Lead Opinion
Affirmed by published opinion. Judge WILKINS announced the judgment of the court and delivered the opinion of the court with respect to Parts I and II A-C, in which Judges WIDENER, WILLIAMS, MICHAEL, MOTZ, TRAXLER, and KING joined, and an opinion with respect to Part IID, in which Chief Judge WILKINSON and Judges WILLIAMS and TRAXLER joined. Chief Judge WILKINSON wrote an opinion concurring in part and concurring in the judgment.
Appellant Marion Promise was charged in a single-count indictment with conspiring to possess with the intent to distribute “a quantity of cocaine and cocaine base,” J.A. 33, and was convicted by a jury. Promise was sentenced to 360 months imprisonment based upon a determination by the district court that he should be held accountable for more than 1.5 kilograms of cocaine base. Promise maintains that in light of Apprendi v. New Jersey,
For the reasons set forth below, we conclude that under Apprendi, in order to authorize the imposition of a sentence exceeding the maximum allowable without a jury finding of a specific threshold drug quantity, such drug quantities must be treated as elements of aggravated drug trafficking offenses under 21 U.S.C.A. § 841 (West 1999 & Supp.2001), ie., charged in the indictment and proved to the jury beyond a reasonable doubt.
I.
Evidence presented at trial established that Promise supplied cocaine base to a drug distribution ring operated by William Moore, Jr. in Gastonia, North Carolina. Moore testified that Promise supplied him with up to two kilograms of cocaine base every other week during the course of their involvement. Promise also provided substantial quantities of cocaine and cocaine base to several of Moore’s cohorts. Based upon this evidence, Promise was convicted of conspiracy to possess with the intent to distribute cocaine and cocaine base, see 21 U.S.C.A. § 846 (West 1999)'. The indictment did not allege a specific quantity of cocaine base, and the jury was not instructed to make a finding regarding the quantity of cocaine base attributable to Promise.
Promise’s appeal was consolidated with that of a codefendant, William Patrick Miller. In June 2000, a panel of this court affirmed as to both Promise and Miller. See United States v. Miller,
II.
Promise argues that his conviction, or at least his sentence, is invalid because a specific threshold drug quantity was not alleged in the indictment and the jury was not required to make a finding regarding specific threshold drug quantity beyond a reasonable doubt. Promise failed to make this argument before the district court and thus forfeited the asserted error. See Yakus v. United States,
A.
Our first inquiry, of course, is whether an error occurred. Before turning to the substance of Promise’s argument, we examine the cases on which he relies, Jones and Apprendi.
1.
Jones concerned the federal carjacking statute, 18 U.S.C. § 2119, which at the time provided as follows:
“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—
“(1) be fined under this title or imprisoned not more than 15 years, or both,
“(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and
“(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”
Jones,
The Supreme Court reversed, determining that subsections (2) and (3) of § 2119 set forth elements of aggravated offenses, not sentencing factors relevant to punishment for a single offense defined in the principal paragraph of the statute. Although the Court concluded as a matter of statutory construction that “the fairest reading of § 2119 treats the fact of serious bodily harm as an element,” it acknowledged “the possibility of the other view.” Id. at 239,
A little over a year later, the Court decided Apprendi Charles Apprendi pleaded guilty, under New Jersey law, to two counts of second degree possession of a firearm for an unlawful purpose and one count of third degree possession of an antipersonnel bomb. See Apprendi,
In considering this claim, the Court began by noting that “[a]ny possible distinction between an ‘element’ of a felony offense and a ‘sentencing factor’ was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation’s founding.” Id. at 478,
Applying this rule to the New Jersey statutory scheme, the Court first observed that it was immaterial that racial bias was formally labeled a “sentencing factor” by the New Jersey Legislature: “[T]he relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 494,
2.
Having examined the decisions most relevant to Promise’s argument, we now turn to a consideration of his claim. Promise argues that under Apprendi specific threshold drug quantities must be treated as elements of aggravated drug trafficking offenses, rather than as mere sentencing factors. We agree.
The first portion of 21 U.S.C.A. § 841, subsection (a), prohibits, inter alia, possession of controlled substances with the intent to distribute them. See 21 U.S.C.A. § 841(a)(1). Subsection (b)(1) sets forth various penalties that vary according to, inter alia, the quantity of the particular controlled substance at issue. See id. § 841(b)(1). Although no legislative history speaks to the question, we have previously held, as three of my colleagues reiterate now, that Congress intended these specific threshold quantities to be sentencing factors rather than elements of aggravated drug trafficking offenses. See, e.g., United States v. Dor-louis,
In his concurrence, Justice Thomas wrote that aggravating circumstances in
We perceive merit both in the manner in which the majority and Justice Thomas distinguished Walton and in the dissent’s criticism of those proffered distinctions. As noted by the Apprendi majority, the maximum penalty for first degree murder under Arizona law is death, but Arizona law interposes procedural safeguards, including additional factual determinations, between a finding of guilt and the imposition of a death sentence. Cf. People v. Lee,
In contrast, the penalty gradations in § 841(b)(1) are not the product of constitutionally mandated procedures as a condition precedent to the imposition of the maximum penalty, but rather are the result of congressional prerogative to apply graduated penalties to acts of increasing severity. Thus, for example, Congress authorized a sentence of no more than 20 years imprisonment for a first offender who possesses with the intent to distribute three grams of cocaine base, see 21 U.S.C.A. § 841(b)(1)(C), and it is plain that any sentence greater than 20 years would not be authorized; it is likewise plain that the same offender would face a greater penalty (no less than 5 years and no more than 40 years) if the sale involved six grams of cocaine base rather than three, see id. § 841(b)(1)(B)(iii). No constitutional constraints compelled Congress to classify drug-trafficking offenses in this manner; on the contrary, Congress was free to establish a uniform maximum penalty that did not depend on proof of quantity or other additional facts. But Congress did make the available penalty depend on additional facts, and the Constitution governs the process for determining those facts. Under Apprendi, that process must include charge by indictment and proof to a jury beyond a reasonable doubt.
We acknowledge Justice O’Connor’s sentiment regarding the interplay between Walton and Apprendi: It is at least perplexing, if not “baffling,” that due process protections apply to a finding of specific threshold drug quantities under § 841(b)(1) when such protections do not
B.
Having determined that the district court erred, we must next decide whether the error was plain. To be plain, an error must be “clear” or “obvious,” Olano,
C.
Promise must next demonstrate that the error affected his substantial rights, i.e., that it was prejudicial. See Olano,
We conclude that the error was not in Promise’s conviction. The indictment charged Promise with conspiring to possess with the intent to distribute “a quantity of cocaine and cocaine base.” J.A. 33. Thus, Promise was properly charged with conspiring to violate 21 U.S.C.A. § 841. And, there can be no dispute that the jury was properly instructed regarding the elements of the charged offense. Accordingly, we conclude that Promise was properly charged with, and convicted of, conspiring to possess with the intent to distribute cocaine and cocaine base.
The problem, therefore, lies with Promise’s sentence. The facts alleged in the indictment and found by the jury supported a maximum penalty of 20 years imprisonment. Based on a determination of drug quantity by the district court, however, Promise was sentenced to 360 months imprisonment — ten years more than the applicable maximum. We therefore conclude that Promise has demonstrated that this error affected his substantial rights.
D.
