UNITED STATES of America, Plaintiff-Appellee, v. Kelly Knight STONE, Kelly Lee Stricklin, Michael Lee Stricklin, Defendants-Appellants.
No. 96-3135.
United States Court of Appeals, Eleventh Circuit.
April 22, 1998.
139 F.3d 822
The district court denied Campbell‘s request for a mitigating role adjustment for two reasons. First, the court noted that Campbell had forgone job opportunities and knowingly imported drugs for money, thus making her more culpable than others “who come from very poor circumstances in a foreign country and have no opportunity to work....” This consideration was improper because it appears to relate solely to Campbell‘s status as a drug courier. Second, the court found that Campbell was “not entitled to a [mitigating role] adjustment” because, as a courier, she was “a minor link, but an important link” in a drug smuggling scheme. The court definitively concluded that people who knowingly leave the country to import drugs should not receive mitigating role adjustments. This consideration was improper because it relates solely to Campbell‘s status as a drug courier. See Veloza, 83 F.3d at 381-82 (“[T]he act of transporting drugs, in and of itself, cannot, as a matter of law, preclude a defendant from receiving a downward adjustment based on [her] role in the offense.“).
Therefore, the district court relied on improper factors in denying Campbell‘s request for a mitigating role adjustment.
For the foregoing reasons, we vacate the judgment and remand to the district court for resentencing.
VACATED and REMANDED.
Christopher L. Rabby, Pensacola, FL, for Michael Lee Stricklin.
Marcia G. Shein, Richard Biggs, Atlanta, GA, for Kelly Knight Stone.
P. Michael Patterson, U.S. Atty., Tallahassee, FL, Nancy Hess and Robert G. Davies, Assts. U.S. Attys., Pensacola, FL, for Plaintiff-Appellee.
Before BLACK and BARKETT, Circuit Judges, and PROPST*, Senior District Judge.
PER CURIAM:
BACKGROUND
All three defendants were charged in Count I of an eleven-count indictment with conspiracy to possess with intent to distribute a controlled substance, cocaine base, commonly known as crack cocaine, in violation of
The defendant complains that his conviction under
Stone raises two more issues in his appeal. First, Stone claims that the trial judge failed to properly instruct the jury as to the mens rea requirement of
Stone‘s co-defendants, Michael Lee Strickland and Kelly Lee Strickland, were each indicted for conspiracy to possess a controlled substance with intent to distribute in violation of
ANALYSIS
I
THE MEANING OF 21 U.S.C. § 844(a) .
The offense that Stone was charged with conspiring to commit was possession with intent to distribute cocaine base in violation of
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance...
While
In some cases the law which a defendant is charged with breaking actually covers two separate crimes—one is more serious than the second, and the second is generally called a “lesser included offense.”
So, in this case, with regard to the offense charged in Count I, if you should find a defendant “not guilty” of the crime charged in Count I as defined in these instructions, you should then proceed to decide whether that defendant is guilty or not guilty of the lesser included offense of conspiracy to simply possess cocaine base, commonly known as crack cocaine. The lesser included offense would consist of proof beyond a reasonable doubt that the crack cocaine was simply possessed for personal consumption, and was not possessed with intent to distribute it, but otherwise defined in the instructions for Count I (emphasis added).
The jury found Stone not guilty of conspiracy to possess a controlled substance with intent to distribute, but guilty of conspiracy to possess a controlled substance (cocaine base) under
Stone argues that the district court saddled him with a felony sentence under
The keystone to all these claims of error is the construction of
At the time of trial, section
It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practi-
such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of
OTHER CIRCUITS.
Seven Circuit Courts of Appeals, the Second, Fifth, Sixth, Seventh, Ninth, Tenth, and District of Columbia Circuit Courts of Appeals, have considered the issue of whether the third sentence in
We conclude that drug quantity constitutes an essential element of simple possession under section
844(a) . We reach this result, in part, by contrasting section844(a) with the drug trafficking provisions of21 U.S.C. § 841 . The drug trafficking provisions of section841 contain two distinct parts. Subsection (a), entitled “Unlawful acts,” defines the crime. It prohibits trafficking in any amount of an illegal drug. Subsection (b), entitled “Penalties,” sets out the punishment for various drug quantities. It does not itself state a criminal offense. Given the above statutory schema, courts have interpreted congressional intent as vesting the quantity determinations in the sentencing court. E.g., Jenkins, 866 F.2d at 334; United States v. Wood, 834 F.2d 1382, 1388-90 (8th Cir. 1987). But cf. Newman v. United States, 817 F.2d 635, 637-38 (10th Cir.1987) (jury must determine type of drugs distributed under21 U.S.C. §§ 841 ,846 ).
