Lead Opinion
ROSEN, D. J., delivered the opinion of the court, in which NORRIS, J., joined. CLAY, J. (pp. 479-84), delivered a separate concurring opinion.
Defendant/Appellant David Stafford appeals his 188-month sentence for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), arguing that this sentence erroneously reflects an enhancement for “crack” cocaine. Yet, the substance in question was expressly and consistently referred to as crack cocaine both at the plea hearing and in the presen-tence investigation report, and Defendant never once challenged this characterization throughout the course of the proceedings in the court below. Accordingly, finding no basis to relieve Defendant of the consequences of his guilty plea, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Incident Leading to Defendant’s Indictment
An account of DefendanVAppellant David Stafford’s arrest is set forth in his Presentence Investigation Report, and this same account is incorporated without objection into Defendant’s brief on appeal. On March 24, 1998, at around 1:45 p.m., the Louisville police observed a motor vehicle traveling in excess of 60 miles per hour in a 35 mile per hour zone. The vehicle was being driven by Lois Dorsey, and Defendant was riding in the front passenger seat. As officers stopped the vehicle to investigate a traffic violation, Defendant exited the car with a white bag in his hand, and attempted to flee the scene on foot. During the ensuing chase, the officers observed Defendant throwing the bag away. Defendant was apprehended, and the bag was recovered. As discussed below, a laboratory analysis determined that the bag contained 235.42 grams of “cocaine freebase” and 14.48 grams of powder cocaine. {See Presen-tence Investigation Report at ¶ 5, J.A. at 41.)
B. Procedural Background
On August 3, 1998, Defendant was charged in a one-count indictment with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The indictment did not specify drug quantities, nor did it refer to any of the penalty provisions set forth at 21 U.S.C. § 841(b)(1).
Defendant was arraigned on December 30, 1998, and entered a guilty plea on March 8, 1999. In his plea agreement, Defendant acknowledged that he was charged with a violation of 21 U.S.C. § 841(a)(1), that he fully understood the nature and elements of the charged offense, and that this charge carried a “minimum term of imprisonment of 10 years, [and] a maximum term of life imprisonment.” (Plea Agreement at 1, J.A. at 9.) The plea agreement further stated that, at the time of sentencing, the Government would “recommend a sentence of imprisonment at the lowest end of the applicable [Sentencing] Guideline Range, but not less than any mandatory minimum term of imprisonment required by law,” and that the Government would stipulate to the quantity of drugs involved as being “235.42 grams cocaine-base and 14.48 grams powder cocaine.” {Id. at 3-4, J.A. at 11-12.)
At the March 8, 1999 change-of-plea hearing before District Judge Edward H. Johnstone, Assistant U.S. Attorney Monica Wheatley summarized the plea agreement as follows:
In exchange for Mr. Stafford’s plea of guilty to the one-count indictment, which does charge an 841(a)(1) possession with intent to distribute count, the United States will be recommending the low end of the appropriate guideline range but not less than any mandatory minimum recommending three levels off for acceptance of responsibility, stipulating the quantity of drugs in this case is 235.42 grams of cocaine base, also known as crack, and 14.48 grams of cocaine powder....
(Plea Hearing Tr. at 2-3, J.A. at 27-28.) Both AUSA Wheatley and Defendant’s counsel, Jamie Haworth, confirmed that the plea agreement specified a minimum term of imprisonment of ten years, (id. at 3, J.A. at 28), and Defendant himself stated at two different points that he understood this, (id. at 4, 5, J.A. at 29, 30). The District Judge also informed Defendant that he faced a maximum term of life imprisonment. (Id. at 4, J.A. at 29.) Neither Defendant nor his counsel raised any objection to the Government’s characterization of the terms of the plea agreement.
When questioned as to the factual basis for his guilty plea, Defendant testified:
I was stopped by Louisville police. And when they stopped me, I had eight- and-a-half ounces of cocaine base and [a] half-ounce of powder cocaine in my possession. I was subdued by police and arrested.
