United States v. Marion Promise, A/K/A Mario,defendant-Appellant

to follow contractor failure instructions. of the record is not current state

entirely regarding Dry- clear the details of relationship ap-

vit’s with contractors and thus,

plicators, propriety

district court’s class certification turns on factual determination best made

district court in the first instance. As a

result, district we vacate the court’s class

certification and remand instructions propriety reconsider the class certifi-

cation in the fact light of N.C. applies on the

Gen.Stat. 99B-4 facts of case, major it poses perhaps in- —and

superable feasibility —obstacles

certifying proposed class. REMANDED

VACATED AND WITH

INSTRUCTIONS. America,

UNITED STATES

Plaintiff-Appellee, PROMISE, Mario,

Marion a/k/a

Defendant-Appellant.

No. 99-4737. Court of Appeals,

Fourth Circuit.

Argued Feb. 2001.

Decided June Tin, Charlotte, Noell Peter

ARGUED: NC, Goodman, Appellant. for Nina Swift Justice, Department United States DC, Washington, Appellee. for ON Calloway, BRIEF: Mark T. United States Shappert, Attorney, Office Gretchen C.F. Charlotte, Attorney, of the United States NC, Appellee. WILKINSON, and Judge,

Before Chief NIEMEYER, WIDENER, WILKINS, LUTTIG, WILLIAMS, MICHAEL, KING, MOTZ, TRAXLER, and GREGORY, Judges. Circuit Judge published opinion. Affirmed judgment WILKINS announced opinion delivered A-C, I respect to Parts and II court with WIDENER, WILLIAMS, Judges in which MICHAEL, TRAXLER, MOTZ, joined, respect opinion KING and an IID, Judge to Part which Chief Judges WILLIAMS WILKINSON joined. Judge TRAXLER Chief opinion concurring WILKINSON wrote concurring judgment. in the part Judge opinion trafficking NIEMEYER wrote an offenses under 21 U.S.C.A. (West concurring judgment, ie., in the Supp.2001), 1999 & Judge joined. Judge charged in the proved GREGORY indictment and jury beyond in a opinion concurring wrote reasonable doubt.1 We LUTTIG further Judge in which conclude that because judgment, Chief the indict- charged ment that Judges and Promise did not allege NIEMEYER WILKINSON a I, II, specific quantity threshold joined of cocaine or and Parts GREGORY cocaine base and did not Judge opinion MOTZ wrote an make a and III. finding regarding whether the offense in- part, in in concurring part, dissenting volved a quantity, such Promise’s convic- dissenting judgment, Judge in the which subjected tion him to a I, penalty joined II, III, WIDENER as to Parts years imprisonment. of 20 His sentence of Judge Judge V and MICHAEL and years was therefore erroneous. Al- joined entirety. KING though this error was and affected WILKINS, Judge: Circuit Promise’s substantial rights, we decline to Appellant Marion Promise was exercise our discretion to notice the error. in a single-count indictment with conspir- Accordingly, we affirm. with ing possess the intent to distribute quantity base,”

“a of cocaine and cocaine I. J.A. jury. and was convicted a presented Evidence at trial established Promise was sentenced to 360 im- months supplied Promise cocaine base to a prisonment upon based a determination drug ring operated by distribution William court that he district should be held Moore, Gastonia, Jr. North Carolina. kilograms accountable for more than 1.5 of Moore supplied testified that Promise him base. Promise cocaine maintains that up with to two kilograms of cocaine base light Apprendi v. Jersey, New every other week during the course of 147 L.Ed.2d 435 their involvement. Promise also provided (2000), the district court committed plain quantities substantial of cocaine and co- in failing specific to treat the amount caine base to several of Moore’s cohorts. of cocaine base attributed to him as an evidence, upon Based Promise was element of the offense. convicted of conspiracy possess with the below,

For the reasons set forth we intent to distribute cocaine cocaine base, (West that under Apprendi, 1999)'. conclude order to § see 21 U.S.C.A. imposition authorize the of a sentence ex- The indictment did not allege specific a ceeding the maximum allowable quantity base, without a of cocaine was jury finding specific of a drug threshold not instructed to make a finding regarding quantity, drug quantities such must be of cocaine base attributable to treated aggravated drug as elements of Promise.2 "Specific drug quantities" 841(b)(1)(C), 1. threshold U.S.C.A. may produce which a quantities drugs result, those set forth in 21 similar must be treated as an element 841(b)(1)(A),(b)(1)(B), U.S.C.A. a Apprendi. under subjects defendant to sentence of "aggravated drug trafficking An offense” is (§ 841(b)(1)(A)) years imprisonment ten to life one that involves threshold years imprisonment five quantity. (§ 841(b)(1)(B)). We are not here concerned 2. bodily injury with "death Prior to trial whether or serious the Government did file an resulting] alleging conspiracy from the use of” controlled sub- information that the in- defendant, cocaine; e.g., stance distributed kilograms volved "in excess of 50 decision of the court deter- the recent sentencing, the district At to recon- required evidénce this court by preponderance mined §to accountable refusal to extend Jones should held sider its that Promise kilograms granted panel rehearing cocaine panel 1.5 The for more than determinations, and, parties supplemental further directed the to file base after decision, range panel Before issued that Promise’s briefs. concluded en Sentencing appeal Guide- voted to rehear Promise’s under the United States we imprisonment. along appeals banc lines 360 months life Angle, to 860 No. also decided sentenced Promise subse- today. Promise imprisonment. months the first arguing for

quently appealed, had erred in time the district court that II. quantity drugs as a sen- treating the rather than an element tencing factor as Promise that his convic argues offense, thereby violating right his tion, sentence, at least his is invalid or argument his process. due Promise based specific drug threshold because 227, States, 526 U.S. Jones v. United alleged not the indictment was (1999), in 1215, 119 143 L.Ed.2d 311 required not make a jury was Supreme Court had held which the threshold regarding bodily injury was an element of serious a reasonable doubt. Promise failed under car- aggravated offense the federal argument make this before district rather than a jacking statute and thus the asserted error. court forfeited Jones, 251-52, 119 526 factor. See States, 414, v. United 321 U.S. See Yakus S.Ct. 1215. (“No (1944) 660, 444, 88 L.Ed. 834 64 S.Ct. principle more familiar to procedural appeal was consolidated

Promise’s right codefendant, Mil- than that a constitutional Patrick this Court William 2000, in criminal well as civil may be forfeited panel ler. of this June timely failure make asser Miller. as to both Promise and cases affirmed 842, Miller, right having before a tribunal v. 217 F.3d tion of See States it.”). (4th curiam) Cir.) au jurisdiction to determine Our (per 774804 WL denied, grant decision), thority to correct forfeited errors is ceti. (unpublished table 410, Rule Procedure L.Ed.2d Federal of Criminal ed 531 U.S. (2000) 52(b), “[p]lain provides for errors (denying petition Miller’s certiorari). may affecting rights or defects substantial respect With to Prom- writ of brought although they were not challenge, con- noticed panel process ise’s due See United attention of the court.” could demonstrate cluded that Promise Olano, 725, 731-32, 113 v. to address “[n]o because circuit (inter (1993) L.Ed.2d 508 to” 21 has extended Jones question Id., 52(b)); United States Rule see also preting § 2000 WL 841.3 U.S.C.A. cases). Young, 470 U.S. petitioned *1 (citing Promise (1985) “[t]he (explaining arguing that L.Ed.2d panel rehearing, and en banc conspires offense” kilograms ... to commit excess of 50 of cocaine who [and] alia, under, § base.” J.A. 39. 841 "shall be inter 21 U.S.C.A. pre- subject penalties as those to the same charged was not with a substantive Promise offense, for the the commission scribed However, offense, conspiracy. but with conspiracy.” object the ... which was the "[a]ny person specifies § U.S.C.A. “(2) (as plain-error doctrine Federal Rule of bodily injury serious de- 52(b) title) tempers Criminal Procedure results, fined section 1365 of this rigid application blow of a of the contem be fined under this title or imprisoned requirement” poraneous-objection both, au not more than years, thorizing “particularly egre correction of “(3) results, if death be fined under (internal gious” errors quotation forfeited imprisoned this title or for any number omitted) (footnote omitted)). marks As life, years up to or both.” Olano, explained order to Jones, 119 S.Ct. 1215 authority establish our to notice an error 1994)). (quoting 18 U.S.C. 2119 (Supp. V by timely objection, not preserved Promise Nathaniel Jones was with violat occurred, must demonstrate that an error ing 2119 in an indictment that did not plain, the error was that the error bodily injury death, mention serious Olano, rights. affected his substantial that convicted Jones not in 507 U.S. at 113 S.Ct. 1770. Even if structed make findings regarding satisfy can requirements, Promise these bodily whether injury serious or death re correction of the error remains within our sulted from his actions. See id. at discretion, which we “should not exercise however, 119 S.Ct. 1215. At sentencing, ‘seriously ... unless the error affect[s] the district court by determined a prepon fairness, integrity public reputation or of derance of the evidence that one of the ” (second judicial proceedings.’ Id. altera victims had suffered bodily injury; serious tion original) (quoting Young, accordingly, the court sentenced Jones to 1038). 15, 105 at S.Ct. years imprisonment. 231, 119 See id. at

S.Ct. 1215. A. reversed, Court determin (2) (3) ing that § subsections and of course, inquiry, Our first of is whether set offenses, forth elements of aggravated an error turning occurred. Before not sentencing punish factors relevant to argument, substance of Promise’s we ex- ment a single offense defined in the relies, amine the cases on which he Jones principal paragraph of the statute. Al and Apprendi.

though the Court concluded as a matter of statutory construction that “the fairest 1. reading of 2119 treats the fact of serious Jones concerned the federal carjacking bodily element,” harm as an it acknowl statute, 18 U.S.C. which at the edged “the possibility of the other view.” provided time as follows: Id. at 119 S.Ct. 1215. The Court “Whoever, a possessing firearm as de- determined that the constitutional doubt title, fined section 921 of this a takes rule preclude would a reading of the stat motor vehicle has been transported, ute that bodily would make a injury sen shipped, or received in interstate or for- tencing factor rather than an element. eign person commerce from the pres- id.; (“[W]here see also id. a statute is by ence another force violence or susceptible constructions, of two by one of by intimidation, so, or attempts to do grave and doubtful constitutional shall— questions arise by the other which “(1) be fined under avoided, this title or im- questions such duty our is to prisoned (internal not more than years, adopt the latter.” quotation both, omitted)). upon marks Based survey the court past quarter finding by preponderance of cases over “a series process evidence, and the dealing by jury beyond with due than century, rather jury,” id. doubt, of trial at guarantee pro- violated reasonable his due principle identified a S.Ct. Court rights. cess suggested, but never law of constitutional claim, considering In Court be- “[A]ny adopted, by those actually cases: noting “[a]ny possible gan by dis- (other conviction) in- prior fact than felony tinction between an ‘element’ of a penalty for a crime the maximum creases un- ‘sentencing offense and factor’ was indictment, charged in an submit- must be practice of criminal indict- known to beyond a reason- jury, proven to a ted ment, trial jury, judgment doubt,” 6,n. id. at 243 S.Ct. able during years sur- court as existed bodily concluded that serious The Court rounding founding.” our Nation’s Id. by Con- injury and death were intended (footnote omitted). 478, 120 S.Ct. 2348 factors, to be mere gress Court, view of the “historic facts

judicial finding of either of those link id. judgment,” between verdict penalty increase which the 2348, and the concomi- years from 15 to 25 exposed defendant judicial authority to proscription tant imprisonment. or life See id. years impose range a sentence outside “the 243-44, 119 1215. The be- by the sentencing options prescribed that such a would be uncon- lieved scheme id. at legislature,” light princi- of the articulated stitutional pointed to that “[t]he the conclusion id. ple. See in sentencing is judge’s role constrained later, year little over a the Court A by alleged the facts at its outer limits Apprendi Charles decided by jury. indictment and found the the law, Jersey under New pleaded guilty, expose simply, Put that a defendant facts degree possession counts of two second than other- punishment greater to a that purpose for and one a an unlawful firearm legally prescribed by wise were definition degree possession third of an count of offense,” legal of a id. separate ‘elements’ 530 Apprendi, bomb. See antipersonnel n. 2348.4 at 483 On 469-70, at 120 2348. New Jer- S.Ct. basis, novelty “the of a the Court decried specifies of im- sey law a maximum term jury scheme that removes the legislative years degree prisonment 10 second that, of a if the determination fact from 2348. offenses. See id. found, criminal exposes the defendant However, aby determination based on its the he exceeding a maximum penalty Ap- of the evidence preponderance according to punished receive if a biased racially had acted with prendi facts in the verdict the reflected an imposed the purpose, 2348. alone.” Id. years imprisonment term of extended light principles, of these the Court of the counts. See id. on one firearms previously rule adopted constitutional Court Apprendi argued to than the fact suggested Jones: “Other imposition penalty greater of a conviction, in- prior a fact statutory upon than the based jury's by covered regard, explained that than the one 4. In this the Court er offense Indeed, ‘sentencing squarely enhancement’ fits within guilty "when term verdict. beyond maxi- to describe an increase used of the definition of an 'element' the usual sentence, statutory it is the mum authorized 2348. Id. at 494 n. offense.” great- equivalent of an element of functional penalty for a crime creases sets forth penalties vary various ac- to, statutory alia, prescribed cording maximum must quantity inter jury, particular be to a and proved submitted be- controlled substance issue. 841(b)(1). yond § doubt.” a reasonable Id. at See id. Although legisla- no history speaks S.Ct. 2348. tive question, we held, previously my as three of col- Applying rule Jersey to the New now, leagues Congress reiterate in- scheme, the Court first observed specific tended these quantities threshold that it was immaterial that racial bias was to be sentencing factors rather than ele- formally labeled a “sentencing factor” aggravated ments of drug trafficking of- Jersey the New Legislature: rele- “[T]he See, e.g., fenses. United States v. Dor- inquiry form, vant is one not of but of louis, (4th Cir.1997). 107 F.3d effect—does the required finding expose These factors determine the maximum greater punishment defendant to a penalty that may imposed be particu- on a than that jury’s guilty authorized defendant; lar for example, an individual verdict?” Id. at 120 S.Ct. 2348. The possesses who with the intent to distribute determined there indeed was a an identifiable unspecified quantity but difference “between what Apprendi would I or II drug subject schedule to a term have received without of biased imprisonment of no more than years. purpose and what he could receive it.” 841(b)(1)(C). See U.S.C.A. A sen- Therefore, Id. ^because race bias was not tence exceeding years may imposed found beyond a reasonable upon additional finding that doubt, the Court Appren- concluded that offense involved a specific quan- threshold process di’s due rights had been violated. tity of a schedule or II I controlled sub- See id. at 120 S.Ct. 2348. stance—for example, kilogram or more heroin. U.S.C.A. 841(b)(l)(A)(i). Thus, Having examined the decisions threshold of drugs is not found relevant argument, most to Promise’s we jury beyond doubt, a reasonable now turn to a consideration of his claim. judicial finding of that fact increases the argues Promise Apprendi under spe penalty beyond allowable that authorized cific drug quantities threshold must be by by the facts found jury alone. Ac- treated as aggravated elements of drug cordingly, Apprendi dictates that in order offenses, trafficking rather than as mere to imposition authorize the of a sentence sentencing factors. agree. We exceeding the maximum allowable without portion first of 21 a jury finding U.S.C.A. of a specific drug threshold 841, (a), § alia, prohibits, subsection quantity, inter specific threshold quantity possession of controlled substances must be treated as an aggra- element of an the intent to distribute them. 21 offense,5 i.e., vated trafficking 841(a)(1). (b)(1) U.S.C.A. Subsection in the indictment proved to emphasize We that we upon proof do not hold that "all ute alleged those facts facts that could serve to increase a defen- by jury indictment and beyond found a dant’s sentence by jury must be found reasonable pen- doubt. Once this maximum beyond established, alty factor) reasonable doubt.” Post at 168. (sentencing fact Instead, merely we hold that the may maximum the actual increase sentence im- penalty may imposed upon be posed a defen- within subject that maximum is not to penalty dant is the maximum requirements. allowed stat- the same