Having demonstrated that there was error, that the error was plain, and that the error affected his substantial rights, Promise has satisfied the threshold requirements of the plain error test. However, as the Court explained in Olano, “Rule 52(b) is permissive, not mandatory.” Olano,
The mere fact that a forfeited error affects substantial rights- does not alone warrant the exercise of our discretion, “for otherwise the discretion afforded by Rule 52(b) would be illusory.” Id. at 737,
In Johnson, the Supreme Court considered on plain error review a perjury conviction in which an element of the offense, materiality of the false statement, was found by a judge rather than by a jury. See Johnson,
This court relied on similar principles in United States v. Bowens,
For reasons similar to those that guided the Supreme Court in Johnson and this court in Boiuens, we decline to notice the error before us. As in Johnson and Boiu-ens, the evidence regarding the element subjected to erroneous treatment was both overwhelming and essentially uncontro-verted. Here, witness after witness testified that Promise supplied substantial quantities of cocaine base to Moore’s organization:
• Moore testified that during the course of the conspiracy, Promise supplied him with quantities of cocaine base ranging from six ounces (168 grams) to two kilograms every other week. Moore estimated that, altogether, Promise supplied him with more than 20 kilograms of cocaine base.
• Timothy Wallace testified that Promise supplied him with three 'ounces (84 grams) of cocaine base.
• Aaron Gettys testified that he witnessed a transaction in which Promise supplied Moore with at least 1.5 kilograms of cocaine base. Gettys also corroborated Moore’s testimony that Promise supplied Moore with as much as two kilograms of cocaine base at a time.
• Torianno Hall testified that he witnessed a transaction in which Promise supplied Moore with two kilograms of cocaine base.
• John Gwinn testified that he assisted Moore with a transaction in which Moore obtained over a kilogram of cocaine base from Promise.
• Donald Thompson testified that Promise offered, through Moore, to supply Thompson with nine ounces (252 grams) of cocaine base; Thompson refused the offer because he was not familiar with Promise.
Most importantly, at sentencing Promise did not contest the quantity of drugs the presentence report recommended be attributed to him, nor did he dispute the finding by the district court that he should be held accountable for more than 1.5 kilograms of cocaine base — thirty times more than the threshold quantity of 50 grams necessary to subject him to a statutory sentence of not less than 10 years or more than life imprisonment.
Finally, and critically, the record clearly demonstrates that Promise’s decision not to dispute the finding of the specific threshold drug quantity by the district court was not the result of lack of notice that the existence of the specific threshold drug quantity was an important issue in his case. Prior to trial, the Government filed an information contending that Promise was accountable for “in excess of 50 kilograms of cocaine! and] in excess of 50 kilograms of cocaine base.” J.A. 39. Under § 841(b)(1)(A) and the law prevailing in this circuit at the time of Promise’s trial, it was clear that a finding of either of these amounts could result in the imposition of a life sentence, if proven by the Government at sentencing. Yet, even armed with this knowledge in advance of trial and his subsequent sentencing, Promise elected not to dispute the critical fact that he was to be held accountable for a large quantity of narcotics that would justify a life sentence.
The judgment of conviction and sentence are affirmed.
AFFIRMED
WILKINSON, Chief Judge, concurring in part, and concurring in the judgment:
I vote to affirm the judgment of conviction and sentence.
I.
I share Judge Luttig’s view that 21 U.S.C. § 841(b) is a graduated sentencing scheme in which life imprisonment constitutes the maximum penalty. I see no reason to parse that scheme into finer parts for Apprendi purposes. The sentences set forth in Section 841(b) form an integrated sanction for a single Section 841(a) offense. As the drug quantity rises, so too does the sanction until it reaches the maximum penalty of life imprisonment. I would not pull out one strand in the middle of this carefully sequenced scheme and designate it as a maximum sentence under the theory that it is somehow a “catch-all.” See, e.g., United States v. Rogers,
II.
I do not believe there was an error in the proceedings below. Assuming, ar-guendo, that some plain error has indeed occurred, I do not believe that it merits reversal under United States v. Olano,
I join Section II.D of Judge Wilkins’ opinion, which persuasively illustrates that defendant suffered no prejudice whatsoever. I cannot concur in Section II.C of my good colleague’s analysis, however, because I do not believe that substantial rights are affected when no prejudice of any kind exists.
In Olano, the Supreme Court held that, except in rare circumstances, in order to affect substantial rights “the error must have been prejudicial: It must have affected the outcome of the district court proceedings.”
Olano demonstrates that substantial rights are not affected when a picture-perfect proceeding would yield exactly the same result as that which actually transpired. That is the case here. The statute permits the thirty year sentence that was imposed. See 21 U.S.C. § 841(b)(1)(B). The evidence as to the requisite drug quantity is so overwhelming that it cannot be contended that Promise did not deserve the sentence he received.
NIEMEYER, Circuit Judge, concurring in the judgment:
A grand jury indicted Marion Promise in one count for conspiring to possess with intent to distribute “a quantity of cocaine and cocaine base” in violation of 21 U.S.C. §§ 841(a)(1) and 846. Following the jury’s conviction on this count, the district court sentenced Promise to 360 months imprisonment, based on its finding that Promise was accountable for more than 1.5 kilograms of cocaine base. Promise challenges this sentence, relying on the Supreme Court’s decision in Apprendi v. New Jersey,
The constitutional proposition that Promise advances to vacate his sentence was first identified by a majority of the Supreme Court in Jones v. United States,
A year later, however, in Apprendi, the Court, in confirming the Jones constitutional “proposition” for the first time as a constitutional principle, articulated its contours more narrowly. It limited application of the principle to circumstances in which the facts increase the penalty only “beyond the prescribed statutory maximum.” Id. at 2362-63 (emphasis added). Thus, the principle considered in Jones was limited in application in Apprendi to sentences that exceed the scope of Congress’ enactment — i.e., to circumstances in which the facts increase a penalty beyond the statutory maximum. It would appear, therefore, that the constitutional principle proposed in Jones and defined in Appren-di, rather than limiting Congress’ ability to distinguish elements of an offense from sentencing factors, actually preserves Congress’ right to define the statutory maximum, at least in the absence of legislative manipulation — i.e., where it could be found that Congress defined elements of an offense as sentencing factors to avoid the constitutional protections afforded by the Fifth and Sixth Amendments. See id. at 2363 n. 16; cf. Cooper Indus., Inc. v. Leatherman Tool Group, Inc., — U.S. —,
Thus, absent evidence of improper congressional manipulation, if a statute clearly distinguishes between an element of the offense and a sentencing factor, these Supreme Court precedents recognize Congress’ right to do so. And based on the rationale thoroughly developed by Judge Luttig in Parts I and II of his concurring opinion, I would conclude that the only rational reading of 21 U.S.C. § 841 is that elements of the offense are stated in § 841(a) and the sentencing factors are provided in § 841(b). Before Apprendi, no court reached a different conclusion in interpreting this statute, and in the absence of clear evidence that the elements of the offense have been manipulated, there is no reason to conclude otherwise now. Until that case is credibly made, the constitutional issue does not arise, and we are left with the statutory interpretation made by Judge Luttig in his concurring opinion.
In his opinion, Judge Wilkins concludes that drug quantity “must be treated as an element of an aggravated drug trafficking offense, i.e., charged in the indictment and
The indictment in this case properly charged an offense, the jury properly convicted Promise of that offense, and now the sentence is limited by the indictment and the jury’s finding. See Apprendi,
But because I disagree with Judge Wilkins’ conclusion that drug quantity under 21 U.S.C. § 841 is an element of the offense, the difficulties his conclusion raises are not presented. Accordingly, I concur in the judgment of the court, and I join in Parts I, II, and III of Judge Luttig’s concurring opinion.
