Case Information
*1 Before B LACK and B ARKETT , Circuit Judges, and P ROPST *, Senior District Judge.
P ER C URIAM :
____________________________
*Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation.
B ACKGROUND 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 21 U.S.C. §§ 841(a)(1) & 846. 1 Prior to the conclusion of trial, defendant Kelly Knight Stone (“Stone”) joined a co-defendant’s request that a lesser- included offense instruction be given the jury with respect to the crime of conspiracy to possess a controlled substance (cocaine base) with intent to distribute. The requested instruction was for conspiracy to possess a controlled substance (cocaine base) under 21 U.S.C. §§ 844(a) & 846. The trial court decided, with some apparent reservation, to give the lesser-included offense instruction. 2
Stone, though found not guilty of the §§ 841(a)(1) & 846 conspiracy charge, was found guilty of conspiracy to possess a controlled substance (cocaine base) under §§ 844(a) & 846. At sentencing, the district court found from a preponderance of the evidence that Stone conspired to possess more than five grams of cocaine base, metamorphosing what might otherwise have been a misdemeanor violation under §§ 844(a) & 846 into a felony conviction under that same statute, for which a sentence of 188 months was imposed. 3
The defendant complains that his conviction under §§ 844(a) & 846 was unconstitutional, because essential elements of the §§ 844(a) & 846 offense of which he was convicted and sentenced, that he conspired to possess (1) in excess of five grams of (2) cocaine base, were not essential elements of the §§ 841(a) & 846 crime stated in the indictment and that the offense of which he was convicted was therefore not a lesser-included offense of the §§ 841(a) & 846 conspiracy charged in the indictment. In addition, contends Stone, by not submitting to the jury the issue of the amount of cocaine base he allegedly possessed, the trial judge improperly instructed the jury on the defined crime of conspiracy to possess in excess of five grams of cocaine base. Finally, Stone argues that, in the event that he was properly convicted of conspiracy to possess a controlled substance under §§ 844(a) & 846, the trial judge erroneously sentenced him as a felon rather than as a misdemeanor offender. The Government argues that Stone cannot be heard to complain at being undone by his own request. The defendant, the Government states, invited the district court to commit error and now must accept its rulings. *3 Further, asserts the Government, that the controlled substance Stone possessed was in an amount over five grams and that it was cocaine base are not essential elements of the offense, but are mere sentencing factors.
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 18 U.S.C. § 922(a)(1)(A) and that
as a consequence, his conviction under Count III of the indictment is due to be reversed. The
Government agrees that Stone’s conviction under Count III of the indictment is due to be
reversed. We therefore REVERSE the defendant’s conviction under Count III of the indictment. Stone also claims that he was a victim of ineffective assistance of counsel during his trial and
seeks reversal of his entire conviction on this issue. We refuse to consider this claim as an initial
matter on appeal. See United States v. Perez-Tosta,
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
21 U.S.C. §§ 841(a) & 846 (Count I) and for using or carrying firearms in violation of 18 U.S.C.
§ 924(c) (Count II). Both were convicted on the first count and acquitted on the second. These
defendants contend that they were improperly convicted under §§ 841(a) & 846 because, one,
the trial judge permitted evidence of events occurring before the initiation of the conspiracy
charged in the indictment and, two, the trial judge impermissibly admitted into evidence checks
allegedly signed by these defendants and ATF Forms 4473 which federally licensed firearms
dealers are required to maintain. We find these claims to be without merit. The district court did
not abuse its discretion in admitting the contested evidence. We therefore AFFIRM the
convictions of these defendants. These defendants also argue that their sentencing is improper
because the trial judge calculated the amount of cocaine base possessed by them without
evidence supporting the calculation, the trial judge failed to attribute a specific amount to each
defendant, and the trial judge included cocaine base used by them for personal consumption in
calculating the base offense level under the sentencing guidelines. We reject these defendants’
contentions that the trial judge improperly sentenced them. Sufficient evidence existed from
which the trial judge could reasonably conclude that each of these defendants had responsibility
for over 150 grams of crack cocaine. See United States v. Chirinos,
A NALYSIS
I
T HE 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 21 U.S.C. §§ 841(a)(1) & 846. Section 841(a)(1) states, in relevant part:
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 § 841(a)(1) does not require proof that the controlled substance was cocaine base as an
element of the crime, United States v. Williams,
*5 The instruction requested by Stone and his co-defendants gave the jury the option of finding that, rather than conspiring to possess cocaine base with the intent to distribute, the defendants had merely conspired to possess cocaine base in violation of 21 U.S.C. §§ 844(a) & 846. The district court hesitantly decided that conspiracy to possess a controlled substance (cocaine base) under §§ 844(a) & 846 was a lesser-included offense of conspiracy to possess a controlled substance with intent to distribute under §§ 841(a)(1) & 846 and that the jury could find the defendants guilty of the lesser-included offense while not guilty of the greater offense. At the conclusion of trial, the judge charged the jury on the lesser-included offense as follows:
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 §§ 844(a) & 846.