By comparison, section
844(a) does not attempt to divorce the prohibited act of drug possession from the drug quantities possessed. The statute contains no separate penalty section, but rather interweaves both definitional and penalty provisions throughout. Presented with this schema, we conclude that the statute makes drug quantity an integral part of the crime definition.This holding comports with our own precedent in interpreting similar statutory frameworks. Cf. United States v. Alberico, 604 F.2d 1315, 1321 (10th Cir.) (value forms essential element of theft of government property under
18 U.S.C. § 641 ), cert. denied, 444 U.S. 992, 100 S.Ct. 524, 62 L.Ed.2d 422 (1979). It also draws support from analogous holdings of other circuits. Cf. Scanzello, 832 F.2d at 22-23 (value forms essential element of stealing goods from interstate shipment under18 U.S.C. § 659 ); Theriault v. United States, 434 F.2d 212, 214 (5th Cir.1970) (value forms essential element of theft of government property under18 U.S.C. § 641 ), cert. denied, 404 U.S. 869, 92 S.Ct. 124, 30 L.Ed.2d 113 (1971).
United States v. Puryear, 940 F.2d 602 at 603-04 (footnotes omitted). See also United States v. Brooks, 940 F.2d 598, 601-02 (10th Cir.1991) (companion case to Puryear holding same).
The next circuit court to consider the issue of the appropriate construction of
Before 1988, the statute contained the first two sentences but not the third. The first sentence describes the general prohibition against possessing controlled substances. The second establishes a penalty scheme for various persons who violate the prohibitions of the first sentence, depending upon their prior convictions for similar offenses. Thus the second sentence parallels the language of the penalty provisions in
In 1988 Congress added the third sentence, singling out possession of cocaine base for especially harsh penalties. Here Congress used language rather different from that of the penalty provisions of
Further, the 1988 amendment to
Id. at 840 (emphasis added). The court did not, however, conclude with an analysis of the structure of the statute. Implying that its structural conclusions were tenuous, it went on to consider the legislative history of the third sentence in
Based on what the court saw as an issue normally left for juries to resolve, it concluded that the character of the drug possessed by the offender was an element of the third sentence offense. Id.
Although credibility is not usually a feature in determining the character of the drug, it may well be, where, for instance, the drugs in question have been destroyed, tampered with, or lost, or the defendant contests that the drugs put into evidence are those actually seized from him. See, for example, United States v. McKie, 951 F.2d 399 (D.C.Cir.1991) (police lost crack cocaine forming basis of charge against defendant, though there defendant had admitted he possessed crack). In view of the impact of sentence enhancement classification on the process of criminal justice—shifting the issue from jury to court and denying the defendant the benefit of the reasonable doubt standard, McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S.Ct. 2411, 2415, 91 L.Ed.2d 67 (1986)—we are reluctant to infer such classification in the absence of a reasonably clear statement from Congress, at least for a fact embedded in the statutory section defining the crime and closely related to the circumstances of the crime.
Id. (emphasis added). The court held that because character of the controlled substance was an element of the crime sought to be punished, the third sentence of
In United States v. Sharp, 12 F.3d 605 (6th Cir.1993), the Sixth Circuit Court of Appeals agreed with the Tenth Circuit Court of Appeals that quantity is an element of an offense inhering in the third sentence of
If the jury had found Mr. Sharp guilty of possessing crack cocaine with intent to distribute it, the maximum term of imprisonment authorized by the statute would have exceeded one year regardless of the amount possessed (see
21 U.S.C. § 841(b) ) and the offense would necessarily have been classified as a felony under18 U.S.C. § 3559(a) . Under those circumstances, our caselaw teaches, the amount possessed would have been subject to determination by the judge as a factor bearing on the severity of the penalty. See United States v. Rey, 923 F.2d 1217, 1223 (6th Cir.1991) (amount of cocaine possessed with intent to distribute “is not an element of the offense under21 U.S.C. § 841(a) ;” the quantity provisions of§ 841(b) “are applicable only to sentencing“); United States v. Moreno, 899 F.2d 465 (6th Cir.1990) (same)....A significantly different picture emerges, as we see it, where the factor at issue (here the quantity of crack cocaine possessed by the defendant) does not merely affect the length of the defendant‘s sentence, but determines whether he is guilty of a felony or a misdemeanor. More is involved in this distinction than the length of the sentence, because felony convictions carry disabilities that do not attach to misdemeanor convictions. In Mr. Sharp‘s state of Tennessee, for example, convicted felons are disqualified from exercising the right of suffrage, from seeking or holding state office, and from acting as executors, administrators, or guardians. See Tenn.
