UNITED STATES of America, Plaintiff-Appellee, v. Ignasio Maldenaldo SANCHEZ, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Santiago Gilberto Sanchez, Defendant-Appellant.
Nos. 00-13347, 00-13447
United States Court of Appeals, Eleventh Circuit
Oct. 17, 2001
269 F.3d 1250
AFFIRMED.
R.C. Cougill, Attorney at Law, Lilburn, GA, for Ignasio Maldenaldo Sanchez.
James W. Kesler, Amy Weil, Atlanta, GA, Paul S. Kish, Federal Defender Program, Inc., Atlanta, GA, for Plaintiff-Appellee.
Paul S. Kish, Fed. Def. Program, Inc., Atlanta, GA, Peter Goldberger, Ardmore, PA, for National Ass‘n of Criminal Defense Lawyers & Families, Amicus Curiae.
Before ANDERSON, Chief Judge, and TJOFLAT, EDMONDSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.
HULL, Circuit Judge:
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, 247 F.3d 1306 (11th Cir.2001). We address en banc: whether, in light of Apprendi, drug quantity is now always an element of an offense under
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, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) and Apprendi. We then discuss the federal drug statute, our precedent construing that statute, and Apprendi‘s effect on both. In Part III, we address the Sanchezes’ challenges to their indictment, guilty pleas, and sentences, along with the corresponding standards of review. In Part IV, we summarize our conclusions.
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 Apprendi. 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 Sanchezes1 “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 21, United States Code, § 841, to wit: to knowingly and intentionally possess with the intent to distribute and distribute quantities of methamphetamine and amphetamine, both being Schedule II controlled substances, in violation of Title 21, United States Code, Section 846.” The indictment referenced
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 § 841 establishes that drug quantity is a sentencing consideration.” The court continued that “the Constitution does not require drug quantity to be considered as an element of the criminal offense defined by § 841.” The court noted that Jones “does not stand for the proposition that every fact which exposes a criminal defendant to a higher maximum penalty must be alleged in an indictment.” Subsequently, the court granted, without objection, Santiago Sanchez‘s request to adopt Ignasio Sanchez‘s motion to dismiss the indictment and denied that motion as well.3
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
The
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 Rule 11(a)(2),5 was conditional on his reservation of the right to appeal the denial of his motion to dismiss the indictment.6 Santiago Sanchez likewise was allowed to enter a conditional guilty plea.7
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
Regarding the guideline range within this statutory range, the initial pre-sentence reports recommended a custodial term of 210 to 262 months for both defendants.9
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-sentence 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.10 The revised reports stated that the “Statutory Penalty” was “5 to 40 years.”11 While this penalty corresponded to
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 1,814.4 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 Sanchezes’ 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, Ignasio 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 Ignasio Sanchez‘s counsel. Subsequently, both defendants timely appealed.14
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 Apprendi. We then review the federal drug statute, this circuit‘s precedent construing that statutory scheme, and what effect Apprendi has on that landscape.
A. Jones v. United States
Jones was a case 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, 119 S.Ct. 1215 (citing cases). In the now-famous footnote six, the Supreme Court described the principle “animating” its view that this alternative interpretation “may violate the Constitution,” as follows: “[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than 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.” Id. at 243 n. 6, 119 S.Ct. 1215. The Supreme Court continued that “[b]ecause our prior cases suggest rather than establish this principle, our concern ... rises only to the level of doubt, not certainty.” Id.
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, 530 U.S. at 469, 120 S.Ct. 2348. A New Jersey grand jury returned a 23-count indictment charging Apprendi with various shootings and with the unlawful possession of various weapons. Id.
Apprendi pled guilty to only three counts in the indictment, including two counts of the second-degree offense of possession of a firearm for an unlawful purpose, in violation of
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, 120 S.Ct. 2348.
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, 120 S.Ct. 2348. The Supreme Court noted that the answer to this question was “foreshadowed” by its earlier opinion in Jones. Id. at 476, 120 S.Ct. 2348.
