adopt
then
its
cocaine,
were treated as
and not
factual findings
application
of the Sen-
base,
penalties
enhanced
found
tencing
(Sentencing
Guidelines.
Hearing
841(b)(1)(A)
(B)
§§
U.S.C.
and —re-
34-35.)
2-3,
atTr.
J.A. at
spectively, 10-year
5-year
mandato-
Apart from
express
these
ry
references
minimum term of imprisonment —would
crack
record
ample
contains
not apply, and Defendant instead would be
*8
evidence that the Government
subject
intended to
penalties
set
forth at
pursue a
841(b)(1)(C).
sentence under the statutory
§
and
This
provision,
latter
how-
provisions
Guideline
governing
ever,
could not have been the source of the
or crack
base
and that
10-year
minimum referred to in the Dis-
prosecutorial
was aware
objective.
this
trict
proceedings,
as it includes no
Initially, we note the several statements in statutory minimum
of imprisonment
term
the record that
10-year whatsoever,3
Defendant faced a
imposes only
but
a maximum
statutory
imprisonment.
minimum term of
sentence of “not
years.”4
more than 20
here,
3. The
exception,
applicable
lone
not
is
prescribes
case
statute
prison
the
a minimum
bodily
years.
841(b)(1)(C).
where "death or
term of 20
injury
§
serious
results
U.S.C.
substance,"
from the use of such
in which
statutory
4. This
maximum increased to 30
years
previous
for individuals who have
con-
841(b)(1)(C). And,
tainty
if there were
as to the nature of the offense to
§
U.S.C.
statutory penalty
pled guilty,
which he
or as to the neces-
any question as to the
prosecution
sary
plea.
the
provision
consequences
under which
of this
Neverthe-
less,
proceed,
expressly
the PSIR
in
sought
arguing
the direct and indirect
841(b)(1)(A)
statutory source
§
as the
cites
references
the record to cocaine base
(10 years)
minimum
and maximum
and crack cocaine are insufficient to sus-
(life)
imprisonment
sentence,
to which De-
terms
tain his
Defendant refers us to
(See
subject.
at
Garrett,
PSIR
fendant was
the decisions in
United States
58.) Thus, through repeated
decla-
at
Cir.1999),
J.A.
189 F.3d
611-13
Unit-
subject
James,
(3d
rations that Defendant
ed States v.
78 F.3d
855-58
sentence,
through
minimum
and
10-year
Cir.1996),
Munoz-Realpe, supra,
express
one
reference
at
least
Johnson,
377-79,
at
and
841(b)(1)(A),
proceedings
papers
the
(D.Del.1997).
F.Supp.
290-93
in the court below left no room
doubt
cases,
each of these
the court held that the
charged drug
offense involved
sufficiently
Government had not
dis-
base, with the
cocaine and cocaine
both
charged
establishing
its burden of
a factual
statutory 100-to-l
triggering
latter
sentencing
basis for
the defendant under
consequences.
disparity
sentencing
Sentencing
provisions per-
Guidelines
taining to crack cocaine. Defendant ar-
calculations in
Similarly,
sentencing
here,
gues that the same is true
and that
confirmed that Defendant’s of-
the PSIR
decisions,
prior
allegedly
simi-
these
triggered
Sentencing
fense conduct
facts, compel
lar
conclusion that De-
ratio for
100-to-l
Guidelines’
in this
fendant’s sentence
case was
noted
involving
cases
crack cocaine. As
product
error.
earlier,
otherwise,
if
if it
were
case involved
charged offense
however, we find three of
inspection,
On
crack,
the base offense
cocaine and
readily distinguishable.
these four cases
grams of cocaine would
level for 249.90
James,
Specifically,
Munoz-Realpe,
been
See
U.S.S.G.
Johnson,
vigorously
the defendants
con
2Dl.l(c)(10).