Code Ann. §§ 40-20-112 through 115 . Convicted felons are also barred from receiving or maintaining professional licenses of various kinds. SeeTenn.Code Ann. § 62-13-312 (real estate broker);§ 23-3-201 (attorney);§ 62-26-207 (private investigator). And a person who has been convicted of a felony drug offense is prohibited from possessing a handgun. SeeTenn. Code Ann. § 39-17-1307 .It is a serious matter, obviously, to deprive an American citizen of civil rights as important as the right to vote, the right to keep and bear arms, and the right to engage in a chosen business or profession. For a sentencing judge to effect such a deprivation by factual findings that convert what would otherwise be a misdemeanor into a felony seems to us an impermissible usurpation of the historic role of the jury. The principle that a defendant is entitled to have a jury of his peers determine whether or not he has committed a felony is a “principle of justice so rooted in the traditions and conscience of our people,” we believe, “as to be ranked as fundamental.” (The quoted phrase, which has been used by the Supreme Court repeatedly, appears in McMillan v. Pennsylvania, 477 U.S. 79 at 85 (1986). Citations omitted.) We are not prepared to jettison such a principle if we are not required to do so.
United States v. Sharp, 12 F.3d at 607-08 (emphasis added).8
The Second Circuit Court of Appeals sounded disagreement with the Tenth Circuit in United States v. Monk, 15 F.3d 25 (2d Cir.1994). It cursorily dismissed Puryear as being unpersuasive and held that the structure explicit in
In United States v. Deisch, 20 F.3d 139 (5th Cir.1994), the Fifth Circuit Court of Appeals thoroughly discussed whether the third sentence in
Accordingly, if the third sentence of section
844(a) does not create a separate offense and the only offense established by section844(a) is the knowing possession of any controlled substance as denounced in the first sentence thereof, so that the identity of the substance possessed as cocaine base is not an element of any section844(a) offense but is only a sentencing factor, then, even if an indictment were required, nevertheless it would not have to allege that the controlled substance possessed was cocaine base. However, were that the rule, then any defendant without a prior conviction, such as Deisch, would be exposed to “an infamous punishment” without a grand jury ever having considered whether there was probable cause to believe that the defendant did that which the law requires she have done before she can be exposed to any infamous punishment. Such a rule—which is the necessary consequence of holding that under section844(a) the identity of the substance as cocaine base is merely a sentencing factor—would emasculate the protection intended by the Fifth Amendment‘s indictment clause. If no indictment were required, then obviously such a section844(a) defendant could be exposed to “infamous punishment” without the protection of a grand jury. But if an indictment is required because the punishment may be infamous if (and only if) cocaine base is what is possessed, then it is wholly illogical to authorize a punishment of that character even though the indictment does not allege cocaine base. That which requires the grand jury must likewise require allegation in the indictment, else the presence of the grand jury does nothing to subserve the purpose of requiring it.
Id. at 146-47 (emphasis added).