Judge Gregory has authorized me to indicate that he joins this opinion.
Notes
. "Specific threshold drug quantities" are those quantities of drugs set forth in 21 U.S.C.A. § 841(b)(1)(A), (b)(1)(B), a finding of which subjects a defendant to a sentence of ten years to life imprisonment (§ 841(b)(1)(A)) or five to 40 years imprisonment (§ 841(b)(1)(B)). We are not here concerned with whether "death or serious bodily injury resulting] from the use of” a controlled substance distributed by the defendant, e.g., 21 U.S.C.A. § 841(b)(1)(C), which may produce a similar result, must be treated as an element under Apprendi.
An "aggravated drug trafficking offense” is one that involves a specific threshold drug quantity.
. Prior to trial the Government did file an information alleging that the conspiracy involved "in excess of 50 kilograms of cocaine;
. Promise was charged not with a substantive drug offense, but with conspiracy. However, 21 U.S.C.A. § 846 specifies that "[a]ny person who ... conspires to commit any offense” under, inter alia, 21 U.S.C.A. § 841 "shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the ... conspiracy.”
. In this regard, the Court explained that "when the term ‘sentencing enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict. Indeed, it fits squarely within the usual definition of an 'element' of the offense.” Id. at 494 n. 19,
. We emphasize that we do not hold that "all facts that could serve to increase a defendant’s sentence must be found by the jury beyond a reasonable doubt.” Post at 168. Instead, we merely hold that the maximum penalty that may be imposed upon a defendant is the maximum penalty allowed by statute upon proof of only those facts alleged in the indictment and found by the jury beyond a reasonable doubt. Once this maximum penalty is established, a fact (sentencing factor) that may increase the actual sentence imposed within that maximum is not subject to the same requirements.
. The Government concedes that under Ap-prendi, a defendant may be subjected to an enhanced sentence based upon a specific threshold drug quantity only if the jury finds, beyond a reasonable doubt, that that quantity should be attributed to the defendant. However, the Government maintains that specific threshold drug quantities need not be alleged in the indictment. Cf. United States v. Nealy,
It will not be unduly difficult for juries to determine whether an offense involved a specific threshold drug quantity. Under the rule we announce today, the jury need only determine whether drug quantity exceeds specified thresholds. Juries in state drug-trafficking prosecutions routinely perform this function. See, e.g., State v. Virgo,
. . Four of my colleagues conclude that the drug quantity finding made by the district court did not increase Promise’s sentence "beyond the prescribed statutoiy maximum” for his crime because Congress intended the statutory maximum for his crime to be life imprisonment. Apprendi,
Were there any question regarding the meaning of the rule announced in Apprendi, it would most certainly be answered by the analysis of the Court in Jones. According to my colleagues, it would be consistent with Apprendi to hold that § 841 imposes a single maximum penalty (life imprisonment) and that the gradations within § 841(b)(1) may be determined by a judge applying the preponderance standard. In Jones, however, the Court concluded that an essentially identical interpretation of § 2119 would violate the rule later adopted in Apprendi. See Jones,
One of my colleagues posits that the rule proposed in Jones is not the rule that the Court adopted in Apprendi. See post at 166. In concluding that the rules are different, my colleague places great significance on a slight modification: Whereas Jones used the phrase "maximum penalty for a crime,” Jones,
. One of my colleagues maintains that the error did not affect Promise's substantial rights because ”[n]either the inclusion of the drug weight in the indictment nor an instruction to the jury that it must find [drug quantity] beyond a reasonable doubt ... would have affected the outcome of the district court proceedings.” Post at 166. This is not the relevant inquiry because the failure to charge a specific threshold drug quantity in the indictment or to instruct the jury regarding threshold drug quantity was not the error commit
. My determination not to notice the error is based on a balancing of numerous considerations, including the strength of the Government's evidence, the manifest adequacy of notice, and Promise's failure to contest drug quantity despite this notice. I have also given due weight to the importance of grand jury charging practices, which the partial dissent so eloquently extols. (Contrary to the partial dissent's contention, I do not rely on any supposition regarding what the grand jury might have done had the Government sought an indictment charging a specific threshold drug quantity.) The partial dissent, however, makes this last consideration not only disposi-tive but exclusive, eschewing a flexible approach in favor of a per se rule requiring appellate courts to notice plain error whenever a defendant suffers a conviction or sentence not authorized by the indictment. See post at 187 ("The United States Constitution expressly prohibits such a result.”). I do not believe that Supreme Court precedent supports this view.
The partial dissent contends that this per se rule derives from Russell v. United States,
.Neither is Silber controlling here. In Sil-ber, the defendant was convicted of refusing to answer questions posed by a congressional committee, in violation of 2 U.S.C.A. § 192 (West 1997). See Silber,
While Russell and Silber do not foreclose consideration of a broad range of circumstances, other Supreme Court decisions affirmatively command us to examine the entire record when deciding whether to notice plain error. See, e.g., Young,
Concurrence Opinion
concurring in the judgment:
I believe that, in interpreting 21 U.S.C. § 841, this court, and every other Court of Appeals, has, however understandably, fundamentally misunderstood the Supreme Court’s decisions in Almendarez-Torres v. United States,
The as-yet quite narrow constitutional principle of Apprendi is that the jury must find beyond a reasonable doubt only any fact that increases the maximum sentence aicthorized for the statutory offense. And. the holdings of Almendarez-Torres, Jones, and Castillo — that whether any given fact is an element of the offense (requiring proof beyond a reasonable doubt) or a sentencing factor (requiring only proof by a preponderance) is a question of legislative intent, and therefore statutory interpretation — remain unaffected by Appren-di, except to the extent that the finding of a legislatively-defined sentencing factor results in a sentence in excess of the statutory maximum. Faithful to the limited constitutional principle of Apprendi, but equally faithful to the bedrock principle of Almendarez-Torres, Jones, and Castillo that the power to define criminal offenses rests in the legislature, subject only to constitutional"limitations, see, e.g., Staples v. United States,
As a consequence of this indisputable congressional definition of the section 841 offenses, I would hold that the statutory maximum sentence for commission of these offenses, and therefore the punishment authorized by the jury’s verdict of guilt of a section 841 offense, is life imprisonment, plus fine, with the actual sentence imposed dependent upon judicial findings
I.
As a matter of statutory interpretation, I believe that Congress intended “serious bodily injury” in 18 U.S.C. § 2119 and use or carry of a “machinegun” in 18 U.S.C. § 924(c), not as elements of the offenses defined in those statutes, but, rather, as so-called sentencing factors to be determined by the judiciary, as many courts had held prior to Jones and Castillo. I think that this conclusion is relatively clear by application of the conventional tools of statutory interpretation such as text, structure, context, historical usage, and legislative history. And I believe that the majority in Jones (explicitly) and the unanimous court in Castillo (implicitly) came to the opposite conclusions, respectively, only because of the individual Justices’ different views over the considerably larger issue of the constitutional limits imposed on the power of the federal and state legislatures to define criminal offenses. That is, unconstrained by their individual views as to the constitutional limitations on the legislatures’ power to define offenses, and their natural concern that the opposite constitutional conclusion might ultimately be reached by a majority of their colleagues were the issue addressed, I believe that, based upon conventional statutory analysis, the Court would have reached precisely the opposite conclusions from those that it reached in Jones and Castillo.