Stone argues that the district court saddled him with a felony sentence under §§ 844(a) & 846 based upon findings made at the sentencing hearing that he possessed cocaine base in an amount greater than five grams, despite that the crime of possession of a controlled substance carries a maximum sentence of one year for a first time offender. The defendant also contends that if he was convicted of a crime other than a misdemeanor under §§ 844(a) & 846, the district court violated his Sixth Amendment right to a jury trial on all elements of the offense of which he was charged. Further, Stone argues that if the district court gave a lesser-included offense instruction on the §§ 844(a) & 846 crime that permitted the felony sentence, it introduced elements of an offense not charged in the indictment, thereby violating his Fifth Amendment right not to be held to answer for a felony crime without indictment by a grand jury.
The keystone to all these claims of error is the construction of 21 U.S.C. §§ 844(a). The *6 issue is essentially whether the third sentence of § 844(a) is merely a penalty provision or whether it both defines an offense and states the penalty for that offense. If the third sentence of § 844(a) is only a penalty provision, the district judge was not in error in sentencing Stone to the 188 month term.
At the time of trial, section 844(a) of Title 21 of the United States Code stated, in relevant part:
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 practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this subchapter or subchapter II of this chapter. Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or both, except that if he commits such offense after a prior conviction under this subchapter or subchapter II of this chapter, or a prior conviction for any drug, narcotic or chemical, offense chargeable under the law of any State, has become final, he shall be sentenced to a term of imprisonment for not less than 15 days but not more than 2 years, and shall be fined a minimum of $2,500, except, further, that if he commits such offense after two or more prior convictions under this subchapter or subchapter II of this chapter, or two or more prior convictions for any drug or narcotic offense chargeable under the law of any State, or a combination of two or more such offenses have become final, he shall be sentenced to a term of imprisonment for not less than 90 days but not more than 3 years, and shall be fined a minimum of $5,000. 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, if the conviction is a first conviction under this subsection and the amount of the mixture or substance exceeds 5 grams, if the conviction is after a prior conviction for the possession of such a mixture or substance under this subsection becomes final and the amount of the mixture or substance exceeds 3 grams, or if the conviction is after 2 or more prior convictions for the possession of such a mixture or substance under this subsection become final and the amount of the mixture or substance exceeds 1 gram. . . (emphasis added).
O THER 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 § 844(a) creates an entirely separate offense from that of possession of a controlled
*7
substance stated in the first sentence. In United States v. Puryear,
We conclude that drug quantity constitutes an essential element of simple possession under section 844(a). We reach this result, in part, by contrasting section 844(a) with the drug trafficking provisions of 21 U.S.C. § 841. The drug trafficking provisions of section 841 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,
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,
United States v. Puryear ,
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 21 U.S.C. § 841(b); it details punishment levels for first-time offenders and recidivists “who violate [ ] this subsection” — where “this subsection” clearly refers back to the first sentence of § 844(a), criminalizing possession of a controlled substance.
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 § 841(b) or the second sentence of § 844(a). Instead, the
amendment penalizes any “person convicted under this subsection for the possession of a
mixture or substance which contains cocaine base.” § 844(a) (emphasis added). As a
matter of simple grammar, the words “for the possession of . . . cocaine base” appear to
be a set of adverbial prepositional phrases used to modify the verb “convicted”,
suggesting that the conviction itself must encompass cocaine base.
Further, the 1988 amendment to § 844(a) is buried in one great paragraph, in
contrast to the penalty section of § 841, which is clearly set off in subsection “(b)” and
labelled “Penalties”. This structural distinction counts against sentence enhancement
classification generally, as other courts have observed. As the court in United States v.
Davis,
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 § 844(a). It determined that although “[t]he general tenor of the floor statements is ambiguous,” the statements were “largely consistent with a congressional intent merely to enhance sentences for those offenders who possess 5 grams or more of cocaine base.” Id . at 841.
