United States v. Ignasio Maldenaldo Sanchez, United States of America v. Santiago Gilberto SanchezUnited States v. Ignasio Maldenaldo Sanchez, United States of America v. Santiago Gilberto Sanchez
Lead Opinion
Defendants-Appellants Ignasio Maldenaldo Sanchez and Santiago Gilberto Sanchez (“the Sanchezes”) appeal their convictions and sentences after pleading guilty to a single-count indictment that charged them with conspiracy to distribute and to possess with intent to distribute methamphetamine and amphetamine, in violation of
We subsequently sua sponte vacated the panel opinion and, by vote of a majority of the judges in active service, ordered that the case be reheard en banc. See United States v. Sanchez,
After such review and for the reasons discussed herein, we see no error, under Apprendi or otherwise, in the Sanchezes’ indictment, plea colloquies, convictions, or sentences. We therefore affirm their convictions and their sentences.
This opinion proceeds as follows. In Part I, we review the proceedings in the district court. In Part II, we review the Supreme Court’s decisions in Jones v. United States,
I. PROCEDURAL BACKGROUND
In the district court, the Sanchezes challenged not only their sentences but also their indictment and convictions based on Jones, and on appeal, they rely primarily on Apprendi Additionally, for the first time on appeal they challenge their plea colloquies under Rule 11 based on Appren-di. The Sanchezes emphasize that from the outset of their cases the government sought enhanced penalties under
A. Sanchezes’Indictment
In late 1998, a federal grand jury returned a single-count indictment charging that the Sanchezes “did combine, conspire, confederate, agree, and have a tacit understanding with each other, and with others known and unknown to the Grand Jury, to violate Title
On April 21, 1999, defendant Ignasio Sanchez filed a “Motion to Dismiss Indictment for Failure to Allege Facts that Increase Maximum Penalty,” specifically relying on Jones. The motion stated, “Jones clearly holds that the Constitution requires an indictment to allege ‘any fact (other than prior conviction) that increases the maximum penalty for a crime.’ Furthermore, such a fact must be submitted to a jury for a decision as to proof beyond a
The district court denied the motion, noting that under this circuit’s precedent “[t]he statutory scheme set forth in
B. Guilty Pleas and Rule 11 Colloquies
In early 2000, the district court conducted separate, but substantially similar, plea colloquies for each defendant pursuant to Rule 11. See
Regarding sentencing, the district court advised Ignasio Sanchez that depending on the amount of drugs found to be attributable to him, he faced a sentence of either (a) ten years to life imprisonment, five years’ supervised release, and a $4,000,000 fine, or (b) five to forty years’ imprisonment, four years’ supervised release, and a $2,000,000 fine. The court advised Santiago Sanchez only of the first of these two sentences. Although not citing any particular subsections within
Both defendants, after acknowledging that they understood the nature of the charge against them, pled guilty to the single-count indictment. Ignasio Sanchez entered a written plea of guilty which, pursuant to
C. Pre-Sentence Reports
The initial pre-sentence reports recommended that the Sanchezes be held accountable for specific quantities of methamphetamine and amphetamine which resulted in marijuana equivalencies of 38,106.94 kilograms for Ignasio Sanchez and 50,803.91 kilograms for Santiago Sanchez. Although § 841 specifies grams of methamphetamine and amphetamine, the Sentencing Guidelines convert certain drug quantities into marijuana equivalencies as part of calculating the offense level for the guideline range. See United States Sentencing Guidelines § 2Dl.l(c), cmt. n.10 (drug equivalency tables). The statutory penalty for the
Both defendants and the government timely filed written objections. For example, Ignasio Sanchez objected “to all factual findings of the presentence report as a matter of due process under the Jones rationale.” Ultimately, revised pre-sen-tence reports recommended that Ignasio Sanchez and Santiago Sanchez be held accountable for reduced amounts of methamphetamine and amphetamine, resulting in reduced marijuana equivalencies of 5,447.74 kilograms and 6,713.99 kilograms, respectively. These reduced amounts resulted in a reduced guideline range for both defendants of 135 to 168 months.
D. Sentencing
The Sanchezes were sentenced in two joint sentencing hearings. At the outset of the first hearing, Ignasio Sanchez orally renewed his motion to dismiss the indictment based on Jones and specifically “based upon the lack of specificity and quantity in the indictment.” He continued that this argument “would have an effect at this time ... in that the findings must be beyond a reasonable doubt under my motion.” Both defendants, however, agreed that if validly charged and convicted under this indictment, the court could find that they were accountable for (a) one transaction involving two pounds of methamphetamine, which is equivalent to I,814.4 kilograms of marijuana, and (b) two other transactions each involving six pounds of amphetamine, the combination of which is equivalent to 1,087.2 kilograms of marijuana. On the basis of the government’s evidentiary proffer and the San-chezes’ concessions, the district court found “as a matter of fact by a preponderance of the evidence” that each defendant was responsible for drug amounts result
Regarding the statutory penalty, the district court then stated that its sentencing option was a statutory mandatory minimum sentence of five years up to forty years. While not expressly referencing
After imposing the sentences, the court asked for objections. Citing Jones, Igna-sio Sanchez’s counsel objected to drug quantity not being charged in the indictment and not being proved beyond a reasonable doubt. Santiago Sanchez’s counsel adopted the Jones objection made by Igna-sio Sanchez’s counsel. Subsequently, both defendants timely appealed.
II. DISCUSSION
The Sanchezes challenge their single-count indictment, plea colloquies, convictions, and sentences based on Jones and Apprendi We can discern no error in any of these phases of the Sanchezes’ cases. We begin by analyzing Jones and Appren-di We then review the federal drug statute, this circuit’s precedent construing that statutory scheme, and what effect Appren-di has on that landscape.
A. Jones v. United States
Jones was a ease of statutory interpretation, in which a grand jury charged the defendant with violating the federal carjacking statute,
While resolving Jones based on this statutory interpretation, the Supreme Court further justified its construction by invoking the doctrine of constitutional doubt. The Supreme Court observed that under the alternative statutory interpretation, in which serious bodily injury was construed as a sentencing factor, “the statute would be open to constitutional doubt in light of a series of cases over the past quarter century, dealing with due process and the guarantee of trial by jury.” Id. at 240,
B. Apprendi v. New Jersey
In contrast to its task of statutory interpretation in Jones, the Supreme Court in Apprendi squarely addressed the constitutionality of a statutory sentencing scheme that allowed judge-made findings to increase a defendant’s statutory maximum penalty. The defendant, Charles Apprendi, admitted to firing several bullets into the home of an African-American family who had recently moved into a previously all-white neighborhood in New Jersey. Apprendi,
An entirely separate New Jersey statute, however, provided for higher minimum and maximum sentences than those normally applicable to second-degree crimes if the sentencing court made certain factual findings. That statute provided, “The court shall, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime ... to an extended term if it finds, by a preponderance of the evidence, the grounds in subsection e,” specifically, that “[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.”
The “extended term” permitted for a second-degree crime, such as possession of a firearm for an unlawful purpose, was “between 10 and 20 years.”