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, 120 S.Ct. 2348 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). After conducting a historical examination of this entitlement, the Court noted that the “due process and associated jury protections extend, to some degree, to determinations that [go] not to a defendant‘s guilt or innocence, but simply to the length of his sentence.” 530 U.S. at 484, 120 S.Ct. 2348 (internal quotation marks omitted).
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, 120 S.Ct. 2348. The Court recognized, “On the other hand, when the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury‘s guilty verdict. Indeed, it fits squarely within the usual definition of an ‘element’ of the offense.” Id. (emphasis added).
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, 120 S.Ct. 2348. Applying this principle to the facts of Apprendi‘s case, the Supreme Court concluded that the sentencing procedure permitted by the New Jersey statutory scheme—which allowed a judge-made finding of racial bias by a preponderance of the evidence to increase a defendant‘s term of imprisonment for a firearm offense beyond the prescribed statutory maximum of ten years and up to twenty years—was invalid. Id. at 491, 120 S.Ct. 2348. The Court therefore reversed Apprendi‘s twelve-year sentence on the
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, 120 S.Ct. 2348.
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 Apprendi. 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, 120 S.Ct. 2348 (citing Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)). The Court continued that its “periodic recognition of judges’ broad discretion in sentencing ... has been regularly accompanied by the qualification that that discretion was bound by the range of sentencing options prescribed by the legislature.” 530 U.S. at 481, 120 S.Ct. 2348.
In this same vein, the Supreme Court in Apprendi also expressly preserved its earlier opinion in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), in which the Court permitted a fact triggering a mandatory minimum sentence to be decided by a judge based on a preponderance of the evidence standard. Id. at 86-88, 106 S.Ct. 2411.17 In Apprendi, the Supreme Court specifically stated, “We
do not overrule McMillan. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury‘s verdict—a limitation identified in the McMillan opinion itself.” Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. Thus, Apprendi actually reaffirmed the longstanding practice of allowing judge-decided facts to affect the length of a defendant‘s sentence, including leaving the imposition of a mandatory minimum sentence within the purview of the trial judge. Apprendi carved out only a limited exception to this general rule for facts that actually cause the sentence imposed on a defendant to exceed the prescribed statutory maximum, requiring that such facts be proven to a jury beyond a reasonable doubt rather than decided by a judge based on a preponderance of the evidence standard.
Likewise, Apprendi does not apply to judge-made determinations pursuant to the Sentencing Guidelines. See, e.g., United States v. Nealy, 232 F.3d 825, 829 n. 3 (11th Cir.2000) (“The Sentencing Guidelines are not subject to the Apprendi rule.“); United States v. Harris, 244 F.3d 828, 829-30 (11th Cir.2001) (holding that Apprendi does not apply to the relevant conduct provision of the Sentencing Guidelines); see also United States v. Diaz, 248 F.3d 1065, 1105 (11th Cir.2001) (noting that “Sentencing Guideline issues are not subject to the Apprendi rule and, thus, there is no requirement that sentencing facts be submitted to a jury and found beyond a reasonable doubt“). As the Supreme Court in Apprendi noted, “The Guidelines are, of course, not before the Court. We therefore express no view on the subject beyond what this Court has already held.” Apprendi, 530 U.S. at 497 n. 21, 120 S.Ct. 2348. While Apprendi was silent on the issue, its inapplicability to the Sentencing Guidelines follows from its holding. A factual finding under the Guidelines determines the sentence within the statutory range rather than outside it. Because Apprendi only addresses facts that increase the penalty for a crime beyond the statutory maximum, it does not apply to those findings that merely cause the guideline range to shift within the statutory range.18
Apprendi also did not hold that judge-decided facts that expose a defendant to a higher statutory maximum penalty must be proven to a jury beyond a reasonable doubt. The analysis employed in, and the holding of, Apprendi make clear that any consideration of a defendant‘s sentence in light of Apprendi is to be conducted retrospectively rather than prospectively. The defendant in Apprendi was not merely exposed to a higher sentence than otherwise applicable but was actually sentenced to twelve years’ imprisonment under New Jersey‘s entirely separate “hate crime” statute, which was above the prescribed statutory maximum of ten years’ imprisonment for his firearm offense. Our reading of Apprendi anchors its holding to the facts involved. In sum, Apprendi is implicated only when a judge-decided fact actually increases the defendant‘s sentence beyond the prescribed statutory maximum for the crime of conviction.19
C. The Federal Drug Statute
We next examine the impact of Apprendi on the federal drug statute,
The Sanchezes were charged with conspiring to distribute and to possess with intent to distribute a controlled substance in violation of
According to the plain language of
Thus, to some extent, when a defendant pleads guilty to, or a jury finds the defendant guilty of, an indictment charging possession with intent to distribute a “controlled substance,” a drug quantity of some amount is already part of the underlying crime of conviction.