(Id. at 5, J.A. at 30.) The Government’s counsel then stated that, “[h]ad the matter proceeded to trial, the officers would have testified ... about the cocaine being seized from Mr. Stafford as well as lab evidence to confirm the drugs are of the quantity and type that are stipulated in the plea agreement.” (Id. at 6, J.A. at 31.) Following all this, Defendant pled guilty, the District Court accepted this plea.
In advance of Defendant’s sentencing, U.S. Probation Officer Kathryn B. Jarvis prepared and filed a Presentence Investigation Report (“PSIR”). As part of her discussion of the relevant offense conduct, Probation Officer Jarvis recounted the results of a laboratory analysis of the white bag discarded by Defendant shortly before his arrest. As noted earlier, this analysis revealed that “the bag contained approximately 235.42 grams of cocaine freebase and 14.48 grams of powder cocaine.” (See PSIR at 1, J.A. at 41.) Based on this offense conduct, the Probation Officer determined that Defendant’s base offense level under the U.S. Sentencing Guidelines was 34, with a three-point reduction to 31 for acceptance of responsibility. (See id. at 2-3, J.A. at 42-43.) The PSIR explained the basis for this computation:
The guideline for a violation of 21 USC 841(a)(1) is found in Section 2D1.1 and directs that the offense level be determined by utilizing the Drug Quantity Table set forth in Subsection (c). As this case involves both powder cocaine and crack cocaine, each shall be converted to its marijuana equivalent to obtain a single offense level. The 235.42 grams of cocaine base (“crack”) have a marijuana equivalency of 4,708.4 kilograms. The 14.48 grams of powder cocaine have a marijuana equivalency of 2,896 grams (2.896 kilograms of marijuana). Therefore, the total quantity (marijuana equivalent) would be 4,711.296 kilograms of marijuana. Section 2Dl.l(e)(3) directs that for cases involving at least 3,000 kilograms but less than 10,000 kilograms of marijuana, the base offense level shall be 34.
(Id. at 2, J.A. at 42.)
The Probation Officer next found that Defendant’s lengthy record of prior arrests and convictions placed him in criminal history category VI. (See id. at 3-15, J.A. at
Defendant appeared for sentencing on April 21, 1999. Neither AUSA Wheatley nor Defendant’s counsel stated any objections to the PSIR, (see Sentencing Hearing Tr. at 2-3, J.A. at 34-35), and no objections were filed on Defendant’s behalf. Accordingly, the District Court adopted the uncontested factual findings and Guideline calculations set forth in the PSIR, and sentenced Defendant to 188 months of imprisonment, the low end of the sentencing range. (See id. at 3, J.A. at 35.) Defendant now appeals this sentence, arguing that it lacks a sufficient basis in fact.
II. ANALYSIS
A. The Standards Governing This Appeal
The sole issue before us is whether the District Court properly sentenced Defendant under the Sentencing Guideline provision governing crack cocaine, or whether, as Defendant contends, the Government failed to show that the “cocaine base” attributed to him in this case was, in fact, crack cocaine. As the above procedural recitation makes clear, Defendant never contested this drug type determination in the court below. Consequently, we review the District Court’s sentencing decision for plain error only. See United States v. Owusu,
First, we are to consider whether an error occurred in the district court. Absent any error, our inquiry is at an end. However, if an error occurred, we then consider if the error was plain. If it is, then we proceed to inquire whether the plain error affects substantial rights. Finally, even if all three factors exist, we must then consider whether to exercise our discretionary power under [Fed. R.Crim.P.] 52(b), or in other words, we must decide whether the plain error affecting substantial rights affected the fairness, integrity or public reputation of judicial proceedings.
United States v. Thomas,
B. The District Court Did Not Commit Plain Error in Sentencing Defendant in Accordance with the Sentencing Guidelines for Crack Cocaine.