In United States v. Smith, 34 F.3d 514, 518-20 (7th Cir.1994), the Seventh Circuit Court of Appeals followed the Second Circuit‘s holding in Monk that the quantity of cocaine base possessed is not an element of a possession of a controlled substance crime under
Our disagreement with this reasoning stems from the fact that the Supreme Court made clear in Spaziano v. Florida, 468 U.S. 447, 459, 104 S.Ct. 3154, 3161, 82 L.Ed.2d 340 (1984), that the “Sixth Amendment never has been thought to guarantee a right to jury trial determination” of “the appropriate punishment to be imposed on an individual.” See also United States v. McKenzie, 922 F.2d 1323, 1327 (7th Cir. [1991]) (stating that “the sixth amendment requires that a jury determine only questions of guilt or innocence; punishment is the province of the court“), cert. denied, 502 U.S. 854, 112 S.Ct. 163, 116 L.Ed.2d 127 (1991). Yet in Sharp, the Sixth Circuit assumed that the Sixth Amendment required just that—i.e, that the attendant deprivations of a felony sentence require that a jury decide any issue that may make the offense a felony. In the context of possession of cocaine base under
§ 844(a) , this erroneous assumption led to the conclusion that the jury had to determine the quantity of the cocaine base possessed for the offense to constitute a felony. However, the Supreme Court‘s refusal in Spaziano to extend the Sixth Amendment right to a jury determination of a capital sentence severely undercuts the Sixth Circuit‘s conclusion that a defendant has a right to have a jury make any determination bearing on whether the offense for which the defendant has been convicted constitutes a felony.
United States v. Smith, 34 F.3d at 519-20.10 The court also noted that if all factors that
The Ninth Circuit Court of Appeals has also held that the third sentence of
The first sentence of subsection
The second sentence of subsection
The third sentence of subsection
In the second and third sentences of subsection
The most serious flaw in [the defendant‘s] argument that the third sentence of subsection
We would also have to ignore the fact that Congress required proof of knowing or intentional possession in the first sentence in defining the crime of possession of a controlled substance. Cocaine base is a form of cocaine. Any “compound, mixture, or preparation” which contains cocaine is listed as a Schedule II controlled substance pursuant to
United States v. Butler, 74 F.3d at 922. The Ninth Circuit then dismissed the argument that constitutional infirmities would grow out of the determination, citing United States v. Smith, 34 F.3d at 519-20, as the basis for its resolution.
OUR CONCLUSION.
The court must examine
The primary difficulty arises in interpreting the third sentence. The first clause states, “Notwithstanding the preceding sentence, a person convicted under this subsection for the possession of a mixture or substance which contains cocaine base shall be imprisoned not less than 5 years and not more than 20 years, and fined a minimum of $1,000....”
Section
SUBTITLE L—SERIOUS CRACK POSSESSION OFFENSES
SEC. 6371. INCREASED PENALTIES FOR CERTAIN SERIOUS CRACK POSSESSION OFFENSES.
Section 404(a) of the Controlled Substances Act (
21 U.S.C. 844(a) ) is amended by inserting after the second sentence the following new sentence....
The legislative history also suggests that separate offenses were intended. Section 6371 of the 1988 Act was not a part of the original bill presented to the House, but was introduced into the bill by an amendment offered by Congressman Shaw. The purpose of the amendment, said Mr. Shaw, was to “slap drug dealers with a stiff minimum-mandatory prison sentence of 5 to 20 years for the possession of a minimum of 5 grams on a first offense, for the possession of 3 grams on a second offense, and the possession of 1 gram on a third offense.” 134 Cong. Rec. H7704-01 (1988). Mr. Shaw also stated, “We must get to [drug dealers] with the harshest penalties possibly [sic.].” Id. The comments of Mr. Shaw would indicate that the purpose of the act was to raise the penalties on those whose possession of a controlled substance offense involved certain quantities of cocaine base. Congressman Lagomarsino, who also supported the bill, stated its purpose to be “to impose mandatory criminal penalties for crack possession.” Id. This would indicate that the focus was on raising penalties for a particular type of offenses, possession of various quantities of crack cocaine.
Subsequent to the passage of the
Section 6371 amends the simple possession statute in the Controlled Substances Act (
21 U.S.C. 844 ) to require a mandatory minimum penalty of 5 years’ imprisonment for possession of 5 grams of “crack” cocaine. A similar penalty applies to smaller
In view of the constitutional questions that would stem from holding that the third sentence of
We find compelling the reasoning of the Fifth Circuit Court of Appeals in United States v. Deisch, 20 F.3d at 144-48, that the Indictment Clause of the Fifth Amendment requires us to treat the third sentence as stating a substantive offense of the possession of a mixture or substance containing cocaine base. The reasoning in Deisch is equally persuasive on the issue of whether quantity of the substance is an element of the substantive
In Deisch, a panel of this Court decided whether possession of cocaine base under
After oral argument in this case, the Supreme Court decided Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Almendarez-Torres addresses a similar issue as is involved here. As stated by the Court,
Subsection (a) of
8 U.S.C. § 1326 defines a crime. It forbids an alien who once was deported to return to the United States without special permission, and it authorizes a prison term of up to, but no more than, two years. Subsection (b)(2) of the same section authorizes a prison term of
up to, but no more than, 20 years for “any alien described” in subsection (a), if the initial “deportation was subsequent to a conviction for commission of an aggravated felony.”