Instead,
calcu-
the PSIR
position that the
tested the Government’s
lated a base offense level of
and ex-
crack cocaine.
charged offenses involved
because “this case
plained
James,
856-57;
Munoz-
See
powder cocaine and crack
involves both
Johnson,
376;
Realpe,
F.3d at
(PSIR
J.A. at
Once
cocaine.”
Indeed,
286-87,
in at
290-93.
F.Supp.
then,
sentencing calculations
again,
cases,
least two of these
the defendants
entirely
and disclosures
the PSIR were
testimony and other evi
offered extensive
statements,
express
consistent with the
identify
and distin
dence
in that document and elsewhere
both
base,
of cocaine
guish
many
forms
record,
that the substances attributed
contention that
to refute the Government’s
included both cocaine and
to Defendant
case was
the substance at issue
crack cocaine.
James,
at 856-
crack cocaine. See
*9
Johnson,
this,
57;
F.Supp. at 286-93.5
it
difficult for
Given all
would seem
contrast,
the District
any
throughout
stark
credibly profess
Defendant to
uncer-
particu
felony drug
5.
decision
Johnson features
offenses. See 21
in
victions for
larly comprehensive and informative discus
841(b)(1)(C).
U.S.C.
of cocaine. See
sion of the different forms
Johnson,
287-89.
F.Supp.
case,
in
admissions
the defendant as to
present
the
De
proceedings
challenged
type
knowing
voluntary.
once
the Govern
were
and
fendant never
Gar-
rett,
in
of the
ment’s characterization
that case similar this District Court in the first instance. More Garrett, one, in in like over, acknowledges, as Defendant our deci here, challenge to raise a failed Jones, sion United States v. 159 F.3d at his initial to statements —in (6th Cir.1998), thoroughly 981-83 dis indictment, case, in an a written Sentencing cussed Guidelines’ scheme hearing stipulation, plea —-that using generic “cocaine base” as a term substance at issue was crack cocaine. See specific and “crack” as a form of this sub Garrett, F.3d at 610-11. Neverthe- stance, subject the latter less, the Seventh Circuit held quantity 100-to-l enhancement under acquies- not defendant was bound § 2D1.1. Because we decided Jones cence, where the record was insufficient to year before Defendant’s and sentenc demonstrate that the defendant’s admis- ing, there is less cause for concern here type knowing sions as to were might that the District Court or Defendant voluntary. 189 F.3d at The Court significant unaware of the been sen noted that the defendant had been sen- tencing flowing ramifications from the prior tenced to its decision a drug characterization of as crack cocaine. Adams, States v. Washington, United States v. Cf. Cir.1997), in which the Court had ad- (D.C.Cir.1997) that, in (finding Sentencing dressed the distinction light clarify of the Guideline amendments Guidelines cocaine base and between base,” scope term ing “cocaine crack, and had cautioned that “such a se- the use of that term in a PSIR created punishment vere difference in deserves “only very possibility remote of verbal great application.” care in Because the confusion”). “did not have the District Court Garrett Next, to the extent that Adams,” Garrett advo- benefit of our decision cates, light Sentencing Guidelines’ because terms ‘cocaine base’ and “[t]he 100-to-l enhancement for crack interchangeably by ‘crack’ were used that, carefully that courts should more court, parties indicating and the time, scrutinize a defendant’s factual they may admissions have understood two,” drug type types as to versus other legal differences between the admissions, adopt sug- we decline to Seventh Circuit remanded the matter for resentencing gestion. guilty plea typically factual A ensure involves *10 admissions, that the reso- consequences of factual with the flow from host whole particular sen- lution of a factual issue. implications a defendant’s varying example, an Defen- cite obvious tence. To in agree also find We ourselves signifi- in this case was dant’s sentence position, as ment with Government’s by his admission affected threshold cantly pros on that the appeal, stated its brief purpose for the possessed