It was this separate state statute — providing for an “extended term” of imprisonment upon a finding that the defendant acted “with a purpose to intimidate ... because of race” — that was the focus of the Supreme Court’s decision in Apprendi. Only after Apprendi pled guilty to the second-degree crime of firearm possession for an unlawful purpose, which carried a maximum penalty of ten years’ imprisonment, the state requested that the sentencing court impose an enhanced sentence on one of the two firearms counts, pursuant to
Under the terms of the state statute, this judge-made finding triggered an “extended term” of imprisonment of ten to twenty years. Accordingly, the trial judge, over Apprendi’s constitutional objection, sentenced Apprendi to twelve years’ imprisonment on that count. Id. This sentence was two years above the ten-year maximum ordinarily applicable to the second-degree offense with which Apprendi had been charged and to which he had pled guilty. Id. In addition to this
Apprendi appealed his twelve-year sentence on the one firearm count. Id. He argued that the Due Process Clause of the Constitution required that the finding of racial bias upon which his sentence was increased be made by a jury beyond a reasonable doubt, rather than by a judge based on a preponderance of the evidence standard. Id. The state supreme court affirmed Apprendi’s sentence, and he petitioned for certiorari to the Supreme Court of the United States. Id. at 472,
The Supreme Court framed the issue as follows: “The question presented is whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.” Id. at 469,
The Supreme Court stated that the rights set forth in the Sixth and Fourteenth Amendments “indisputably entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” Id. at 477,
The Supreme Court continued that its decision did not strip the term “sentencing factor” of all meaning, but rather, the “term appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense.” Id. at 494 n. 19,
The Supreme Court then squarely adopted the following constitutional principle, which was foreshadowed by Jones and has since provided the Sanchezes and so many other criminal defendants ammunition with which to attack their sentences: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490,
Thus, Apprendi’s holding does not paint with the wide brush suggested by the Sanchezes. Rather, Apprendi was a sentencing case, presented a narrow sentencing issue, and made only a narrow holding about New Jersey’s sentencing procedure, specifically: A trial judge cannot find a fact, such as racial bias, and then use that fact to impose a sentence higher than the prescribed statutory maximum penalty for the underlying criminal offense. Indeed, the Court itself characterized the question presented in Apprendi as a “narrow issue.” Id. at 474,
Moreover, the Apprendi opinion expressly limited the applicability of the constitutional principle it described. Fundamentally, Apprendi did not require that all sentencing factors be submitted to a jury and proven beyond a reasonable doubt. Instead, Apprendi expressly reaffirmed the long-established general principle that a judge-decided fact may affect a defendant’s sentence within the applicable statutory range without invoking the constitutional principles articulated in Ap-prendi. In describing the origins of the requirement that all elements of a crime be proven to a jury, the Court stated, “We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.” Id. at 481,
In this same vein, the Supreme Court in Apprendi also expressly preserved its earlier opinion in McMillan v. Pennsylvania, 477 U.S. 79,
Likewise, Apprendi does not apply to judge-made determinations pursuant to the Sentencing Guidelines. See, e.g., United States v. Nealy,
C. The Federal Drug Statute
We next examine the impact of Apprendi on the federal drug statute,
According to the plain language of
Thus,
On multiple occasions prior to both Jones and Apprendi, this Court construed the federal drug statute and concluded that while a “controlled substance” is an element of an offense under
E. Apprendi’s Impact on § 8Jpl and Our Precedent
Such was the landscape applicable to the federal drug statute before Apprendi squarely adopted the constitutional principle that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi,
Fundamentally, Apprendi did not announce any new principles of statutory construction. Rather, Apprendi addressed only the constitutionality of a state statutory sentencing scheme, and its holding only described constitutional principles affecting such statutory sentencing schemes. Apprendi thus does not change our precedent interpreting
This external constitutional restraint, however, does not apply to the vast majority of sentencing scenarios. To repeat the oft-repeated, Apprendi explicitly limited its holding to facts “that increase[] the penalty for a crime beyond the prescribed statutory maximum.” Apprendi,
Additionally, Apprendi has no application to cases in which statutory sentencing factors trigger a mandatory minimum sentence. As noted above, Apprendi expressly preserved McMillan, in which the Supreme Court approved the use of judge-made factual findings to sentence a defendant to a mandatory minimum penalty. Apprendi,
III. THE SANCHEZES’ CLAIMS
Having described Apprendi and its effect on
On appeal, the Sanchezes also contend that because their cases are “
Alternatively, the Sanchezes claim that the lack of a specific drug quantity in their indictment meant that their maximum sentence was limited to twenty years under
A. Motion to Dismiss the Indictment
Of course, the correct response to an argument that the Sanchezes make about the lack of a specific drug quantity in a
1. Standard of Review
Because the Sanchezes timely raised and thus preserved for appeal the issue of error in their indictment under Apprendi we review it de novo, but we will reverse only for harmful error. See United States v. Mills,
Given our precedent, we reject the San-chezes’ claims that Apprendi error is either structural or jurisdictional. In Smith, Candelario, and Nealy, we correctly outlined why an Apprendi error did not create a structural error. In Nealy, we explained, “Structural error occurs only in the rare instance involving a ‘structural defect affecting the framework within [which] the trial proceeds, rather than simply an error in the trial process itself.’ ” Nealy,
Our precedent follows Neder v. United States,
Likewise, we have rejected the claim, which the Sanchezes also make, that an Apprendi error creates a jurisdictional error. See United States v. Cromartie,
The notion that any Apprendi-based challenge has a jurisdictional dimension is also implicitly rejected by our precedent’s consistent application of plain or harmless error review. See, e.g., United States v. Pease,
The Tenth Circuit, sitting en banc, explicitly endorsed this approach. See United States v. Prentiss,
£ The Sanchezes’ Indictment
By sparing no expense in the foundational discussion above, the case-specific application of Apprendi that follows will enjoy the luxury of brevity. The correct response to the Sanchezes’ argument is that they ultimately were sentenced below the otherwise applicable statutory maximum in
Both before and after Apprendi, in any
As explained above, being sentenced under
Rogers, however, extended Apprendi substantially beyond its holding, and we are not prepared to go that far. Rogers suggested that the mere fact that a sentence arose in “
Specifically, Rogers also stated; (1) that “
As we have explained, however, a district court’s drug quantity findings and utilization of the
Apprendi does not prohibit all uses of drug quantity in sentencing under
In sum, a defendant is not entitled to dismissal of a
B. Plea Colloquies
The Sanchezes next attempt to make use of Apprendi by arguing—for the first time on appeal—that their convictions must be reversed because their guilty pleas were unintelligent and involuntary under Apprendi. The Sanchezes’ challenge to their guilty pleas rests on two branches of the Apprendi tree.
First, the Sanchezes assert that the district court failed to comply with
1. Standard of Review
The Sanchezes raise the Apprendi issues concerning their guilty pleas for the first time on appeal. This Court has held “that a defendant who has not presented his objection to the district court—for example, through a motion to withdraw the plea—must show plain error on direct appeal.” United States v. Quinones,
2.
The Sanchezes claim that the district court failed to comply with the requirements of
“No simple or mechanical rule determines whether the district court complied with Rule IPs mandate to satisfy itself that [the defendants] understood the nature of the charges against them.” United States v. DePace,
“For simple charges ... a reading of the indictment, followed by an opportunity given the defendant to ask questions about it, will usually suffice. Charges of a more complex nature, incorporating esoteric terms or concepts unfamiliar to the lay mind, may require more explication. In the cases of extreme complexity, an explanation of the elements of the offense like that given the jury in its instructions may be required.”
Id. (quoting United States v. Dayton,
In assessing whether a district court’s failure to comply with
3. Elements of the Offense
The Sanchezes maintain that the district court failed to comply with
h. “Maximum Possible Penalty”
Alternatively, the Sanchezes assert that if drug quantity never became an element of their offense, their guilty pleas were nonetheless involuntary and unknowing because they were misadvised during their plea colloquies as to the “maximum possible penalty” they faced. See
The Sanchezes first must establish that they were in fact misadvised about the “maximum possible penalty” under
After the defendant pled guilty and was sentenced, the Supreme Court invalidated the portion of
The Supreme Court answered in the negative, stating:
A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant’s lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.
The fact that [the defendant] did not anticipate [the later change in the law] does not impugn the truth or reliability of his plea. We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.