Although I disagree with the Court’s statutory conclusions in both Jones and Castillo, there was arguably at least some basis for concluding that the facts at issue in those cases were intended by the legislature to be elements rather than sentencing factors, or at least for concluding, as in Jones, that there was sufficient question as to congressional intent as to warrant invocation of the rule of constitutional doubt. Unlike the fact of either “serious bodily injury” in Jones or use or carry of a “machinegun” in Castillo, however, there is no basis whatever for concluding that Congress intended drug quantity (and likely even type) in 21 U.S.C. § 841 to be elements of the statutory offense. Indeed, in my view, as my colleagues today and the United States must ultimately and uncomfortably concede, it is incontestable as a matter of statutory construction that Congress intended these facts not as elements, but as sentencing factors.
A.
The statutory analysis prescribed by the Court in Almendarez-Torres, Jones, and Castillo that leads to this conclusion is compelling.
First, Congress explicitly denominated the specific activities set forth in section 841(a) as the “unlawful acts” that it criminalized. That is, in terms whose clarity cannot be disputed, Congress stated that the unlawful conduct prohibited in section 841 is that set forth in section 841(a). See Almendarez-Torres,
Second, Congress expressly distinguished the conduct that it criminalized in section 841(a) from the punishments that it prescribed for commission of the unlawful acts in section 841(b) by explicitly denominating as “penalties” the punishments prescribed in section 841(b).
Third, as if to remove any doubt that it intended the activities described in section 841(a) to constitute the section 841 offenses, Congress expressly stated within the substantive text of section 841(a) itself that “it shall be unlawful” for any person to engage in the conduct specified in subsection (a).
Fourth, Congress established the section 841 offenses in section 841(a) in a single, complete, self-contained sentence. No reference is necessary to other subparts of the statute in order to complete either the sentence or the obvious thought. To use the Supreme Court’s phrase, the offense-defining provision “stands on its own grammatical feet.” Jones,
Fifth, further confirming its intent that the lone section 841 offenses are those described, and wholly described, in section 841(a), Congress provided in section 841(b) for the particular “penalties” that will obtain for “any person who violates subsection (a).” In other words, within the actual text of section 841(b), Congress unambiguously states again its understanding that the violation of section 841 occurs when one completes the conduct recited in section 841(a), predicating its specified punishments upon violation of section 841(a). Indeed, Congress carries forward this same formulation, or its equivalent, throughout the numerous individual subparts of section 841(b). See, e.g., 21 U.S.C. § 841(b)(1)(A) (“In the case of a violation of subsection (a) of this section involving ... such person shall be sentenced ....”) (emphasis added); § 841(b)(1)(B) (same); § 841(b)(l)(D)(4) (“[A]ny person %oho violates subsection (a) of this section by distributing ... shall be treated as provided in ....”) (emphasis added); § 841(b)(l)(D)(5) (“Any person who violates subsection (a) of this section by cultivating a controlled substance on Federal property shall be imprisoned as provided ....”) (emphasis added); § 841(b)(l)(D)(6) (“Any person who violates subsection (a), or attempts to do so, and knowingly uses a poison, chemical, or other hazardous substance on Federal property ....”) (emphasis added).
And finally, Congress reinforced that 'the substantive interrelationship between the conduct in section 841(a) and the facts in section 841(b) is that between criminal offense and sentence when it introduced section 841(b) with the command that “any person who violates subsection (a) of this section shall be sentenced as follows!.]” (emphasis added). It is plain from this language, if from nothing else, that Congress understood section 841(b) to prescribe not additional elements of the offenses established in section 841(a), but, rather, the sentencing factors to be considered when imposing the sentence for commission of the offenses defined in section 841(a).
Thus, both the text and structure of section 841 unequivocally confirm a congressional intent that the conduct recited in section 841(a) constitutes the section 841 offenses, and that the facts that appear in section 841(b) are sentencing factors only,
Although it is necessary to resort to other statutes only “[i]f a given statute is unclear about treating such a[particular] fact as element or penalty aggravator,” id. at 234,
B.
The marked differences between the language and structure of section 841, on one hand, and, on the other, sections 2119 and 924(c) of Title 18, which were addressed by the Court in Jones and Castillo, respectively, only further reinforce the conclusion that Congress intended drug quantity and type as sentencing factors, not elements of the offense.
1.
Turning first to 18 U.S.C. § 2119, the carjacking statute analyzed by the Court in Jones, admittedly “[t]he ‘look’ of [a] statute ... is not a reliable guide to congressional intentions.” Jones,
In short, whereas text and structure “[did] not justify any confident inference,” id. at 234,
And what is clear from the statutory text and structure of section 841 as to Congress’ intent with respect to the treatment of drug quantity (and perhaps type also) is, as noted, fully consistent with the “traditional treatment,” id., of these facts. Unlike the section 2119 fact of “serious bodily injury” at issue in Jones, which Congress had “unmistakably identified [ ] as an offense element in any number of statutes,” id. at 235, the fact of drug quantity, like the fact of recidivism in Almenda-rez-Torres, has seldom (if ever) in recent history explicitly been identified by Congress as an offense element.
2.
The contrasts between section 841, and section 924(c), which was before the Court in Castillo, are no less instructive. First, while the “literal language [of section 924(c)], taken alone, appeare[d] neutral” as to whether firearm type was an element or sentencing factor, Castillo,
And second, unlike in section 924(c), not only is there nothing in the structure of section 841 to suggest that drug quantity and type are elements of the offense; there is affirmative proof in the structure that they were instead intended as sentencing factors. Whereas Congress “placed the element ‘uses or carries a firearm’ and the word ‘machinegun’ in a single sentence, not broken up with dashes or separated into subsections,” id. at 125,
Thus, not only does section 841 have a “look” that suggests that drug quantity and type are sentencing factors; its structure confirms as much. It has the structure which the Court left little doubt would prove such intent — the definition of the offense and the provision for penalties in separate, complete sentences. Cf. id. (contrasting the single sentence in 18 U.S.C. § 924(c) with the separately numbered subsection of 18 U.S.C. § 2119).
Indeed, the structure of section 841 is more clearly confirmatory of an intention to treat drug quantity and type as sentencing factors even with respect to the less important “structural circumstances” that the Court conceded “suggested] a contrary interpretation” of section 924(c) from the one ultimately adopted by the Court. Id. Unlike with section 924(c), portions of which Congress itself had subsequently determined “create[d] not penalty enhancements, but entirely new crimes,” id., Congress most certainly has made no such determination with respect to section 841. Thus, the titles “unlawful acts” and “penalties” in subsection 841(a) and (b), respectively, unquestionably retain their interpretive significance. Cf. id. (explaining that, because of Congress’ determination that portions of section 924(c) create new crimes, “the section’s title cannot help” in determining which facts are elements and which are sentencing factors). Nor, unlike section 924(c), has section 841 been amended in such a way that might give rise to uncertainty as to congressional intent. Cf. id. (noting that section 924(c) had been amended to “separat[e] different parts of the first sentence (and others) into different subsections,” but observing that “a new postenactment statutory restruetur-ing[cannot] help ... to determine what Congress intended at the time it enacted the earlier statutory provision that governs the case”).