that he no at ecution “has burden to establish this, top presen- On distribution. factual sentencing a issue which is not yet more report typically includes tence (Gov’t Appeal dispute.” Br. at Admit assertions, each an additional factual objective tedly, the sole in this evidence sentencing range. resulting impact on concerning drug laboratory type, case instance, Here, of De- the calculation conclusive; re report, apparently is not it sentencing affected range fendant’s fers, unhelpfully, somewhat to “cocaine prior convictions. history of arrests and his cocaine,” “powder and does freebase” any information as to provide further sure, gener To be District (PSIR purity. drug form or J.A. that a ally must ensure defendant’s 41.) Yet, if any Defendant had basis for voluntary, that there is knowing and of “co challenging PSIR’s treatment plea. factual basis for this adequate an purposes as caine freebase” “crack” for addition, a full given a defendant must be Guidelines, applying Sentencing facts opportunity challenge the and fair place objection an time and raise such presentence report. forth We as set the District before reason, however, certain to deem see no point, At that the Government Court. “important” light especially facts have, if addi necessary, could submitted re sentencing implications, and to their support proof position of its tional quire these facts established to be crack.6 Defendant’s offense involved or that greater degree certainty, some Defendant, however, no such specific must raised express the defendant to crack objection, of ad either to the reference understanding consequences Rather, to the use change-of-plea hearing we or mitting particular these facts. at his would, in the PSIR. did he a scheme in the words of this term Neither believe such Circuit, calculation “effectively challenge sentencing range create a D.C. out, PSIR, even it was evident though court to ferret in the duty judges for district on the 100- every defect that this calculation was based singlehandedly, possible enhancement, the relevant presentence report.” to—1 under both fact or law Sentencing supra, 1011. As statute and the Guide Washington, 115 F.3d at federal lines, observes, involving crack cocaine. cogently system our for offenses Washington not the or the places duty on the and his or District Court Whether af could a more espe prosecution 115 F.3d at This is have elicited counsel. where, here, as the criminal firmative statement from Defendant cially true crack, did, fact, involve amply apprised bar has been his offense defense stand, destroyed March longer Defendant was now it would no arrest of 6. As matters knowledge prior ap- ad- without the possible for Government to secure highlights laboratory analysis proval of the Government. This to corroborate ditional Rather, importance raising following up practical position. on our challenges sentencing, when the argument, inquiry at Government has all factual oral litigate position these parties are in the best that the evidence seized advised us support respective positions. during its their Department Police issues and the Louisville *11 476 drug could that his of- or not the Government have Government’s assertion
whether
Thus,
prove
additional evidence to
fense involved crack cocaine.
marshaled
fact,
that
heightened
proof
this uncontested
we find
Defen-
standard of
would
repeated
in the face of
sentencing
dant’s silence
resolu-
altered
court’s
fact
consistent assertions of this
rendered
tion of this uncontested factual issue. See
any
unnecessary.
measures
such additional
Apprendi,
(distinguishing
120
at 2361
S.Ct.
Indeed,
previously recognized
we have
in
prior ruling
the Court’s
Almendarez-
holding that a
state-
principle,
States,
defendant’s
224,
Torres v.
523
U.S.
118
objections
presentence
no
ment of
1219,
(1998),
477
case
drug-trafficking
in a
guilty plea
A
drag quantity,
penalty based
hanced
anent
an admission
usually
in the
entails
must be stated
drags
of
the amount
in-
See,
v.
For all
States
drugs
e.g., United
amount
involved.
indictment.
