UNITED STATES оf America, Appellant, v. Michael MALOUF, Defendant, Appellee.
No. 05-2245.
United States Court of Appeals, First Circuit.
Decided Oct. 13, 2006.
Heard Aug. 1, 2006.
21
Otero has presented nothing that causes us to question the district court‘s calculation. He argues that neither Pharmacia‘s August 29th response nor any of its subsequent correspondence contained information regarding the “Serious Health Condition” provision about which he requested information. But Pharmacia‘s August 29th correspondence fully explained that the “Serious Health Condition” provision was no longer in effect. Pharmacia was not obligated to provide any further explanation regarding an inactive provision. See Shields v. Local 705, Intern. Broth. of Teamsters Pension Plan, 188 F.3d 895, 903 (7th Cir.1999).
III.
For the foregoing reasons, the judgment of the district court is affirmed.
Frank J. McGee, on brief, for appellee.
Judith H. Mizner, Assistant Federal Public Defender, Federal Defender Office, with whom Miriam Conrad, Federal Public Defender, Districts of Massachusetts, New Hampshire and Rhode Island, was on brief, as amicus curiae in support of appellee.
Before BOUDIN, Chief Judge, TORRUELLA and DYK,* Circuit Judges.
TORRUELLA, Circuit Judge.
On September 10, 2003, appellee Michael Malouf (“Malouf“) was charged in Count One of a two-count indictment with conspiracy to distribute, and to possess with intent to distribute, five kilograms or more of cocaine and an unspecified amount of marijuana, in violation of
I.
In 2001, the Federal Bureau of Investigation (“FBI“) undertook an investigation of drug trafficking in the South Shore area of Massachusetts. Stephen Nicholson (“Nicholson“) was one of the initial targets of the investigation and he would ultimately be one of Malouf‘s co-defendants. Between April 14 and June 13, 2002, the government intercepted Nicholson‘s telephone calls. The wiretap surveillance revealed that Nicholsоn was selling ounce quantities of cocaine to various buyers and that Malouf was his primary customer. The government also conducted physical surveillance of Nicholson and Malouf, among others.
At the change of plea hearing on May 28, 2004, Malouf pled guilty to the charge of conspiracy to distribute, and to possess with intent to distribute, fivе kilograms or more of cocaine and a quantity of marijuana in violation of
At the sentencing hearing on December 20, 2004, Malouf‘s counsel again indicated that he intended to contest certain of the alleged cocaine transactions. The court then directed both parties to submit memoranda identifying the contested transactions and establishing thеir competing interpretations of the relevant intercepted telephone calls.
On January 27, 2005, the government submitted a Corrected Sentencing Memorandum and chart alleging that Malouf participated in eighteen separate cocaine transactions involving approximately 20.5 ounces (581 grams) of cocaine during, or immediately prior to, the wiretap period. Malouf contested four of the eighteen transactions. At the sentencing hearing on March 15, 2005, Malouf first contested an alleged two-ounce (56.7-gram) transaction that occurred two days prior to the April 14, 2002, commencement of the wiretap period. Malouf challenged this transaction solely on the ground that it fell outside of the wiretap period. Because the court found that Malouf was not challenging the drug quantity or the government‘s interpretation of the telephone calls referring to the transaction, the court dismissed Malouf‘s objection.
Finally, Malouf challenged the alleged June 11 one-ounce (28.35-gram) transaction. Although Malouf did not contest the government‘s interpretation of a telephone conversation on that date in which he and Nicholson discussed a cocaine transaction that was to take place later that day, he argued that “there‘s no evidence that the meeting ever happened.” The government urged the court to infer that the meeting took place because there were “no other phone calls afterward indicating that it did not take place.” Because it was clear that the applicability of the ten-year mandatory minimum would turn on the court‘s determination as to the June 11 transaction, the court continued the sentencing hearing and invitеd both parties to provide additional evidence.