§ 1326(b)(2) . The question before us is whether this latter provision defines a separate crime or simply authorizes an enhanced penalty. If the former, i.e., if it constitutes a separate crime, then the Government must write an indictment that mentions the additional element, namely a prior aggravated felony conviction. If the latter, i.e., if the provision simply authorizes an enhanced sentence when an offender also has an earlier conviction, then the indictment need not mention that fact, for the fact of an earlier conviction is not an element of the present crime.We conclude that the subsection is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime. Consequently, neither the statute nor the Constitution require the Government to charge the factor that it mentions, an earlier conviction, in the indictment.
While Almendarez-Torres reaches an arguably different result than we reach, its issues are clearly distinguishable from those here and its general language supports our holding rather than prohibits it. In coming to its conclusion, the Court analyzed whether failure to treat prior aggravated felony conviction(s) as an element of a
In assessing petitioner‘s claim, we have examined McMillan to determine the various features of the case upon which the Court‘s conclusion arguably turned. The McMillan Court pointed out: (1) that the statute plainly “does not transgress the limits expressly set out in [Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)],” id., at 86; (2) that the defendant (unlike Mullaney‘s defendant) did not face ““a differential in sentencing ranging from a nominal fine to a mandatory life sentence,“” 477 U.S., at 87 (quoting [Mullaney v. Wilbur, 421 U.S. 684, 700 (1975)]); (3) that the statute did not “alte[r] the maximum penalty for the crime” but “operates solely to limit the sentencing court‘s discretion in selecting a penalty within the range already available to it,” 477 U.S., at 87-88; (4) that the statute did not “creat[e] a separate offense calling for a separate penalty,” id., at 88; and (5) that the statute gave “no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense,” but, to the contrary, “simply took one factor that has always been considered by sentencing courts to bear on punishment... and dictated the precise weight to be given that factor,” id. at 88, 89-90.
We conclude that the Due Process Clause analysis in Almendarez-Torres supports Stone‘s contentions that the third sentence of
We also note the following, inter alia, distinctions between this case and Almendarez-Torres:
(1) The Supreme Court emphasized that the relevant subject matter was recidivism “as typical a sentencing factor as one might imagine.” Id. at 1220. Prior conviction is not the issue here.
(2) The Supreme Court notes that “The title of the 1988 amendment is ‘Criminal penalties for reentry of certain deported aliens‘... A title that contains the word ‘penalties’ more often, but certainly not always... signals a provision that deals with penalties for a substantive crime.” The title of
(3) The language of the statute considered by the Court in Almendarez-Torres did not include, as is the case here, reference to a “conviction” of what follows. See Michael, 10 F.3d at 840.
(4) The Supreme Court emphasized, as did this court in United States v. Palacios-Casquete, 55 F.3d at 560, the prejudicial effect which can result from presenting evidence of previous conviction(s) to a jury. This is not a factor here.
(5) The penalty provisions here jump from a misdemeanor to a felony with a statutory minimum of five years. In Almendarez-Torres, there is only an increase in felony limits.
We conclude that Almendarez-Torres does not overrule the holdings in United States v. Deisch, 20 F.3d at 144-48, United States v. Fitzgerald, 89 F.3d at 222, United States v. Puryear, 940 F.2d at 603-04, United States v. Michael, 10 F.3d at 839-41, and United States v. Sharp, 12 F.3d at 608.14
II
INVITED ERROR?
The Government contends that, even if we hold the third sentence of
The discussions of the trial judge and Stone‘s attorney occurring at the sentencing phase of the trial demonstrate that the issue of the proper construction of
CONCLUSION
WE REVERSE Stone‘s conviction and sentence under Count III. We also VACATE the sentence of Stone under Count I and REMAND for resentencing. We AFFIRM all other convictions and sentences.
BLACK, Circuit Judge, specially concurring:
I concur in the result.