(D.C.Cir.2001);
Fields,
an admission
purposes,
tents and
such
242
396
F.3d
Jones,
v.
effectively
any
F.3d
doubts about
235
resolves
States
United
v.
case,
States
(10th Cir.2000);
ordinary
we
United
quantity.
drug
1235-36
(11th
difficult,
if
im-
1327
Cir.
it will be
Rogers, 228
F.3d
think that
any
a
to show
possible, for
2000).
a
cognizable prejudice
connection
yet
squarely
to
address
have
We
drug quantity
on a
sentence based
here.8
issue,
not do so
need
we
though his
acknowledged,
he has
even
ap
governing this
the standards
Under
statutory maxi-
sentence
exceeds
in the
defect
purported
if a
peal, even
unspecified
trafficking
mum for
to rise to
were deemed
indictment
drugs.
of those
amounts
error,
have to
we still would
plain
level
said,
a
Duarte
This
such
case. As
“affects sub
is
this error
whether
inquire
Thomas,
in which he
supra,
signed
plea agreement
11
a
rights.” See
stantial
circumstances,
responsibility for
unequivocally accepted
at 630.
similar
F.3d
Under
(1,000
drugs
specified
amount
a de
recently held that
the First Circuit
admission,
3,000
kilograms). This
af
rights were not
fendant’s substantial
length of his sen-
largely dictated the
any
which lacked
by an indictment
fected
tence,
drag quanti-
any issue about
drugs,
took
amount of
specific
to a
reference
so,
being
That
ty out of the case.
had admitted
the defendant
where
scarcely can claim to have been
Duarte
agreement.
in a
quantity
drugs
spe-
Duarte,
by the omission
prejudiced either
v.
States
See United
body of
from the
Cir.2001).
drug quantities
cific
(1st
explained:
The Court
62-64
between
purported
virtue of
distinctions
suggests that we
Judge Clay's concurrence
issue,
As far as
in the two cases.
have reached
previously
indictments
held,
Strayhom, 250 F.3d
opinion,
in United
the in-
can
discerned from
Cir.2001),
(6th
is
there
467-68
cocaine
crack
in Pruitt referenced
dictment
satisfying the
Apprendi,
separate violation of
Yet, upon
specify
quantity.
did not
but
standard,
prongs
plain
error
two
first
attributed
noting
presentence report
specify
an
fails
whenever
indictment
de-
crack
specific
however,
construed,
Strayhom
quantities. So
fendant,
that the defendant's
panel
held
of our
with several
would be irreconcilable
express ad-
object constituted "an
failure
precedents,
we found
in which
post-Apprendi
at-
type
the amount and
mission
therefore, did
Apprendi and,
violation of
no
—
Pruitt,
F.3d
156
to him in the PSR.”
tributed
step of
the third
not even reach
added).
panel then af-
(emphasis
The
any
analysis despite
absence of
error
—
light of
defendant's sentence
firmed the
quantities in the indictment.
reference
See,
admissions,
pausing to distin-
without
these
Garcia,
F.3d
e.g.,
States v.
(which
included
drug type
guish between
Cir.2001);
838, 842,
(6th
Harper,
(which
indictment)
drug quantity
523, 530-31;
v. Neu
United States
F.3d
hausser,
then,
not). Evidently,
reach is
Pruitt's
460, 466, 468,
471-72 & n.
ad-
where a defendant
to cases
not limited
Munoz,
Cir.2001);
(6th
(cid:127) In
indictment.
set forth in an
mits matters
Thus,
Cir.2000).
we
412-14
below,
event,
Defendant's
as discussed
we,
Supreme
like
maintain our belief
problem un-
pose a
here would not
sentence
Apprendi, have left
"indictment
Court in
admis-
Apprendi even if we viewed
der
day.
question”
another
encompassing
indeterminate
sions as
Moreover,
Clay's
Judge
we do not share
here,
Pruitt,
quantity of cocaine.
type and
supra,
inapplicable
view that
reasoning
ap-
of a
of Pease and Duarte
the indictment
the absence
point.
plies
already
with full force here.
jury determination on the
We
effectively
have found that Defendant
ad-
for conspiracy
to distribute the
Munoz,
(6th
413-14
Cir.
admitted, Pease cannot show that
2000) (finding
Apprendi
appli
was not
rights.
error affects substantial
cable where “Defendant’s sentence did not
(footnote
statutory
por
F.3d
and citations
exceed the
maximum for the
omitted).
validly
tion of the indictment to which he
to distribute co-
with intent
possession
232 for
Page,
guilty”); United
pled
Cir.2000).
caine.
ex
For
543-45
particu
of a
if
even a determination
ample,
CLAY,
concurring.