The present appeal arises from the oft-noted 100-to-1 ratio found at 21 U.S.C. § 841(b)(1) and in the U.S. Sentencing Guidelines, through which a given quantity of one form of cocaine is equated, for sentencing purposes, to one hundred times this amount of cocaine in another form. For instance, federal drug law imposes the same range of penalties for drug offenses involving either (i) 50 grams of “a mixture or substance ... which contains cocaine base,” or (ii) one hundred times this amount, or 5 kilograms, of “cocaine.” See 21 U.S.C. §§ 841(b)(1)(A)(ii), (in). Likewise, the drug quantity table found at § 2Dl.l(c) of the Sentencing Guidelines establishes the same base offense level for 5 grams of “cocaine base” and 500 grams of “cocaine.” See U.S.S.G. § 2Dl.l(c)(7). Thus, the characterization of a substance as either “cocaine” or “cocaine base” can have a substantial effect at sentencing. The Government bears the burden of es
To further complicate matters, the Sentencing Guidelines equate “cocaine base” with the street term “crack.” For example, a drug equivalency table which follows U.S.S.G. § 2D1.1 uses the terms “cocaine base” and “crack” interchangeably, and a note to the drug quantity table at § 2Dl.l(c) explains:
“Cocaine base,” for the purposes of this guideline, means “crack.” “Crack” is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.
U.S.S.G. § 2Dl.l(c), note d. In adding this note to § 2Dl.l(c), the Sentencing Commission explained:
The amendment addresses an inter-circuit conflict. Compare, e.g., United States v. Shaw,936 F.2d 412 (9th Cir.1991) (cocaine base means crack) with United States v. Jackson,968 F.2d 158 (2d Cir.) (cocaine base has a scientific, chemical definition that is more inclusive than crack), cert. denied,506 U.S. 1024 ,113 S.Ct. 664 ,121 L.Ed.2d 589 (1992). Under this amendment, forms of cocaine base other than crack {e.g., coca paste, an intermediate step in the processing of coca leaves into cocaine hydrochloride, scientifically is a base form of cocaine, but it is not crack) will be treated as cocaine.
U.S.S.G.App. C, amend. 487.
Against this definitional backdrop, Defendant here argues that the Government has not met its burden of showing that the substance identified in a laboratory report as “cocaine freebase” was, in fact, “cocaine base” or “crack” within the meaning of U.S.S.G. § 2D1.1(c), as necessary to justify his 188-month sentence. If this substance does not qualify as “cocaine base” or “crack” under the Sentencing Guidelines, then the total amount of “cocaine” chargeable to Defendant, in both powder and “freebase” form, would be 249.90 grams. This, in turn, would result in a base offense level of 20, see U.S.S.G. § 2Dl.l(c)(10), and, with a three-level reduction for acceptance of responsibility and a category VI criminal history, would produce a sentencing range of 70 to 87 months of imprisonment. Under these circumstances, Defendant asserts that his 188-month sentence was the product of plain error.
We cannot agree that the District Court committed any sort of error, plain or otherwise. To accept Defendant’s argument to the contrary would require us to disregard the instances in which the substance
Apart from these express references to crack cocaine, the record contains ample evidence that the Government intended to pursue a sentence under the statutory and Guideline provisions governing cocaine base or crack cocaine, and that Defendant was aware of this prosecutorial objective. Initially, we note the several statements in the record that Defendant faced a 10-year statutory minimum term of imprisonment.
Such declarations can be found (i) in Defendant’s plea agreement, which provided that the charged offense carried a “minimum term of imprisonment of 10 years, [and] a maximum term of life imprisonment,” (Plea Agreement at 1, J.A. at. 9); (ii) at Defendant’s change-of-plea hearing, during which defense counsel expressly confirmed that the plea agreement specified a minimum prison term of 10 years, and Defendant himself also stated on the record — twice, in fact — his understanding that he faced a 10-year minimum sentence, (Plea Hearing at 3-5, J.A. at 28-30); and (iii) in the PSIR, which stated that the applicable statutory penalty provision, 21 U.S.C. § 841(b)(1)(A), called for a “term of imprisonment [of] not less than ten years and up to life.” (PSIR at 18, J.A. at 58.)