Based on what the court saw as an issue normally left for juries to resolve, it concluded *9 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,
In United States v. Sharp,
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 under 18 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,
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. §§ *10 40-20-112 through 115. Convicted felons are also barred from receiving or maintaining professional licenses of various kinds. See Tenn. 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. See Tenn. 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. at 85 []. Citations omitted.) We are not prepared to jettison such a principle if we are not required to do so.
United States v. Sharp,
The Second Circuit Court of Appeals sounded disagreement with the Tenth Circuit in
United States v. Monk,
Accordingly, if the third sentence of section 844(a) does not create a separate offense and the only offense established by section 844(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 section 844(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 section 844(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 section 844(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,
Our disagreement with this reasoning stems from the fact that the Supreme Court
made clear in Spaziano v. Florida,
United States v. Smith,
The Ninth Circuit Court of Appeals has also held that the third sentence of § 844(a) does
not create an offense independent of that stated in the first sentence of § 844(a). United States v.
Butler,
The first sentence of subsection 844(a) unquestionably contains all the elements
of a crime. See Morissette v. United States,
The second sentence of subsection 844(a) refers to the penalty to be imposed by
the court for a violation of the crime of knowingly or intentionally possessing a
controlled substance. See United States v. Michael,
The third sentence of subsection 844(a) was added by Congress in 1988. Pub.L. 100-690, § 6371. It begins with the words “[n]otwithstanding the preceding sentence, a person convicted under this subsection. . . .” 21 U.S.C. § 844(a). Since the preceding sentence contains factors that must be considered in sentencing a person convicted of possession of a controlled substance, the words “[n]otwithstanding the preceding sentence” in the third sentence reflect Congress's intent to direct the district courts to impose more severe penalties if the controlled substance is cocaine base.
In the second and third sentences of subsection 844(a), Congress referred to a violation or a conviction under “this subsection.” The only crime defined in subsection 844(a) is the unlawful or intentional possession of a controlled substance.
The most serious flaw in [the defendant’s] argument that the third sentence of subsection 844(a) sets forth a separate crime of possession of a certain quantity of cocaine base is that the third sentence does not contain any reference to mental state. Unlike the first sentence, which refers to knowing or intentional possession, there is no reference to mens rea in the third sentence. To accept [the defendant’s] construction of the third sentence, we would have to conclude that Congress intended to impose severe punishment on persons found in possession of in excess of five grams of cocaine base who had no knowledge that it was in their possession, or who had no intent to possess it.
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 21 U.S.C. § 812(c)(II)(a)(4). We reject the notion that the third sentence sets forth a separate crime of possession of cocaine base.
Our construction of the plain meaning of the words used by Congress compels the conclusion that subsection 844(a) contains only one crime. Accordingly, where, as here, it was undisputed during the trial that the controlled substance possessed by the defendant was cocaine base in an amount that exceeded five grams, the district court must consider this evidence in imposing sentence, without first requiring the jury to render a special verdict regarding whether the amount possessed exceeded five grams.
United States v. Butler ,
O UR CONCLUSION .
The court must examine § 844(a) to determine if the statute expresses the meaning sought
*14
by the defendant—i.e., that it states a separate third sentence offense—or, at least, whether a
reading of the statute reasonably supports two interpretations, one of which is a construction
avoiding the likelihood of constitutional infirmity. Almendarez-Torres v. United States, --- S.Ct.
---, (1998). “[W]e must examine the language, structure and legislative history in determining
whether the statute in question denounces a separate crime or provides for an enhanced
sentence.” United States v. Palacios-Casquete,
*15
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. . . .” 21 U.S.C. §
844(a). The beginning phrase, “Notwithstanding the proceeding sentence. . .”, may suggest that
the third sentence is a mere continuation of the sentencing penalty factors stated in the second
sentence. Further ambiguity is, however, introduced in the following phrase, “. . . a person
convicted under this subsection for the possession of a mixture or substance which contains
cocaine base . . .” (emphasis added). While the first sentence does not refer to either the type of
controlled substance or the quantity thereof, the third sentence clearly requires a conviction “for
the possession of a mixture or substance which contains cocaine base.” See United States v.