Judge,
Circuit
un
improperly
made
drug quantity
lar
standard,
court’s enhance-
agree
there is
I
that the district
“preponderance”
der the
sentence for crack
ment of defendant’s
that lies
in a
within
no
error
sentence
plain
be affirmed. The deficient
range
statutory sentencing
should
applicable
however,
case,
indictment
warrants
involving an indeter
the same offense
precedent and
scrutiny
applicable
closer
drugs.
amount of
minate
analysis under the elements
fuller
if Defen-
Even
is the case here.
Such
*14
error review.
all of
accepted, and
were
argument
dant’s
review,
may
this Court
plain
On
error
himto
were treated
attributed
the cocaine
(1)
only if there is
reverse a decision
rather
than
type,
“indeterminate”
as of
(3)
(2)
error,
plain,
that affects
of crack
being in the form
some
Page,
v.
rights. United States
substantial
by
determined
be
his sentence would then
(6th Cir.2000).
536,
I
543
would
232 F.3d
841(b)(1)(C),
§
21
to
resort
U.S.C.
claim satis
Apprendi
find that defendant’s
for offenses
penalty provision
“catchall”
plain error
two elements of
fies the first
statutory provision
involving cocaine. This
i.e.,
com
that the district court
analysis,
sentencing range
zero
a
establishes
Ap
plain.
See
mitted an error
Defendant’s
years
imprisonment.
20
466,
Jersey, 530 U.S.
120
prendi
New
v.
does not exceed
sentence
188-month
(2000).
2348,
A
147
435
S.Ct.
L.Ed.2d
years.
of 20
statutory maximum
Conse-
under 21
finding that a conviction
factual
not assist Defen-
Apprendi does
quently,
841(a)(1)
crack, which
§
involved
U.S.C.
identify
a
error
in his effort to
dant
higher sentencing
exposes a defendant
in his sentence.9
841(b),
Apprendi
§
triggers
range under
Stray
v.
requirements. See
III. CONCLUSION
(6th Cir.2001);
462,
horn,
470-71
250 F.3d
348,
Ramirez, 242 F.3d
v.
above, we United States
reasons set forth
For
(6th Cir.2001);
Flo
States v.
United
351
sentence
AFFIRM Defendant’s 188-month
See United
expressly declined to overrule.
challenges
Clay's
Judge
9.
concurrence
919,
(7th
Hill,
conclusion,
Cir.
921
suggests
Appren-
252 F.3d
States
and instead
v.
finding
a factual
implicated
di is
whenever
2001).
exposes
"preponderance” standard
under
recently limited
importantly, we
More
sentencing
To
higher
range.
defendant to a
a
progeny to situations
and its
rule of Flowal
sure,
Flo
in United States v.
our decision
findings
fact
Court makes
where a District
Cir.2000),
(6th
wal,
936-38
standard and
"preponderance”
under
posi
support
the concurrence's
some
lends
tion,
a
at the bottom a
imposes
then
sentence
language
can be found
and similar
evincing
thereby
statutory range,
its
higher
Ramirez, 242 F.3d
351-
States v.
United
specific
a
was "constrained
it
belief that
(6th Cir.2001),
Strayhom, supra, 250
52
did.” Gar-
impose the
it
sentence
statute
however,
Flowal,
is not
at 468-70.