157 (11th Cir.2000); United States v. In 1327 doubt.6 beyond a reasonable (9th 1053, Nordby, 225 F.3d 1058-59 Cir. conclusion, every cir join we reaching this v. Aguayo-Delgado, 2000); United States applied Apprendi 841 cuit that has cert, denied, (8th Fields, 926, Cir.), 220 F.3d 933 States v. context. See United this 600, 1026, (D.C.Cir.2001); 148 L.Ed.2d United 393, 531 U.S. 242 F.3d 395 (7th v. Reb- (2000); Nance, see also United States 820, 513 v. F.3d 824-25 States 236 (6th Cir.2000) mann, Hishaw, 521, 226 F.3d 524-25 States v. Cir.2000); 235 United that, (10th Cir.2000); Apprendi, (holding under death re- United 565, F.3d 574-75 160, the use of controlled sub- Doggett, 230 F.3d sulting from v. 164-65 States cert, — denied, (5th U.S. —, by the defendant is an Cir.2000), stances distributed offense). (2001); an We 1152, aggravated element of L.Ed.2d 1014 121 148 1318, there was error.7 Rogers, v. therefore conclude States 228 F.3d United drug quantity specified Ap- whether exceeds that under mine concedes 6. The Government drug-trafficking may subjected in state thresholds. Juries prendi, a defendant specific routinely upon perform this function. prosecutions sentence based enhanced finds, See, 349, drug quantity only e.g., Virgo, Ariz. 947 threshold State v. 190 doubt, Moore, 923, that that (App.1997); a reasonable P.2d State v. to the defendant. How- (App. be attributed N.J.Super. should ever, 698 A.2d specific Div.1997). the Government maintains identifying the amount The task alleged drug quantities not be need threshold drugs which the defendant should be Nealy, v. the indictment. United States sentencing to the held accountable at is left Cf. Cir.2000) (11th (referring 232 F.3d principles pursuant set district court drug quantity "an to a threshold sentencing guidelines. forth in the sentencing”). The Government element of argument passage Apprendi my colleagues rests 7. Four of conclude that . to a drug quantity in which the Court referred made the district statutory maximum increases the factor that did not increase Promise’s sentence statutoiy of conviction as "the penalty "beyond prescribed for the offense maximum” Ap- equivalent of an element.” Congress functional intended the for his crime because 19; prendi, U.S. at 494 n. life for his crime to be maximum cf. F.3d Aguayo-Delgado, imprisonment. Apprendi, U.S. at view, (8th Cir.) colleagues (referring my my as the In 120 S.Ct. 2348. cert, element), equivalent de- of an with the state- functional reconcile this conclusion fail to nied, Apprendi Court that "constitu- ment (2000). Essentially, legislature's] [regarding the Govern- L.Ed.2d 513 exist tional limits necessary away a fact that increases the authority ment contends that facts to define penalty Apprendi, treated as an ele- must be a criminal offense.” constitute rights guaranteed regard, purposes of some ment for 120 S.Ct. 2348. U.S. at right (e.g., the Fifth Amendment made clear guilt beyond a reasonable finding determination of a defendant's that a fact increases doubt) (e.g., right indict- beyond statutory not others the to but the maximum sentence pro- grand jury). by exposes penalty The Government exceed- ment whenever it him to “a support proposition. Fur- vides no for this would re- ing defendant] the maximum [the thermore, explained that the punished according the Jones Court to the re- ceive if facts 483, issue "the re- jury constitutional rule at concerns Id. at in the verdict alone.” flected (second added). My the quired procedures emphasis facts 2348 120 S.Ct. punish- permissible years dispute the maximum 20 is the colleagues determine do not ment[, going including] safeguards imposed to the penalty the that could be maximum Jones, formality by jury; 526 U.S. at 243 solely of notice.” facts found the based on the 6, requires § 119 S.Ct. 1215. fact such as n. that an additional estab- be unduly juries to threshold difficult for It will not be impose a sentence exceed- spe- lished in order to offense involved a determine whether an concluding that ing years. In nevertheless drug quantity. the rule Under cific threshold penalty for offense the maximum Promise's today, the need deter- we announce Before, States, turning remaining prongs 224, 2, 523 U.S. 257 n. 118 S.Ct. analysis, pause 1219, (1998) we (Scalia, J., 140 L.Ed.2d 350 consider the treatment of Walton v. Ari Walton, dissenting)); 648, 497 U.S. at cf. zona, 110 S.Ct. (“ 110 S.Ct. 3047 ‘Aggravating circum (1990), by Apprendi L.Ed.2d 511 stances are separate penalties or of Walton, In Court. Court fenses, but guide are standards to upheld provision capital of Arizona’s sen making of choice [the] between the alter tencing judge, statute under which a rath native verdicts of death imprison and life jury, er than a determined whether the (quoting Arizona, ment.’” Poland v. prosecution aggrava had established an 147, 156, 90 L.Ed.2d ting necessary subject factor the defen (second (1986)) alteration in original)). Walton, penalty. dant to the death See The dissent proffered dismissed this dis 647-49, 497 U.S. at 110 S.Ct. 3047. The tinction “baffling” light of the fact Apprendi distinguished Court Walton on defendant -“[a] convicted of first-de the basis that the defendant there was gree murder in Arizona cannot receive convicted of a capital crime even before death sentence a judge unless makes the the judge aggravating found factors to be factual determination that a ag present; judge’s findings merely aided gravating factor Apprendi exists.” appropriate the selection anof sentence (O’Connor, J„ U.S. at 120 S.Ct. 2348 range penalties within a already dissenting). capital punishment. included Appren- See concurrence, In 530 U.S. at his S.Ct. 2348 Justice Thomas di (citing Almendarez-Torres v. United wrote that aggravating circumstances in life, my colleagues acknowledge (death was fail to jacking) based on facts or serious bodi- Apprendi, the focus of the entire discussion in ly injury) that proven had not been to a judge's which was that role "[t]he sentenc- a reasonable doubt. Because the ing by is constrained at its outer limits expressed doubts premised in Jones were alleged in the indictment and found adopted later Apprendi, rule facts Jones fore- jury.” Id. at 483 n. 120 S.Ct. 2348 interpretation Apprendi closes the advanced added). (emphasis only by failing It is by my colleagues requires the conclusion grips lengthy come explanation with the every reached this court and other court to provided by adopted the Court for the rule it question. decide this Apprendi my colleagues can conclude my colleagues posits One of that the rule that the rule Ap- constitutional announced in proposed in Jones is not the rule that the

prendi complied with here. adopted Apprendi. Court post at 166. different, concluding In my the rules are any question regarding Were there colleague places great significance slight on a meaning Apprendi, rule announced in modification: phrase Whereas Jones used the certainly most be answered crime,” Jones, penalty "maximum for a analysis According of the Court in Jones. U.S. at 243 n. my Apprendi colleagues, it would be consistent with employed "statutory term imposes single to hold that maxi- mum,” (life Apprendi, 530 U.S. at penalty imprisonment) 841(b)(1) phrases 2348. But gradations synonymous; these may that the within penalty there is by judge applying determined no "maximum for a prepon- crime” Jones, however, prescribed other than derance the maximum standard. stat- ute for the essentially proven. Court concluded that an facts identical More- over, interpretation § to the extent of 2119 would violate the that this minor semantic Jones, adopted suggests rule later Apprendi. possibility 526 difference of a distinc- 243-44, U.S. at words, 119 S.Ct. 1215. tion between the Apprendi In other Jones rule and the rule, constitutionality suggestion Court doubted the quashed by that Ap- imposing exceeding years prendi opinion, a sentence explicitly 15 "confirm[ed] (the for the basic opinion expressed maximum offense of car- ... in Jones." Id. right trial facts that the Sixth Amendment to are from other cases different capital punishment apply capital to be- not to can lead increased does that “unique Eighth context” of Amend they proceedings arise in the that the cause product and are capital sentencing independent right not ment does create legislature’s a abili- “special constraints on sentencing by jury); Spaziano v. Flori facts shall lead to ty what da, 458-59, 104 determine S.Ct. Id, punishment.” (same). what (1984) L.Ed.2d 340 (Thomas, J., concurring). contrast, gradations in penalty well, reasoning dissent dismissed 841(b)(1) § product of constitu- not no gives noting that “Justice THOMAS tionally procedures as a condi- mandated defen- excepting capital reason for specific imposition precedent tion protections from the constitutional dants penalty, maximum but rather are the re- generally, extend he would to defendants apply congressional prerogative sult of Id. at readily apparent.” none is graduated penalties increasing to acts (O’Connor, J., dissenting). Thus, au- severity. example, Congress for in the manner perceive merit both We a of no more than 20 thorized sentence and Justice Thomas majority which the years for a offender imprisonment first distinguished Walton and the dissent’s possesses who with the intent to distribute proffered distinctions. criticism those base, grams of cocaine see three majority, the Apprendi As noted 841(b)(1)(C), § it that and is plain U.S.C.A. degree murder penalty for first years greater any sentence than death, Arizona Arizona law is but under authorized; not be is likewise in interposes procedural safeguards, law face greater offender would the same determinations, additional factual cluding (no penalty years less than 5 and more no guilt imposi and the finding between years) if the sale involved six than 40 People death v. tion of a sentence. Cf. three, grams rather than of cocaine base Lee, Ill.App.3d Ill.Dec. 841(b)(1)(B)(iii). No constitution- see id. (2000) (stating that 743 N.E.2d Congress to clas- compelled al constraints cap procedures apply to Illinois’ man- drug-trafficking offenses in this sify Illinois, Ari because unlike ital scheme ner; contrary, free to Congress on the zona, years penalty sets maximum of 60 penalty a uniform maximum establish degree murder and allows a for first then depend proof did not greater proof of additional upon sentence Congress But did other additional facts. facts). And, explained .as Justice Thomas depend on ad- penalty the available make concurrence, safe in his the additional facts, governs ditional and the Constitution do neces guards provided by Arizona not determining facts. those process determination sarily legislative reflect in- must Apprendi, process Under degree murder of first elements to a charge proof clude indictment and themselves, are, justify insufficient to jury beyond a doubt. reasonable rather, safe punishment; those capital O’Connor’ssen- acknowledge Justice We guards comply were enacted interplay regarding timent between Eighth requirements strict Amendment per- It is Apprendi: at least cases, Walton which do not govern capital “baffling,” process plexing, due proof beyond a reasonable doubt or include protections apply to fact-finding by jury. See Clemons under 738, 745-46, quantities 110 threshold Mississippi, 841(b)(1) (1990) do not (stating protections when such 108 L.Ed.2d 725 1998) apply findings of aggravating to factual (explaining that an prejudi- error is subjecting circumstances a defendant cial when it “actually affected the outcome penalty. Apprendi, death proceedings”). In order to deter- (O’Connor, J., 120 S.Ct. 2348 dissent- mine whether Promise can make such a Court, ing). It is for the howev- showing, we must first understand the na- er, to resolve this conundrum. Until that error, i.e., ture of the whether the flaw is happens, we must adhere to both Walton in Promise’s conviction or in his sentence. and Apprendi. Perhaps not surprisingly, Promise asserts the error his conviction: He

B. claims that the indictment to allege, failed jury find, and the failed to an essential Having determined that the district Government, element of the offense. The erred, next we must decide whether contrast, asserts that the error affects plain. the error was To be plain, an error only Promise’s sentence. Olano, “obvious,” be “clear” must (internal U.S. at quota We conclude that the error was not in omitted), tion marks at least the time of Promise’s conviction. The indictment States, appeal, see Johnson United 520 charged with Promise conspiring pos- 461, 468, 137 L.Ed.2d sess the intent to quanti- distribute “a (1997). An error clear or obvious ty of cocaine and cocaine base.” J.A. 33. “when the Supreme Thus, settled law Promise was properly charged with Court or this circuit establishes that an conspiring to violate U.S.C.A. And, has occurred. the absence of there can dispute be no jury authority, such decisions other circuit was properly instructed regarding the ele- appeals pertinent courts of ques ments of charged According- offense. tion of whether an plain.” error is ly, we conclude that properly Promise was Neal, (4th States v. with, 101 F.3d of, and convicted conspiring Cir.1996) (internal quotation marks omit possess with the intent to distribute ted) (citation omitted). In light of Appren cocaine and cocaine base.

di and the unanimous conclusion of our problem, therefore, lies with Prom- sister specific circuits that threshold ise’s sentence. The alleged facts in the quantities must be treated as elements of indictment and jury found sup- aggravated offenses, drug trafficking we ported a penalty years of 20 conclude that plain. the error was imprisonment. Based on a determination drug quantity by court, the district how-

C. ever, Promise was sentenced to 360 Promise must next demonstrate that the imprisonment months years more —ten i.e., error affected his substantial rights, than the applicable maximum. We there- Olano, prejudicial. 507 fore conclude that Promise has demon- 1770; U.S. at United States strated that this error affected his sub- (4th v. Hastings, 134 F.3d Cir. stantial rights.8 my colleagues 8. One of maintains that the affected the pro- outcome the district court error did ceedings.” not affect Promise's substantial Post at 166. This is not the rele- rights because inquiry ”[n]either inclusion of the charge vant because the failure to drug weight in the indictment nor an instruc- drug quantity threshold in the indict- tion to the [drug quanti- that it must find ment or regarding to instruct the thresh- ty] beyond a reasonable doubt ... would have old was not the error commit-

161 reject plain assertion notice error. See id. 113 the Government’s We did appropriate- the error in Promise’s sentence 1770. discretion that S.Ct. Our is rights because not affect his substantial ly exercised when failure to do so filed an in to trial the Government prior justice, miscarriage would result in a of in alleging conspiracy that the formation actually such as the defendant when “ of co kilograms volved “in of 50 excess ‘seriously innocent or the error affect[s] caine;[and] kilograms excess fairness, integrity public reputation ” base.” indictment “[A]n cocaine J.A. judicial proceedings.’ Id. at may except not be amended resubmis (quoting S.Ct. 1770 United v. Atkin- jury, change is grand sion to the unless the son, 157, 160, merely a of form.” Russell v. matter (1936) (alteration original)). L.Ed. 555 States, 749, 770, 369 U.S. The fact that a mere forfeited error (1962). 8 L.Ed.2d 240 Govern rights- affects does not substantial alone did to include a ment not seek discretion, warrant the exercise of our “for indictment, drug quantity threshold otherwise the discretion afforded Rule that we and Russell teaches us cannot 52(b) illusory.” would be Id. at grand jury assume would Indeed, S.Ct. 391. this court is not obli- charging specific returned an indictment gated to notice even structural errors on threshold had Govern review, plain notwithstanding error (“To allow ... ment done so. See id. structural errors are se per reversible subsequent guess to make a as to court[ ] when reviewed under a harmless error grand jury what was in the minds of the Johnson, standard. See 468- they the time returned the indictment 1544; see also United States of a deprive the defendant basic (4th Wilkinson, 214, 224, 137 F.3d protection guaranty which the of the inter Cir.1998) (citing proposi- Johnson for the grand jury designed of a vention was that a reviewing possesses tion dis- secure.”). cretion refuse notice structural er- D. rors). Rather, we must consider the error whole, the context of the record as demonstrated that there Having 52(b) bearing carefully mind “Rule error, plain, that the error was was goal encouraging balances the defen- the error affected his substantial dants to an accurate and fair trial seek rights, has satisfied the threshold Promise ... against recognition the first instance requirements plain error test. However, Olano, miscarriage justice or a true explained 52(b) fairness, calling question defect into permissive, mandatory.” “Rule Olano, judi- integrity, public reputation 507 U.S. at 113 S.Ct. 1770. Thus, ciary it remains within our discretion to must not be allowed.” United States court; contrary, though "overwhelming