Section 841(b), entitled “Penalties,” provides the penalties for violations of
(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.
only after a defendant has been duly convicted of a substantive violation of
Section 841(b)‘s penalties begin with a statutory maximum of life imprisonment in
Section 841(b)(1)(A) provides that “[i]n the case of a violation of subsection (a)” of
Section 841(b)(1)(C) applies to all other violations of
Thus,
D. Circuit Precedent Prior to Apprendi
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
We preserved this interpretation of
E. Apprendi‘s Impact on § 841 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, 530 U.S. at 490, 120 S.Ct. 2348. Our reading of the tenor of the Supreme Court‘s decisions is that
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, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). Therefore, Apprendi has no effect on cases in which a defendant‘s actual sentence falls within the range prescribed by the statute for the crime of conviction. As stated above,
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, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. Therefore, in a
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
The Sanchezes’ plea agreements, however, were
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, 138 F.3d 928, 938-39 (11th Cir. 1998). As we have held, Apprendi error is constitutional error, subject to harmless or plain error review depending on the timing of the constitutional objection. See, e.g., United States v. Smith, 240 F.3d 927, 929 (11th Cir. 2001) (affirming thirty-year sentence); United States v. Candelario, 240 F.3d 1300, 1308 (11th Cir. 2001) (same), cert. denied, 533 U.S. 922, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001); United States v. Nealy, 232 F.3d 825, 829-30 & n.4 (11th Cir. 2000) (affirming thirty-two-year sentence).
Given our precedent, we reject the Sanchezes’ 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, 232 F.3d at 829 n.4 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)).41 “Failure to submit the issue of drug quantity to the jury is just an element of the trial process and does not rise to the level of structural error....” Id. It “is not structural error because it ‘does
Our precedent follows Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), where the Supreme Court held that “the omission of an element [in a jury instruction] is an error that is subject to harmless-error analysis.” Id. at 15, 119 S.Ct. 1827. Any Apprendi error arising from the omission of a specific drug quantity in a
Likewise, we have rejected the claim, which the Sanchezes also make, that an Apprendi error creates a jurisdictional error. See United States v. Cromartie, 267 F.3d 1293 (11th Cir. 2001); McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001).44 A jurisdictional defect occurs only where a federal court lacks power to adjudicate at all.45 The constitutional rights to be charged by a grand jury, be informed of an accusation, and to have a jury trial are the personal rights of the defendant and do
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, 240 F.3d 938, 943-44 (11th Cir. 2001) (finding plain error under Apprendi in a thirty-year sentence where the indictment did not allege drug quantity but finding no effect on defendant‘s substantial rights); United States v. Swatzie, 228 F.3d 1278, 1282-84 (11th Cir. 2000) (assuming arguendo a life sentence was plain error under Apprendi where indictment did not allege drug quantity but finding no effect on defendant‘s substantial rights), cert. denied, 533 U.S. 953, 121 S.Ct. 2600, 150 L.Ed.2d 757 (2001).46
The Tenth Circuit, sitting en banc, explicitly endorsed this approach. See United States v. Prentiss, 256 F.3d 971 (10th Cir. 2001) (en banc) (concluding that “the failure of an indictment to allege an essential element of a crime does not deprive a district court of subject matter jurisdiction; rather, such failure is subject to harmless error review“). Two other circuits have handled omissions of an element from an indictment in a similar manner.47 See United States v. Nance, 236 F.3d 820, 825-26 (7th Cir. 2000) (stating in a
2. 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 “section
Specifically, Rogers also stated: (1) that “sections
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, 97 F.3d 473, 475 (11th Cir. 1996).56 Thus, the San-
2. Rule 11
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
“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, 604 F.2d 931, 937-38 (5th Cir. 1979) (en banc)). We recently stated that “[p]ossession with intent to distribute crack and conspiracy to
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
4. “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
We need not resolve this issue, however, because even assuming arguendo that the Sanchezes were misadvised about the “maximum possible penalty” they faced, their challenge to their plea colloquies lacks merit due to Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The Supreme Court in Brady expressly held that a guilty plea was not rendered involuntary by a subsequent legal pronouncement that reduced the statutory maximum sentence below what the defendant was advised of at the time of his plea. In Brady, the defendant was charged with violating the Federal Kidnaping Act,
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, 90 S.Ct. 1463 (citation omitted) (emphasis added). The Supreme Court concluded that the defendant‘s guilty plea was voluntary at the time it was made:
[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 counsel
and 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, 90 S.Ct. 1463.63
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, 90 S.Ct. 1463.