Apart from the text and structure, while it could not be said in Castillo with respect to section 924(c) that “courts have typically or traditionally used firearm types (such as ‘shotgun’ or ‘machinegun’) as sentencing factors,” id. at 126,
And finally, although I would suggest that its relevance to congressional intent is at best dubious, I assume that no one would dispute that asking the jury, rather than the judge, to decide drug quantity beyond a reasonable doubt (even if the same cannot be said of drug type) would seriously complicate the criminal trial, unlike requiring of the jury a finding as to firearm type. Cf. id. at 127,
C.
In light of the foregoing, so absolutely certain is it that Congress intended the section 841 criminal offenses to be defined exclusively and entirely in section 841(a), and the facts in section 841(b) to be only factors that inform sentencing, that I cannot conceive of a single Justice of the Supreme Court of the United States holding otherwise as a matter of statutory
D.
That the only possible conclusion as to Congress’ intent, and the only plausible interpretation of section 841, is that Congress in fact created as offenses only those identified in section 841(a), is attested to by the fact that, prior to the Supreme Court’s decision in Jones, it had not occurred to any court in the country to hold that the facts in subsection (b) were offense elements. As the panel opinion in Angle acknowledged, “[historically, this court and all of her sister circuits have held that drug quantity is a sentencing factor, not an element of the crime.” United States v. Angle,
Significantly, even in the wake of Jones, which raised the spectre of a constitutional limitation on the legislative power to define offenses, and thus would have prompted a more searching, cautious statutory interpretation, every single court still held that Congress intended the facts in section 841(b) to be sentencing factors. See, e.g., United States v. Grimaldo,
And, what is more, no court has ever believed there to be any ambiguity as to congressional intent in this regard. See, e.g., United States v. Doggett,
E.
To be sure, within the past year, following the Supreme Court’s decision in Ap-prendi, all of the courts to have reconsidered section 841, including ours today, have now concluded that drug quantity and type are elements, not simply sentencing factors — precisely the opposite from what they had held prior to Apprendi. See, e.g., United States v. Page,
That the courts have misunderstood Ap-prendi in this way is evidenced by their failure even to undertake a statutory analysis of the kind prescribed in Almendarez-Torres, Jones, and Castillo to determine the maximum statutory punishment for the offenses defined in section 841, an analysis which would, consistent with their prior holdings that drug quantity and type are not elements of the section 841 offenses, dictate a conclusion that the maximum punishment authorized for commission of the section 841 offenses is life. Rather, they in effect reason backwards from the
Nowhere is this error in defining the statutory maximum punishment clearer than in the Eleventh Circuit’s opinion in Rogers, wherein the court reasoned as follows:
The statutory maximum, must be determined by assessing the statute without regard to quantity. This means that sections 841(b)(1)(A) and 841(b)(1)(B) may not be utilized for sentencing without a finding of drug quantity by the jury. If a provision of section 841(b) that does not contain a quantity amount applies, for example, section 841(b)(1)(C), then a convicted defendant may still be sentenced under that provision.
In effect, the jury verdict convicted [Rogers] only of manufacturing, possessing, or distributing an undetermined quantity of crack cocaine. Because section 841(b)(1)(A) and section 841(b)(1)(B) both turn upon the amount of crack cocaine at issue, those two sub-parts are inapplicable to this case. Therefore, Rogers may only be sentenced under section 841(b)(1)(C), which provides punishment for conviction of an undetermined amount of crack cocaine.
Id. at 1328 (emphasis added).
The Ninth Circuit made precisely the same error in Nordby that the Eleventh Circuit did in Rogers:
[T]he judge’s finding that Nordby possessed 1000 or more marijuana plants ‘inerease[d] the penalty for [Nordby’s] crime beyond the prescribed statutory maximum.’ Section 841(a) contains no penalty provision. But the only sentence under § 841 justifiable under the facts as found by the jury would be a sentence (and possible fine) of not more than five years applicable to possession of less than 50 marijuana plants. The trial court’s finding that Nordby possessed 1000 or more plants under § 841(b)(1)(A)(vii) increased Nordby’s sentence to ‘not [ ] less than 10 years or more than life’ and a possible fine. Thus, the judge’s finding, made under a preponderance standard, increased the statutory maximum penalty for Nord-by’s crime from five years to life.
Pursuant to the provisions of § 841, the quantity of drugs is a factual determination that significantly impacts the sentence imposed.... The jury merely found that defendants conspired to distribute and possess to distribute someundetermined amount of crack cocaine. As such, defendants cannot be subjected to the higher penalties under § 841(b)(1)(A) or (B). Rather, the maximum sentence that may be imposed on this count is 20 years pursuant to § 841(b)(1)(C).
To reason in the way these courts have, is not to decide congressional intent; Congress
II.
Having concluded, as a matter of statutory interpretation, that Congress unarm biguously intended that the section 841 offenses are defined in their entirety in section 841(a), it remains for me only to determine the eongressionally-prescribed maximum sentence for commission of those offenses. From the interpretation that the offenses are entirely defined in section 841(a), it follows that the facts of drug quantity and type identified in section 841(b) are not elements of the offenses, but, rather, sentencing factors. And it follows in turn from this that the maximum punishment for commission of a section 841 offense is life, plus fine, as provided for in sections 841(b)(1)(A), (B), and (C), with the actual sentence imposed dependent upon the presence or absence of the various sentencing factors identified in section 841(b). See United States v. Jones,
III.
In reaching the conclusion that I do as to Congress’ intent when enacting section
To believe otherwise, i.e., that this is the issue actually decided by the Court in Ap-prendi, as I believe my colleagues on this and other courts believe, is simply to confuse the Supreme Court’s decisions in Al-mendarez-Torres, Jones, and Castillo, on the one hand, and its decision in Apprendi on the other. Even post-Apprendi, the Court’s decisions in Almendarez-Torres, Jones, and Castillo remain sound and controlling precedents, as to whether, as a matter of statutory interpretation, Congress intended a particular fact to be an element of the offense or a mere sentencing factor. They hold that Congress’ intent must be determined by resort to the conventional methods of statutory interpretation such as analysis of text, structure, context, tradition, and legislative history. The Court in Apprendi addressed the entirely different, constitutional question of whether the legislature permissibly may define a particular fact as a sentencing factor and permit its proof upon a simple preponderance of the evidence. And although the Court ominously reserved the enormously significant question of whether every fact that could result in
As to the almost imponderably significant constitutional question of whether any fact that could serve to increase a defendant’s sentence must be charged and proven to the jury beyond a reasonable doubt, which obviously so divides the Supreme Court, I would not even begin to venture an answer. I am under no illusions as to the tenor of the Court’s majority opinion in Apprendi, which is unmistakably to the effect that the Constitution would require a holding that all facts that increase a defendant’s sentence must be proven to the jury beyond a reasonable doubt — a tenor that is unsurprising given its author’s view that such is required by the Constitution. See, e.g., Jones,
IV.
The view of the United States on so fundamental a matter as that we address herein is of importance, and we have sought those views. Having studied the submissions and reflected on the arguments orally advanced by the government, I am convinced that it, too (although no less understandably), is as confused as are the federal courts. In fact, I am confident that government counsel throughout the Department of Justice would readily concede as much. To the extent that I can understand the government’s position, however, I am unconcerned that a different conclusion is warranted by it.