ted the district on the even there was indictment, instructions, essentially uncontroverted evidence” that de and conviction qualified greater penalty here are all valid. What not valid was the fendant based was cert, denied, base), imposed, appli- upon sentence which exceeded the distribution of cocaine — —, cable maximum for the facts Bowens, (2001). proven. Unquestionably, had the United States v. 224 F.3d L.Ed.2d 349 Cf. (4th Cir.2000) (stating third district court been aware of at the trial, prong analysis "easily imposed a ... time of it would have sen exceeding applicable years imprisonment, satisfied” sentence tence of 20 instead of the years actually imposed. conspiracy of 30 maximum for to distribute heroin term (4th 181, Cir.1996); Cedelle, 69, Nevertheless, F.3d 185 S.Ct. 1544. v. 89 117 16, Young, 470 at 105 see U.S. S.Ct. also Court declined to notice the error because (observing “[especially that when ad 1038 concerning evidence omitted ele- error, reviewing court dressing plain was “overwhelming” “essentially ment except by cannot evaluate case properly 470, uncontroverted.” Id. at against a claim the entire viewing such (internal omitted). quotation 1544 marks Cedelle, record”); 89 at (stating F.3d 186 Court noted “it would The that be the “[cjentral” question whether that of of a reversal conviction such as this” that plain affecting error substantial notice fairness, “seriously in- would ] affectf whether, rights “is a determination of public judicial of tegrity reputation pro- entirety, record in its based on the added) (internal ceedings.” (emphasis Id. against resulted proceedings accused omitted). quotation marks Accordingly, in a determination of fair and reliable without even discussing seriousness of to no guilt”). appropriate It is to refuse error, the Supreme unanimously plain guilt tice a when error evidence it. id. declined notice See Johnson, See 520 at overwhelming. U.S. ' This court relied on principles similar 470, plain 1544 notice (refusing (4th Bowens, States v. 224 F.3d United 302 jury error in to instruct failure on element cert, — Cir.2000), denied, U.S. —, 121 evidence offense when was overwhelm (2001). S.Ct. 149 349 L.Ed.2d Bow uncontested); essentially ing and United conspiring ens was with to distrib (4th Johnson, 219 States v. F.3d 354 cert, cocaine, base, ute cocaine and heroin. See Cir.) (same), denied, 1024; Bowens, 224 F.3d at The 314. district (2000); 121 148 L.Ed.2d 507 S.Ct. court instructed the that it jury could con (same); F.3d at 244 Hastings, 134 United (4th Jackson, upon finding vict that Bowens had con F.3d Cir.1997) (same); spired to distribute one of the see three also United States v. (7th Cir.2001) Mietus, jury id. 237 F.3d substances. See returned a that, (holding general guilt even that verdict of did assuming specify first plain analysis three prongs error were drugs believed satisfied, Ap- court refuse to notice had conspired Bowens to distribute. See guilty prendi error verdict necessari when id. imposed The district court a life sen ly responsi established defendant was upon assumption tence based that Bow- ble for more than threshold conspired ens had to distribute cocaine Swatzie, drugs); States v. F.3d base, heavily punishable object the most cert, denied, (11th Cir.2000) (same), conspiracy. agreed See id. We with — —, argument Bowens’ for the first —raised (2001). L.Ed.2d 757 appeal general time verdict —that returned authorized a Johnson, sentence Court consid- up to “only the maximum for the least- plain ered on error review a con- perjury offense,” punished drug offense, conspiracy to viction in which an dis element of the (internal statement, heroin. Id. materiality quotation tribute false omitted). judge accordingly marks We jury. found rather than conclud Johnson, ed the district had committed Finding Bowens for plain, the error was con spiracy the Court assumed the error was distribute cocaine base instead heroin; structural and the error af- conspiracy therefore of for to distribute we rights. fected held substantial See id. 468- further that the error affected Bow- (cid:127) that he Gwinn testified assisted received John because he rights ens’ substantial in which for a Moore a transaction his sentence when a life sentence kilogram over a conspiracy could not Moore obtained heroin-based years. See id. cocaine base from Promise. greater than been However, we declined to notice 314-15. (cid:127) testified that Thompson Donald overwhelming “the because the error Moore, offered, through Promise to es- essentially evidence” uneontroverted with supply Thompson nine ounces major partic- “was a that Bowens tablished (252 base; grams) Thomp- cocaine of to distribute cocaine conspiracy in ipant” son refused the offer because he was at Id. 315. base. familiar Promise. not with guided those that reasons similar to For at Promise importantly, Most in Johnson and quantity drugs not contest the of did Boiuens, we decline to notice court at- presentence report recommended be Boiu- As in Johnson and before us. error him, he dispute to nor did tributed ens, regarding the element the evidence by the court that he should finding district to treatment was both subjected erroneous than held accountable for more 1.5 kilo- overwhelming essentially uncontro- thirty cocaine times more grams of base— Here, after testi- witness verted. witness of quantity grams than the threshold supplied that Promise substantial fied necessary subject to him to orga- quantities of cocaine base Moore’s years not more of less than sentence nization: imprisonment. than life (cid:127) during Moore testified critically, clearly the record Finally, conspiracy, Promise course of that Promise’s decision not demonstrates of co- supplied quantities him with specific dispute ranging from six ounces caine base the district quantity threshold (168 every grams) kilograms to two of lack notice was not the result of that, Moore estimated other week. specific existence of the threshold him Promise altogether, supplied important drug quantity was an issue kilograms of co- with more than trial, the Government his case. Prior to caine base. contending that Prom- an information filed (cid:127) Timothy Prom- testified that Wallace “in of 50 excess ise accountable with supplied him three 'ounces ise in excess of 50 kilograms and] of cocaine! (84 grams) of cocaine base. base.” J.A. 39. Un- kilograms of cocaine (cid:127) he wit- Gettys Aaron testified that 841(b)(1)(A) prevailing the law der Prom- nessed a transaction trial, at time of Promise’s in this circuit 1.5 supplied Moore at least ise finding of it was clear that a either Gettys kilograms of cocaine base. imposi- amounts could result these testimony also corroborated Moore’s sentence, proven by life of a tion supplied Moore with as that Promise Yet, sentencing. even Government kilograms of cocaine much as two knowledge advance armed with base a time. Prom- sentencing, his subsequent trial and (cid:127) the critical fact dispute Hall testified he wit- ise elected Torianno for a that he was to be held accountable Prom-

nessed a transaction which jus- quantity narcotics would large with two kilo- supplied ise Moore tify a life sentence. base. grams cocaine simply can be no doubt that There had indictment because defendant did not as- the indictment included the thresh- sert that-lack of precluded notice him from base, grams old of 50 of cocaine disputing drug quantity). It would be a guilty found Promise miscarriage justice to allow him to avoid Sivatzie, beyond a reasonable doubt. aggravated sentence for the drug traf- (declining plain ficking 228 F.3d notice crime that the evidence overwhelm- though even specific ingly demonstrates he committed. We threshold was not alleged therefore declined to notice the error.9 Here, My ry”). determination not to notice the error is consideration of the entire record balancing based numerous consider- leads me conclusion no miscar- ations, including strength of the Govern- riage justice declining would result from evidence, adequacy ment's the manifest specific notice the omission of the threshold notice, and Promise's failure to contest drug quantity from the indictment and the quantity despite given this notice. I have also failure to instruct the to make a weight importance grand jury due to the regarding drug quantity. threshold Critically, charging practices, partial which the dissent above, as noted the Government filed an in- eloquently (Contrary so partial extols. specifically contending formation that Prom- contention, rely dissent's I do not conspiracy ise's involved "in excess of 50 supposition regarding grand jury what kilograms of cocaine[ excess of 50 and] might sought have done had the Government kilograms of cocaine base.” J.A. 39. The charging specific an indictment threshold filing of the information does not alter the dissent, however, drug quantity.) partial The fact that deprived possibil- Promise was of the only disposi- makes this last consideration not ity grand jury that the would not have re- exclusive, eschewing ap- tive but a flexible turned including specific an indictment proach per requiring in favor of a se rule drug quantity threshold had Government appellate plain courts to notice error whenev- However, sought such an indictment. er a defendant suffers a conviction or sen- information filed apprized here at least Prom- tence not authorized the indictment. See drug quantity ise that major would be a issue ("The post at 187 United States Constitution notice, affecting Despite his sentence. result.”). expressly prohibits such a doI Promise never contested the amount of co- Supreme precedent believe that sup- caine base for which he could be held ac- ports this view. facts, light countable. In of these there can partial The per dissent contends that this se be no reasonable doubt that Promise was States, rule derives from Russell v. United actually responsible for the threshold 8 L.Ed.2d 240 amount. (1962), States, Silber v. controlling .Neither is Silber here. In Sil- (1962) (per 8 L.Ed.2d 798 ber, the defendant was refusing convicted of curiam). case, plain Russell was not error questions posed by congressional answer Moreover, pre- however. Russell does not committee, § in violation of 2 U.S.C.A. considering clude us from whether the defen- (West 1997). Silber, See dant has actual received notice of a fact omit- S.Ct. 1287. The indictment for this offense indictment; rather, ted from an Russell Russell, was invalid under in that it failed to requires us to conclude that such omissions identify subject congressional inqui- of the necessarily from the indictment affect a de- ry as to which questions the refusal to answer rights, regardless fendant's substantial occurred. See id. The Court con- whether the defendant had actual notice. See Russell, cluded that this defect in the indictment 369 U.S. at 82 S.Ct. 1038. But plain amounted to reversible error. See id. at the fact the error affects substantial brief, (the per rights 1063. In its prong curiam plain third of the error in- opinion, quiry) the Court did compel does not not discuss the us to notice the error (the Olano, strength prong). proof, final Government's 507 U.S. at whether notice, (stating the defendant had actual reversal is not or whether required concerning whenever a evidence affects sub- the omitted element rights, thus, stantial because disputed; otherwise "the discre- opinion does not re- 52(b) tion afforded Rule would be relating illuso- veal either the facts to these issues or 841(b)(1)(C) provi- is a catch-all U.S.C.

III. may under which defendants be sen- sion of conviction and sentence judgment is not determined tenced affirmed. doubt). a reasonable To by jury AFFIRMED intrude the courts do so seems to me to into a domain that and the Constitution WILKINSON, Judge, concurring Chief long preeminently legislative. has been judgment: in the concurring part, The creation of new offense elements out judgment of convic- I to affirm the vote sentencing fac- of the statute’s traditional tion and sentence. infringement works a serious on the tors coequal government. of a branch of powers

I. single crime with multi- transmuting sepa- into a series of ple factors Judge Luttig’s view I share offenses, my colleagues replaced rate 841(b) graduated sentencing is a U.S.C. of crime and legislature’s structure consti- imprisonment life scheme which general own to the punishment with their I rea- penalty. see no tutes the popular governance. detriment of parts that scheme into finer parse son to Apprendi purposes. The sentences set 841(b) integrated form an forth Section II. 841(a) offense. single for a Section sanction was an rises, I do not believe there error so too does the theAs Assuming, ar- below. pen- proceedings until it reaches the sanction plain error has indeed pull guendo, I not some alty imprisonment. would of life occurred, I do not believe that it merits care- one the middle out strand Olano, v. reversal under United States 507 it as designate scheme and fully sequenced 1770, 725, L.Ed.2d 508 113 S.Ct. 123 theory under the U.S. a maximum sentence See, Young, States v. (1993), 470 e.g., and United a “catch-all.” is somehow (1985). 1038, 1 84 L.Ed.2d Rogers, v. F.3d 105 S.Ct. United States 228 Olano, Cir.2000) court (11th appellate 21 before an (holding that Under 1327-28 Such Post at 189. deci- a defendant's innocence.” facts influenced the Court's how those Supreme approach an would contravene previously appeals A court of had sion. Olano, precedent. U.S. at 736- Court 37, See 507 culpability opined was that Silber’s that, (explaining while States, 296 F.2d question, see Silber v. United appeals no doubt correct "the court of should (D.C.Cir.1962), that court was but plain that results in the con- forfeited error issue, Supreme addressing a different actually an innocent viction or sentence of finding. to this Court never alluded defendant, may seriously ... error affect [a]n and Silber do not foreclose While Russell fairness, public reputation integrity range of a broad of circum- consideration independent of the defen- judicial proceedings stances, Supreme Court decisions affir- other (internal quotation marks dant's innocence” matively command us to examine entire follow, however, omitted)). that a It does not deciding plain whether to notice record when undisputed demonstration clear See, Young, e.g., error. guilt irrelevant to our decision defendant's Moreover, the most recent S.Ct. 1038. one of regarding an error. Under whether to notice issue, Supreme statements on this Johnson, may ignore such a demon- we Johnson, great weight pres- attaches stration, overturning sen- a conviction or as powerful, evidence uncontroverted ence of overwhelming resting evidence of tence on Johnson, relying against drug quanti- defendant. In on guilt undisputed evidence of not, suggests, miscarriage justice. partial ty dissent make do would itself be I Johnson, U.S. at “depend on See to notice the decision Candelario, trial, v. error not raised at F.3d 1311- an can correct (11th Cir.2001) (same). (1) (2) error, plain, that is there must be (3) rights. that affects substantial See substantial Olano demonstrates States, Johnson rights picture- are not affected when L.Ed.2d 718 proceeding yield exactly the perfect (1997). met, all conditions are If three actually that which tran- same result as may then exercise its dis- appellate court That is the The stat- spired. case here. error, a forfeited but to notice cretion thirty year permits ute sentence (4) fair- seriously affects the the error imposed. U.S.C. ness, reputation judi- integrity, public 841(b)(1)(B). The evidence as to the Id. proceedings. cial requisite drug quantity overwhelming is so that it cannot be contended Promise Judge II.D Wilkins’ join I Section did not the sentence he received. deserve persuasively illustrates that opinion, which prejudice suffered no whatsoev- defendant NIEMEYER, Judge, concurring Circuit my I II.C of er. cannot concur Section judgment: in the however, analysis, be- good colleague’s I do not that substantial grand jury cause believe A indicted Marion Promise rights prejudice are affected when no possess one count conspiring any kind exists. intent to distribute “a of cocaine and cocaine base” violation of 21 U.S.C. Olano, that, Court held 841(a)(1) §§ Following jury’s and 846. circumstances, in except in rare order to count, conviction on this the district court rights “the error must affect substantial impris- sentenced Promise to 360 months have affect- prejudicial: have been It must onment, based Promise pro- ed the outcome of the district was accountable for more than 1.5 kilo- 734,113 ceedings.” 507 S.Ct. 1770. U.S. grams of cocaine base. Promise chal- “the de- generally The Court stated that sentence, lenges relying on the Su- specific showing fendant of must make preme Court’s decision in ‘affecting prejudice satisfy the substan- Jersey, New 52(b).” tial of Id. at rights’ prong Rule (2000). 147 L.Ed.2d 435 He contends that 1770. Defendant suffered 113 S.Ct. drug quantities are elements of the offense the prejudice no here. Neither inclusion and that his sentence must be vacated in nor an drug weight the the indictment grand jury charge because the did not him jury that it instruction to the must find with aggravating quantities of cocaine and the amount of a reasonable doubt jury consequently cocaine base and the did drugs question in would have affected the quantities. Accordingly, not find those he proceedings. of the district court outcome maintains that his sentence must be vacat- Because Promise has not met his burden resentencing appro- ed to allow at the level 52(b), Rule showing prejudice under priate when no is made as to in not affect this case did his sub- base, amount of cocaine and cocaine See, rights. e.g., stantial United States v. 841(b) § which under a maximum (1st Cir.2001) (find- 65, 74 Terry, 240 F.3d sentence of 240 months. ing satisfy that defendant failed to “affecting rights” prong substantial of the constitutional proposition where, given error test the trial evi- Promise advances to vacate his sentence drugs, by majority dence about the there was first identified defendant); States, prejudice was no Court Jones v. United mum, legislative absence of at least L.Ed.2d 119 S.Ct. it found (1999). manipulation i.e., where could be guarantees Drawing on — of an of Amend- defined elements Congress Fifth and Sixth contained Constitution, Court sentencing the Jones factors to avoid fense as ments of concerning the by the doubt afforded expressed protections serious constitutional judge the trial constitutionality allowing id. at Fifth and Sixth Amendments. See under findings Indus., 16; penalty-enhancing to make Inc. v. Cooper n. cf. — statute, 18 U.S.C. carjacking Inc., the federal Group, Leatherman Tool the evi- preponderance 1678, 1683, —, 149 L.Ed.2d 674 121 S.Ct. 1215. id. at dence. See (2001) extremely (“Legislatures “any possibility raised the The Court criminal of defining broad discretion conviction) (other that in- prior than fact range permis setting and in fenses crime penalty for a creases the maximum (inter for each offense” punishments sible indictment, submit- charged in must be omitted)). Apprendi, Since nal citations beyond a reason- jury, and proven ted to a however, has its rationale applied no court at 243 n. able doubt.” Id. to hold a statute unconstitutional because identifying than going But no further the elements of an offense manipulated a constitu- of such potential existence improperly sentencing as by defining them expressing doubt about principle tional factors. it, concluded before the Court the statute Thus, con- improper evidence of absent constitutional issue it could avoid the clearly if a statute gressional manipulation, pro- construing ambiguous statute an element of distinguishes between with distinct separate offenses viding three factor, these Su- and a offense sen- than one offense with elements rather recognize Con- precedents preme factors. See id. 251- tence-enhancing based on the right to do so. And gress’ 52, 119 S.Ct. 1215. developed by Judge thoroughly rationale however, later, Apprendi, yearA concurring I II his Luttig in Parts Court, constitu- confirming the Jones opinion, I would conclude time as a for the first “proposition” tional is that reading rational of U.S.C. its con- articulated principle, constitutional are stated of the offense elements narrowly. applica- It limited tours more 841(a) sentencing factors § and the in to circumstances principle tion of the 841(b). Apprendi, § in Before provided penalty the the facts increase in conclusion no court reached different statutory maxi- “beyond prescribed the statute, in the ab- this interpreting added). (emphasis mum.” Id. at 2362-63 that the elements of clear evidence sence Thus, in Jones considered principle the manipulated, of the offense been in application was limited otherwise no to conclude there is reason scope of Con- that exceed the sentences made, credibly the that case is now. Until i.e., to circumstances gress’ enactment — arise, we does not constitutional issue penalty facts increase a which the statutory interpretation are left with appear, maximum. It would concurring Judge Luttig his by made therefore, principle constitutional opinion. Appren- in Jones and defined proposed concludes opinion, Judge Wilkins his di, ability to limiting Congress’ rather than an treated as quantity “must be drug from elements of an offense distinguish drug trafficking aggravated factors, element of actually Con- preserves i.e., offense, in the indictment charged statutory maxi- gress’ right define jury beyond not, and, proved grand jury reasonable did (footnote omitted). Supra waiver, at 156 doubt.” absent a constitutional verdict can conclusion, necessarily With this would not be had on an unindicted offense.” 38 was not follow that Promise (4th Cir.1994) (en banc); F.3d see drug an aggravated trafficking offense be States, also Stirone v. United cause no more than a detectable amount of 215-16, (1960) S.Ct. L.Ed.2d 252 imputed him in drugs was the indict (“[A]fter an indictment has been returned Moreover, ment. because Promise was charges may not be through broadened properly charged with a non-aggravated amendment except by grand jury it offense, drug trafficking the “outer limits” self’); (“[A] id. at 80 S.Ct. 270 court any sentence charge are defined cannot permit a defendant to be tried on than years. Apprendi, as no more 120 charges that are not made in the indict Yet, S.Ct. 2359 n. 10. district him”); Bain, against ment Ex Parte in this case years, sentenced Promise to 30 (1887) 30 L.Ed. 849 believing that it had sentencing authority (noting that scope of an indictment is 841(b). to do so under 21 U.S.C. If jurisdictional). Judge premise Wilkins’ quanti The indictment properly this case ties are elements of the offense were ac offense, charged an jury properly con- cepted, Judge then Wilkins appropri could offense, victed Promise of that and now ately that the conclude district court erred the sentence is limited the indictment jury, judge, because the not the jury’s finding. and the Apprendi, required have been to find drug quantity. quantity 2359 n. 10. If were an But rather than follow necessary con offense, aggravated element of an such an sequence premise, Judge of this Wilkins offense charged, was not sentence somehow holds that the district court’s could not have been based on that offense. sentence was not reversible error under doctrine, plain-error though even a 30- But I disagree because with Judge Wil- year sentence would not have been autho kins’ conclusion that drug quantity under rized the indictment returned 21 U.S.C. 841 is an element of the of- grand jury. necessity, therefore, Of fense, the difficulties his conclusion raises plain-error analysis requires a constructive presented. are not Accordingly, I concur indictment, amendment of the a fact Judge judgment court, join and I n acknowledges: Wilkins simply “There ca I, II, Parts III Judge Luttig’s con- be no doubt that had the indictment in curring opinion. cluded the threshold of 50 Judge Gregory has authorized me to base,