When distilled to its essence, the Sanchezes’ 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, Apprendi—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, 90 S.Ct. 1463. Thus, we reject the Sanchezes’ claim that Apprendi invalidated their guilty pleas.64
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 Apprendi-based attack on their terms of supervised release.68 Specifically, they contend that their supervised release was limited by statute to three years and that the four-year terms imposed violated Apprendi. We conclude that there was no Apprendi error in the supervised release portion of the Sanchezes’ sentences.
The central question presented is what statute provides the prescribed term of supervised release applicable to the Sanchezes’ convictions.69 Section
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
More specifically, we conclude that: 1) the various Apprendi errors that the Sanchezes 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
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.
TJOFLAT, Circuit Judge, specially concurring, in which WILSON, Circuit Judge, joins:
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
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, 218 F.3d 1267, 1280 (11th Cir. 2000) (Forrester, J., concurring in part, dissenting in part) (emphasis in original). Faced with the majority‘s opinion here and the earlier decisions it seeks to disavow, a trial judge or practitioner sits in an unenviable position in discerning our law. Our own court will face uncertainty; in analyzing any question answered by dictum, “we are ‘free to give that question fresh consideration.‘” United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir.1999) (Carnes, J., concurring) (quoting Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir.1992)).
While I agree that the Sanchezes’ 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
The initial pre-sentence investigation reports (“PSIs“) recommended that the Sanchezes 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 Ignasio, the total was 5,447.74 kilograms of marijuana. Then, without citing any penal provision in
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.6 In the second category, the prosecutor described several transactions between the Sanchezes and a woman named C.J. Franks, which, according to the prosecutor, yielded approximately 2,718 grams of amphetamine. Finally, the prosecutor reported a third category of transactions involving the Sanchezes and a man named Kenneth Kish Green, which totaled 2,718 grams of amphetamine. While the Sanchezes did not withdraw their objections to the initial PSIs, they both conceded that the prosecutor‘s revision of the drug quan-
tities had “the same effect on [their] sentencing guidelines as if [they had] won all of [their] objections.” Then, based on these three categories of transactions, the district court found by a preponderance of the evidence that the Sanchezes should be held responsible for 907.2 grams of methamphetamine and 5,436 grams of amphetamine, which together yielded a marijuana equivalency of 2,903.04 kilograms. Under the sentencing guidelines, the district court concluded, these drug quantities resulted in a base offense level of 32. At this first sentencing hearing, the Sanchezes made an oral motion for a downward departure from the applicable guidelines range based on the prison conditions at the Atlanta Pretrial Detention Center. The court deferred ruling on the motion.
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
II.
The Sanchezes 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 Sanchezes 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, 240 F.3d 1300, 1306-07 (11th Cir.2001).10
1.