When the sentencing hearing resumed on March 23, 2005, neither party presented new evidence as to the June 11 transaction. The critical issue was whether the appropriate legal standard by which to judge a fact triggering a mandatory minimum sentence was beyond a reasonable dоubt or by a fair preponderance of the evidence. The court determined that “facts which determine a mandatory minimum ought to go before a jury,” or, if both parties agree to waive a jury trial, the sentencing judge “stands in the shoes of the jury, and the standard is beyond a reasonable doubt.” The government objected on the ground that “there‘s nо right under the Sixth Amendment, the due process clause or any other source of law to a jury trial or beyond a reasonable doubt standard with respect to any sentencing fact, the determination of which would result in a sentence below the statutory maximum.” When the court dismissed the government‘s objection, the government agreed to waive any jury triаl right.
The court determined that although it would find that the June 11 transaction had occurred as alleged if the applicable standard was a fair preponderance of the evidence, it “could not conclude beyond a reasonable doubt” that the transaction had in fact taken place. As a result, the court declined to hоld Malouf accountable for the one ounce (28.35 grams) he allegedly purchased in the June 11 transaction. The court thus concluded that Malouf was accountable for a total of only 17.5 ounces (496.125 grams). Because the total was less than 500 grams of cocaine, the ten-year mandatory minimum sentence did not apply. Malouf‘s basе offense level was 26, and the court reduced it to 23 for acceptance of responsibility. Malouf‘s criminal history category was IV, but the court brought it down to III because “at least two points of the criminal history derived from [his] addiction problems.” The guidelines sentencing range was 57 to 71 months, and the court sentenced Malouf to 60 months’ imprisonment and a six-year term of supervised release.
On June 14, 2005, the district court issued a written opinion addressing four separate issues pertaining to the sentencing of Malouf. United States v. Malouf, 377 F.Supp.2d 315 (D.Mass.2005). Explaining the logic underlying Malouf‘s sentence, the district court asked,
(1) Do the drug quantities outlined in
21 U.S.C. § 841 comprise elements of offenses, or sentencing factors? If the former, the relevant case is Apprendi, a jury trial is rеquired and the standard of proof is beyond areasonable doubt; if the latter, it is Harris, drug quantity can be determined by a judge, and the standard is a fair preponderance of the evidence. (2) What is the continued efficacy of Harris in the light of the Court‘s rulings in Blakely and Booker? (3) What is a district court to do when the First Circuit‘s interpretation of § 841 relies on Supreme Court precedent which predates Blakely and Booker? (4) In the alternative, however the facts are characterized (as sentencing factors or elements), where facts have a significant, indeed determinative impact, does the Due Process Clause of the Fifth Amendment require the application of the beyond a reasonable doubt standard?
As to the first issue, the court found that “§ 841 is an offense-defining statutory provision, all elements of which must be tried before the jury.” Id. at 328. As to the second question, the district court determined that “the breadth of the holdings in Booker and Blakely have in fact overruled Harris.” Id. at 326. With regard to the third issue, although the court acknowledged that our decision in United States v. Goodine, 326 F.3d 26 (1st Cir.2003) required a different result, it determined that Goodine was not binding because of its “reliance on Supreme Court precedent which is crumbling.” Id. at 325. Finally, as to the due process issue, the court found that quantity must be рroved beyond a reasonable doubt “[i]f a substantial sentence hinges on a finding of a specific quantity” because in such cases courts “should have a high degree of confidence in this finding.” Id. at 329.
II.
The government argues on appeal that the district court erred by refusing to impose on Malouf a ten-year mandatory minimum sentence under
A. Harris
The government first contests the district court‘s conclusion that the Supreme Court‘s decisions in United States v. Booker and Blakely v. Washington overruled its earlier opinions in Harris v. United States and McMillan v. Pennsylvania.
1. Relevant Precedent
We begin with a brief discussion of relevant Supreme Court precedent. In McMillan v. Pennsylvania, the Court sustained a statute that allowed the sentencing judge to find, by a preponderance of the evidence, a fact that increased the minimum penalty for a crime. 477 U.S. at 79. In McMillan, the Court distinguished between offense elements, which must be proved beyond a reasonable doubt, and sentencing factors, which may be рroved by a preponderance of the evidence. Id. at 91. In Apprendi v. New Jersey, the Court held that “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.” 530 U.S. 466, 490 (2000) (emphasis added). Two years later in Harris, the Court held that Apprendi did not apply to facts that increase the mandatory minimum sentence and reaffirmed McMillan. 536 U.S. 545, 545 (2002) (emphasis added).