Id. at 757,
[The defendant] first pleaded not guilty; prior to changing his plea to guilty he was subjected to no threats or promises in face-to-face encounters with the authorities. He had competent counseland full opportunity to assess the advantages and disadvantages of a trial as compared with those attending a plea of guilty; there was no hazard of an impulsive and improvident response to a seeming but unreal advantage. His plea of guilty was entered in open court and before a judge obviously sensitive to the requirements of the law with respect to guilty pleas. [The defendant’s] plea ... was voluntary.
Id. at 754-55,
The Supreme Court further concluded that even if the fear of the death penalty in fact caused the defendant to enter a guilty plea rather than go to trial, that did not render the plea involuntary, explaining, “But even if we assume that [the defendant] would not have pleaded guilty except for the death penalty provision of [the statute at issue], this assumption merely identifies the penalty provision as a ‘but for’ cause of his plea. That the statute caused the plea in this sense does not necessarily prove that the plea was coerced and invalid as an involuntary act.” Id. at 750-51,
When distilled to its essence, the San-chezes’ argument here is no different from that rejected by the Supreme Court in Brady. The Sanchezes claim, as did the defendant in Brady, that a subsequent judicial pronouncement — namely, Appren-di — reduced the maximum possible penalty they faced for their offense and that this new knowledge, of which they did not have the benefit during their plea colloquies, retroactively invalidated their guilty pleas. We agree with the Supreme Court, however, that there is “no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that ... the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.” Id. at 757,
The Sanchezes’ plea colloquies were otherwise sufficient. Like the defendant in Brady, both defendants here were represented by counsel. The requirements of
C. Sentences
In addition to challenging their prison terms — an argument we have already rejected — the Sanchezes, for the first time on appeal, make an Apprendibased attack on their terms of supervised release.
The central question presented is what statute provides the prescribed term of supervised release applicable to the San-chezes’ convictions.
The Sanchezes argue that, based on the facts of their cases,
A term of supervised release of four years, as the Sanchezes received, is permitted under
To adopt the Sanchezes’ interpretation of the statute would require us to ignore the words “at least” in
In light of its language and history,
IV. CONCLUSION
In conclusion, we recognize the following principles. Apprendi is implicated only when a judge-decided fact actually increases a defendant’s sentence beyond the prescribed statutory maximum penalty for the crime of conviction and has no application to, or effect on, cases where a defendant’s sentence falls at or below that maximum penalty. This means, among other things, that Apprendi has no application to, or effect on, either mandatory minimum sentences or Sentencing Guidelines calculations, when in either case the ultimate sentence imposed does not exceed the prescribed statutory maximum penalty. Thus, in a § 841 case when a specific drug quantity triggers a mandatory minimum sentence or is used in a Sentencing Guidelines calculation, and results in a sentence at or below the otherwise applicable maximum penalty in § 841(b)(1)(C), there is no Apprendi error and there is no requirement that a specific drug quantity be alleged in the indictment, submitted to a jury, and proven beyond a reasonable doubt.
More specifically, we conclude that: 1) the various Apprendi errors that the San-chezes assert are constitutional errors subject to harmless or plain error review, depending on the timing of their constitutional objections, and are not structural or jurisdictional errors; 2) the district court’s drug quantity findings under § 841(b)(1)(B) and utilization of that sentencing scheme, which exposed the San-chezes to enhanced sentences under that section but did not result in an actual term of imprisonment beyond the otherwise applicable maximum penalty in § 841(b)(1)(C), did not violate Apprendi; 3) because the district court’s drug quantity findings did not increase the Sanchezes’ ultimate sentences beyond the otherwise applicable maximum penalty in § 841(b)(1)(C), Apprendi does not apply to their § 841 indictment, guilty pleas, convictions, and sentences, and there was no requirement that a specific drug quantity be alleged in their indictment, covered in their plea colloquies, submitted to a jury, or proven beyond a reasonable doubt; 4) in this regard, we adopt the analyses of Apprendi in United States v. Gerrow,
For the foregoing reasons, no error exists in the Sanchezes’ indictment, plea colloquies, convictions, or sentences. Thus, we affirm both the convictions and the sentences of defendants Ignasio Sanchez and Santiago Sanchez.
AFFIRMED.
Notes
. Four other defendants were charged in the indictment, but this appeal involves only the Sanchezes.
. The motion quoted in full the now-famous footnote six from Jones v. United States,
. The Supreme Court decided Jones on March 24, 1999, and Apprendi on June 26, 2000. The present case exemplifies how, well before Apprendi, defendants in this circuit were asserting that drug quantity under § 841 had to be charged in the indictment and decided by a jury, even though prior circuit precedent repeatedly had held otherwise. See infra note 28. As explained in United States v. Candelario,
.A sentence of ten years to life imprisonment, five years’ supervised release, and a $4,000,000 fine — of which both defendants were advised — corresponds to § 841(b)(1)(A). A sentence of five to forty years’ imprisonment, four years’ supervised release, and a $2,000,000 fine corresponds to § 841(b)(1)(B).
. "A defendant who wishes to preserve appellate review of a non-jurisdictional defect while at the same time pleading guilty can do so only by entering a 'conditional plea' in accordance with [
Conditional Pleas. With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.
. Ignasio Sanchez's plea agreement stated, “Pursuant to
. We note that Santiago Sanchez’s reservation of his right to appeal this issue did not comply with the requirements of
Your honor, the government's not going to have an objection for the late adoption of the motion by counsel for Santiago Sanchez, wouldn't put on extra work for the government to file its responsive brief. I would advise the court that, normally, when defendants tender a plea of guilty, that such motions would be waived by the plea of guilty. [Counsel for Ignasio Sanchez] had requested that he be allowed to retain that right to appeal that issue, and that was specifically addressed in his [written] plea agreement for Ignasio Sanchez. We consented to that in light of the fact the two defendants are brothers or related and that there's been a closeness in terms of the defense by the defendants; that the government would be willing to permit, with the court's permission, to allow Santiago Sanchez, if he feels so inclined, to raise that issue on appeal in terms of failure to allege any drug quantities in the indictment.
Only after the government agreed did the district court grant permission to Santiago Sanchez to reserve the right to appeal this issue. We note, however, that the district court was not required to do so.
. At the time of the Sanchezes’ offenses, the penalty provisions applicable to a drug offense involving methamphetamine and amphetamine required that the offense involve "100 grams or more of methamphetamine ... or 1 kilogram or more of a mixture or substance containing a detectable amount of methamphetamine,” or "10 grams or more of methamphetamine ... or 100 grams or more of a mixture or substance containing a detectable amount of methamphetamine.”
. The drug quantities in the initial pre-sen-tence reports resulted in a base offense level of 38 for both defendants. The reports recommended a two-level increase for possession of a weapon during the offense and a three-level reduction for acceptance of responsibility. Both reports concluded that the San-chezes' total adjusted offense level was level 37 with a criminal history of Category I. There was never any contention that either Sanchez had a prior drug felony conviction.
.Both amounts resulted in a base offense level of 34. The recommended two-level increase for possession of a weapon and three-level reduction for acceptance of responsibility resulted in a total adjusted offense level of 33, which, with a criminal history of Category I, yielded a guideline range of 135 to 168 months.
. The revised reports noted that a mandatory minimum penalty of five years' imprisonment applied. Those reports also stated that the "Fine Guideline Range” was $17,500 to $2,000,000 and that the term of "Supervised Release” was four years.
. We note that the total of the drug quantities to which the Sanchezes pled guilty is actually 2,901.6 kilograms. This slight error in arithmetic, however, would not change the base offense level.