The Sanchezes’ 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
that the district courts had necessarily employed either
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
The proper response, then, to the Sanchezes’ 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 Sanchezes’ 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
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
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
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, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Apprendi, the Court‘s task was determining whether and to what extent the Constitution protects a defendant from a penalty exceeding the statutory maximum based on a fact found by a judge by a preponderance of the evidence. See Apprendi, 530 U.S. at 476, 120 S.Ct. at 2355. The engines propelling the Court‘s decision were the due process clause of the
The Court‘s two-part concern for fair notice and sentence reliability are highlighted in its discussion in Jones and Apprendi of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the Court found that recidivism is a sentencing factor that does not need to be treated as an element. Although the Court pointed out that its conclusion in Almendarez-Torres relied partly on the tradition of treating recidivism as a sentencing factor and not an element, the Court in Jones and Apprendi illuminated other reasons. Unlike most sentence-enhancing facts, the Court observed, a prior conviction has already “been established through procedures satisfying fair notice, reasonable doubt, and jury trial guarantees.” Jones, 526 U.S. at 249, 119 S.Ct. at 1227. In Apprendi the Court further explained that the defendant in Almendarez-Torres had admitted his earlier convictions, all three of which “had been entered pursuant to proceedings with substantial procedural safeguards of their own,” and thus there was “no question [before the Court] concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact.” Apprendi, 530 U.S. at 488, 120 S.Ct. at 2361.
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,17 its absence is not a jurisdictionally fatal error. On the con-
trary, a court‘s power to adjudicate a federal criminal prosecution comes from
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, 720 F.2d 1206 (11th Cir.1983), for example, this court, after finding that the jury instructions had improperly shifted the burden of proving an essential element of the offense to the defendant, evaluated the error under the harmless error standard. See Franklin, 720 F.2d at 1212.18 We upheld this analysis in Collins v. Zant, 892 F.2d 1502 (11th Cir.1990), stating that impermissibly shifting the burden of proof of an essential element to the defendant “does not automatically require reversal of an otherwise valid conviction; it is subject to the harmless error analysis under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).” Collins, 892 F.2d at 1506. This approach was explicitly adopted by the Supreme Court in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), in which the Court held outright that omitting an element from the judge‘s charge to the jury can be harmless error under
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
IV.
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
the court to determine the quantity of drugs involved in the offense of conviction beyond a reasonable doubt—will have arisen at sentencing. If the defendant objected to the court‘s finding such quantity by a preponderance of the evidence, we consider whether the error was harmless beyond a reasonable doubt under
V.
In sum, Apprendi does not apply in this case because the Sanchezes’ sentences did not exceed the twenty-year maximum of
BARKETT, Circuit Judge, 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
I Does Apprendi Require That Drug Quantity Be Treated As An Essential Element Of The Crimes Set Forth In 21 U.S.C. §§ 841 And 846?
No one disputes that prior to Apprendi certain basic principles were clearly and unambiguously established: (1) A defendant has the constitutional right under the
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.”
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 second option is that drug quantity is not an essential element of the crimes 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, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), is that drug quantity is an offense element of the crimes punishable by
In Apprendi, the Supreme Court reiterated that the
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
er the constitutional principles that govern the validity of any waiver of constitutional rights—in this instance, the waiver of the right to a grand jury‘s consideration of the charges, and the requirement that any guilty plea, and corresponding waiver of the right to a jury trial, be voluntary and intelligent. Again, if drug quantity is an element of
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 es-tablished 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, 626 F.2d 503, 510 (5th Cir.1980).9
The majority argues that a sentence in excess of 20 years under an indictment alleging only a violation of
First, as Neder recognizes, an error in a petit jury instruction is “simply an error in the trial process itself.” Id. at 1833. Such errors can be assessed within the context of the trial and may consequently be deemed harmless. In contrast, the grand jury indictment confers initial jurisdiction upon the court and defines its scope. See, e.g., Gaither v. United States, 413 F.2d 1061 (D.C.Cir.1969). Thus, an error by which the scope of the indictment is expanded cannot be analyzed in the context of the trial, for such errors precede any consideration of trial process errors and challenge either the court‘s initial jurisdiction or its reach.
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 Stirone 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, 234 F.3d 798, 809 (2d Cir. 2000) (“If the district court acts beyond its jurisdiction by trying, accepting a guilty plea from, convicting, or sentencing a defendant for an offense not charged in the indictment, this Court must notice such error and act accordingly to correct it, regardless of whether the defendant has raised the issue.“).12
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
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 noncapital 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 impermissibly infect the framing of the indictment and, consequently, the nature or very existence of the proceedings to come.