These repeated references to a 10-year statutory minimum prison term take on particular significance when it is recalled that this 10-year minimum could only apply if Defendant’s drug offense involved “cocaine base” within the meaning of the federal drug statute. The total amount of cocaine chargeable to Defendant, in any form, was 249.90 grams. If this entire quantity were treated as cocaine, and not cocaine base, the enhanced penalties found at 21 U.S.C. §§ 841(b)(1)(A) and (B) — respectively, a 10-year and 5-year mandatory minimum term of imprisonment — would not apply, and Defendant instead would be subject to the penalties set forth at § 841(b)(1)(C). This latter provision, however, could not have been the source of the 10-year minimum referred to in the District Court proceedings, as it includes no statutory minimum term of imprisonment whatsoever,
Similarly, the sentencing calculations in the PSIR confirmed that Defendant’s offense conduct triggered the Sentencing Guidelines’ 100-to-l quantity ratio for cases involving crack cocaine. As noted earlier, if it were otherwise, and if the charged offense in this case involved only cocaine and not crack, the base offense level for 249.90 grams of cocaine would have been 20. See U.S.S.G. § 2Dl.l(c)(10). Instead, the PSIR calculated a base offense level of 34, and explained that this was because “this case involves both powder cocaine and crack cocaine.” (PSIR at 2, J.A. at 42.) Once again, then, the sentencing calculations and disclosures in the PSIR were entirely consistent with the express statements, both in that document and elsewhere in the record, that the substances attributed to Defendant included both cocaine and crack cocaine.
Given all this, it would seem difficult for Defendant to credibly profess any uncertainty as to the nature of the offense to which he pled guilty, or as to the necessary consequences of this plea. Nevertheless, in arguing that the direct and indirect references in the record to cocaine base and crack cocaine are insufficient to sustain his sentence, Defendant refers us to the decisions in United States v. Garrett,
On inspection, however, we find three of these four cases readily distinguishable. Specifically, in James, Munoz-Realpe, and Johnson, the defendants vigorously contested the Government’s position that the charged offenses involved crack cocaine. See James,
This leaves only the Seventh Circuit’s decision in Garrett, supra. To be sure, that case appears factually similar to this one, in that the defendant in Garrett, like Defendant here, failed to raise a challenge at his initial sentencing to statements — in that case, in an indictment, in a written stipulation, and at a plea hearing — -that the substance at issue was crack cocaine. See Garrett,
We decline to follow Garrett, finding it both factually distinguishable and unpersuasive in a portion of its reasoning. First, while the defendant in Garrett failed to object at his initial sentencing to the application of the enhanced penalty for crack cocaine, he did raise this objection at his first resentencing, following an earlier remand from the Seventh Circuit on a different issue. See Garrett,
Next, to the extent that Garrett advocates, in light of the Sentencing Guidelines’ 100-to-l quantity enhancement for crack cocaine, that courts should more carefully scrutinize a defendant’s factual admissions as to drug type versus other types of admissions, we decline to adopt this suggestion. A guilty plea typically involves a
To be sure, a District Court generally must ensure that a defendant’s plea is knowing and voluntary, and that there is an adequate factual basis for this plea. In addition, a defendant must be given a full and fair opportunity to challenge the facts as set forth in a presentence report. We see no reason, however, to deem certain facts especially “important” in light of their sentencing implications, and to require that these facts be established to some greater degree of certainty, or that the defendant must express his specific understanding of the consequences of admitting these particular facts. Rather, we believe such a scheme would, in the words of the D.C. Circuit, “effectively create a duty for district court judges to ferret out, singlehandedly, every possible defect in fact or law in the presentence report.” Washington, supra,
We also find ourselves in agreement with the Government’s position, as stated in its brief on appeal, that the prosecution “has no burden to establish at sentencing a factual issue which is not in dispute.” (Gov’t Appeal Br. at 5.) Admittedly, the sole objective evidence in this case concerning drug type, the laboratory report, is not conclusive; it apparently refers, somewhat unhelpfully, to “cocaine freebase” and “powder cocaine,” and does not provide any further information as to drug form or purity. (PSIR at 1, J.A. at 41.) Yet, if Defendant had any basis for challenging the PSIR’s treatment of “cocaine freebase” as “crack” for purposes of applying the Sentencing Guidelines, the time and place to raise such an objection was at sentencing before the District Court. At that point, the Government could have, if necessary, submitted additional proof in support of its position that Defendant’s drug offense involved crack.