. The different custodial guideline ranges for the defendants resulted from Ignasio Sanchez's receiving a minor role adjustment. The Sanchezes’ drug quantities resulted in the same base offense level of 32. The district court applied a two-level increase for firearm possession, resulting in an offense level of 34. Regarding Ignasio Sanchez, the court then applied a two-level reduction for playing a minor role in the offense and a three-level reduction for acceptance of responsibility. These adjustments produced an offense level of 29, which with a criminal history of Category I carried a guideline range for Ignasio Sanchez of 87 to 108 months. Regarding Santiago Sanchez, the court applied only a three-level reduction for acceptance of responsibility. This adjustment produced an offense level of 31, which with a criminal history of Category I carried a guideline range for Santiago Sanchez of 108 to 135 months.
. The record shows that the two pounds of methamphetamine agreed to in the sentencing hearing was referenced in the pre-sentence reports as 907.2 grams of methamphetamine. (A pound of methamphetamine equals 453.6 grams, so that two pounds equal 907.2 grams of methamphetamine.) This 907.2 gramá of methamphetamine is greater than the 500-grams threshold required to trigger a sentence of not less than 10 years under
. At the time that the grand jury in Jones returned the indictment, § 2119 read:
"Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—
(1) be fined under this title or imprisoned not more than 15 years, or both,
(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title, or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”
Jones,
. Apprendi challenged only his sentence and did not seek to withdraw his guilty plea or attack his indictment. The Supreme Court ordered that the "judgment” of the state court be reversed and that the case be "remanded for further proceedings not inconsistent with this opinion." Apprendi,
. At issue in McMillan was Pennsylvania’s Mandatory Minimum Sentencing Act, 42 Pa. Const. Stat. § 9712, which provided that anyone convicted in state court of certain enumerated felonies was subject to a mandatory minimum sentence of five years’ imprisonment if the sentencing judge found by a preponderance of the evidence that the defendant "visibly possessed a firearm” during the commission of the offense. McMillan, 477 U.S. at 81,
The Supreme Court concluded that the terms of the Act did not violate the Due Process Clause, thereby following its precedent that rejected the contention that "whenever a State links the ‘severity of punishment’ to 'the presence or absence of an identified fact' the State must prove that fact beyond a reasonable doubt.” Id. at 84,
. In this regard, the Sanchezes also assert that the district court erred in applying the two-level increase for firearm possession. Specifically, they contend that the firearm increase must be proven beyond a reasonable doubt in light of Apprendi and that the testimony of the sole government witness did not connect any weapons to the drug conspiracy. This argument lacks merit. First, Apprendi does not apply to the Sentencing Guidelines. Second, the government’s evidence satisfied its burden of proof. Sentencing Guideline § 2D 1.1 (b)(1) provides for a two-level increase for possession of a firearm during the offense. The accompanying commentary ex
. The Sanchezes emphasize certain language in Apprendi convenient for the contrary position. See, e.g., Apprendi,
. Within broad constitutional limits, "[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.” Staples v. United States,
. Conspiracy is made a separate offense by
. Similarly,
Likewise, while we discuss in this opinion methamphetamine and amphetamine, our discussion applies equally to any drug meeting the definition of a "controlled substance” as set forth in the statute. Specifically, the statute provides, "The term 'controlled substance’ means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.”
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.
(C) Abuse of the drug or other substances may lead to severe psychological or physical dependence.
.Although the indictment here charged "quantities” of two controlled substances, specifically, methamphetamine and amphetamine, an indictment charging simply possession with intent to distribute "a controlled substance” equally charges some drug type and amount.
. One estimate is that if the factors in
.
. We have described
.In contrast, other federal statutes that were the subject of the Supreme Court's attention in recent cases lack this bifurcated structure, clear dichotomy, and indisputable congressional intent. See Jones,
.See, e.g., United States v. Rutherford,
. Indeed, in our circuit, defendants were raising the due process issue long before Jones and Apprendi were decided. In United States v. Perez,
. Our reading of the statute was consistent with that of every other circuit to address the issue. See United States v. Promise,
. The defendant in Hester was sentenced to a twenty-year mandatory minimum sentence, and this Court affirmed. See Hester,
. We determined in Hester that the language used in footnote six "allow[ed] two plausible readings of Jones." Hester,
.We noted also that other circuits had, at that time, "adopted the narrower reading of Jones,” a reading that the Tenth Circuit deemed a " 'more reasonable reading of Jones, one that anchors its holdings to its facts, i.e., the statutory provision involved.’ " Hester,
. In this case, the government does not ask that we construe
. Because Apprendi announced a new rule of constitutional law, we apply it to criminal cases pending on direct review. See Griffith v. Kentucky,
.In United States v. Shepard,
Shepard's holding was merely that a sentence that falls below the twenty year maximum, as set forth in21 U.S.C. § 841(b)(1)(C) , is not subject to reversal due to Apprendi. Shepard thus stands only for the proposition, along with Gerrow, that "there is no error, plain or otherwise, under Apprendi where the term of imprisonment is within the statutory maximum set forth in§ 841(b)(1)(C) for a cocaine offense without regard to drug quantity.”
Id. at 1308 n. 11 (quoting Gerrow,
. The only exception involves quantities of marijuana, hashish, hashish oil, and the other drugs specified in
. All but one of the seven circuits to consider the issue have decided that Apprendi does not invalidate the imposition of a mandatory minimum sentence under
. See infra note 50.
. This Court has indicated that when a defendant pleads guilty and accepts the drug quantity determination contained in the pre-sentence report or agrees to drug quantity at sentencing or in his plea colloquy, he waives any right to appeal his sentence on the basis of Apprendi, regardless of what sentence is ultimately imposed. See United States v. Walker,
Accordingly, in prior cases in which defendants pled guilty to violating
. There is no separate category of structural error apart from constitutional error. The only question is whether any constitutional errors under Apprendi rise to the level of structural error. Structural error occurs only in "a very limited class of cases,” Johnson v. United States,
. Ultimately, Nealy determined that the jury-instruction error was harmless but that the defendant abandoned the indictment issue by not raising it in his initial brief. Because the Sanchezes timely raised the indictment issue and their conditional plea agreements preserved the issue for appellate review, we address the standard of review applicable to that issue in the Apprendi context. In United States v. Swatzie,
. Neder explained that " ‘most constitutional errors can be harmless.’ ”
. For the reasons outlined in more detail in McCoy and Cromartie, we disagree with the position in Judge Barkett's concurring opinion and conclude that Apprendi error based on failure to allege a specific drug quantity does not constitute a jurisdictional defect in a
. See also Steel Co. v. Citizens for a Better Env’t,
. Our application of plain error review in the indictment context is consistent with our practice in other Apprendi cases, centering on the failure to submit an element to the jury, where we also applied harmless or plain error analysis based on the timing of the objection. See United States v. Gallego,
. But see United States v. Du Bo,
. For the reasons set forth in detail in these opinions, we do not believe that the Supreme Court's decision in Stirone v. United States,
Additionally, the Sanchezes rely on United States v. Tomeny,
. Although the Sanchezes preserved the indictment issue for appellate review, many defendants making a similar argument have not. Under our precedent, "[a] contention that the indictment lacked sufficient specificity is waived ... if the defendant fails to raise it before entering a guihy plea.” United States v. Pease,
. Other circuits have adopted a similar approach. See, e.g., United States v. Robinson,
. Rogers appears to have assumed that compliance with Apprendi requires that drug quantity be subjected to this full procedural triumvirate, including being charged in the indictment. Indeed, we stated in a case involving concurrent sentences of forty years and life imprisonment that Rogers “required” that the indictment specify drug quantity. United States v. Wims,
Rogers expanded Apprendi in this regard, because neither Jones nor Apprendi held that a congressionally enacted sentencing factor must also be alleged in the indictment. The government argues that this expansion is not inevitable. Under the government's view, a fact such as drug quantity that increases a sentence beyond a default maximum does not in all respects equate to a "traditional element”; it is, rather, "the functional equivalent of an element of a greater offense than the one covered by the juiy’s guilty verdict.” Apprendi,
We are not persuaded, and we thus preserve our precedent in Rogers and its progeny to this limited effect. Of course, our holding with respect to the Sanchezes' motion to dismiss the indictment shows that drug quantity, even in Aogers-like cases, is not a "traditional element” in the sense that a failure to allege it could entitle the defendant to dismissal of a § 841 indictment. Instead, as outlined in this opinion, the omission of that element would first have to be established and then, if shown, would be reviewed for harmless or plain error, depending on the timing of the objection. See supra section III.A. 1.