Garcia,
cia,
Under
our
supra, 252 F.3d
has
the Seventh Circuit
its critics:
without
subject, Defendant's sen-
on the
latest word
"minority
one”
our Circuit as
described
Apprendi, because
afoul
not run
tence does
reading
Apprendi,
has
its broad
statutory
20-year
maxi-
it is
below
both
squared with
cannot be
suggested that Flowal
provision
by the "catchall”
mum established
Supreme
decision in McMillan
Court's
year
841(b)(1)(C),
statu-
the 10
§
above
91
Pennsylvania,
U.S.
841(b)(1)(A).
tory
(1986),
found
Apprendi
minimum
L.Ed.2d
(6th Cir.2000).
wal,
227, 252-53,
U.S.
S.Ct.
Thus,
(1999)).
Garcia,
requires that
Apprendi
defendant’s L.Ed.2d 311
I
Unlike
do
proven
possession of crack
this case be
requiring
not read Ramirez as
an indica
beyond a
doubt.1
judicial
reasonable
trigger
tion of
constraint to
a de
Fifth, Sixth,
fendant’s
and Fourteenth
majority
contends that the Flowal
rights
Apprendi.
Amendment
under
Such
has
line
cases
been limited
reasoning implies
judge’s
that a
decision to
Garcia,
1. The total amount of cocaine to the 100:1 en- defendant, form, grams, exposed was 249.90 hancement for crack defendant to the penalty range range penalty imprisonment years which would fall under the for ten 841(b)(1)(A). twenty years imprisonment § zero to set forth to life set forth in
481
stare decisis
consider-
of whether
question
of cases
the Flowal
line
not find
I would
full reconsideration
precluded
ations
McMillan
simply because
under
invalid
487 n.
Apprendi, U.S. at
limitations, McMillan.
self-imposed
McMillan's
own
find,
Thus, I
Apprendi:
referenced
were
which
Ap-
cases,
the Flowal
line
statutory
to a state
itself
McMillan
limited
“
apply to defendant’s
requirements
prendi
maxi-
alter[ed]
‘neither
scheme
case,
notwith-
of crack
possession
nor
crime committed
for the
penalty
mum
McMillan
Garcia.
standing
a
calling for
separate
a
offense
create[d]
[instead,
scheme]
penalty;
separate
apply
majority, I would not
Unlike
sentencing
solely to limit the
Pruitt,
operate[d]
selecting
penalty
court’s discretion
(6th Cir.1998),
establish
to
”
it[.]’
to
already available
range
admitted,
object to
within
to
by failing
expressly
S.Ct.
Apprendi,
U.S.
report,
findings
presentence
McMillan,
87-88,
477 U.S.
in
(quoting
crack. The
involved was
McMillan,
2411). Thus,
ex-
unlike
Pruitt,
indict
S.Ct.
as well as the
dictment
841(b)(1)(A)
Pruitt,
does
a defendant
posing
relied
case
ments
Nesbitt,
court’s dis-
limit
more than
penalty
within
selecting
Cir.1996),
specific
quantities
cretion
included
rather,
it;
it
in this case
already available
The indictment
range
types.
and/or
a sentence
to consider
nor
drug quantity
a court
neither
empowers
included
addition,
“crack”,
or even
imprisonment.
reference
failing
life
up
type,
offense,
841(b)(1)(A)
separate
itself a
Because defendant
base”.2
'“cocaine
from
an undeter
separate
possessing
penalty
only charged
calls for
*16
Flowal,
cocaine,
infer
at
I
not
841(b)(1)(C).
F.3d
would
See
234
amount of
mined
§
object to
failure to
Apprendi,
530 U.S.
from defendant’s
(quoting
938
2348) (Thomas, J., concurring).
presentence report
findings of .the
“
that he
agreed
similarly
‘expressly
distin-
has
defendant
Circuit
The Ninth
”
841(b).
235.42
accountable’
for
See should be
held
§
McMillan
from
guished
Pruitt,
Velasco-Heredia,
at 648
156
crack.
F.3d
grams
249
v.
States
United
168).3
Nesbitt,
Accord
Moreover,
F.3d at
Cir.2001).