grams of cocaine would have joins indicate that he this opinion. guilty beyond found Promise a reasonable added). Supra doubt.” at 163 (emphasis LUTTIG, Judge, Circuit in concurring The first error therefore was in the gov the judgment: ernment’s failure to an obtain indictment that, grams for 50 I believe in interpreting or more. But 21 we do not have U.S.C. 841, court, the authority every and change the that a other Court of offenses grand jury has, in charges Appeals, however understandably, indictment. As Floresca, we held United fundamentally States v. “it Supreme is misunderstood the ‘utterly meaningless’ to posit any ra Court’s decisions in Almendarez-Torres v. States, tional grand jury 224, could or would have United 523 U.S. 118 S.Ct. 1219, indieted[the ... (1998), defendant] because is 140 L.Ed.2d 350 Jones v. United, 227, States, any given and Castillo—that whether fact 526 U.S. S.Ct. (1999), 1215, and (requiring Castillo is an of the offense L.Ed.2d element doubt) 120, States, beyond U.S. 120 S.Ct. proof v. United a reasonable or a (2000), 2090, 147 L.Ed.2d 94 the one sentencing only proof by (requiring factor hand, Jersey, and v. New question a a of preponderance) legisla- is 2348, 147 L.Ed.2d 435 120 S.Ct. intent, U.S. statutory tive and therefore inter- (2000), other, outright substituting on the by unaffected pretation Appren- —remain (and analysis Apprendi's constitutional di, that the except the extent of understanding analysis, of that mistaken legislatively-defined factor re- that) analysis prescribed statutory for the in a of the sults sentence in statuto- excess Almendarez-Torres, Jones, and Castil- ry maximum. Faithful to the limited con- way cases misreading lo. these Apprendi, of but principle stitutional they largely have—due Su- equally principle faithful to the bedrock of distinguish failure to preme Court’s own Jones, Almendarez-Torres, and Castillo clearly statutory from its constitutional power that the to define criminal offenses analyses court and our sister circuits —our subject legislature, only rests unnecessarily unwittingly see, constitutional"limitations, e.g., Staples very question reached and decided' the States, 604, 114 v. United Supreme yet has as declined to Court (1994) (“[T]he 128 L.Ed.2d 608 answer, reserved in expressly and indeed of a criminal definition the elements all Apprendi, namely, whether facts legislature, par- offense entrusted to the could increase a defendant’s sen- serve to crimes, ticularly in federal the case of beyond tence must found are creatures of statute.” solely only And not have the reasonable doubt. States, 471 (quoting Liparota v. United courts unknowingly decided issue L.Ed.2d law, to the criminal importance inestimable (1985))), hold without any I would hesi- they question contrary have decided the Congress’ tation whatsoever that manifest way majority I in which believe intent is that the sole offenses established will, only a bare those set forth in section are sec- majority upon principle of stare 841(a)(1) (a)(2) knowing or tions —the decisis, ultimately question, decide the manufacture, distribution, or intentional compare Pennsylvania, McMillan or dispensation of a controlled counterfeit 2411, 91 L.Ed.2d 67 substance, possession of such sub- (1986), n. Apprendi, 530 U.S. at 487 manufacture, stance with the intent to dis- 2348, holding, error on dispense tribute those of- —-and authority Apprendi, any fact that entirety in their fenses set forth sentence, whether or not the increases a (2). 841(a)(1) sections increase result in a sentence that ex- will penalty ceeds the prescribed indisputable of this consequence As statute, to the jury must be submitted congressional definition section 841 doubt. proven beyond reasonable offenses, I that the hold maximum sentence commission as-yet quite narrow constitutional offenses, the punish- these and therefore that the principle Apprendi must jury’s ment authorized verdict find a reasonable doubt offense, impris- of a is life guilt section 841 fact that the maximum sentence increases onment, fine, plus with the actual sentence statutory aicthorized And. offense. Jones, Almendarez-Torres, judicial findings imposed dependent upon holdings ly of the presence opposite or absence various conclusions from those that factors, sentencing including drug amount it reached in Jones and Castillo. 841(b). in type, identified section Be- I Although disagree with the Court’s statutory maximum cause the sentence for statutory conclusions in both Jones and by commission of offenses defined Castillo, there arguably at least some fine, plus in life I Congress section 841 is concluding basis for that the facts issue principle that the of Apprendi would hold in legis- those cases were intended judicially-found may that a fact not in- lature to be elements rather than sentenc- prescribed crease sentence factors, ing concluding, or at least for inas statutory by any maximum is not offended Jones, that question there was sufficient as imposed of the sentences the cases be- congressional intent as to warrant invo- fore us because none of the sentences at cation of the rule of constitutional doubt. imprisonment. issue exceeds life Unlike the fact of either bodily “serious

injury” in or carry Jones use of a I. Castillo, however, “machinegun” in there is no basis concluding whatever for statutory As a matter of interpretation, (and Congress intended like- that Congress I believe intended “serious ly type) § even in 21 U.S.C. 841 to be bodily injury” in 18 U.S.C. 2119 and use Indeed, statutory elements offense. carry “machinegun” of a in 18 U.S.C. view, my my colleagues today as and the 924(c), not as elements the offenses ultimately must and uncom- statutes, but, rather, defined those as concede, fortably it is incontestable as a sentencing so-called factors to be deter- matter of construction that Con- judiciary, many mined courts had as gress elements, intended these facts not as prior held to Jones and I think Castillo. but factors. relatively that this conclusion is clear application of the conventional tools of A. text, statutory interpretation such as statutory analysis prescribed by the context, structure, historical usage, and Almendarez-Torres, Jones, legislative history. And I believe that the Castillo leads to this conclusion is majority in (explicitly) Jones unan- compelling. (implicitly) imous court Castillo came to conclusions, opposite First, respectively, only Congress explicitly denominated because of the individual Justices’ different activities set forth in section 841(a) views over the considerably larger issue of as the “unlawful acts” that it crimi- the constitutional imposed is, limits on the That clarity nalized. terms whose power of the legislatures federal and state cannot disputed, Congress be stated that is, to define criminal un- offenses. That the unlawful prohibited conduct in section 841(a). constrained their individual views as to 841 is that set forth section Almendarez-Torres, constitutional limitations on the legisla- 523 U.S. at (“We offenses, power tures’ to define and their S.Ct. 1219 also note that ‘the title of opposite natural concern that the constitu- a statute and heading of a section’ are might ultimately tional conclusion ‘tools available for the resolution of a by majority colleagues reached of their doubt’ about the meaning of statute.” addressed, that, were the issue I (quoting believe Trainmen Baltimore & Ohio Co., upon statutory analy- 519, 528-29, based conventional R.

sis, (1947))). precise- is, the Court would have reached 91 L.Ed. 1646 That conduct formulation, or its this same forward knowing or intentional only, the and is distribution, numerous indi manufacture, throughout the dispensation, equivalent, or substance, 841(b). See, or counterfeit subparts a controlled or of section vidual manufacture, (“In 841(b)(1)(A) intent to § the case possession e.g., U.S.C. distribute, dispense, such sub- create, or (a) subsection a violation stance. person ... such shall be involving section ....”) added); (emphasis sentenced Second, distin- expressly Congress 841(b)(l)(D)(4) 841(b)(1)(B) (same); § § in that it criminalized the conduct guished %ohoviolates subsection (“[A]ny person 841(a) that it punishments from the section (a) distributing ... shall this section unlawful commission of the for prescribed ....”) (emphasis in 841(b) provided treated as denom- by explicitly acts in section 841(b)(l)(D)(5) added); (“Any person punishments “penalties” as inating 841(b). (a) subsection this section in who violates prescribed section cultivating a controlled substance Third, any doubt that if to remove imprisoned as property shall be Federal in section activities described intended the ....”) added); (emphasis provided 841(a) 841 of- the section to constitute 841(b)(l)(D)(6) (“Any person who vio within fenses, stated Congress expressly (a), so, attempts to do lates subsection 841(a) of section itself text the substantive chemical, poison, knowingly uses any person for be unlawful” that “it shall on Federal hazardous substance other specified sub- in the conduct engage added). ....”) (emphasis property (a). section Fourth, the section Congress established Congress reinforced finally, And 841(a) single, in a in section offenses interrelationship between 'the substantive No ref- sentence. complete, self-contained 841(a) and the facts conduct section subparts of necessary to other erence 841(b) criminal between section complete either order the statute when it introduced and sentence offense To use thought. the obvious sentence or 841(b) that “any with the command section offense- phrase, the Court’s (a) of this who violates subsection person on its own “stands defining provision follows!.]” be sentenced as shall section Jones, feet.” grammatical added). It is from this (emphasis 233-34,119 else, nothing that Con- if from language, 841(b) pre- Fifth, confirming its intent further understood section gress are those 841 offenses the lone section of the of- additional elements scribe not described, in described, wholly section but, 841(a), in section fenses established 841(a), section Congress provided consid- rather, factors to be 841(b) particular “penalties” for for com- imposing the sentence ered when “any who violates person will obtain in section defined offenses mission (a).” words, within In other subsection 841(a). 841(b), Congress of section the actual text structure of Thus, the text and both again its under states unambiguously a con- unequivocally confirm section 841 section 841 that the violation of standing that the conduct recited intent gressional completes the conduct when one occurs 841(a) section 841 constitutes the in section 841(a), predicating recited section offenses, appear facts that and that the violation of punishments upon specified 841(b) only, sentencing factors 841(a). Indeed, carries section Congress section statutory acknowledge, offenses.1 before us at least over the not elements respect, 841 is as close as past quarter century, section drug quantity, not comes with “statute[ ] [that] to. a possible also, drug type uniformly has been consid- straightforwardly provisions the benefit ered a sentencing courts to be the distinction between ele- addressing factor, not an offense element. Whether Jones, sentencing ments factors.” or not this tradition reaches back to the (citation 232, omit- law, common it is more than sufficient to ted). conclusion, buttress which is structure, from the text and necessary it is Although resort Congress intended only drug quantity as a fac- given other statutes statute is “[i]f treating a[particular] sentencing only. tor relevant to unclear about such penalty aggravator,” fact as element or id. 234, added), (emphasis 119 S.Ct. B. not,

which section 841 is were there The marked differences between the ambiguity the text and structure of the intent, language and structure of section congressional section as to this hand, and, other, ambiguity would have to be resolved one on the sections 2119 924(c) very favor of same conclusion virtue of Title which were ad- tradition, practice, treating or the dressed the Court in Jones and Castil- (and arguably type) lo, even respectively, only further reinforce the factor, a sentencing not an element of the Congress conclusion that drug intended See, 234-35, e.g., crime. id. at factors, quantity type as sentencing .(noting importance of traditional not elements of the offense. fact fact treatment of to whether element sentencing of offense or a mere

factor); Almendarez-Torres, 523 U.S. at Turning first to 18 U.S.C. (same). 230, 118 S.Ct. 1219 The Court carjacking analyzed by statute the Court seemingly may have defined traditional Jones, admittedly ‘look’ of “[t]he [a] sentencing way factors in such a as to statute ... guide reliable to con- See, Castillo, drug quantity. e.g., exclude Jones, gressional intentions.” 526 U.S. at 530 U.S. at 120 S.Ct. 2090 (observing 233, 119 S.Ct. 1215. For the reasons iden- sentencing traditional factors “often above, however, tified section 841 not involve either characteristics of the offend- has more er, recidivism, of the “look” of a statute that special such as features far (a) defines its of the manner in offenses subsection basic crime was {e.g., provides only penalties carried then out that the defendant abused subsection (b) id., position than gun)”). trust or brandished did section section cf. But, as even the appearances defendants the cases 841 all is such a statute. (No. 99-4737) government, 1. Like the I am not sure that the (citing States v. Promise Com- legislative history fairly suggest prehensive can be read Crime Control Act of Pub.L. Congress (1984); either that did or did not S.Rep. intend No. 98 98 Stat. 1837 No. drug (1983), type sentencing Cong. amount and to be fac- at 255 U.S. Code & Promise, 3182, 3437; appellant tors. in an Chapman observa- Admin. News at interest, however, States, 453, 461, against tion is of the view United legislative history (1991) clearly sug- that the (noting rather 114 L.Ed.2d 524 that the gests Congress Comprehensive intended at least Crime Control Act of 1984 Supple- punishment upon as a dependent quan- factor. See “made 2, 17, Appellant involved”)). tity mental Brief of of the controlled substance tity, like in Almenda- though, section the fact of recidivism importantly, More (if ever) 2119, rez-Torres, in which, seldom recent 841(a), “begins like has section listing history series been identified Con- paragraph explicitly principal with a elements,” merely not as element. gress does an offense of obvious own,” its as standing on close to ] “comet 1215; 2119, 232, id. at 119 S.Ct. did section 2. only Not does