Vasquez v. Hillery, 474 U.S. 254, 263, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (quoting United States v. Ciambrone, 601 F.2d 616, 629 (2d Cir.1979) (Friendly, J., dissenting)).
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, 413 F.2d 1061, 1066 (D.C.Cir.1969) (internal citations omitted); Russell, 369 U.S. at 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (harmless error analysis would allow a defendant to “be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.“).
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, 361 U.S. at 215-16, 80 S.Ct. 270; Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849. If, in subsequent proceedings, “the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them,” United States v. Bursten, 453 F.2d 605, 607 (5th Cir.1971), the alteration is deemed a “constructive” or “effective” amendment. Id. Such substantial “broaden[ing],” see Stirone, 361 U.S. at 216, 80 S.Ct. 270, constitutes per se reversible error because it violates the defendant‘s constitutional right to be tried solely within the parameters of the charges returned by the grand jury.13 See id.; Bursten, 453 F.2d at 607. In reviewing instructions to a jury which differed from the charges in the indictment, the Court in Stirone held:
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
III The Defendant‘s Fifth and Sixth Amendment Rights To Notice Also Require That, Where The Indictment Does Not Allege Drug Quantity, Sentences In Excess Of 20 Years Be Per Se Reversed
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, 369 U.S. at 763-764, 82 S.Ct. 1038 (collecting cases) (internal quotations omitted). As our own Circuit has emphasized, 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, 659 F.2d 1306, 1310 (5th Cir. Unit B 1981)16; see also United States v. Ramos, 666 F.2d 469, 474 (11th Cir.1982) (an indictment is valid only “as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute an offense under the laws of the United States“).17 “[T]he language of the statute may be used . . . but it must be accompa-
nied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.” Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1984).
Defects in the charging document compromise the defendant‘s
CONCLUSION
In sum, if this court were presented with a case in which a defendant received a sentence in excess of 20 years pursuant to
Notes
(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.
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.
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. Apprendi 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
Judge Tjoflat states in his special concurrence that “a court‘s power to adjudicate a federal criminal prosecution comes from
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. The PSIs, the district court, and the parties failed to recognize thatYour 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.
While Nance reviewed the failure of an
Nor, as the Second Circuit recently pointed out in United States v. Tran, 234 F.3d 798, 809 (2d Cir.2000), did the Mojica-Baez case directly address this issue. Indeed, Mojica-Baez expressly noted that an indictment‘s failure to charge an essential element of an offense must be recognized by the court at any time during the proceedings, either sua sponte or on motion of the parties, (which, if anything, suggests that the error is jurisdictional in nature). See id. at 308-09 (“We accept as true two general propositions. . . . The first proposition is that an objection that an indictment fails to state an essential element of an offense ‘shall be noticed by the court at any time during the pendency of the proceedings.’
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, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). See Prentiss, 256 F.3d at 984 (“To us, a defendant‘s right to have a petit jury find each element of the charged offense beyond a reasonable doubt is no less important than a defendant‘s right to have each element of the same offense presented to the grand jury. If denial of the former right is subject to harmless error analysis, we believe denial of the latter right must be as well.“). As detailed below, I do not believe that Neder is applicable to the issue of whether the omission of an essential element from an indictment is a fatal deficiency precluding the imposition of a sentence beyond that prescribed for the crime which has been charged.
Jones, 526 U.S. at 230, 119 S.Ct. 1215 (quoting“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.”
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, 674 F.2d 841 (11th Cir.1982). Failure to allege an element constitutes jurisdictional error that renders any sentence relying on the unalleged element invalid. See id.
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
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, 106 S.Ct. 2411 (quoting Patterson v. New York, 432 U.S. 197, 214, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)). The Court noted, “Section 9712, which comes into play only after the defendant has been convicted of an enumerated felony, neither provides for an increase in the maximum sentence for such felony nor authorizes a separate sentence; it merely requires a minimum sentence of five years, which may be more or less than the minimum sentence that might otherwise have been imposed.” 477 U.S. at 83, 106 S.Ct. 2411.