As an initial matter, the United States has vacillated on its position throughout the various litigations that have come before our court. According to counsel for the United States in United States v. Promise, the Department of Justice apprised its attorneys that they may, but were not required to, argue that section 841 states multiple offenses, elements of which appear throughout subsection (b). Pursuant to this authorization, counsel for the government in Promise argued to us forcefully and unequivocally that the statutory offenses of section 841 are, as I maintain above, set forth in their entirety in subsection (a), and that the facts referenced in subsection (b) are mere sentencing factors. Counsel cautioned the panel that “drug amounts are sentencing factors[,][t]he Supreme Court has not reversed itself on that and I would submit this court doesn’t need to get out in front of the Supreme Court.” Counsel then analyzed section 841 precisely as required by the Supreme Court’s decisions in Almen
A fair reading of the statute demonstrates unequivocally that § 841(a) establishes the elements of the offense and § 841(a) [sic] provides for the gradiated penalties. The facts by which a violation of § 841(a) are proven do not increase the maximum penalty for the offense, since the maximum penalty is up to life imprisonment, as provided in § 841(b).
United States’ Supplemental Brief at 8, United States v. Promise (No. 99-4737).
Although acknowledging that the then-current position of the United States was otherwise, counsel for the United States in United States v. Cotton, No. 99-4162, when pressed, forthrightly admitted that she could not construct the statutory argument for the official position of the United States that drug quantity and type must be proven to the jury beyond a reasonable doubt, and that if they were not required to be submitted to the jury, the statutory maximum for the section 841 offense was twenty years. And, when pressed further for her personal view of section 841, she expressed the position that the statutory maximum for commission of the offenses defined in section 841 is indeed life imprisonment:
Counsel: I think that there is an argument in just the way the statute has been written out to say that the offense is contained in 841(a), and that the sentencing scheme as set forth in 841(b) basically lays out life and works it’s way down.
Court: Is that the position of the Department?
Counsel: No, that is not the position of the Department, your honor. I think the position of the Department, I know that the position of the Department right notv is to, for us to, assume that twenty years is the statutory max and we are working our way up, as opposed to down, from life imprisonment. But as a drug prosecutor for so many years, I — looking at the way the statute toas phrased and where it was written by Congress — I don’t see tvhere the argument is that they ivere saying all drug offenses are twenty years except for fifty grams of crack, which is a small amount ivhich all of sudden places you at life, or a kilo of heroin. And the majority of these multi-defendant drug prosecutions you are talking about a tremendous quantity of drugs and most of these federal cases that come to court, and that when Congress was crafting the drug statutes, you are looking at cases that are going to be involving what really is a minimum amount of drugs to invoke that life penalty. And so when I look at the statute itself I think there is a cogent argument to say Congress’ intent was that life imprisonment was the maximum penalty and that you work your way down. I can understand the other argument in the reverse and I think we’re all assuming ...
Court: And how that hoiv do you understand it?
Counsel: I, well ...
Court: Piece by piece, hoiv ivould you construct that argument for the opposite position?
Counsel: Um, I would say ... well, your honor, you knoiv, in all, in all ... Court: You really can’t.
Counsel: In all truthfulness no, I really can’t. And I think that’s probably why I fall on the side of saying it really is life imprisonment and then coming down from there as opposed to the reverse direction. And I am not exactly sure I understand the reasoning as to why many of the courts, including in some of the other opinions that this court has issued, we’ve all assumed, for the sake of argument it seems, that twenty years is the statutory maximum and that the other two prongs of 811 (b) are in penalty enhancements.
Court: Have you or anyone in your office seen fit to tell main Justice this view?
Counsel: Your Honor, I know that there has been much discussion back and forth between the Narcotics Section of Main Justice, and much discussion within each U.S. Attorney’s Office about this particular argument. But we’ve basically been directed by Department of Justice to say we’re going to take, I guess, the “safe route,” which is to say it’s twenty years, and you should go ahead and be including the amounts in the indictment.
...
Court: [B]ut the larger question is why, in the zealous representation of your client, the United States, are you in search of the safe route? That’s not what most of the lawyers in this room are doing when they represent their clients.
Counsel: Um, well, your honor I’m, I’m, I guess, I’m, in representing this position, uh, as the safe route because it’s the position that the Department of Justice is taking at this point, and I am probably going out on a limb by putting forth my own personal vieio as a drug prosecutor. But I think that, and the court itself has already held in some other opinions — and I realize that this may be all up for grabs when you reconsider the Angle decision — that you all have been looking at twenty years as the, uh, the statutory max from which everything else is an enhancement. So I am looking at that, I am working with that body of case law, right now.
Court: Well the reason that I asked the question, frankly, is because I suspect that main Justice is also in search of a safe route and perhaps my question can make its way back to them as to whether that’s what they should be doing. Counsel: Well I, I definitely am going to take this colloquy today back to my office and perhaps call someone, call our counterparts at Justice to advise them of that....
And before the en banc court, the government directly contradicted its earlier position in Promise, and equivocated even on what, a month later, would be its position in Cotton, arguing inconsistently (if not incoherently) that the offenses defined in section 841 appear in their entirety in section 841(a) and that Congress plainly intended drug quantity and type to be sentencing factors only, but, at the same time, that the quantity and type of drugs increase the statutoi'y maximum sentence and “it is error to impose a sentence that is authorized only by virtue of that increase in the maximum sentence without proving that fact (type or quantity) to the jury beyond a reasonable doubt.” Letter from Nina Goodman, DOJ, Criminal Division, Appellate Section, to Clerk of Court, Fourth Circuit (Feb. 22, 2001). Thus, like my colleagues, unable to reconcile what it knows to be Congress’ intent with what it either believes (mistakenly) or fears (prematurely) to be a holding by the Court in Apprendi that any fact that increases a sentence significantly must be proven to the jury beyond a reasonable doubt, the United States now takes the novel position
I cannot even imagine the Supreme Court accepting such tortured arguments as to those matters that must and must not be proven to the jury beyond a reasonable doubt and those that must and must not be charged in the indictment. Indeed, I have a hard time conceiving even that the Solicitor General would be prepared to advance such an argument before the Supreme Court. Either facts that affect the sentence a defendant receives are elements or they are not; they are not elements for some purposes and not for others. And if they are elements, then they must be charged in the indictment. See, e.g., Apprendi,
In the end, I suspect that the government’s conundrum, unlike that of my colleagues, is not attributable so much to a misinterpretation of the Court’s opinion in Apprendi, as to a misconception as to the consequence of its correct understanding of Congress’ intent that drug quantity and type are mere sentencing factors, a misconception that is evident even in the few substantive sentences of the Department of Justice’s supplemental letter to the en banc court in this case. There, the Department states that “Section 841(b), which sets out the penalties for violations of Section 841(a)(1), authorizes increased maximum sentences based on, among other things, the type and quantity of the controlled substances involved in the offense.” It is true that section 841(b) authorizes increased maximum sentences for particular defendants. What section 841(b) does not do, however, is increase the statutory maximum sentence for commission of the offenses in section 841(a). That statutory maximum sentence is, as a matter of congressional intent, life plus fine. The sentence that any particular defendant receives within the full range of penalties authorized in subsection (b) may depend upon the court’s finding as to the presence or absence of the various sentencing factors identified in section 841(b). But the maximum sentence authorized by Congress for commission of the section 841
Accordingly, nothing in the arguments advanced by the United States gives me any pause that I might be mistaken either as to Congress’ intent with regard to drug quantity and type, or as to the effective inapplicability of Apprendi to Title 21, section 841. This is not to say that the Department of Justice will not be proven prescient when the Supreme Court eventually does address the question it reserved in Apprendi. But until the Court does decide that question, the Department is no less bound than I by McMillan v. Pennsylvania. And it is that decision that proves in error the Department’s interpretation of the federal drug statute we construe today, not, as the Department believes, Apprendi that proves that interpretation correct.