it own. does stand 841, and contrasts between section 841(a), stand unlike section section 924(c), which was section before the Court complete sen- grammatically alone as First, Castillo, in less are no instructive. 2119, it tence, but, unlike also section language while the “literal section [of It as a sentence. stands alone substantive 924(c)], alone, appeare[d] neutral” taken “merely very some ob- does not describe type an element as whether firearm was behavior, any leaving reader as- noxious factor, Castillo, at sentencing or crime, it must but never be a suming 2090, the language literal is,” id. at actually told that being not, reasons dis- section is (describing opening para- above, at all neutral as to the in- cussed 2119); it describes the graph of section and drug quantity tended treatment “complete^] conduct “obnoxious” “with type. simply One cannot reason id., providing explicitly that that thought,” id., ease,” from lan- equal the statute’s is, thus, It be unlawful.” conduct “shall guage Congress drug quanti- intended of the classic “offense-defin- paradigmatic section ty type to be elements of the code, federal criminal ing provisions (or offense, could at as one least as gram- stand on their own genuinely which could) that firearm Court said one reason phrases feet such as matical thanks an or a type could be either element sen- a provi- unlawful’ ... which draw ‘shall be tencing factor. 233-34, 119 sion to its close.” Id. 924(c), second, not And unlike section omitted). (citations only nothing in structure of is there short, and structure whereas text suggest drug section 841 to inference,” justify confident any “[did] offense; type are elements of the Congress’ about id. at proof in the structure there affirmative bodily injury” intent whether “serious sen- they instead intended as were an element of offense section Congress tencing factors. Whereas factor, just the merely oppo- a fire- element ‘uses or carries “placed the case site is the with section Con- single in a ‘machinegun’ word arm’ any clearer. gress’ intent could not be sentence, up not broken with dashes subsections,” separated id. statutory from the into And what clear 841 not Congress section of section as to S.Ct. text and structure undisputed ele- only did not include respect intent with treat- Congress’ (and knowing or distri- ments of the intentional drug quantity perhaps type ment of also) noted, and the is, controlled substance fully consistent with the bution in a id., type treatment,” these factors facts. “traditional sentence, in entire- single it set them forth 2119 fact “serious Unlike the section Jones, and the separate provisions, injury” ly which bodily issue self-contained, offense-defining “unmistakably ] had identified former Congress [ Moreover, unlike section number of sentence. as an offense element sentence, 924(c)(1), statutes,” in which first quan- id. at the fact of undisputed way included the elements of the ed in such a might give rise offense, was followed three successive uncertainty congressional as to intent. Cf. 924(c) indisputably specified sentences that sen- (noting id. that section had been (recidivism, tencing factors concur- “separat[e] amended to parts different sentences, (and others) parole), giving rent rise to the first sentence into differ- fact subsections,” inference that the of use of “ma- ent observing but that “a chinegun” referenced the first sentence postenactment new statutory restruetur- also, anwas element section 841’s inviolate ing[cannot] ... help to determine what separation structural offense elements Congress intended at the time it enacted factors belies sentencing from such the earlier statutory provision that gov- case”). inference. erns the Thus, Apart structure, only not does section 841 have a from the text and while suggests drug quantity “look” that it could not be respect said Castillo with 924(c) factors; type and to section typically its struc- “courts have (such traditionally ture much. It types confirms as has the struc- used firearm as ‘shotgun’ ture which left or ‘machinegun’) the Court little doubt would as sentencing factors,” prove such intent —the definition of id. at again can, must, penalties certainly offense and the most provision be said with (con- separate, complete respect sentences. id. to section courts have Cf. (if trasting single uniformly sentence in 18 drug quantity U.S.C. treated not 924(c) well) drug separately type factor, with the as as a sentencing numbered 2119). subsection of not 18 U.S.C. as an element of the crime. Indeed, finally, And I although would suggest the structure of section 841 is that its relevance to clearly congressional more intent confirmatory of an intention dubious, at best I to treat assume that no type as sentenc- one dispute would ing asking jury, respect factors even with rather less than the judge, important decide “structural circumstances” that (even beyond a reasonable “suggested] doubt conceded a con- 924(c) same cannot trary drug type) be said of interpretation” of would section from seriously complicate trial, the one the criminal ultimately adopted by the un- Court. requiring like 924(c), jury Id. Unlike with portions section as to type. firearm Congress which id. at itself had S.Ct. 2090 subsequently de- Cf. (noting that a requirement termined penalty “create[d] not enhance- ments, crimes,” id., decide whether entirely the firearm was a but new machine- Con- trial”). gun gress “rarely complicate certainly most has made no such determination with respect to section 841. C.

Thus, the titles “unlawful acts” and “penal- 841(a) (b), ties” in respec- subsection light foregoing, absolutely so tively, unquestionably retain their inter- certain Congress is it that intended the pretive significance. id. (explaining section 841 criminal offenses be defined Cf. that, Congress’ because of determination exclusively 841(a), and entirely in section 924(c) that portions 841(b) of section create new and the facts section crimes, “the section’s title cannot help” in factors that inform I sentencing, that can- determining which facts are elements and not conceive single of a Justice of the factors). Nor, are sentencing unlike Court of the United States hold- 924(c), section has section 841 been amend- ing otherwise as a matter of See, court to address issue of Con e.g., single Supplemental construction. (No. 99- gress’ enacting Promise intent in section 841 con Appellant Brief of (“To 4737) the Court is consid- cluded, have, extent I as that the elements of the statute under reinterpreting ering are set forth in their section 841 offense Jones, requirement the first (a) entirety in and that the facts subsection —that interpreta- two susceptible of statute be (b) arrayed in are mere sen subsection be- present.”). not Whatever one tions—is factors, tencing which need not be limitations lieves about constitutional proved in the indictment define legislature on the offenses See, e.g., beyond a doubt. reasonable elements, a as to their different conclusion Caldwell, v. 176 F.3d United States implausi- intent in Congress’ section (6th Cir.1999) (drug quantity); United ble, my colleagues every I think one (5th Hare, v. F.3d 428 n. simply credi- It is today appreciates. Cir.1998) (drug United States quantity); knowingly Congress ble to hold (11th Cir.1998) Stone, 139 826 F.3d intentionally separate fashioned some 350 Lewis, 113 (drug type); United States v. 841, of of- in section the number offenses Cir.1997) (3d 487, (drug type); 490 F.3d which, estimation, rough by my fenses Dorlouis, 248, 107 F.3d United States v. interpretation under of that would exist (4th Cir.1997) (drug quantity); United 252 provision that the facts subsec- deems (4th Fletcher, 49, v. 74 F.3d 53 States 841(a) (b) tion to be elements of section Cir.1996) (drug v. quantity); United States offenses. (5th Cir.1995) Ruiz, 985, (drug 43 F.3d 989 v. 19 F.3d quantity); Coy, United States D. (11th Cir.1994) 629, (drug quantity); 636 only as to possible That the conclusion Perez, 1569, States 960 F.2d United v. intent, only plausible and the Congress’ (11th Cir.1992) (drug quantity); 1574-76 841, is that Con- interpretation section Patrick, 991, 959 F.2d 995 United States v. those gress in fact created as offenses (D.C.Cir.1992) (drug quantity); n. 5 Unit 841(a), is in section attested identified Valencia, 1189, v. 957 F.2d 1197 ed States that, prior the fact Cir.1992) (5th (drug quantity); United Jones, oc- had not Court’s decision Sotelo-Rivera, 1317, 931 F.2d v. States hold any country curred to (9th Cir.1991) (drug quantity); Unit 1319 (b) of- the facts in subsection were (11th Cross, 622, F.2d v. 916 623 ed States panel opinion fense elements. As Cir.1990) v. (drug United States quantity); “[historically, Angle acknowledged, Cir.1990) (5th Delano, 766, 769 912 F.2d court and all of her sister circuits Campu (drug quantity); United States v. sentencing held (2d Cir.1990) zano, 677, (drug 905 F.2d 679 factor, not an of the crime.” element Moreno, v. 899 quantity); United States 113, 122 Angle, v. 230 United States F.3d Cir.1990) (6th 465, (drug quanti F.2d 473 (4th Cir.2000), granted, Jan. reh’g en banc F.2d ty); Ocampo, v. 890 United States 17, 2001; Supplemental see Brief also Cir.1989) (7th 1363, quantity); (drug 1372 (No. 99-4737) 4, Appellant Promise Barnes, 545, 551 890 F.2d United States v. (“Every Appeals Court of consider (1st Cir.1989) (drug quantity); United n. 6 over ten meaning statute the last (4th Powell, 81, F.2d Cir. v. 886 85 Court, States already years, including this has 1989) v. (drug United States quantity); Congress held that did intend (11th offense.”). Williams, 1521, Cir. 876 F.2d 1525 quantity to be an element 1989) decided, v. Jen- fact, every (drug United States type); before Jones kins, (10th Cir.1989) 331, (6th ney, 397, F.2d Cir.), 203 F.3d cert. 404 n. 5 Wood, (drug quantity); United States v. denied, 1238, 2678, 530 U.S. 120 S.Ct. (8th Cir.1987) 1382, 834 F.2d 1388-90 (2000); United States v. Hes L.Ed.2d 288 Gibbs, States v. United (drug quantity); ter, (11th 1287, Cir.), 199 F.3d vacat (3d Cir.1987) 596, 813 F.2d (drug ed and remanded consider for further Nomnandeau, quantity); United States v. ation light Apprendi, 941, 531 U.S. (9th Cir.1986) 953, 800 F.2d (drug (2000); 148 L.Ed.2d 270 McHugh, United States v. quantity); Jones, 194 F.3d (1st Cir.1985) F.2d (drug quanti- (10th Cir.1999), vacated and re 1185-86 ty)-2 manded light consideration in for further Jones, Apprendi, Significantly, even in the wake of spectre of a raised constitutional (2000); United States v. 147 L.Ed.2d 1002 Williams, legislative power limitation on the to define (D.C.Cir. 194 F.3d 106-07 cert, — offenses, and thus prompted would have 1999), denied U.S. —, searching, more cautious inter (2001).3 148 L.Ed.2d 1017 pretation, every single court still held that And, more, what no court has ever Congress intended the facts in section believed there to be ambiguity as to 841(b) See, e.g., to be factors. See, congressional regard. intent Grimaldo, United States v. 214 F.3d e.g., United Doggett, States v. 230 F.3d (8th Cir.2000); United States v. Jack 160, (5th Cir.2000) (“Given 163 the clear son, (7th 910, Cir.), vacated 207 F.3d 920 congressional § intent 841 and the un- and remanded consideration in for further Jones, certain mandate of we would have light Apprendi, 953, been hesitant to overturn our well-estab- 376, (2000), judgment re 148 L.Ed.2d 290 precedent lished that quantity of drugs instated on grounds, other 886, 236 F.3d is a sentencing factor and not an (7th element Cir.2001); United States v. Thom 888 offense.”) (citations as, omitted); id. at (2d 381, Cir.), vacated and 204 F.3d 384 164 (“Notwithstanding prior precedent of remanded consideration in for further this circuit and the light Apprendi, 531 1062, that 121 749, Congress did (2001), drug not intend reh’g en banc quantity 148 L.Ed.2d 653 to granted, be an 76, element of 248 F.3d 2000 the crime under 21 WL 33281680 20, 2001); 846, § United States v. (Apr. U.S.C. 841 Rios- and we are constrained cert, Quintero, (5th Cir.), Apprendi 204 214 F.3d to find the opposite.”); denied, 925, 148 United 301, 531 121 Rogers, States v. 1318, 228 F.3d (2000); United States v. Swi (11th L.Ed.2d 242 Cir.2000) (“Because 1327 [United also, Pena, e.g., 1991) 2. See United States v. (drug quantity); 51 United States v. Mar 364, (W.D.N.Y.1998) F.Supp.2d 366 (drug shall, 650, (C.D.Ill.1989) F.Supp. 706 652 Carlos, quantity); 582, F.Supp. United States v. 906 (drug quantity type). and (D.Kan.1995) (drug type); 590-91 United Monocchi, 79, F.Supp. States v. 836 82 also, Parker, e.g., United States v. 89 (D.Conn.1993) (drug quantity); United States 850, F.Supp.2d (W.D.Tex.2000); 857 United Bush, 1175, (E.D.Va. F.Supp. v. 813 1177-78 Harris, 1017, v. F.Supp.2d States 66 1034 1993) (drug quantity); United States v. Ek (D.Iowa 1999); Bennett, United States v. 60 wunoh, 168, (E.D.N.Y.1993) F.Supp. 813 172 1318, F.Supp.2d (N.D.Ga.1999); 1321-22 McDonald, (drug quantity); v. United States 856, Lilly, United v. F.Supp.2d States 56 43, 859 (D.D.C.1991) F.Supp. 777 (drug quan 44 (W.D.Mich.1999); Favors, tity); United States v. Taft, 54 F.Supp. United v. States (D.Vt.1991) (N.D.Ga.1999). (drug F.Supp.2d quantity); United (D.R.I. Naranjo, v. F.Supp. States (11th elements, type simply not and are sentenc F.3d 1287 Cir. [199 Hester v.] States 2000)] ing precisely opposite find section 841 from did not factors — unclear, retained had to history they prior Apprendi. Hester what held legislative drug quantity See, Page, rule in this circuit e.g., v. 232 F.3d United States offense.”); (6th Cir.2000); not an id. element Doggett, 230 543-44 (“In light of Hester’s determination that 164; 1327-28; Rogers, F.3d 228 F.3d ambiguous given not section 1058; Nordby, Aguayo-Delga F.3d at ”); interpretation.... United alternate do, just surely at 933. But as F.3d (9th 225 F.3d Nordby, v. States Appren- have courts these misunderstood Cir.2000) precedent in this cir- (“Existing narrow to re holding di’s constitutional Congress did not plainly cuit states quire complete abandonment of their an element drug quantity intend statutory interpreta earlier and consistent §§ 21 U.S.C. the crime under certainly which most tion section may a be sentenced and that defendant repeated their inter prior, did not. Given pursuant to a under these find- provisions pretations that section 841 offenses by judge sentencing made under a ing 841(a), entirety forth in their section set evidence stan- preponderance Congress plainly and that intended ... clearly .... Congress dard intended type sentencing to be mere factor, sentencing drug quantity be factors, inescapable the conclusion is 841; of the crime under not element these have courts misunderstood susceptible contrary the statute hold, fact, actually if not effect interpretation.”); any that could fact serve increase 220 F.3d 932-33 Aguayo-Delgado, defendant’s sentence must be Cir.2000) (8th (“Quite simply, we held proven reasonable legislature de- repeatedly that because the They Appren- have misunderstood doubt. fined factor fact that increases a holding di’s 841(b), a judge in 21 U.S.C. could decide beyond maxi sentence the defendant’s using a drug quantity preponderance of statutorily mum authorized sentence for the standard. We main- evidence question proven must be the offense regardless of the im- holding tained this doubt, holding beyond a reasonable as a applicable drug quantity of the on the pact that a that increases defendant’s fact (citations omitted); sentencing range”) proven. must be so sentence Grimaldo, (“Any argument at 972 214 F.3d Ap- That courts have misunderstood interpret drug us to requires that Jones way by their prendi in this is evidenced as an element of a U.S.C. 841 quantity statutory to a anal- failure even undertake by language of the offense is foreclosed prescribed in ysis of the kind Almendarez- circuit The precedent. statute and Torres, Jones, and to Castillo determine plain language of statute structure and for the statutory punishment the maximum quantity that a drug leave no doubt factor.”). analysis offenses defined section sentencing would, prior which consistent with their E. are drug quantity type that holdings offenses, not elements section sure, the past year, To be within follow- that dictate a conclusion maximum Ap- ing the Court’s decision authorized for commission punishment all the courts to have reconsid- prendi, Rather, life. 841 offenses is including today, ours section ered section from the drug quantity they in effect reason backwards have now concluded that 841(b)(1)(C), can in- drug quantity type fact that tenced under section sentence, punishment provides crease an individual defendant’s for of an conviction (constitutional, not statu- undetermined amount of crack conclusion cocaine. tory) quantity type added). (emphasis Id. at 1328 jury beyond to a proven The Ninth precisely Circuit made doubt, statutory reasonable then the maxi- Nordby error in same the Eleventh penalty only mum be that forth in can set did in Rogers: Circuit imposes a subsection of 841 that section judge’s finding pos that Nordby [T]he regard sentence without marijuana plants sessed 1000 or more type. penalty [Nordby’s] ‘inerease[d] the for defining error in