. Although Rogers added a third procedural protection of charging drug quantity in the indictment, we hasten to specify that drug quantity need be alleged only in the narrow circumstances "described above in which Ap-prendi 's jury-submission and reasonable-doubt requirements apply — that is, when the sentence imposed exceeds the maximum in § 841(b)(1)(C). Drug quantity need not be alleged when it has effects that Apprendi's doctrine does not reach, such as mandatory minimum sentences, guideline sentencing calculations, and sentences at or below the otherwise applicable maximum in § 841(b)(1)(C).
. This Court previously suggested that the imposition of a mandatoiy minimum sentence based on a judge-made factual determination does not violate Apprendi. See United States v. Pounds.
Thus, consistent with the analysis in this en banc opinion, our decision in Pounds, and the holdings of the majority of circuits, we hereby overrule the holding ábout mandatory minimum sentences in United States v. Camacho,
We preserve, however, that portion of Camacho which reaffirmed the principle that "a defendant may obtain re-sentencing under Ap-prendi only if the sentence he actually receives exceeds the maximum allowable sentence he should have received under section 841(b)(1)(C), i.e., twenty years’ imprisonment, without regard to quantity.” Camacho,
. In Rogers, the defendant actually received a thirty-year prison sentence, and this Court found, under the particular circumstances of that case, that the defendant’s prescribed statutory maximum sentence was twenty years under § 841(b)(1)(C). We observe, however, that a thirty-year" sentence is permitted under § 841(b)(1)(C) when a defendant's prior felony drug conviction is properly shown.
. Accordingly, in United States v. Candelario,
. Although
. The Sanchezes’ conditional plea agreements did not preserve the right to appeal any error in their plea colloquies, nor did they ever move to withdraw their pleas in the district court.
. Our precedent strongly implies that naming a number is not the only way of alleging drug quantity in the indictment. See United States v. Nealy,
.At the time of the defendant’s plea colloquy in 1959, § 1201(a) provided, in pertinent part:
Whoever knowingly transports in interstate ... commerce, any person who has been unlawfully ... kidnaped ... and held for ransom ... shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.
Brady,
. The habeas court found that Brady changed his plea upon learning that his co-defendant would plead guilty and would be available to testify against him. Id. at 745,
. While the Supreme Court’s opinion indicates that Brady alleged that the district court did not comply with
. In Jackson, the Supreme Court concluded that the death penalty provision of
. The Supreme Court in Brady found support for this conclusion in Jackson itself, stating,
“The Court made it clear in Jaclcson that it was not holding§ 1201(a) inherently coercive of guilty pleas: 'the fact that the Federal Kidnaping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that every defendant who enters a guilty plea to a charge under the Act does so involuntarily.’ ” Brady,397 U.S. at 746-47 ,90 S.Ct. 1463 (quoting Jackson,390 U.S. at 583 ,88 S.Ct. 1209 ).
. Indeed, even if the Sanchezes had been misadvised about the maximum possibly penalty under the law as it existed at the time of their plea colloquy, their guilty pleas would not be invalid. In United States v. Woodall,
Isolating all other facts that could influence a defendant in determining to enter a plea of guilty, the court is of the opinion that even if [the defendant] had been told that the district judge could pyramid the maximum sentences under each of the separate counts of the two indictments to which he pled, this factor would not invalidate his plea. The probability such information would have influenced [the defendant] not to change his plea so far outweighs the possibility that the prospect of stiffer punishment may have caused the change, that we refuse to consider the latter as relevant.
Id. at 1329.
. The Sanchezes' reliance on United States v. Brown,
. Although the Sanchezes were advised about the mandatory minimum sentences in § 841(b), they were not misadvised about them, as Apprendi does not affect mandatory minimum sentences under § 841(b). See supra notes 38, 53.
. This result is consistent with other cases in which we have decided that a district court’s failure to inform a defendant that he faces a specified term of supervised release or to inform the defendant of the effect of supervised release is harmless error where the sentence is well below the sentence that the defendant was informed that he faced. See United States v. Bejarano,
. Thus, we review their argument for plain error. See United States v. Candelario,
. In United States v. Gerrow,
. But see Suveges v. United States,
. To the extent that the Sanchezes rely on the fact of their four-year terms of supervised release to demonstrate that they were "sentenced under” § 841(b)(1)(B), that argument fails because of our conclusion that a term of supervised release of four years is in fact authorized by § 841(b)(1)(C).
. In response to the statement in Judge Tjoflat's concurring opinion that this case is not en banc worthy because the Apprendi answer is obvious, we note that it was not obvious (1) to the Sanchezes (or their counsel) who, notwithstanding their guilty pleas, preserved the right to challenge the absence of drug quantity in their indictments as part of their plea agreements and have pressed their contention that there is Apprendi error requiring reversal of their convictions and sentences; (2) to the Sanchez panel whose opinion followed Rogers and Shepard, but ultimately found no prejudice and any error was harmless; or (3) to "All Federal Public and Community Defenders within the Eleventh Circuit Court of Appeals” and the "National Association of Criminal Defense Lawyers and Families Against Mandatory Mínimums Foundation” who filed Amicus Curiae briefs supporting the Sanchezes’ requests for reversal of their convictions and sentences based in part on their readings of Apprendi, Rogers, and Camacho. For example, as noted in one Amicus Curiae brief, "[planels of this court have split on the question of what effect Apprendi has on § 841’s type- and amount-base provisions.” That brief then contrasts the approach taken in Gerrow versus that in Rogers and Camacho. We heard this case en pane precisely (1) because of the need to clarify in our circuit the impact of Apprendi on drug convictions, sentences, and plea colloquies, especially where a §§ 846, 841 indictment does not allege drug quantity, and (2) because it involves issues of exceptional importance affecting a plethora of criminal cases.
Concurrence Opinion
specially concurring,
It is obvious from the start that there is no Apprendi error in this case. Because the Sanchezes’ sentences did not exceed the twenty-year maximum sentence prescribed by
Yet, the court commences to canvass every issue that could possibly arise out of a potential Apprendi error, and, in the process, composes a treatise of dicta that compromises this circuit’s commitment to the policies established by Apprendi. The majority, for instance, misinterprets Rogers ’ holding that drug quantity must be charged in the indictment when a court utilizes sections 841(b)(1)(A) or (B), and then sets about overruling it. Likewise, the court disavows Camacho after finding it inconsistent with McMillan v. Pennsylvania,
Anxious though it may be to establish a hornbook on Apprendi errors, the majority simply chose the wrong case as its vehicle, a decision which is both unfortunate and counterproductive. Dicta, especially erroneous dicta, creates a potential for mischief. “For the layperson, as well as for judges, confusion about the state of the law most often comes about by confusing the holding of a case with the dicta in the opinion.” Denno v. School Bd. of Volusia County,
While I agree that the Sanehezes’ convictions and sentences should be affirmed, and therefore concur in the court’s judgment, I write separately to eliminate the confusion our decision may cause district judges and the lawyers who litigate drug cases. I begin in part I with a brief
I.