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, 530 U.S. at 477 n. 3, 120 S.Ct. at 2356 n. 3. WeIn 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 voluntariness 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 court
Likewise, while we discuss in this opinion methamphetamine and amphetamine, our discussion applies equally to any drug meeting the definition of a “controlled substance” then necessarily there must be an actual “controlled substance” of some quantity involved in that drug offense.23
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.Id. at 1308 n. 11 (quoting Gerrow, 232 F.3d at 834) (internal citation omitted). To resolve any doubt, however, we hereby limit Shepard‘s holding to the above proposition and reject its prejudice-based analysis. When a sentence for aShepard‘s holding was merely that a sentence that falls below the twenty year maximum, as set forth in
21 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.”
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, 228 F.3d 1276, 1278 n.1 (11th Cir. 2000) (affirming the defendant‘s life sentence, noting that “[i]n Apprendi, the Supreme Court required that during a jury trial, the government must be made to prove and the jury convict on the factual evidence necessary for a sentence enhancement beyond the statutory maximum” and concluding that since the defendant “pled guilty in this case and accepted the contents of the PSI, he lost any right to appeal on the basis of this argument“), cert. denied, 532 U.S. 944, 121 S.Ct. 1408, 149 L.Ed.2d 350 (2001). This is so because a defendant‘s stipulation as to drug quantity serves to waive the right to a jury trial on that issue, even when that drug quantity results in a sentence in excess of the otherwise applicable statutory maximum. Indeed, just as the defendant‘s guilty plea to a substantive offense serves as the equivalent to a jury‘s finding beyond a reasonable doubt of that defendant‘s guilt, so does a stipulation to a specific drug quantity—whether as part of a written plea agreement, part of a jury trial, or at sentencing—serve as the equivalent of a jury finding on that issue, since the stipulation takes the issue away from the jury.
Accordingly, in prior cases in which defendants pled guilty to violating
Neder explained that “‘most constitutional errors can be harmless.‘” 527 U.S. at 8, 119 S.Ct. 1827 (quoting Fulminante, 499 U.S. at 306, 111 S.Ct. 1246). “[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.” Id. (quoting Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). The list in Neder of structural errors not subject to harmless-error review is a short one. See id. (mentioning complete denial of counsel, biased trial judge, racial discrimination in grand jury selection, denial of self-representation at trial, denial of public trial, and defective reasonable doubt instruction as structural errors).
Other circuits have adopted a similar approach. See, e.g., United States v. Robinson, 241 F.3d 115, 119 (1st Cir. 2001) (“No Apprendi violation occurs when the district court sentences a defendant below the default statutory maximum, even though drug quantity, determined by the court under a preponderance-of-the-evidence standard, influences the length of the sentence imposed.“), cert. denied, 534 U.S. 856, 122 S.Ct. 130, 152 L.Ed.2d 86 (2001); United States v. Williams, 235 F.3d 858, 863 (3d Cir. 2000) (“First and foremost, though the District Court‘s finding regarding the amount of drugs substantially increased the possible statutory maximum sentence under
This Court previously suggested that the imposition of a mandatory minimum sentence based on a judge-made factual determination does not violate Apprendi. See United States v. Pounds, 230 F.3d 1317, 1319-20 (11th Cir. 2000), cert. denied, 532 U.S. 984, 121 S.Ct. 1631, 149 L.Ed.2d 492 (2001). In Pounds, the defendant was sentenced to the mandatory minimum sentence of ten years under
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 about mandatory minimum sentences in United States v. Camacho, 248 F.3d 1286, 1289 (11th Cir. 2001) (concluding that, because the district court sentenced the defendant to the mandatory minimum of ten years’ imprisonment under
We preserve, however, that portion of Camacho which reaffirmed the principle that “a defendant may obtain re-sentencing under Apprendi only if the sentence he actually receives exceeds the maximum allowable sentence he should have received under section
Brady, 397 U.S. at 743 n.1, 90 S.Ct. 1463 (quotingWhoever 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.
Id. at 1329.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.