I am authorized to show that Chief Judge Wilkinson and Judges Niemeyer and Gregory concur in Parts I, II, and III of this opinion.
. Like the government, I am not sure that the legislative history can be read fairly to suggest either that Congress did or did not intend drug amount and type to be sentencing factors. The appellant in Promise, in an observation against interest, however, is of the view that the legislative history rather clearly suggests that Congress intended at least drug quantity as a sentencing factor. See Supplemental Brief of Appellant at 2, 17, United States v. Promise (No. 99-4737) (citing Comprehensive Crime Control Act of 1984, Pub.L. No. 98 473, 98 Stat. 1837 (1984); S.Rep. No. 98-225, at 255 (1983), U.S. Code Cong. & Admin. News at 3182, 3437; and Chapman v. United States,
. See also, e.g., United States v. Pena,
. See also, e.g., United States v. Parker,
. See, e.g., Apprendi,
. See, e.g., Apprendi,
. Ironically, if this were the source of the error in this case, the court would undoubtedly notice it. See United States v. Ford,
Concurrence Opinion
concurring in part and dissenting in
part, and dissenting in the judgment:
I concur in parts II A-C of Judge Wilkins’s opinion. I do not concur in part II D or part III, however, and I respectfully dissent from the judgment of the court because that judgment affirms Marion Promise’s sentence for a crime for which he has never been charged or indicted, and, therefore, never tried or convicted. This plain error not only clearly affects Promise’s substantial rights, it also goes to the very heart of the judicial process. If not remedied, this error will “seriously affect” the “fairness, integrity or public reputation of judicial proceedings,” and so, as the Supreme Court has directed, we “should correct” the error. See United States v. Olano,
I.
Speaking for a majority of the court, Judge Wilkins clearly and persuasively explains why a specific threshold drug quantity constitutes an element of the aggravated drug trafficking offenses prohibited by 21 U.S.C.A. § 841 (West 1999), which must be charged in an indictment and proven to a jury beyond a reasonable doubt.
In this case, the grand jury indicted and the petit jury convicted Promise of a single offense — conspiracy to possess with intent to distribute “a quantity of cocaine and cocaine base.” No specific drug quantity charge was submitted to, or returned by, the grand jury. Consequently, the petit jury that tried Promise never considered the question of drug quantity, let alone found beyond a reasonable doubt that Promise conspired to distribute more than 50 kilograms of cocaine or 50 grams of cocaine base.
The statute at issue provides that the maximum sentence for conviction of conspiracy to possess with intent to distribute an unquantified amount of cocaine is no more than 20 years imprisonment. See 21 U.S.C.A. § 841(b)(1)(C). Therefore, under the new rule set forth by the Supreme Court in Apprendi, the maximum prison term that the district court could have legally imposed on Promise for this single count of conspiracy involving an unspecified “quantity of cocaine and cocaine base” is 20 years. See Apprendi v. New Jersey,
Judge Wilkins properly concludes that the district court plainly erred in sentencing Promise to a prison term of 30 years. Judge Wilkins also correctly finds that this plain error affected Promise’s substantial rights and rightly recognizes -one of the reasons why this is so — it resulted in Promise receiving a sentence of ten more years in prison than the statute he was charged with violating permits.
The court’s refusal, notwithstanding these conclusions, to recognize this plain error is stunning. This serious misjudgment reflects a failure to appreciate fully both the nature of the error at issue here and the impossibility of overlooking such an error without jeopardizing the fairness, integrity, and reputation of judicial proceedings.
II.
The error at issue in this case is a sentencing error only in the sense that it can be remedied by vacating Promise’s sentence and remanding for resentencing. But, unlike the usual sentencing error, the root of this error is not a simple failure to calculate the correct sentence for the crime for which the defendant has been charged and convicted.
The imposition of such a sentence is antithetical to our system of justice. It deprives Promise of the most fundamental of rights — the right to be tried and convicted only on charges presented in an indictment returned by a grand jury. That Promise.was properly indicted and convicted of a different (lesser) crime does not change the fact that he was never indicted or convicted of the crime for which he was sentenced. As the Supreme Court reminded us in Apprendi itself, “ ‘the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted.’ ” Apprendi
The United States Constitution expressly prohibits such a result. The Constitution guarantees all of us the right to have each element of a crime presented to, and found by, a grand jury prior to being tried, convicted, or sentenced for that crime. Indeed, the Fifth Amendment promises that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” U.S. Const, amend V. And the Sixth Amendment ensures that this indictment shall inform the accused “of the nature and cause of the accusation” against him. U.S. Const, amend. VI.
More than a hundred years ago, in its seminal opinion construing these provisions, the Supreme Court noted the importance of a court placing itself “as nearly as possible in the condition of the men who framed” the Constitution. Ex Parte Bain,
The Supreme Court has never retreated from its dictate that the Constitution makes a grand jury’s indictment “indispensable” to the power to try a defendant for a serious crime. Rather, the Court has consistently and repeatedly reiterated the fundamental nature of the constitutional right to be tried only on charges presented to a grand jury.
Particularly relevant here, the Court has expressly held that “after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself.” Stirone v. United States,
By formalizing the grand jury requirement in our Constitution, the Framers indicated their understanding of the importance of convening “a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of preju
Because of the grand jury requirement, before the United States can prosecute anyone for a serious crime, an independent body of the citizenry must “declare, upon careful deliberation, under the solemnity of an oath, that there is good reason for his accusation and trial.” Ex Parte Bain,
Moreover, because the Sixth Amendment demands that an accused “be informed of the nature and cause of the accusation” against him, the “indictment must set forth ... every ingredient of which the offence is composed.” United States v. Cruikshank,
But the “most valuable function of the grand jury” may be “to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will.” Hale v. Henkel,
Thus, the true measure of the right denied Marion Promise is this: the district court sentenced Promise as if he had been indicted and convicted of a far more serious offense, imposing on Promise ten more years of imprisonment than the offense for which he was actually indicted and convicted permits. In doing so, the district court denied Promise rights guaranteed by the Constitution, which have long been regarded as “essential to liberty in a government dedicated to justice under law.” Cole,
III.
Nevertheless, this court refuses to recognize this error because it believes, with clear hindsight, that Promise was not innocent of the crime for which he was sentenced — that the government presented “overwhelming” evidence at trial establish
Certainly, sentencing a man for a crime for which he has been neither charged nor convicted seriously affects the fairness, integrity, and public reputation of judicial proceedings. Perhaps this is most easily seen by analogy. Returning to the defendant indicted and convicted of manslaughter, but illegally sentenced to life imprisonment for murder — I hope and trust no member of this court would “decline to notice” this “sentencing” error, even where the evidence adduced at trial indicated that the defendant’s actions likely fit the statutory definition of murder. No such result could be regarded as fair, nor could “judicial proceedings” that would permit such a sentence to stand instill “public confidence.” See Olano,
Because the grand jury is “not bound to indict in every case where a conviction can be obtained,” Vasquez v. Hillery,
A court cannot rely on its own view of what indictment a grand jury could or would have issued if the grand jury was never, presented with a charge, or what verdict a petit jury could or would have reached if the petit jury was never presented with an indictment. “[I]t is utterly meaningless to posit that any rational grand jury could or would have indicted [the defendant] ..., because it is plain that this grand jury did not, and absent waiver, a constitutional verdict cannot be had on an unindicted offense.” Floresca,
The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses chargedby a group of his fellow citizens acting independently of either prosecuting attorney or judge. Thus the basic protection the grand jury was designed to afford is defeated by a device or method which subjects the defendants to prosecution for [an element] which the grand jury did not charge.