Appellants Ignasio Sanchez and Santiago Sanchez were indicted, along with four others, for conspiring knowingly and intentionally to possess with intent to distribute methamphetamine and amphetamine, in violation of
The initial pre-sentence investigation reports (“PSIs”) recommended that the San-chezes be found responsible for various drug quantities of methamphetamine and amphetamine. Following objections from both the Government and the appellants, the reports were revised and the drug quantities were lowered. In the final PSIs, Santiago Sanchez was held accountable for 24,494.4 grams of amphetamine, 907.2 grams of methamphetamine, and 3.54 grams of cocaine, and Ignasio Sanchez was held responsible for 18,144 grams of amphetamine, 907.2 grams of methamphetamine, and 4,536 grams of marijuana. As the majority notes, the PSIs then converted these drug quantities into amounts of marijuana, according to the drug equivalency tables of the sentencing guidelines. For Santiago,' this yielded an equivalency of 6,713.99 kilograms of marijuana; for
The Sanchezes were sentenced at the conclusion of the second of two sentencing hearings. At the first hearing, after the court denied the Sanchezes’ renewed motion to dismiss the indictment (for failure to allege drug quantity), the prosecutor streamlined the drug transactions listed in the PSIs into essentially three categories. The first category included one significant drug transaction, one to which Santiago Sanchez never objected, that occurred at a Stone Mountain motel in June 1998 and involved 907.2 grams of methamphetamine.
At the second sentencing hearing, the court denied the motion for the downward departure, finding that the conditions at the Atlanta Pretrial Detention Center were not “so atypical as to justify the highly infrequent exercise of a downward departure.” The court then noted that its sentencing option in this case was a mandatory minimum of five years and a maximum of forty years imprisonment, thus describing, but not citing, the statutory provision of section 841(b)(1)(B).
II.
The Sanehezes contend that the district court should have dismissed their indictment for failing to allege drug quantity. As I see it, they appear to advance two arguments. First, the Sanehezes assert that because drug quantity determines the range of punishment in a case prosecuted under
Because the Sanchezes properly preserved this issue for appeal, the majority is correct in applying a de novo standard of review to their arguments. United States v. Candelario,
1.
The Sanehezes’ first argument, that the Supreme Court’s decision in Apprendi requires quantity to be treated as an element of any
Therefore, I contend that the rule of Apprendi does not apply here, because the Sanchezes’ ultimate sentences did not exceed the twenty-year maximum of
2.
The Sanchezes persist, however, arguing that even though their sentences did not exceed
Bared to their essentials, these cases hold that there is no Apprendi error as long as the defendant’s sentence does not exceed the twenty-year maximum of
In only one case has this court intimated that there could be an Apprendi error for not treating drug quantity as an element even when the defendant’s sentence did not exceed the twenty-year maximum of section 841(b)(1)(C). In United States v. Shepard,
The proper response, then, to the San-chezes’ second argument — that the district court committed an Apprendi error because it effectively sentenced them under
The Sanchezes are correct that there may be another kind of error, however, even when the sentence falls under the twenty-year maximum of
The holding in Rogers is inapplicable in the case before us. In Rogers, we held that “drug quantity in
Clarifying our holding in Rogers in this way illustrates its inapplicability in the case before us. Here, the Sanchezes pled guilty, waiving their right to a jury trial. Moreover, because, as I point out in part III, the failure to allege drug quantity did not deprive the court of subject matter jurisdiction, the guilty pleas also waived notice of the drug quantity the Government would rely upon at sentencing. The Sanchezes, however, actually did receive notice of the drug quantity involved in the charged offense.
Despite Rogers’ inapplicability to the case before us, the majority assumes that it applies and then sets about overruling it and Camacho. The source of the majority’s confusion is its acceptance of the San-chezes’ argument that because the district court cited
The prototypical Rogers ’ error occurred in Camacho. In Camacho, the defendant was indicted and convicted at trial under section 841(a)(1) without regard to drug quantity. See id. at 1288. At the sentencing hearing, the defendant stipulated to a drug quantity sufficient for a sentence under section 841(b)(1)(A), which prescribes a mandatory minimum sentence of ten years. See id. When the district court determined the defendant’s sentence range under the sentencing guidelines, it arrived at a range of 108 to 135 months. Id. at 1289 n. 6. The court applied the mandatory minimum of section 841(b)(1)(A), however, which narrowed the range to 120 to 135 months and effectively limited the district court’s sentencing discretion. See Camacho,
Even assuming that Rogers ’ command to charge quantity in the indictment applies to the case before us, I maintain that the district court never “utilized sections 841(b)(1)(A) or 841(b)(1)(B)” because it never relied on the mandatory minimum of either section. Thus, unlike Camacho, the statutory provisions of section 841(b)(1)(A) and 841(b)(1)(B) did not constrain the district court or narrow the guidelines sentence range of either defendant. Rather, in sentencing the Sanchezes, the district court determined and applied the sentencing guidelines without any interference from section 841(b) at all. Even after they moved for a downward departure, the district court denied the motion because the motion lacked merit — not because any provision in section 841(b) prevented it from doing so. Because the district court did not “utilize section 841(b)(1)(A) or (B),” the Sanchezes^ cases were not “section 841(b)(1)(B) cases.” Rogers and Camacho, therefore, are simply inapplicable.
III.
I now turn to the discussion of whether hypothetical Apprendi errors are jurisdictional. I reiterate here that, like its treatment of Rogers and Camacho, the court’s discourse about Apprendi error is unnecessary because there was no such error in this case. While I join the court’s conclusion that an Apprendi error, when it occurs, should be subject to harmless or plain error analysis under Rule 52(a) or (b), I write separately to respond more fully to Judge Barkett’s argument that Apprendi errors are jurisdictional.
In understanding Apprendi’s holding that sentence-enhancing facts are to be treated like elements, rather than made elements, it is useful to compare Apprendi with the Supreme Court’s earlier opinion in Jones v. United States,
The Court’s two-part concern for fair notice and sentence reliability are highlighted in its discussion in Jones and Ap-prendi of Almendarez-Torres v. United States,
The command of Apprendi, therefore, is not to transform sentence-enhancing facts into elements, the allegation of which is necessary in the indictment in order to state an offense, but, rather, to treat sentence-enhancing facts like elements in order to provide the defendant with notice of the sentence enhancement and to make certain the resulting sentence is reliable. Even though a sentence-enhancing fact like drug quantity should be included in the indictment in order to provide the defendant with notice,
Furthermore, it is well-established that failing to include an element in a jury instruction (or wrongly putting the burden on the defendant to prove an element) is not jurisdictional error but is subject to harmless error analysis. In Franklin v. Francis,
I contend, as the majority of this court does, that jury instruction errors, like the one that occurred in Neder, are no different from Apprendi errors occurring when
Though failing to include a sentence-enhancing fact could create an error under Apprendi and Rogers, it is not a “structural error,” but a constitutional error, which is subject to harmless or plain error review. We review
In my view, focusing on Apprendi’s two-part concern — notice of the drug quantity and reliability of the sentence — - better illuminates our task in resolving the cases that come before us. In this part, I divide those cases into two groups: those arising after Apprendi and those arising before. My comments on the first group are short. It is apparent that, in
I turn now to those cases arising before Apprendi and further divide them into two groups: those in which the defendant was tried before a jury and those in which the defendant pled guilty. In cases tried before a jury, if the drug quantity involved in the offense was not found by the jury beyond a reasonable doubt and the court used
V.
In sum, Apprendi does not apply in this case because the Sanchezes’ sentences did not exceed the twenty-year maximum of
.
.
(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. Id.
.
. Ignasio Sanchez properly preserved his right to appeal under
. "Statutory Penalty” is most likely a reference to
. The PSIs and the prosecutor reported that "two pounds” of methamphetamine were involved in the Stone Mountain transaction; two pounds is equivalent to 907.2 grams. Unlike the other substances described in the PSIs, "approximately 230 grams” of the drugs exchanged at the Stone Mountain hotel were seized by the Government and tested positive for the presence of methamphetamine.