Defendant, however, raised no such objection, either to the reference to crack at his change-of-plea hearing or to the use of this term in the PSIR. Neither did he challenge the sentencing range calculation in the PSIR, even though it was evident that this calculation was based on the 100-to—1 enhancement, under both the relevant federal statute and the Sentencing Guidelines, for offenses involving crack cocaine. Whether or not the District Court or the prosecution could have elicited a more affirmative statement from Defendant that his offense did, in fact, involve crack, and
Finally, at oral argument, Defendant suggested that the Supreme Court’s recent decision in Apprendi v. New Jersey,
Next, Defendant suggests that the indictment in this case fails to survive scrutiny under Apprendi, because it is silent as to type or quantity of cocaine. To be sure, certain language in Apprendi supports this proposition, such as the Court’s statement that, “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Apprendi,
We have yet to squarely address this issue, and we need not do so here.
A guilty plea in a drug-trafficking case usually entails an admission anent the amount of drugs involved. For all intents and purposes, such an admission effectively resolves any doubts about drug quantity. In the ordinary case, we think that it will be difficult, if not impossible, for a defendant to show any cognizable prejudice in connection with a sentence based on a drug quantity that he has acknowledged, even though his sentence exceeds the statutory maximum for trafficking in unspecified amounts of those drugs.
This is such a case. As said, Duarte signed a plea agreement in which he unequivocally accepted responsibility for a specified amount of drugs (1,000 to 3,000 kilograms). This admission, which largely dictated the length of his sentence, took any issue about drag quantity out of the case. That being so, Duarte scarcely can claim to have been prejudiced either by the omission of specific drug quantities from the body ofthe indictment or by the absence of a jury determination on the point.
In another case involving an Apprendi-based challenge to a guilty plea, the Eleventh Circuit likewise agreed that the defendant might well have satisfied the first two prongs of the plain error standard, but nevertheless concluded that no substantial rights were affected through this error. See United States v. Pease,
Pease notes that the amount of cocaine involved in the offense was disputed at sentencing. However, Pease has never contended that he conspired to distribute less than 500 grams. In fact, in both his plea agreement and during the plea colloquy Pease admitted that he had accepted delivery of three kilograms of cocaine. Under 21 U.S.C. § 841(b)(1)(B), conspiracy to distribute this quantity of cocaine is punished with a statutory range of from five to forty years. Because the district court sentenced Pease to only thirty years, ten years less than the statutory maximum for conspiracy to distribute the quantity admitted, Pease cannot show that the error affects substantial rights.
The reasoning of Pease and Duarte applies with full force here. We already have found that Defendant effectively admitted the types and quantities of cocaine involved in the charged drug offense, both through his own affirmative statements, and by virtue of his failure to challenge the Government’s statements at the change-of-plea hearing and in the PSIR. Moreover, as in Duarte, Defendant here was repeatedly advised, both in the plea agreement and at the change-of-plea hearing, that a plea of guilty to this drug offense would expose him to a mandatory minimum 10-year term of imprisonment and a maximum term of life imprisonment, and the PSIR further emphasized this point by expressly citing the penalty provision at 21 U.S.C. § 841(b)(1)(A). Defendant’s 188-month sentence lies near the low end of this range, and well below the statutory maximum, leading to the conclusion, as held in Pease, that any alleged defect in the indictment did not affect Defendant’s substantial rights.