90
(9th
(quoting
F.3d
968
does
report
presentence
day”
ingly,
because
Apprendi
“reservefd]
another
an
drug quantity
infer
to
to include
part,
failed
charged,
as
in relevant
2. The indictment
this case.
knowingly
crack in
and
express admission
... did
"defendant
follows:
the in
Strayhorn
to distribute
has
possess with intent
settled
intentionally
or not
Whether
substance
II controlled
has
a Schedule
Apprendi, this
issue under
dictment
Code,
by
States
Title
United
defined
ele
drug weight
as
is an
repeatedly found
21, United
In violation
Title
Section 812.
841(b)(1)(A). See
§
under
an
ment of
offense
(J.A.
Code,
841(a)(1).”
Section
Ramirez,
States
468;
242
F.3d at
Strayhorn, 250
Flowal,
351-52;
938.
234 F.3d
F.3d at
indictment
that the
majority contends
3. The
indictment,
agreement,
When the
are
and Pruitt
this
between
case
distinctions
court,
obligation
carrying out its
in
and
expressly
to whether defendant
irrelevant as
Pro.
to inform
R.Crim.
11
under Fed.
crack.
grams of
possessing 235.42
to
admitted
charge to
of the
nature
defendant
drug type,
in Pruitt included
indictment
The
guilty, fail mention
pleading
to
which he is
may
have included
may
not
offense,
841(b)(1)(A),and
§
the relevant
both
Pruitt,
indict
642.
quantity.
offense,
of that
element
the determinative
drug type
quan
included
ment Nesbitt
ex
crack,
that defendant
not find
I would
841(b)(1)(A).
§to
tity,
as reference
as well
crack,
grams of
to 235.42
admitted
pressly
Nesbitt,
not seize
I would
F.3d at 166.
90
841(b)(1)(A).
§
falling under
indictment
that the Pruitt
possibility
upon the
not resolve the reasonable doubt issue in
dence of crack in this case.4 Defendant’s
case,
Apprendi
I
find an
plea agreement
error
base,
referenced cocaine
Strayhorn,
Ramirez Flowal.
under
crack,
not
physical
the relevant
evi-
dence has been destroyed.5
addition,
In
I
United
apply
would not
Duarte,
States v.
(1st
Nevertheless,
I concur given the author
Cir.2001),
Pease,
rights analysis
to the substantial
of ity
types. I affirm PORTERFIELD, under Petitioner- distinguished by which cannot be Appellant, reference case, to the deficient indictment which, Duarte, unlike did not base its sub- Ricky BELL, Warden, Respondent- rights analysis stantial on “overwhelming” Appellee. Thus, proof drug quantity.
Pease, case, Apprendi error in this No. 01-5107.
that defendant was sentenced under Appeals, Court of 841(b)(1)(A) though even crack had not Sixth Circuit. doubt, proven beyond been a reasonable nevertheless did not affect substantial July rights.
I depart also from the majority’s posi
tion that failure include crack in the plea agreement may
indictment or
cured if inapplicable otherwise
ranges provided are plea agreement “ plea hearing. and at the very pur ‘The
pose requirement that a man be by grand jury
indicted jeop to limit his
ardy to offenses charged by group of his acting
fellow citizens independently of ei ” prosecuting ther attorney judge.’ or States, 749, 771,
Russell v. United 369 U.S. (1962)
82 S.Ct.
ing
Stirone United
361 U.S.
(1960)).
Drug quantity is an element of a 841(b)(1)(A) offense which in must be
cluded in proven the indictment and be
yond Strayhorn, a reasonable doubt.
F.3d at corollary, 467-68. As a I would
not find that recitation of a sentencing
range for in a plea agreement murder hearing empowers a court to
sentence for murder where defendant was with,
only charged expressly pleaded
to, manslaughter. I would find error in
this case and affirm only under Pease.