Nowhere is this beyond prescribed statutory crime statutory punishment maximum clearer 841(a) maximum.’ Section contains no in the opinion than Eleventh Circuit’s penalty provision. But sen Rogers, wherein the reasoned as fol- tence under justifiable under the lows: be a facts found maximum, (and statutory The deter- possible fine) must be sentence not more assessing mined years statute without than applicable possession five

regard quantity. marijuana This means that plants. less than 50 841(b)(1)(A) 841(b)(1)(B) sections Nordby pos trial court’s may not be utilized for with- plants sessed 1000 or more under 841(b)(1)(A)(vii) out a finding quantity Nordby’s increased 841(b) If jury. provision of section sentence to ‘not less than years [ ] does not contain a amount than possible more life’ and a fine. Thus, applies, example, section judge’s finding, made under 841(b)(1)(C), standard, then convicted preponderance defendant increased the may provi- still be sentenced under that penalty maximum for Nord- sion. years crime by’s from five life. (footnote omitted; (citation 228 F.3d at omitted; em F.3d at 1058-59 em- added). added); phasis confirming And further phasis at 1056 (equating id. statu- understanding ev requires tory maximum for the offense with “statu- ery fact that increases defendant’s sen tory penalty to which a criminal tence to be proven a reasonable exposed,” defendant explaining doubt, even when that not “Apprendi does in held fact that a that increases fact the crease sentence that prescribed statutory authorized the maximum penalty jury’s guilt the verdict the to a criminal defendant exposed is of of offenses in section the court conclud be a jury proven must submitted to and defined doubt.”). ed: beyond a reasonable the And Sixth Circuit recently embraced the same effect, the verdict convicted Apprendi misunderstanding of in United [Rogers] only manufacturing, pos- of Page: v. sessing, or distributing an undeter- mined crack quantity cocaine. Be- to provisions § Pursuant the of the of 841(b)(1)(A) cause section quantity drugs and section of a factual is determina- 841(b)(1)(B) turn upon both amount that significantly impacts the tion the sen- issue, of crack imposed.... cocaine those two sub- tence The jury merely parts are to inapplicable this case. that conspired to dis- found defendants Therefore, Rogers may only sen- possess be tribute and to distribute some constitutional limitation ly impose to the crack cocaine. amount undetermined of a such, every fact that serves to increase subjected that cannot As defendants in under sentence must be higher penalties defendant’s the to (B). Rather, indictment, 841(b)(1)(A) jury, max- the submitted the § or doubt, may be on imposed proven beyond a reasonable when imum sentence that years pursuant clearly count did not Congress intend such. 841(b)(1)(C). § II. supra at 152-53 at 543. also F.3d See concluded, as a of statu- Having matter J.) (“[BJecause (Wilkins, the indictment interpretation, Congress tory unarm a allege did charged Promise not the section 841 biguously intended cocaine quantity threshold entirety in their offenses are defined a jury did not make base and the cocaine 841(a), for only section it remains me in- regarding whether finding offense the eongressionally-prescribed determine convic- quantity, Promise’s volved'such sentence for commission of maximum subjected penalty him to a maximum tion From the interpretation those offenses. (emphasis add- years imprisonment.” of 20 entirely defined the offenses ed)); Fields, 242 F.3d States v. 841(a), follows that the facts of section (D.C.Cir.2001); Doggett, 395-96 quantity type identified sec- (“Section clearly 164-65 calls F.3d at 841(b) the of- tion are not elements of regarding for a factual determination fenses, but, rather, sentencing factors. substance, and quantity of the controlled it follows in turn from that the And in- significantly factual determination punishment for commission of penalty the maximum from creases life, fine, as 841(b)(1)(C) plus § section offense years impris- under to life 841(b)(1)(A), (B), 841(b)(1)(A). Therefore, for sections provided under onment (C), with imposed if en- the actual sentence government hold that seeks we upon presence or absence penalties dependent amount hanced based 841(b)(1)(A) under various factors identified drugs U.S.C. 841(b). (B), in the must be stated United States section (4th Cir.1999) Jones, for 206-07 indictment submitted F.3d J.) (what proof beyond (Luttig, reasonable the defendant could doubt.”); F.3d at Aguayo-Delgado, light miti- aggravating received (“Thus, government change wishes factors gating does statuto- maximum). penalties applicable in excess of those seek ry Because virtue of elements the offense constitutionally imposition of a sen- forbids alone, government charge then the must by the that authorized tence excess of sen- giving the facts rise to increased particu- commission legislature indictment, and prove tence in the must (when upon finding of lar based offense jury beyond facts to a reasonable those simple preponderance a fact doubt.”). evidence), ap- it is that none of apparent have, constitutionally are way pellants’ these courts sentences

To reason intent; none of congressional Apprendi is not to decide Con- under because voidable gress1 statutory intent as to exceeds life. them punishment change does not section 841 III. upon depending whether I do as reaching the conclusion that to a In type and are or are not submitted reason, unwitting- Congress’ enacting intent when section particular jury. to To so is brought that I four- appreciate respect my I am With all on colleagues this lurk- question, however, to the constitutional square courts, our sister I and am Supreme majority opin- ing in the Court’s question entirely confident this is a openly from Jones to and ions different from that by decided the Su- separate and decided several addressed fact, preme Apprendi. I am Court cases, in those of whether opinions is, rather, that it convinced question that serves to increase a defendant’s fact expressly by reserved the Court when range pun- ivithin the sentence—even to overrule Pennsyl- declined McMillan v. by authorized statute —must be ishments vania; holding limited the case proven in the indictment and circumstances “that do the im- not involve See, beyond a reasonable doubt. position of sentence more severe than e.g., Apprendi, 530 U.S. at statutory maximum for the offense es- (“What (Scalia, J., concurring) S.Ct. 2348 jury’s verdict”; tablished “re- and ultimately demolishes the for the dis- case for another day serve[d] the question they say senters is that are what unable whether pre- stare decisis considerations if, right guarantee trial by jury does clude reconsideration of nar- [McMillan’s] assert, they guarantee— it does as holding.” rower Apprendi, 530 at 487 guarantee it has what been assumed to 13,120 n. S.Ct. 2348. throughout history right our to have —the otherwise, i.e., To believe that this is the determine those that deter- facts actually issue decided in Ap- the Court mine the maximum sentence the law al- I prendi, my believe on colleagues as lows.”); (Thomas, id. at 120 S.Ct. 2348 believe, and courts simply other is to con- (“A J., concurring) long essentially line of fuse the Court’s decisions Al- accusations, authority addressing uniform mendarez-Torres, Jones, Castillo, on stretching reported from the earliest hand, the one and its in Apprendi decision founding cases after the until well into the on Even post-Apprendi, the other. century, 20th the original establishes that Almendarez-Torres, Court’s decisions understanding of which facts elements Jones, and Castillo remain con- sound and was even broader than rule that the whether, trolling precedents, as to as a adopts today. authority This estab- matter statutory interpretation, Con- that a every lishes ‘crime’ includes fact gress particular intended a fact to be an law imposing a basis for element of offense aor mere sentenc- increasing punishment....”); Jones, 526 ing They factor. hold that in- Congress’ (Stevens, J., 119 S.Ct. 1215 tent determined (“Indeed, must resort to the concurring) view, my proper conventional methods of inter- understanding of principle pro- [of due pretation analysis text, such as struc- cess which the prior Court’s eases have ture, context, tradition, legislative his- encompasses rested] facts increase tory. Court in Apprendi minimum as well addressed as the maximum ”). entirely different, permissible ques- constitutional sentence.... I understand that the tion of question legislature permissibly all whether starkly the more presented may particular vastly because of define fact as a different sentenc- punishments ing permit proof upon can result from factor different judicial findings to drug quantity simple preponderance of the evidence. has, type, bottom, although the possibility ominously And the Court re- prompted the constitutional concerns that served enormously significant question the are so evident on the Supreme every Court. fact that whether could result

181 imponderably signifi- As to the proven must be almost in sentence an increase doubt, question any it cant constitutional of whether beyond only held a reasonable that increase a penalty the fact could serve to defen- that that increases fact prov- dant’s be prescribed sentence must beyond the doubt, the a jury beyond must be submitted to the en to reasonable by legislature the Supreme the obviously a which so divides jury proven beyond reasonable (As Court, begin I to this essential limitation on would not even venture doubt. to must be an answer. I am no illusions holding, the Court’s it borne under as to punishment majority opinion that the tenor of the mind that the additional Court’s unmistakably to Apprendi, and the Court invali- which is the Apprendi challenged require via effect that would imposed dated unconstitutional was the Constitution as holding a that altogether a from the one that all facts increase a separate statute convicted; proven defendant’s must be to under which sentence thus, jury Ap- beyond but that the a reasonable doubt—a question there was no given that its punishment greater unsurprising a than tenor au- prendi received is verdict.) jury’s required by thor’s view is that authorized that such the See, Jones, e.g., until 526 at Consequently,' unless or Constitution. (Stevens, J., 253, holding in 119 1215 concur- McMillan S.Ct. overrules Indeed, ring). despite that a is not entitled a assurances that its defendant narrow,4 holding quite that in- is it is even determination of a fact serves to upon the overarching principles crease sentence the defendant’s within rested, well punishment range, it the Court’s decision as statutorily-prescribed matter, is, opinion’s much of critical language, as a constitutional irrelevant all holding a will a a facts that particular fact increase defen- dictate increase could serve increase a defendant’s signifi- dant’s sentence —even sen- jury beyond must to the a cantly findings proven as to tence be —as However, it equally type can do. reasonable doubt.5 See, penalty exceeding dant to a e.g., Apprendi, 4. 530 U.S. at the maximum he punished according to (characterizing would receive if S.Ct. 2348 as "narrow” the alone.”) Court); jury verdict facts reflected id. at S.Ct. in the issue before the (footnote omitted). ("We nothing clear that should be history suggests impermissible that it is See, taking e.g., Apprendi, U.S. at judges exercise into discretion— ("The question presented is relating factors S.Ct. 2348 wheth- consideration various both imposing judgment er the Due Clause of the Fourteenth offense and offender—in a Process statute.”); range prescribed requires Amendment that a factual within the id. determina- ("This authorizing in the maximum at 484 n. 120 S.Ct. 2348 is not to tion an increase prison suggest 'sentencing an offense from 10 to 20 that the term factor’ is sentence for proof years by jury meaning. appropriately term basis devoid of made doubt.”); supports ... id. describes a circumstance reasonable range ("Any possible S.Ct. 2348 distinction between sentence within the authorized felony ‘element’ offense and ‘sen- jury’s defendant offense.”); practice guilty tencing particular was unknown id. factor' indictment, ("The by jury, judg- criminal trial 23.48 historic link between S.Ct. during years judgment and the ment court as it existed verdict and consistent limi- (foot- founding.”) operate surrounding judges' Nation's tation on discretion within our omitted); provided legal penalties high- note id. limits ("Since Winship light novelty legislative [In [397 of a scheme that re] (1970)7 we from the determination of a 25 L.Ed.2d removes that, found, .exposes beyond peradventure clear fact defen- made Win- criminal fact, the Court did not so hold the federal I am

clear that courts. confident yet has to so hold. When it government throughout that counsel the (as question the finally does confront Department readily of Justice would con- may no choice but to do the con have I cede as much. To the extent that can 841), very dispute text over section government’s understand position, I believe the ultimate answer will come however, I am unconcerned that differ- down to decisis effect accorded the stare ent conclusion is it. warranted prior v. Court’s decisions McMillan matter, As an initial the United States and, extent, Pennsylvania, ato lesser Al position throughout has vacillated on its or until mendarez-Torres. Unless litigations the various that have come be cases, Court chooses to overrule these According fore our court. to counsel for I, however, judge, as a lower court am the United States in United States v. And, accordingly, them. I would bound Promise, the Department ap of Justice forbids, today hold the Constitution prised attorneys they may, but upon preponderance, of a mere to, were not required argue that section imposition of a sentence that ex offenses, multiple 841 states elements legislature. ceeds that authorized (b). appear throughout subsection Where, us, as in the cases before the sen authorization, Pursuant to this counsel for within, beyond, imposed tences government in argued Promise us range statutorily punishments permit forcefully unequivocally that the statu ted, Constitution, according to the Su tory are, offenses of I main section as preme Pennsylva Court McMillan above, entirety tain set forth in their nia, simply not offended. (a), subsection and that the facts refer IV. (b) enced subsection are mere sentenc ing factors. panel Counsel cautioned the view of the on so “drug amounts are fac fundamental a matter as that we address tors[,][t]he Supreme Court has not re importance, herein we versed itself on that and I would sought Having views. submit those studied the this court doesn’t get and reflected on the need out front argu- submissions orally government, Supreme ments advanced Court.” Counsel then an it, I am (although convinced that too no alyzed precisely section 841 required by as understandably), less is as confused as are Court’s decisions in Almen ship's process jury protec preclude due and associated considerations reconsideration of extend, degree, tions holding.”); to some 'to determina [McMillan’s] narrower id. at ("Even [go] guilt though arguable tions that innocence, not to a defendant's 120 S.Ct. 2348 it is simply length incorrectly but of his decid Almendarez-Torres sentence.'") omitted); ed, (citation logical application id. at and that a of our rea not, however, ("We today soning apply S.Ct. 2348 did there should if the recidivist ....”); budge position [in from the issue were contested id. McMillan] (1) (characterizing constitutional exist to au "constitutionally limits States' thority away necessary to define facts to con novel and elusive” the "distinction between offense, (2) ”); stitute a ‘sentencing criminal that a state 'elements’ and factors' id. at ("When keeps scheme judge’s finding from the facts that 'expose greater preponderance [defendants] or additional based on a mere of the evi punishment,' may serious constitutional raise dence authorizes an increase in the maximum concern.”) (citations omitted); punishment, appropriately id. at 487 n. it is characterized T3, ("[W]e wags dog 120 S.Ct. 2348 for an as 'a tail which reserve[d] substan (citation ”) omitted). day question other whether stare decisis tive offense.' Castillo, out it’s darez-Torres, basically lays way and con life and works and Jones drug intended down. Congress never cluded that a sen anything other than

amount to be position Is that of the Court: the De- factor, max statutory that the tencing and partment? of 841 is life. imum for a violation section No, position that the is not Counsel: of to re having

And after had months even I Department, your honor. think the in argument at position flect on the taken I position Department, know of supplemen for of preparation submission position Department that of concluded the briefing, government tal to, to, is assume right notv us that for same: twenty years statutory is the max and opposed working way up, are our as we A demon- reading of the statute fair down, imprisonment. But from life 841(a) § unequivocally that es- strates many years, drug prosecutor so as for and elements the offense tablishes the of looking way at the the statute toas I— 841(a) provides gradiated § for [sic] it was written phrased where a viola- penalties. The facts argu- Congress don’t tvhere the see —I 841(a) not in- proven of are do tion they saying is that all drug ment ivere the of- penalty the maximum for crease except are twenty years fifty for offenses fense, up penalty the maximum is since crack, grams which is small of in imprisonment, provided to life as places you ivhich all sudden amount 841(b). life, a kilo And at heroin. Supplemental Brief United States’ these majority drug multi-defendant 99-4737). (No. v. United States Promise you talking about prosecutions are tre- quantity drugs and most of mendous Although acknowledging that the then- court, federal cases that come these was States position current United that when Congress crafting otherwise, counsel for States the United statutes, looking drug you Cotton, No. United States involving going that are to be what cases pressed, forthrightly when admitted minimum drugs really is a amount statutory argu- she not construct the could penalty. life when I invoke that And so position for the official ment I there at the itself think look statute type must say Congress’ in- cogent argument proven to the reasonable life imprisonment tent was that was the doubt, they required and that were not you work penalty statutory jury, be submitted way understand the your down. I can offense was maximum for section 841 argument reverse and I other in the And, further twenty years. pressed when assuming all ... think we’re view she personal for her of section expressed position you that the And how hoiv do under- Court: maximum for of the offenses it? commission stand impris- 841 is life defined section indeed I, ... Counsel: well onment: you ivould piece, Piece hoiv Court: argument opposite construct for argu- I think there is Counsel: position? has just way the statute

ment Um, well, I ... say Counsel: say written out to that the offense been honor, knoiv, all, all ... you your 841(a), that the sen- is contained 841(b) really You can’t. tencing scheme set forth Court: no, In all really may Counsel: I up grabs be all you when recon- truthfulness can’t. And I think that’s probably why Angle sider the you decision—that all I saying on the side really looking twenty been years as fall imprisonment coming the, and then uh, statutory max from which life opposed down there as to the re- everything else is an enhancement. So from verse direction. And I exactly am not that, I looking am I am working with sure I understand the reasoning as to law, body of case right now. courts, why many including of Court: Well the reason that I asked the opinions some the other of question, frankly, is I suspect because issued, assumed, court has we’ve all that main Justice is also in search of a seems, argument the sake safe route perhaps my question can twenty years statutory is the way make its back to them as to wheth- (b) and that the other two prongs er they that’s what should be doing. penalty are in enhancements. I, Counsel: Well I definitely going am to you anyone Court: Have in your colloquy take this today my back to of- fit office seen to tell main Justice this someone, perhaps fice and call call our view? counterparts at Justice to advise them of Honor, Your I Counsel: know that there that.... has been much discussion back and forth And court, before the en banc gov-