Indeed, even if we were to view the record as leaving some doubt about the forms of cocaine involved in this case, Defendant’s present challenge still would fail to satisfy the plain error standard. As this panel recently observed in .another case, a violation of the principles set forth in Apprendi rises to the level of “plain error” only where the defendant’s sentence exceeds the maximum possible sentence that could be imposed by statute absent the offending “sentencing factor” determined under the too-lenient “preponderance” standard. See United States v. Neuhausser,
Such is the case here. Even if Defendant’s argument were accepted, and all of the cocaine attributed to him were treated as of “indeterminate” type, rather than some being in the form of crack cocaine, his sentence would then be determined by resort to 21 U.S.C. § 841(b)(1)(C), the “catchall” penalty provision for offenses involving cocaine. This statutory provision establishes a sentencing range of zero to 20 years of imprisonment. Defendant’s 188-month sentence does not exceed the statutory maximum of 20 years. Consequently, Apprendi does not assist Defendant in his effort to identify a plain error in his sentence.
III. CONCLUSION
For the reasons set forth above, we AFFIRM Defendant’s 188-month sentence for possession with intent to distribute cocaine.
Notes
. At oral argument, the Government’s counsel stated that a penalty page was attached to the indictment, specifying a sentencing range of 10 years to life imprisonment. Counsel conceded, however, that this penally page is not a part of the record before us.
. Unfortunately, in its attempt to resolve one circuit split, the Sentencing Commission apparently has engendered another. Specifically, there is some disagreement as to whether this Guideline amendment, which was subject to congressional review, should inform judicial interpretation of the term "cocaine base” as it appears in federal drug statutes such as § 841(b)(1). Compare, e.g., United States v. Munoz-Realpe,
. The lone exception, not applicable here, is where "death or serious bodily injury results from the use of such substance," in which case the statute prescribes a minimum prison term of 20 years. 21 U.S.C. § 841(b)(1)(C).
. This statutory maximum is increased to 30 years for individuals who have previous con
. The decision in Johnson features a particularly comprehensive and informative discussion of the different forms of cocaine. See Johnson,
. As matters now stand, it would no longer be possible for the Government to secure an additional laboratory analysis to corroborate this position. Rather, following up on our inquiry at oral argument, the Government has advised us that the drug evidence seized by the Louisville Police Department during its arrest of Defendant was destroyed on March 20, 2000, without the knowledge or prior approval of the Government. This highlights the practical importance of raising any and all factual challenges at sentencing, when the parties are in the best position to litigate these issues and support their respective positions.
. On the other hand, another portion of Ap-prendi reflects the Court's intention to reserve the "indictment question” for another day. See Apprendi,
. Judge Clay's concurrence suggests that we previously have reached this issue, and have held, in United States v. Strayhom,
Moreover, we do not share Judge Clay's view that Pruitt, supra, is inapplicable here, by virtue of purported distinctions between the indictments in the two cases. As far as can be discerned from the opinion, the indictment in Pruitt referenced crack cocaine but did not specify a quantity. Yet, upon noting that the presentence report attributed a specific quantity of crack cocaine to the defendant, the panel held that the defendant's failure to object constituted "an express admission of the amount and type of drugs attributed to him in the PSR.” Pruitt,
. Judge Clay's concurrence challenges this conclusion, and instead suggests that Appren-di is implicated whenever a factual finding under the "preponderance” standard exposes a defendant to a higher sentencing range. To be sure, our decision in United States v. Flowal,
More importantly, we recently limited the rule of Flowal and its progeny to situations where a District Court makes findings of fact under the "preponderance” standard and then imposes a sentence at the bottom of a higher statutory range, thereby evincing its belief that it was "constrained by a specific statute to impose the sentence it did.” Garcia, supra,
Concurrence Opinion
concurring.
I agree that the district court’s enhancement of defendant’s sentence for crack cocaine should be affirmed. The deficient indictment in this case, however, warrants closer scrutiny of applicable precedent and fuller analysis under the elements of plain error review.