.The PSIs, the district court, and the parties failed to recognize that
.Under the sentencing guidelines, this final drug amount — a marijuana equivalency of 2,903.04 kilograms — resulted in a base offense level of 32 for each defendant. The court then applied a two-level increase for firearm possession, resulting in an offense level of 34. For Ignasio Sanchez, the court applied a two-level reduction for playing a minor role and a three-level reduction for acceptance of responsibility, producing a final offense level of 29. With a criminal history category of I, the guideline range for Ignasio Sanchez was 87 to 108 months. For Santiago Sanchez, the court reduced the offense level of 34 by only three for acceptance of responsibility. This produced an offense level of 31, which, with a criminal history of Category I, resulted in a guideline range for Santiago Sanchez of 108 to 135 months.
. After the court imposed the sentences, the Sanehezes renewed for a second time their motion to dismiss the indictment for failure to allege a drug quantity. The court denied their motion.
. Because I believe that Apprendi does not apply to this case, in part III I discuss whether an Apprendi error, when it occurs, is jurisdictional or merely subject to harmless or plain error analysis under
. At this point, a review of the statutory framework of
. It is unclear from the majority’s response to this particular Apprendi argument on what basis the majority rejects it. The majority first implies that the Sanchezes' argument derived from Rogers and, rather than laying out this circuit’s well-established precedents, it then cites to nine other circuits' decisions to dispose of both the argument and Rogers. I believe that our own cases, including Rogers, however, have long held that there can be no Apprendi error when the sentence does not exceed the statutory maximum of
. In Shepard, the defendant was indicted for violating
. In overruling Rogers and Camacho, tire majority opinion appears to rest its reasoning on two pillars: first, that under Apprendi there can be no error when the ultimate sentence does not exceed the twenty-year maximum of 841(b)(1)(C); and, second, that Apprendi preserved McMillan v. Pennsylvania,
. I also join the court's conclusion that Ap-prendi error is not structural, and our cases have already held as much. See United States v. Nealy,
. II is also beneficial to consider the language of Almendarez-Torres v. United States,
. The Court in Apprendi avoided the issue of whether such facts should be charged in the indictment because the appellant there had not asserted a claim "based on the omission of any reference to sentence enhancement or racial bias in the indictment.” Apprendi,
. Although the opinion in Franklin does not cite the “harmless beyond a reasonable doubt” standard of Chapman v. California,
. We are not alone in this conclusion. See, e.g., United States v. Mojica-Baez,
. The Supreme Court has made clear that, before an appellate court may reverse, both
. In using the term "involve,” I am referring specifically to
. As explained supra, in pleading guilty, the defendant waives all non-jurisdictional defects in the indictment, including that the indictment fails to charge the quantity of drugs involved in the offense.
Concurrence Opinion
concurring in result only:
I agree that the sentences in this case should be affirmed because a sentence below the 20-year statutory maximum established by
No one disputes that prior to Apprendi certain basic principles were clearly and unambiguously established: (1) A defendant has the constitutional right under the Fifth Amendment to be charged by an indictment returned by a grand jury; (2) The court has the power to act only within the parameters of the specific crime charged in the indictment or information; (3) A sentence imposed outside of the parameters of the crime charged in the indictment or information is per se reversible; (4) A defendant has the constitutional right under the Fifth and Sixth Amendments to an information or indictment that gives notice of all of the essential elements of the crime charged and the factual bases therefor; (5) A defendant has the constitutional right to a jury determination of guilt beyond a reasonable doubt as to each essential element of the crime charged; (6) Any waiver, by plea or otherwise, of the right to notice by indictment or information, or of the right to a jury determination of guilt beyond a reasonable doubt, must be voluntary and intelligent.
In Apprendi, the Court stated that a fact that increases the penalty for a crime beyond the otherwise-applicable statutory maximum “fits squarely within the usual definition of an ‘element’ of the offense.” Apprendi,
The fundamental question posed after Apprendi is whether these statements mean that drug quantity must be treated as an element of the offenses set forth in
The third possibility is that although drug quantity is an element necessary to be charged and proven to a jury beyond a reasonable doubt, it constitutes a new kind of element, a constitutionally novel creature that is an element for some purposes but not for others. On this unprecedented theory, which the majority appears to endorse, the “element” must be alleged in the indictment, but if it is not, that failure does not have the same effect as a failure to allege a “real” element. Whereas precedent teaches that the failure to allege an element essential to the crime charged is a fatal defect requiring reversal of the excess sentence for resentencing within the proper bounds of the offense charged, the failure to allege this new “quasi-element” may be excused by an appellate court if it thinks it harmless.
Our own circuit, and every other circuit to have spoken on the question, has determined that the only plausible interpretation of Apprendi, especially as read together with Jones v. United States,
In Apprendi, the Supreme Court reiterated that the Sixth and Fourteenth
Accordingly, I agree with the majority that if a sentence under
The majority suggests that, on appeal, an Apprendi error in the indictment is susceptible to harmless error review if it has been preserved, and plain error review if it has not. The problem with this view is, first, that it fails to account for the court’s responsibility, in every criminal case, to ascertain precisely the bounds of its own jurisdiction as delineated by the offenses charged in the indictment or information. If, as the' majority agrees, drug quantity constitutes an element of the offenses in
II Failure To Plead Drug Quantity In The Indictment Is A Fatal Jurisdictional Defect To Any Sentence In Excess of 20 Years
A. The Court’s Jurisdiction To Impose A Sentence Is Limited To the Offense Charged In The Indictment
When an indictment is not brought by the grand jury or does not contain all the essential elements of the crime charged and the necessary factual bases therefor, there is error in the subsequent criminal proceedings. When challenged, a conviction or sentence based on charges not ini
The remedy required by the Supreme Court for a sentence imposed beyond the trial court’s jurisdiction is a remand for resentencing within the proper confines of its jurisdiction: “[T]he imposition of a sentence in excess of what the law permits does not render the legal or authorized section of the sentence void, but only
The majority takes no account of this jurisdictional error that occurs when a court acts in excess of its authority. Indeed, even guilty pleas can not excuse such jurisdictional errors, for the court simply does not have authority to accept a plea to an offense greater than that charged in the indictment.
The objection that the indictment fails to charge an offense is not waived by a guilty plea. The violation of [the defendant’s] right to be free of prosecution for a nonoffense would bar his conviction even if his “factual guilt” had been established validly. The entry of a guilty plea does not act as a waiver of jurisdictional defects such as an indictment’s failure to charge an offense.
United States v. Meacham,
The majority argues that a sentence in excess of 20 years under an indictment alleging only a violation of
As illustrated by Stirone, not every error in jury instructions is susceptible to harmless error review. Unlike the non-jurisdictional jury instruction error in Neder — to wit, failure to submit the issue of materiality to the jury when it was implicit in the jury instructions as a whole — the jury instructions given in Sti-rone varied from the indictment to such an extent that the substantial right to be tried only on charges presented in the indictment returned by a grand jury was abrogated. The defendant’s sentence was therefore vacated because the court had exceeded its jurisdiction. See also United States v. Tran,
B. A Defendant Has A Right To Have A Grand Jury Consider The Crime For Which He or She Will be Punished And Can Only Waive This Right If The Waiver Is Voluntary
The conclusion that the failure to allege an element in the indictment is not susceptible to harmless error review flows from a recognition of the pivotal role played by the grand jury in the process of a criminal case. Under the Fifth Amendment the Constitution gives the grand jury complete discretion to provide the parameters of a criminal proceeding, vesting it with the power to indict based on the evidence presented to it and the absolute choice not to
In the hands of the grand jury lies the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a noncapi-tal offense — all on the basis of the same facts. Moreover, “[t]he grand jury is not bound to indict in every case where a conviction can be obtained.” Thus, even if a grand jury’s determination of probable cause is confirmed in hindsight by a conviction on the indicted offense, that confirmation in no way suggests that the discrimination did not imper-missibly infect the framing of the indictment and, consequently, the nature or very existence of the proceedings to come.