between the Narcotics Section of Main ernment directly contradicted its earlier Justice, and much discussion within each Promise, position equivocated even Attorney’s U.S. partic Office about this what, later, a month would be posi- ular argument. But basically we’ve Cotton, (if tion arguing inconsistently been by Department directed of Justice not incoherently) that the offenses defined say take, going we’re I guess, the in section 841 appear in their entirety in route,” “safe which is to say twenty it’s 841(a) section and that Congress plainly years, you should go ahead and be intended drug quantity type to be including the amounts in the indictment. ... but, sentencing only, factors at the same time, that the and type drugs Court: the larger question [B]ut why, is statutoi'y increase the maximum sentence representation the zealous your and “it is error to impose a sentence that client, States, you only by authorized virtue of that in- search of the safe route? That’s not crease in the maximum sentence without what lawyers most of the in this room proving that (type fact quantity) to the are doing they when represent their jury beyond a reasonable doubt.” Letter clients. Goodman, from DOJ, Nina Criminal Divi- Um, well, I’m, your I’m, Counsel: sion, honor Section, Appellate Court, Clerk I’m, I guess, (Feb. in representing posi- 2001). Fourth Thus, Circuit like tion, uh, as the route because it’s my colleagues, unable to reconcile what it safe position Department that the Jus- knows to Congress’ be intent with what it taking tice is point, at this and I am either (mistakenly) believes (pre- or fears probably going out on a limb putting maturely) to a holding by the Court in my personal own vieio as a drug Apprendi fact that increases a forth prosecutor. that, But I think and the significantly sentence proven must be court itself already has held some jury beyond doubt, a reasonable opinions other I realize that this United States now takes the position novel —and autho- separate simply an ele- crime or it concedes define a fact that former, If penalty. must nevertheless be rize an of the offense enhanced ment beyond identify a reasonable indictment must the firearm proven apparently if it an were and a find that element type doubt must element — doubt.”); a sentence confusing a fact that increases beyond proved a reasonable maximum, which the Jones, 232, 119 Court characterized (“Much turns that a on the determination an ele- equivalent” “functional as the an rather than fact is element of offense offense, see greater of a ment consideration, given that ele- 2348, with fact that n. a indictment, in charged must be the ments sentence, the a but within increases jury, proven by and the submitted the the by authorized range punishments doubt.”). beyond a Government reasonable position if this were And as legislature. end, that suspect govern- In the I the the enough, untenable United States not conundrum, my unlike col- ment’s that of that, though “non- us even assures leagues, is attributable so much to must to the be- proven element” be in misinterpretation opinion of the Court’s as if it yond a reasonable doubt were misconception as to the Apprendi, as element, the charged not be need understanding consequence of its correct for that it is not indictment the reason drug and Congress’ quantity intent that help one position “real” element —a cannot factors, a mis- type sentencing are mere solely believe was formulated because but even in the few conception that is evident every virtually drug conviction in recent the Department sentences of substantive history would have to be reversed other- to the en supplemental of Justice’s letter wise. There, the De- banc court this case. imagine Supreme I cannot even the 841(b), that partment states “Section accepting arguments tortured such penalties sets out for violations that must to those matters must and 841(a)(1), authorizes increased of Section jury beyond a proven not be reason on, among oth- maximum sentences based doubt and those must and must able things, quantity of the type er Indeed, not be in the indictment. involved in the of- controlled substances conceiving I have a hard time even 841(b) au- It is true that section fense.” prepared General would Solicitor for thorizes increased sentences argument such an before the Su advance What defendants. section particular facts affect the preme Court. Either 841(b) do, however, increase does not are ele defendant receives sentence statutory for com- maximum sentence not; they they ele or are are not ments 841(a). of the mission offenses section for and not for oth purposes ments some is, statutory as a That maximum sentence elements, they they And if then ers. intent, plus life congressional matter See, charged in the must be indictment. any particular (“The fine. sentence Apprendi, n. 10 e.g., 530 U.S. range receives within defendant role is constrained judge’s full (b) may penalties authorized in subsection facts in the alleged outer limits as to depend upon the court’s jury.”); Cas indictment found sen- tillo, or absence of various presence 530 U.S. at 841(b). (“The section tencing factors identified question us is whether Con before statutory to But the maximum sentence authorized intended the references gress 924(c)(1) Congress commission of the section types firearm particular “fairness, manufacture or affect” integrity offense of unlawful distri- or public so, reputation judicial bution of controlled counterfeit sub- proceedings,” stance, directed, the maximum sen- as the Court has we therefore jury’s tence permitted by verdict “should correct” the error. See United guilt offense, always Olano, plus life States v. (1993).

fine—as a interpreta- matter of 123 L.Ed.2d 508 I re- from, tion. gret, and dissent the court’s refusal to do so. Accordingly, nothing arguments gives advanced me I. any pause that I be mistaken might either court, Speaking majority for a of the Congress’ regard as to drug intent Judge clearly and persuasively Wilkins ex- as to type, the effective plains why drug threshold quan- inapplicability of to Title sec- tity element aggravat- constitutes an say tion 841. not to This is ed trafficking prohibited by offenses Department will proven of Justice not be (West 1999), § 21 U.S.C.A. 841 which must prescient when the Court even- charged be in an proven indictment and to tually question does the it address re- jury beyond a a reasonable doubt. But Apprendi. served in until the Court Department does question, decide that the case, grand jury this the indicted and I by no less bound than McMillan v. the petit jury single convicted Promise of a Pennsylvania. is that And decision possess to conspiracy with intent offense— proves Department’s that in error in- to distribute “a of quantity cocaine and terpretation of the federal statute we cocaine specific base.” No not, today, construe as the Department to, charge by, was submitted or returned believes, proves that Apprendi inter- grand jury. Consequently, the petit pretation correct. jury that tried Promise never considered the question drug quantity, of let alone I am to show that authorized Chief found a reasonable doubt Judge Judges Niemeyer Wilkinson and conspired Promise to distribute more than I, II, and Gregory concur in Parts and III kilograms 50 of cocaine or of grams 50 of opinion. this cocaine base. MOTZ, DIANA Circuit GRIBBON The provides at issue statute

Judge, and concurring part dissenting in maximum sentence for conviction of con- part, judgment: in the dissenting spiracy possess to with intent to distribute

I concur parts Judge II A-C of an unquantified Wil- amount of no cocaine is opinion. kins’s I not concur in part years do II more than imprisonment. See III, however, part 841(b)(1)(C). D or and I respectfully Therefore, U.S.C.A. under dissent judgment from the the court the new rule set forth the Supreme because judgment affirms Marion Court in Apprendi, maximum prison Promise’s a sentence for crime for term which the district court could have indicted, he has charged never been or legally imposed Promise on for this single and, therefore, never tried or count conspiracy involving convicted. unspeci- This only clearly “quantity error not fied affects of cocaine and cocaine base” Promise’s rights, goes years. substantial it also Apprendi to Jersey, New very judicial heart of process. If n. (“The remedied, (2000) not will “seriously this error L.Ed.2d judge’s role remanding resentencing. outer for is constrained sentence sentencing But, error, the indict- alleged limits the facts unlike the usual jury”)- Yet ment found simple is not root of failure court, having not the benefit of district the correct for calculate sentence Promise sentenced' decision for defendant has been crime pursuant years imprisonment Rather, charged and convicted.1 the error 841(b)(1)(A)(i) more for the U.S.C.A. rests on the district court’s here decision conspiracy possess crime of serious crime to sentence Promise for which threshold intent distribute he was never or convicted. I II controlled Schedule imposition of such a sentence is substance, grams least cocaine e.g., at system justice. to our It antithetical base. deprives Promise of the most fundamental Judge properly Wilkins concludes rights right to tried con —the plainly erred in the district court sentenc- charges presented in an victed prison years. term of ing Promise to jury. grand returned indictment correctly Judge also finds that Wilkins properly That indicted and Promise.was affected Promise’s substantial plain error (lesser) of a different crime does convicted recognizes -one of rights rightly fact that he never change why reasons this is so—it resulted the crime for indicted convicted of more receiving sentence ten Promise the Supreme which he was sentenced. As than the statute he was years prison itself, reminded us in violating permits. Court “ an allega ‘the indictment must contain refusal, notwithstanding The court’s legally tion of which is essential every fact conclusions, to recognize plain these ” Ap to inflicted.’ punishment misjudg- stunning. This serious error n. (quoting prendi fully appreciate ment reflects a failure to Reese, v. 92 U.S. 232- United States here both the nature of the error issue (1875) (Clifford, J., con 23 L.Ed. 563 overlooking the such impossibility and added). The indict fairness, curring)) (emphasis jeopardizing without the Using did that. judicial simply ment here not do integrity, reputation pro- and ceedings. imposing as the for this indictment basis year a 30 sentence for an

on Promise II. the precisely offense is aggravated a indictment using as defendant’s same in this a The error at issue case is offense, manslaughter and conviction on only in the that it sentencing error sense years, carrying penalty a maximum as by vacating can be Promise’s remedied (4th (“[T]he Cir.1997) district Ironically, if this the source of the F.3d were case, the plain error in this undoubted- error allowed Perkins to court’s receive Ford, ly reduction, notice See United States v. 88 F.3d it. ‘thereby an unwarranted month (4th Cir.1996) (sentencing de- 1355-56 affecting rights govern- of the the substantial guide-line range” is fendant at a more "severe people and of the United States ment the ” "clearly affectfs] error that substantial correctly’ and be sentenced this defendant fairness, rights” “seriously in- affects bestowing of a sentence re- wind-fall "[t]he tegrity, reputation judicial public of the fairness, seriously duction ... also affects and, proceedings,” thus should be noticed public reputation judicial integrity, and despite objection defendant’s failure to raise proceedings.”). Perkins, below). See also United States imposing Supreme the basis for life sentence for The has never Court retreated murder. from its dictate Constitution grand jury’s makes a indictment “indis- Constitution express- United States pensable” try power a defendant ly result. The prohibits such a Constitu- Rather, for a serious crime. the Court has guarantees right tion all of us the to have consistently repeatedly reiterated the to, presented each element of a crime fundamental nature the constitutional prior tried, by, grand jury being found right charges presented be tried convicted, for or sentenced that crime. In- to grand jury. deed, promises the Fifth Amendment here, person shall be held to answer Particularly “[n]o relevant the Court has crime, capital, expressly or otherwise infamous un- “after an held that indictment less on a presentment indictment of a has been charges may returned its not be Const, Jury.” Grand amend V. And through U.S. broadened amendment except by grand jury Sixth Amendment ensures that Stirone v. United itself.” States, 212, 215-16, indictment shall inform accused “of the (1960) added). nature of the (emphasis cause accusation” L.Ed.2d 252 Const, against hand, him. amend. VI. although govern- case at presented ment grand jury with an years More than a hundred ago, in its indictment containing only the elements opinion construing seminal these provi- necessary to charge Promise with a viola- sions, Court noted the impor- 841(b)(1)(C), tion of the district court placing tance of a court itself nearly “as sentenced him the more serious crime possible in the condition men who 841(b)(1)(A); defined in the court did Bain, framed” the Ex Parte Constitution. indictment, formally amend but its 1, 12, 30 L.Ed. 849 sentence had the same effect. The Su- (1887). Recognizing grand jury’s preme Stirone addressed a simi- critical in “protecting role the citizen lar situation and concluded that “[a]l- against unfounded accusation” is of “very though trial permit court did not ancient origin,” long predating the found- indictment, formal amendment of the the ing of the Country, Court surmised effect of what it was did the same.” Id. at the were Framers “imbued in the 217, here, 80 S.Ct. 270. district court common-law of the estimate value of the Stirone, “destroyed as in the defendant’s 10-12, grand jury.” Id. at 7 S.Ct. 781. substantial right to be tried on the The Court concluded that the Framers charges presented in an indictment re- “therefore, must be understood to have by grand jury.” turned a Id. This “basic language they used the which did de- right is far too to be away serious” “taken claring person that no should be called to with or without court amendment.” Id. at answer for or capital otherwise infa- 217-19, so, 80 270. S.Ct. To do the Su- upon mous except crime an indictment or preme instructed, Court has is “fatal er- presentment grand jury, of a in the full 219, ror.” Id. at S.Ct. 270. 80 necessity sense its value.” of of 12, added). Id. at (emphasis By grand S.Ct. formalizing jury require- the reason, Supreme For this Constitution, Court held ment our the Framers in- that “an by grand indictment found jury understanding dicated their impor- of the indispensable power of convening body laymen, tance “a of free of try rules, court to the petitioner.” secret, Id. at from acting technical added). 7 S.Ct. 781 (emphasis pledged to indict no one because of preju- But the “most valuable function of the special of to free no one because dice and States, jury” may “to stand grand between v. 350 U.S. United favor.” Costello accused, and to deter 406, prosecutor 100 L.Ed. 397 charge was founded (1956). mine whether grand of the These characteristics testimony upon credible was dictated jury “safeguards essential provide several personal ill will.” Hale Henk malice or government dedicated to liberty el, 43, 59, 50 L.Ed. Arkansas, justice under law.” Cole v. Bain, (1906). also Ex Parte 196, 202, 92 L.Ed. U.S. (“[The grand jury] 7 S.Ct. 781 (1948). justly one of the regarded as securities jury requirement, grand of the Because malicious, hasty, against to the innocent can prosecute before United (in public prosecutions.”) oppressive crime, anyone independent an a serious omitted). The quotation ternal marks re “declare, upon citizenry of must body grand quirement indictment of deliberation, solemnity under the careful power prosecu of both constrains oath, good reason for his that there by limiting tor what can be and the court Bain, Ex Parte and trial.” accusation conviction, trial, and sen submitted for pro- evidentiary 11. This function U.S. at And, indeed, tence. public an open all of us “from tects very purpose of the “[t]he has stated that trouble, crime, and from the accusation of that man requirement be indicted trial be- expense, anxiety public jeopardy limit to of grand is to his Id. at probable cause is established.” fore charged by group fenses his fellow (internal marks quotation 7 S.Ct. 781 acting independently citizens of either omitted). Stirone, attorney judge.” prosecuting 218, 80 361 U.S. at Moreover, the Sixth Amend- because Thus, right the true measure of de- an accused “be in- ment demands that is this: district nied Marion Promise the nature and cause formed if he had been court sentenced Promise as him, against the “indictment accusation” far more seri- indicted and convicted ingredient every set forth ... must offense, imposing on Promise ten more ous composed.” the offence is than the offense for years imprisonment Cruikshank, States v. convict- actually he indicted and which was (internal (1875) quotation marks L.Ed. 588 so, permits. doing ed the district omitted). This allows ac- notification guaranteed rights denied Promise every as to prepare cused a defense Constitution, long regard- have which been crime, or, of the indicted after element liberty government ed as “essential charged the elements and the considering Cole, justice under law.” dedicated to the in- penalty permitted under at 68 S.Ct. dictment, forego him to trial and allows Cole, at plead guilty. See 333 U.S. III. through notification S.Ct. 514. Without Nevertheless, indictment, activity court to rec of criminal this refuses one accused believes, with plead ognize error because knowingly decide whether to this cannot not inno trial, that Promise was adequately hindsight, defend clear guilty or face he was sen of crime for which against every at element nec- cent the himself trial government presented punish him for a tenced —that essary convict and at trial “overwhelming” evidence establish particular crime. judicial at 190. But ing guilt. correcting Ante dence in proceedings, his results depend does not on a plain error defen justice, same miscarriage of and consti- Rather, innocence. dant’s tutes the same grave abuse of discretion. appellate that an Court has instructed grand jury Because the “not bound to court “should” exercise discretion to every indict in case where a conviction can any plain prejudicing correct error a de obtained,” Hillery, be Vasquez 474 U.S. rights, substantial which fendant’s “seri 254, 263, 88 L.Ed.2d 598 fairness, ously integrity public affect (1986), judicial system our permit does not judicial proceedings reputation indepen this or other usurp grand dent innocence.” Ola defendant’s jury’s gatekeeper. role as The court today no, silentio, attempts to do sub stating this (internal omitted) (em quotation marks “[tjhere simply can be no doubt had added). phasis also United States v. indictment included (4th Floresca, 713 n. 18 F.3d Cir. grams threshold of 50 of cocaine 1994) (en banc) (“[T]he ‘miscarriage term base, would Promise justice’ equivalent is not found ‘miscar guilty a reasonable doubt.” Ante ”); riage result.’ United States v. Han- added). (emphasis at 163 But fact is no, (4th Cir.1994) 21 F.3d (finding against the indictment returned fairness, “impacts on the integrity did Promise not include any aggravated judicial proceed and public reputation of charge offense and we do know ings” discussing without the evidence of jurors what evidence the grand guilt). considered. this, Because we cannot know whether Certainly, sentencing a man for a crime they would have indicted Promise of an for he has been neither nor aggravated drug if a charge offense such fairness, in- seriously convicted affects the had been submitted to them. judicial tegrity, public reputation proceedings. Perhaps easily this is most rely A court cannot on its own view of seen analogy. Returning to the defen- what grand indictment a jury could or dant indicted and manslaugh- convicted of grand jury have issued if the ter, illegally but life imprison- sentenced to never, presented with a charge, or what hope ment murder —I and trust no petit verdict a jury could or would have member of this court would “decline to petit jury reached pre- was never error, notice” “sentencing” even where sented indictment. is utterly “[I]t the evidence at trial adduced indicated that meaningless posit that any rational likely defendant’s fit actions the statu- grand jury could or would have indicted tory definition of murder. such No result ..., [the defendant] because it is fair, could regarded “judi- nor could not, grand jury waiver, did and absent cial proceedings” permit that would such a a constitutional verdict cannot be had on sentence to “public stand instill confi- Floresca, an unindicted offense.” 38 F.3d Olano, dence.” See (internal omitted). quotation marks appellate 1770. For an court to “de- sum, grand whether jury would cline to notice” an such error would consti- have indicted Promise the available evi- discretion, tute a produc- serious abuse dence is irrelevant because: ing a “miscarriage true justice.” Id. to Declining very requirement notice error in this case The purpose gives to rise the same fundamental unfair- that a man by grand jury be indicted ness, engenders the same lack of confi- to his jeopardy charged limit to offenses