2. The district court‘s analysis
The district court in the case before us reasoned that Blakely and Booker actually “broadened Apprendi by requiring that all facts ‘which the law makes essential to the punishment’ be subject to Sixth Amendment protections.” Malouf, 377 F.Supp.2d at 324. The judge determined further that Blakely and Booker evince the Court‘s movement toward an “impact test” that focuses more on “the impact of such facts upon punishment, rather than on the formalistic distinctions between sentencing factors and offense elements.” Id. According to the district court, this “impact test” approach “necessarily casts doubt on Harris’ distinction between mandatory minimum provisions and statutory maximums.” Id. Ultimately, the court concluded, “[i]n my judgment, the breadth of the holdings in Booker and Blakely have in fact overruled Harris. The Court has gone from holding that the Sixth Amendment is implicated in the determination of facts that increase a statutory maximum (Apprendi) to applying the Sixth Amendment to all facts ‘essential to the punishment’ (Booker and Blakely).” Id. at 326 (footnote omitted).
We need not delve deeper into the district court‘s analysis because, since its opinion issued on June 14, 2005, we have had cause to consider the continued vitality of Harris in light of subsequent Supreme Court case law. Approximately ten months after the district court decided Malouf, we decided the case of United States v. Lizardo, in which we held that ”Booker left intact the Supreme Court‘s precedent in Harris, which allowed the use of judicially found facts to increase a mandatory minimum sentence.” 445 F.3d 73, 90 (1st Cir.2006).
B. Goodine
The district court concluded that even if Harris remains good law, § 841 “is an offense-defining statutory provision, all elements of which must be tried before the jury.” Malouf, 377 F.Supp.2d at 328. This finding is directly contrary to—and foreclosed by—Goodine in which we held that “drug quantity for purposes of § 841 is a sentencing factor that may be determined by a preponderance of the evidence.” 326 F.3d at 32. Goodine was decided after Apprendi and Harris but before Booker and Blakely. The district court found that it was not bound by Goodine because that opinion was based on Supreme Court precedent “which is crumbling.” Malouf, 377 F.Supp.2d at 325. As we have since held in Lizardo, we are bound by Goodine. Lizardo, 445 F.3d at 90.
We tarry here to reaffirm that thеre are only two exceptions to the principle that newly constituted panels are bound by decisions of prior panels in the same circuit. As to the first, “[a]n existing panel decision may be undermined by controlling authority, subsequently announced, such as an opinion of the Su-
C. Due Process
The district court made an alternative finding that even if drug quantity is a sentencing factor under § 841, it must be proven beyond a reasonable doubt because of the protections afforded by the due process provision of the Fifth Amendment. Citing a “new concern for procedural fairness in the finding of facts,” the district court held that “[i]f a substantial sentence hinges on a finding of a speсific quantity, then ... I (and the public) should have a high degree of confidence in this finding,” and thus the quantity finding must be proved beyond a reasonable doubt. Malouf, 377 F.Supp.2d at 329.
The district court‘s analysis and conclusion are foreclosed by the Supreme Court‘s decision in McMillan. In that case, the Court considered the constitutionality of a Pennsylvania statute that required a sentencing cоurt to impose a five-year minimum sentence if it found by a preponderance of the evidence that the defendant “visibly possessed a firearm” during the commission of certain enumerated offenses. 477 U.S. at 81. McMillan held that due process did not require visible possession of a firearm to be treated as an element of the offense that must be proved beyond a reasonable doubt. The Court noted that “sentencing courts have always operated without constitutionally imposed burdens of proof” and that the visible possession requirement, despite triggering a mandatory minimum penalty, did not implicate the Due Process Clause because it “neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty.” Id. at 87-88. The same is true here with respect to drug quantity, insofar as it determines the mandatory minimum sentence.
III.
For the foregoing reasons, we reverse the district court‘s decision and remand for sentencing in accordance with this opinion.
Reversed and remanded.
UNITED STATES of America, Appellee, v. Rafael A. GONZÁLEZ-VÉLEZ, Defendant, Appellant.
Notes
No person who stands convicted of an оffense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.