Vasquez v. Hillery,
Thus, even when there is overwhelming evidence of drug amounts to support conviction and sentence under
The content of the charge, as well as the decision to charge at all, is entirely up to the grand jury — subject to its popular veto, as it were. The grand jury’s decision not to indict at all, or not to charge the facts alleged by the prosecutorial officials, is not subject to review by any other body.
Gaither v. United States,
Moreover, just as the grand jury alone has the power to return an indictment, any amendments to the indictment must be made by the grand jury as well. See Stirone,
While there was a variance in the sense of a variation between pleading and proof, that variation here destroyed the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error.
Because it is necessary to allege the requisite drug quantity in the indictment to sentence a defendant under
If the indictment has charged a violation of
When the grand jury does return an indictment, due process requires that the indictment must provide a defendant with adequate notice of the crime with which he or she has been charged:
The criteria [for a valid indictment] are, first, whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, secondly, in case any other proceedings are taken against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.
Russell,
A grand jury indictment must set forth each essential element of the offense in order for the conviction to stand.... [T]he Sixth Amendment to the Constitution requires that every criminal defendant “be informed of the nature and cause of the accusation.” Inclusion of the essential elements of an offense in an indictment provides the accused with the bare minimum of information necessary to meet this requirement.... [T]he Fifth Amendment guarantees the right of a grand jury indictment to each defendant to be prosecuted for an “infamous,” or serious, crime. A grand jury can perform its function of determining probable cause and returning a true bill only if all elements of the offense are contained in the indictment.
United States v. Outler,
Defects in the charging document compromise the defendant’s Sixth Amendment guarantee requiring that any guilty plea be made with full and meaningful notice of the criminal charges lodged against him. How a defendant prepares to answer the charges brought against him and whether or not he will choose to enter a guilty plea is dictated by the contours of the charging document. Consider the example of a defendant charged with a drug crime of indeterminate quantity, who pleads guilty, and in his guilty plea, does not contest the government’s allegations of a drug quantity which bring him within the increased range of
In sum, if this court were presented with a case in which a defendant received a sentence in excess of 20 years pursuant to
. Although I initially believed that imposing a mandatory minimum pursuant to
.
. Our circuit reached this conclusion in United States v. Rogers,
. See supra, n. 3.
. Although the Government does not need to allege the precise amount of drugs involved, the Government must allege drug quantity with sufficient specificity to apprise the defendant under which subsections of
.In his special concurrence, Judge Tjoflat explains why, in his view, Apprendi does not require that drug quantity be deemed an "ele
However, this analysis begs the question of Apprendi's applicability. If notice is required (and I believe it is), that notice must come when the government first charges the offense so that the defendant can effectively respond to the charge; if "reliability" is constitutionally required, the reliability of a sentence based on an enhancing fact is to be derived, according to Apprendi, by a jury determination of that fact beyond a reasonable doubt. Appren-di clearly dictates that sentence-enhancing facts be treated as the functional equivalents of an element. If we are required to treat drug quantity as an element, then we ought to consider cases in which an element, properly-so-called, was omitted from an indictment, and act accordingly, treating drug quantity the same way. Constructive amendment of the indictment cases like Bain and Stirone provide the best guide. In these cases, the Supreme Court has spoken precisely on the functions of "elements”, and on the consequences of omitting an element from the indictment. Specifically, the Court has recognized that only the grand jury has the power to charge, or refuse to charge, a defendant with a fact that results in a more serious crime and accordingly, where an indictment fails to charge "an element of the offense, any sentence for the enhanced offense is per se invalid.
Judge Tjoflat states in his special concurrence that “a court's power to adjudicate a federal criminal prosecution comes from
. The majority refers to three recent circuit •cases that have held that failure to charge an essential element of an offense in the indictment does not constitute a ‘'jurisdictional'' defect, but is subject only to review for harmless or plain error. Maj. at 1274, citing United States v. Prentiss,
While Nance reviewed the failure of an
Nor, as the Second Circuit recently pointed out in United States v. Tran,
Although Prentiss did squarely hold that the failure to charge an essential element of an offense in the indictment does not constitute jurisdictional error, it, like the majority, in large part, based its reasoning on Neder v. United States,
. In Pridgeon, the defendant was sentenced to a 5 year term of imprisonment at a penitentiary that subjected inmates to "hard labor.” See Pridgeon,
. In Bonner v. Prichard,
. See also United States v. Moss,
. The majority states that "the notion that any Apprendi-based challenge has a jurisdictional dimension is implicitly rejected by our precedent's consistent application of plain or harmless error review” Maj. at 1273, citing United States v. Pease,
. The majority’s position also leads to the highly anomalous result of requiring greater specificity from a civil complaint than from a criminal indictment or information.
. Minor and insubstantial errors in the indictment that do not broaden its scope are obviously not construed as such amendments. However, as explained above, sentencing for more than the offense charged constructively amends the indictment, and no one but the grand jury has the power do this.
. The majority, in footnote 48, appears to suggest that the authority of Stirone has somehow been diminished by the Supreme Court's decision in Chapman v. California,
. Obviously, as the majority points out, the defendant has the right to waive indictment by grand jury. In such a case, a court would, of course, undertake the usual constitutional inquiry as to whether the waiver was voluntary and intelligent and whether the substituting information complied with other constitutional protections. See United States v. Moore,
To use an admittedly extreme example to make the point, a defendant waiving indictment by the grand jury cannot be permitted to be sentenced for manslaughter under an information that only charges theft, even should he want to. The bottom line is that in every case, the court has an independent obligation to ensure that the charging document— whether indictment or information — outlines the elements of the crime. See DeBenedictis v. Wainwright,
Moreover, the discussion of the right to waive a grand jury's indictment seems almost irrelevant in the Apprendi context. In future cases, one assumes that the Government would, at least in an abundance of caution, present the indictment to the grand jury in a way that includes the requisite drug quantity for the conviction and sentence it seeks. In reviewing those cases that arose before Apprendi, courts must analyze whether any waiver of the right to have the grand jury pass on the crime it wants to charge, i.e., have the ability to choose from among the crimes delineated by
. In Stein v. Reynolds Securities, Inc.,
. Although a defendant may waive his right to be charged by the grand jury through indictment, and plead or be tried under a crimi
. The majority states that even if the trial judge misadvised the Sanchezes of their maximum potential sentence pursuant to
In Brady, the Supreme Court held that the federal kidnaping statute could not condition a defendant’s right to opt for a jury trial on his willingness to risk the death penalty (which, under the statute, could be imposed only by a jury). Nevertheless, the Court rejected the defendant's challenge to the volun-tariness of his guilty plea, but not, as the majority suggests, because the defendant’s misunderstanding of his sentencing exposure could not possibly have shown his plea to be involuntary. Instead, the court rejected defendant's argument because the trial courtand the Tenth Circuit explicitly found that the defendant voluntarily chose to plead guilty when he learned that his co-defendant was cooperating with the prosecution and was available to testify against him. Indeed, contrary to the majority's suggestion, the Brady Court reaffirmed the existing standards for analyzing guilty pleas holding that they must always be both voluntary and intelligent. See id. at 747 n. 4, 90 S.Ct. 1463 . The Court wrote: "Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Id. at 748,90 S.Ct. 1463 .
. As we have previously stated, "appellate courts best serve the law in deciding 'each case on the narrow ground that leads to a decision.’ " Clay v. Riverwood Intern. Corp.,