Stirone,
For this reason, contrary to Judge Wilkins’s suggestion, the case at hand critically differs from Johnson v. United States,
Such a determination is impossible in a case like that at hand in which the defendant has never been charged with, or in-dieted of, the crime for which he has been sentenced. It is impossible because grand jury proceedings are secret. Thus, a court simply “cannot knoiu whether the grand jury would have included in its indictment” a charge not before it. Stirone,
To attempt to judge the fairness of a sentence based on charges never made to a grand jury is to have this court “make a subsequent guess as to what was in the minds of the grand jur[ors].” Russell v., United States,
This is why, quite unlike most trial errors, “an indictment found by a grand jury [i]s indispensable to the power of the court to try [the defendant] for the crime with which he was charged.” Ex Parte Bain,
In response to what I have written above, my colleagues contend that I improperly “eschewt ] a flexible approach in favor of a per se rule requiring appellate courts to notice plain error whenever a defendant suffers a conviction or sentence not authorized by the indictment.” Ante at 163-64 n. 9. I offer this brief reply.
First, I confess that I do believe that sentencing a defendant for a crime for which he was neither indicted by a grand jury nor convicted by a petit jury is an error that always seriously affects the fairness, integrity, and public reputation of our judicial process. Furthermore, I believe that the Constitution requires this conclusion and that the Supreme Court has never held to the contrary. Today, in holding otherwise, this court takes a step toward disregarding altogether the right to grand jury indictment and to trial by petit jury in favor of judicial imposition of a sentence for whatever crime an appellate court believes that a defendant has committed. This, I hope, the Constitution will never permit.
However, invocation of a “per se” rule is unnecessary to the proper resolution of this case. Rather, balancing all even arguably pertinent considerations requires precisely the same result — noticing the plain error and ordering re-sentencing. On the other hand, the court’s “flexible approach,” assertedly “based on a balancing of numerous considerations,” id., actually is grounded entirely on just two factors, both of which are irrelevant in the case at hand, gives short shrift to the fundamental nature of the grand jury error before us, and completely ignores the most relevant additional considerations.
First, the court exaggerates the significance of two matters that are of minimal importance in the grand jury context — the strength of the government’s evidence
This view entirely accords with Supreme Court precedent. One need look no further than Olano. There, the Court listed
In addition, in its emphasis on the post-indictment “notice” given Promise, the court fails to recognize t hat the grand jury not only serves to inform a defendant of the charge against him, but that possibly the “most valuable function of the grand jury” is “to stand between the prosecutor and the accused” to protect a defendant against charges “dictated by malice or personal ill will.” Hale,
At the same time that the court, inflates two irrelevant considerations, it downplays a critical one — the fundamental nature of the grand jury error. We have previously recognized, even when considering simple instructional error, that the “fundamental nature of [an] error” is a factor that an appellate court on plain error review should consider in “appropriately exer-cis[ing]” its discretion “so as to preserve the fairness, integrity and reputation of the judicial process.” United States v. David,
In addition to refusing to recognize the importance of the vital right denied here, the court today completely ignores the most relevant factors that the Supreme Court has found significant in assessing whether to notice errors that are far less fundamental than the one in this case. Thus, the court pays no mind to a “consideration” that helped tip the scales in Johnson v. United States,
Perhaps even more surprisingly, the court also ignores the fact that noticing the error in this case does not encourage a defendant to “sandbag” the government, he., forego timely objection in the trial court for strategic advantage. Yet, the Supreme Court has time and again emphasized that preventing sandbagging is critically important in determining whether to notice plain error. See, e.g., Johnson,
Hence, in cases in which the Supreme Court has refused to notice plain error, a timely objection in the trial court could have eliminated, or substantially ameliorated, any error by means well short of the drastic relief — ordering a new trial — necessary to remedy the error on appeal. For example, in [Joyce B.] Johnson,
In contrast, had Promise timely objected to imposition of the 30-year sentence as contrary to Apprendi, the trial court could only have avoided error by giving Promise precisely the relief that we should now order — vacating the sentence and remanding for imposition of the proper 20-year sentence. As the court recognizes, “Unquestionably, had the district court been aware of Apprendi at the time of trial, it would have imposed a sentence of 20 years imprisonment, instead of the term of 30 years it actually imposed.” Ante at 161 n. 8. Accordingly, noticing the plain error here would not permit Promise (unlike Olano and the others) to obtain any strategic benefit from his failure to timely object to the error in a timely manner.
The vital rights and critical error involved here, alone or in conjunction with the most relevant factors the Supreme Court has examined in determining whether to notice less fundamental errors, unquestionably demonstrate that the court abuses its discretion in refusing to notice and correct the error.
V.
Today, this court, on the basis of what it believes the grand jury would have done if the government had sought an indictment for a more serious crime, affirms the sentence Marion Promise received for that more serious crime — even though Promise was never, charged, never indicted, never tried, and never convicted of that crime. Long ago, the Supreme Court warned against allowing a court to “change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made if their attention had been called to suggested changes.” Ex parte Bain,
For the foregoing reasons, I would vacate Promise’s sentence and remand to the district court for re-sentencing, with instructions to impose a sentence not exceeding 20 years, the statutory maximum for the sole offense for which Promise was indicted and convicted, as the decision of the en banc court in United States v. Angle, No. 96-4662(L) (4th Cir. June 29, 2001) (en banc), requires. Respectfully, I dissent from the majority’s refusal to do so.
Judge Widener has authorized me to indicate that he joins parts I, II, III, and V of this opinion. Judges Michael and King have authorized me to indicate that they join in the entire opinion.
. Long ago, the Supreme Court expressly held that a court has no "authority” to impose a
. The court’s approach also creates a rule so vague as to be almost impossible to discern or follow; for the court never tells us which of its "considerations” is dispositive or how its "considerations” are to be weighed. Presumably, even overwhelming and uncontroverted evidence of a defendant’s guilt, without post-indictment notice, is insufficient to persuade the court not to notice an error like that at issue here. See ante at 163. But if this sort of evidence were accompanied by a notice, but not one which was "manifestly] adequate,” should a court notice this sort of error? What if the government provided an adequate notice, and presented strong, but not undisputed, evidence?
. The court suggests that assessment of the government’s evidence and Promise’s failure to dispute that evidence are two separate "considerations,” see ante at 163 n. 9; in-fact they are just different parts of a single "consideration” — the strength ("overwhelming” and/or "undisputed” or not) of the prosecution’s evidence — which, for all we know, the grand jury never considered.
. The court attempts to distinguish Silber on the basis that the Supreme Court "did not discuss the strength of the Government’s proof, [or] whether the defendant had actual notice.” Ante at 164-65 n. 9. But that is precisely the point. The Supreme Court in Silber corrected the plain error caused by the defective indictment without regard to the trial evidence or the notice given. In fact, the Court thought the defect serious enough to warrant sua sponte correction, despite the defendant’s failure to bring the error to the Court's attention. See Silber,
Furthermore, despite the court’s assertion to the contrary, see ante at 164-65 n. 9, for the reasons discussed in part III, the Supreme Court’s consideration of the evidence in declining to correct the jury instruction error at issue in Johnson does not alter the fact that the Court looked past the evidence to correct the indictment error in Silber.