191 of, the which he has been acting dieted crime for citizens group a his fellow impossible grand It is because sentenced. prosecuting at- either independently of Thus, a court jury proceedings secret. protec- torney judge. Thus basic or simply grand “cannot knoiu whether jury designed to grand tion the jury included its indictment” would have by a device or method afford is defeated Stirone, it. 361 U.S. charge a not before prose- to subjects the defendants which 219, at 80 270. Assessment of grand which the [an element] cution for no presented provides at trial evidence charge. not jury did to what were reliable assurance as facts Stirone, 218, 270 at 80 S.Ct. 361 U.S. to, by, jury. grand or found presented added). (footnote omitted) (emphasis attempt of a judge To to fairness reason, to contrary Judge Wil For this to charges based on never made sentence at hand critical suggestion, the case kins’s grand jury to have court “make a States, v. ly from Johnson United differs guess to what was in the subsequent 461, 1544, 468, 137 117 S.Ct. 520 U.S. v., grand jur[ors].” minds of the Russell (1997), and United States L.Ed.2d 770, States, 749, 82 S.Ct. U.S. Cir.2000). (4th Bowens, 224 Sim F.3d (1962). 1038, Supreme 8 L.Ed.2d ply put, the district courts Johnson post judicial hoc has out-lawed such Court Bowens, here, court did unlike the district al- precisely it would guesswork, because the defendants to crimes not not sentence to convicted on the low defendant “be returned charged against in the indictment by, and perhaps of facts not found basis ' Because the Johnson and Bowens them. to, jury presented grand not even failing present errors occurred not to him.” Id. indicted but in the “trial charge grand jury, unlike most trial er- why, quite This is Fulminante, 499 process,” Arizona v. U.S. rors, grand jury “an indictment found 1246, 111 S.Ct. L.Ed.2d 302 indispensable power court [i]s (1991), appellate could examine court try for the crime with defendant] [the discern that “overwhelm process Bain, charged.” which he was Ex Parte “essentially uncontroverted” evi ing” (emphasis at 7 S.Ct. 781 U.S. presented supported at trial dence added). Indeed, grand “the lack of returned charges grand had right to a not to gives indictment ... rise Johnson, against the defendants. Asphalt Corp. v. Unit- be tried.” Midland 1544; Bowens, 224 F.3d at 117 S.Ct. States, ed making Upon at this assessment 315. (1989) (emphasis L.Ed.2d trial, Supreme Court in the evidence added). Thus, for a appropriate while it is Johnson and our court Bowens could evi- reviewing court to assess the available declining conclude confidence in- determining when to notice dence sentencing errors would notice the courts’ occur- errors or other errors structional fairness, “seriously integrity affect the trial, simply ring a court does not reputation judicial pro public pre- review the evidence “power” Olano, (quoting 507 U.S. at cess.” Id. jury’s indict- grand at trial before a sented 1770). Stirone, 361 to do so. See ment allows it (“[T]he Fifth in a impossible a determination is Such requires prosecution that at hand in which the defen- Amendment case like indictment.”).2 with, begun by in- has never been dant "authority” impose Long expressly no ago, the held has ably pertinent IV. pre- considerations requires cisely noticing plain the same result — response to what I have written error ordering and re-sentencing. On the above, my colleagues im- contend that I hand, other approach,” the court’s “flexible a approach ] flexible properly “eschewt assertedly on balancing “based a numer- per requiring of a rule appellate favor se considerations,” id., actually ground- ous is to courts notice error whenever a just factors, entirely ed both two a defendant suffers conviction or sentence hand, which are irrelevant in the at case not authorized the indictment.” Ante gives short shrift to the fundamental na- I reply. n. 9. offer this brief 163-64 us, grand jury ture of the error before First, I that I do confess believe completely ignores most relevant addi- a defendant for crime for tional considerations.3 he grand which was neither indicted First, signifi- the court exaggerates the jury jury nor an petit convicted cance of two matters that are of minimal always seriously error that affects fair- importance jury in the grand context —the ness, integrity, public reputation strength government’s of the evidence4 judicial Furthermore, process. our I be- post-indictment notice. These “con- requires lieve that the Constitution import siderations” are of little in this case Supreme conclusion and that because, III, explained I in part grand contrary. Today, has never held jury secret, proceedings are and thus no otherwise, holding step this court takes a produced matter what evidence was at tri- disregarding altogether right toward al, and matter govern- no what notice the grand jury indictment and to trial provided post-indictment, ment a court petit judicial imposition favor simply “cannot grand know whether the appellate sentence for whatever crime an would have included its indictment” court believes that defendant has com- charge presented Stirone, never to it. This, hope, mitted. I will the Constitution 361 U.S. at permit. never However, “per invocation of a se” rule is entirely This view accords with unnecessary to proper precedent. resolution of Court need One look no fur Rather, argu- There, this case. all even balancing ther than Olano. the Court listed pro- sentence other than that which the law the court not notice like vides for the offense on which a defendant issue here. See ante at 163. But sort Bonner, "was indicted and convicted." In re notice, accompanied of evidence were aby 242, 254, 38 L.Ed. not "manifestly] but one which was ade- (1894) (Even "[i]f court is authorized quate,” should a notice this sort of impose imprisonment” for the crime on government error? What if the provided an which has defendant been indicted and notice, adequate presented strong, but convicted, imprisonment if the term of "ex- undisputed, evidence? law, prescribed by ceeds the time judg- excess.”). ment is void for the suggests 4. The court that assessment of the government’s evidence and Promise’s failure approach 3. The court’s also creates a rule so dispute separate are evidence vague impossible as to two be almost discern "considerations,” 9; follow; see ante 163 n. for the in-fact court never tells us they just single parts different of a dispositive "considerations” is "con- or how its weighed. strength sideration” —the ("overwhelming” "considerations” are to be Presum- not) ably, overwhelming "undisputed” prosecu- even uncontroverted and/or which, know, guilt, evidence of a post- defendant’s without tion’s for all we evidence— notice, persuade indictment grand jury insufficient to never considered. only to inform a defendant jury reiterated not serves in which it had cases numerous him, possi- plain charge against standard as set the error but appropriate the Atkinson, 297 in v. function of the bly forth United States the “most valuable 391, 157, 160, L.Ed. 555 jury” pros- U.S. is “to stand between the grand , one, (1936); v. United in Silber protect and the accused” to a defen- ecutor States, 1287, 8 82 S.Ct. charges against dant “dictated malice (1962) curiam), did the (per L.Ed.2d 798 Hale, at personal ill will.” 201 U.S. plain the error should Court hold that to notice this er- Declining 26 S.Ct. 370. Olano, 507 noticed and corrected. See the and the court to prosecution ror allows (collecting at 113 S.Ct. punish a grand circumvent the Silber, cases). like The noticed error they, man on the basis evidence that here, involved a deféc- error at issue the grand jury, deem sufficient. Accord- the (Silber had moved to dis tive indictment. nothing does ingly, post-indictment notice court; in the trial the indictment miss integrity grand jury preserve to the denied, erroneously that motion when protect grand jury rights, our process to raise the indictment error Silber failed liberty in a which are so “essential to Supreme or the appeals the court justice to under dedicated government Court, Supreme but the Court nonetheless Cole, law.” U.S. at 68 S.Ct. Silber, plain error. noticed the court, 1287.) At time that the same the inflates Although the evidence considerations, downplays unquestionably trial two irrelevant adduced at Silber’s guilt and that had nature of both his he a critical one—the fundamental established information, see grand jury previously notice of the unindicted error. the We States, 588, 590 simple 296 F.2d recognized, considering Silber United even when Court, (D.C.Cir.1961), with Supreme error, the that the “fundamental instructional that evidence or out consideration of error” is a factor that an nature of [an] notice, plain the indictment the corrected plain on error review appellate court Silber, judgment. the error and reversed exer- “appropriately should consider 1287. Just as the 370 U.S. at cis[ing]” preserve “so as to discretion irrelevant to the Su evidence at trial was fairness, reputation integrity the plain to notice the preme Court’s decision judicial States v. process.” the Silber, it should be indictment (4th Cir.1996). David, 638, 648 83 F.3d to the to our decision notice irrelevant Here, factor, today which the plain error here.5 mentions, heavily barely weighs favor of rectifying the For addition, noticing and error. the emphasis post-

In in its on Promise, sentencing a for a crime defendant given the indictment “notice” error — charged, which he has never been let recognize grand t hat the for court fails bring distinguish the error the Silber attempts defendant’s failure 5. The court Silber, U.S. at Supreme Court's attention. Court "did not the basis the 82 S.Ct. 1287. strength Government’s discuss Furthermore, proof, the defendant had actual despite whether [or] court’s assertion Ante at 164-65 n. 9. But see ante contrary, notice.” 164-65 n. III, point. Supreme precisely part Court the reasons discussed Silber corrected the error caused of the evidence in de- Court’s consideration error instruction regard clining without to correct defective indictment fact, issue in Johnson does given. not alter fact that trial evidence or the notice past to correct thought enough to the evidence defect serious Court looked correction, error in Silber. sponte indictment despite sua warrant 194 error,” Stirone, 219, right “fatal

alone indicted convicted—denies 361 80 U.S. 270, “a ignored. plain too vital to be When certainly pale comparison S.Ct. in to in a [i]s matter[this] error committed abso- integrity the damage done to the of our defendants,” lutely an appellate to vital judicial process failing in it. to correct Wiborg it. properly court notices v. Unit- Perhaps surprisingly, even more the States, 632, 658, 1127, 163 16 ed S.Ct. U.S. ignores the fact noticing court also the (1896) added). (emphasis 41 L.Ed. 289 In- error in this encourage case does not deed, my colleagues even who dissented “sandbag” government, defendant to the Floresca, although refusing to find as the he., forego timely objection in the trial majority did the indictment was defec- Yet, for strategic advantage. court the tive, when, recognized that isas conceded- Supreme again Court has time and empha here, truly the case ly indictment preventing sized that sandbagging is criti “it may the defective burden [a cally important determining whether to defendant must meet to warrant correction See, Johnson, plain notice error. e.g., 520 plain will be most error] met 466, 1544; U.S. at 117 S.Ct. United States Floresca, time.” F.3d at 726 17 38 n. 13,105 Young, 1, 15, 16 v. 470 U.S. n. S.Ct. J., (Russell, dissenting, joined by Wilkin- 1038, (1985); 84 1 L.Ed.2d United States son, Wilkins, JJ.) Niemeyer, Williams, 152, Frady, 163, 1584, v. 456 U.S. 102 S.Ct. added). (emphasis (1982); 71 L.Ed.2d 816 United refusing recognize addition to to Co., Socony-Vacuum 150, Oil 310 U.S. importance here, right the vital denied 238-39, (1940). 811, 60 S.Ct. 84 L.Ed. 1129 today completely ignores the court Hence, in cases in which the Supreme most relevant Supreme factors that error, has Court refused to notice significant has found in assessing timely objection in the trial court could whether to notice errors that are far less eliminated, substantially ameliorat- fundamental than the one in this case. ed, any error means well short of the Thus, pays the court no to a mind “consid- drastic ordering a trial —nec- new relief— helped tip eration” that the scales in John- essary remedy to on appeal. States, 461, son v. United 117 [Joyce Johnson, example, For B.] (1997), S.Ct. 137 L.Ed.2d 718 U.S. at if the defen- heavily the court so Noticing relies. timely objected dant had to the trial the error in Johnson would have required court’s of materiality, determination reversing the defendant’s conviction and court could have question submitted the possibly costly resulted new trial. See Olano, jury; 727-29, 507 U.S. at Id. (noting S.Ct. if timely the defendant had “reversal of conviction” [the] would seri- objected the presence ju- ously fairness, alternate affect the integrity pub- deliberations, during jury rors reputation lic trial judicial proceedings). court permit could have refused to consequences of noticing the defect in present; alternates to be nearly Young, case are not as onerous. We rectify can U.S. at simply Socony- instant error S.Ct. 1038 and by re- Oil, Vacuum Promise the maximum term allowed timely objected the statute for had the offense of defendant which he was prosecutor’s arguments, indicted and convicted. the trial free, Promise would not be set nor arguments; could have halted the government have to undertake a new and [Enoch Johnson v. L.] States, trial. The minimal noticing 189, 199-200, costs of (1943), ago, Court warned Long had if the defendant L.Ed. 704 against allowing “change a court prosecutor’s com- objected to the timely of an indictment to suit charging part testify failure on the defendant’s ments been, it ought of what to have own notions matters, court could trial on .certain probably grand jury would or what or instruct- the comments prohibited have if had been their attention made disregard Possible them. ed the Ex suggested changes.” parte called was, indeed, by the sandbagging defendant Bain, If 781. cases; correcting in all of these problem cautioned, great “the permitted, Court necessary to future prevent error was at- common law importance which the the error. of the tactic which created use grand to an indictment taches contrast, objected timely In had Promise may away ... frittered until its value 30-year sentence as imposition Unfortunately, destroyed.” Id. almost contrary the trial court could Apprendi, today. happened that has Promise giving have avoided error reasons, I va- foregoing For the should now the relief that we precisely to the cate Promise’s sentence remand the sentence and remand- vacating order — in- with re-sentencing, district court for 20-year imposition proper ing for ex- not impose structions to sentence recognizes, As the court sentence. “Un- years, ceeding 20 district court been questionably, had the for the sole offense for which Promise was trial, the time it aware of convicted, as indicted and the decision years a sentence of 20 imposed would have v. An- en banc court of the term of 30 imprisonment, instead 96-4662(L) (4th No. June gle, Cir. n. imposed.” it at 161 years actually Ante 2001) (en banc), requires. Respectfully, I plain error Accordingly, noticing 8. majority’s to do refusal dissent from (unlike permit Promise here would so. others) Olano to obtain strate- authorized me to Judge has Widener object timely from his failure to gic benefit I, II, III, joins parts he and V indicate in timely manner. Judges King Michael and opinion. error in- rights The vital and critical they me to indicate that have authorized here, conjunction or in alone volved join opinion. in the entire relevant factors the most determining examined in wheth- Court has errors, un- fundamental

er to notice less

questionably demonstrate refusing to notice its discretion abuses Matter of Glen Marcus and correct the error. FALLIN, Respondent. V. No. 01-9512. court, Today, this the basis of what of Appeals, United States grand jury would have done

believes the Fourth Circuit. sought had government indictment Argued June 2001. crime, affirms the sen- a more serious June Decided for that Marion Promise received tence though Promise more serious crime—even indicted, never, charged, never never

tried, of that crime. and never convicted

Case Details

Case Name: United States v. Marion Promise, A/K/A Mario,defendant-Appellant

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 17, 2001

Citation: 255 F.3d 150

Docket Number: 99-4737

Court Abbreviation: 4th Cir.