On plain error review, this Court may reverse a decision only if there is an (1) error, (2) that is plain, (3) that affects substantial rights. United States v. Page,
The majority contends that the Flowal line of cases has been limited by United States v. Garcia,
I do not read Strayhom, Ramirez, Flowal, and Apprendi as establishing, as Garcia found, that Apprendi safeguards reach a defendant exposed to a higher sentencing range only when defendant’s sentence matches the statutory mandatory minimum. See Strayhorn,
The majority also questions the Flowal line of cases by citing United States v. Hill,
Unlike the majority, I would not apply United States v. Pruitt,
In addition, I would not apply United States v. Duarte,
Nevertheless, I concur given the authority of United States v. Pease,
Defendant’s plain error claim, however, extends beyond Apprendi Defendant argues generally that the government failed to meet its burden to show, even by a mere preponderance of the evidence, that the form of cocaine involved was crack. When considering this claim, we should again hesitate to apply precedent, as noted above when considering Pruitt, which did not involve government failure to include drug quantity or type in the indictment.
Courts regularly look to the indictment when considering whether the government has met its burden to prove that the form of cocaine involved was crack. In particular, this Court, in United States v. Williams,
Pruitt, Williams, and Washington are distinguishable because the indictments in
I also depart from the majority’s position that failure to include crack in the indictment or plea agreement may be cured if otherwise inapplicable sentencing ranges are provided in the plea agreement and at the plea hearing. “ ‘The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.’ ” Russell v. United States,
. The total amount of cocaine chargeable to defendant, in any form, was 249.90 grams, which would fall under the penalty range of zero to twenty years of imprisonment set forth in § 841(b)(1)(C). However, the 100:1 enhancement for crack exposed defendant to the penalty range of imprisonment for ten years to life set forth in § 841(b)(1)(A).
. The indictment charged, in relevant part, as follows: "defendant ... did knowingly and intentionally possess with intent to distribute cocaine, a Schedule II controlled substance as defined by Title 21, United States Code, Section 812. In violation of Title 21, United States Code, Section 841(a)(1).” (J.A. at 5.)
. The majority contends that the indictment distinctions between this case and Pruitt are irrelevant as to whether defendant expressly admitted to possessing 235.42 grams of crack. The indictment in Pruitt included drug type, and may or may not have included drug quantity. Pruitt, 156 F.3d at 642. The indictment in Nesbitt included drug type and quantity, as well as reference to § 841(b)(1)(A). Nesbitt,
. Similarly, I would not apply United States v. Harper,
. "[T]he definition of 'cocaine base' ... makes it clear that only the 'crack' form of cocaine base should receive the 100:1 sentencing enhancement under § 2D 1.1 [of the sentencing guidelines] for 'cocaine base.'" United States v. Jones,
. The majority contends that this Court, unlike several of our sister circuits, has not yet "squarely addressed” whether Apprendi requirements include listing drug quantities in an indictment. I would find that Strayhom squarely addressed this issue. “Already, we have held, pursuant to Apprendi, that the government must name in the indictment the quantity of drugs for which it seeks to hold the defendant responsible under 21 U.S.C. § 841(a)[,]” Strayhorn,
Indeed, the position that Strayhom left the indictment issue for another day departs from my understanding of stare decisis. The relevant indictment language in Strayhorn, quoted above, is undeniably direct. Moreover, language in Harper, Ramirez, and Flowal clearly anticipated Strayhom: See Harper,
In support of its position that Strayhom did not squarely address the indictment issue, the majority cites a string of cases that preceded Strayhorn, claiming that the cases are "irreconcilable” with the position that Strayhorn answered the indictment question. This reasoning, of course, would render any decision that included the indictment within Apprendi requirements irreconcilable with earlier precedent, and predetermines the answer to a question that the majority purports to save for another day. The one case subsequent to Strayhom, Garcia, denied defendant's claim
. To clarify, whether or not Apprendi requires drug amounts to be included in an indictment to expose a defendant to a higher sentencing range under § 841(b), an indictment that charges only cocaine casts doubt on defendant's subsequent "express admission” of possessing crack under Pruitt and Nesbitt.
. As discussed by the majority, defendant clearly stipulated to possessing over 249.90 grams of cocaine, some of which may have been crack. Defendant's sentence of 188 months of imprisonment does not exceed the statutory maximum of twenty years of imprisonment under § 841(b)(1)(C), applicable to cocaine amounts under 500 grams.
. Williams relied on an unpublished case involving nearly identical facts, United States v. West, No. 96-3595,