Michael,
Section 844(a) of Title 21 was created by § 404(a) of the Controlled Substances Act of
1970, 1970 Pub. L. 91-513. The 1970 Act did not contain the third sentence, but only earlier
versions of the first two sentences. In 1988, as part of the Omnibus Anti-Drug Abuse Act, 1988
Pub. L. 100-690, §§ 6371 & 6480, Congress introduced the third sentence at the end of the
subsection (a) and modified the other two sentences. As interpretive aids in construing the third
sentence of § 844(a), we can look to “the title of [the] statute and the heading of [the] section” in
which it is introduced. Trainmen v. Baltimore & Ohio R. Co.,
S UBTITLE L--S ERIOUS C RACK P OSSESSION O FFENSES
S EC . 6371. I NCREASED P ENALTIES FOR C ERTAIN S ERIOUS C RACK P OSSESSION O FFENSES .
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 . . . .
1988 Pub. L. 100-690. There are no other sections under Subtitle L. The subtitle heading indicates that it deals with serious crack possession offenses, not simply additional penalties for possession where crack cocaine is involved. The title of the subsection provides for increased increased penalties for certain serious crack cocaine offenses, not merely increased penalties for possession of controlled substances, the subject of the first sentence of § 844(a).
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 Anti-Drug Abuse Act of 1988, the Senate Judiciary Committee performed a section analysis of the statute to provide it with some legislative history. The section of the analysis dealing with the introduction of the third sentence in § 844(a) states:
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 amounts of “crack” where such possession represents a second or subsequent offense.
134 Cong. Rec. S17360-02 (1988).
In view of the constitutional questions that would stem from holding that the third
sentence of § 844(a) does not create a separate crime, “[a]nother rule of statutory construction . .
. is pertinent here: where an otherwise acceptable construction of a statute would raise serious
constitutional problems, [we] will construe the statute to avoid the problems unless such
construction is plainly contrary to the intent of Congress.” DeBartolo Corp. v. Florida Gulf
Coast Bldg. & Constr. Trades Council,
We find compelling the reasoning of the Fifth Circuit Court of Appeals in United States
v. Deisch,
under 21 U.S.C. § 844(a) was a lesser included offense of possession with intent to
distribute cocaine base under 21 U.S.C. § 841(a)(1). Before reaching the final result, the
Court concluded that the identity of the substance is an element of the offense based on
the protections of the Indictment Clause of the Fifth Amendment. Deisch,
After oral argument in this case, the Supreme Court decided Almendarez-Torres v. United States, --- U.S. ---, --- S.Ct. ---, (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.
Id. at *2-3.
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 § 1326(b)(2) offense created a substantial
likelihood that the Due Process Clause would be violated. Id. at *9. The Court then explicated a
set of factors, drawn from United States v. McMillan,
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,
Id. at *13. We conclude that the Due Process Clause analysis in Almendarez-Torres supports Stone’s contentions that the third sentence of § 844(a) states an offense. Our analysis focuses on the third and fifth factors suggested by the Supreme Court. We note that unlike the sentencing provision at issue in McMillan, which merely raised the minimum sentence applicable to the defendant, and the sentencing provision dealt with in Almendarez-Torres, which raised the maximum sentence without raising the minimum, the penalties for first time offenders for simple possession in the second sentence and the third sentence of § 844(a) are mutually exclusive. The penalty stated in the third sentence not only raises the maximum imprisonment period, it raises the minimum penalty to above the maximum penalty under the second sentence. In addition, the potential sentences are not only disparate in length, they are disparate in kind: A sentence given under the second sentence for a first time offender will never be more than a misdemeanor, while a sentence given under the third can never be less than a felony with a statutory minimum of five years.
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 *5. 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 § 844 is “Penalties for simple
possession.” A subtitle, however, is “(a) Unlawful acts; penalties.” As noted in
Puryear, supra, “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.” United States v.
Puryear,
(4) The Supreme Court emphasized, as did this court in United States v. Palacios-
Casquette,
(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,
II
I NVITED ERROR ?
The Government contends that, even if we hold the third sentence of § 844(a) to state a
separate offense, we are precluded from addressing any errors arising from misinterpretation of
the statute because Stone invited those errors by requesting the jury instruction based on
possession of cocaine base. The doctrine of invited error is implicated when a party induces or
invites the district court into making an error. Alabama Great Southern R. Co. v. Johnson, 140
F.2d 968, 970-71 (5 Cir. 1944). For example, a defendant can invite error by introducing
otherwise inadmissible evidence at trial or by submitting an incorrect jury instruction to the
district judge which is then given to the jury. Generally, an appellate court will not review an
error invited by a defendant, on the rationale that the defendant should not benefit from
introducing error at trial with the intention of creating grounds for reversal on appeal. See
United States v. Manton,
We reject the Government’s contention that the invited error doctrine requires us to affirm Stone’s sentence. The premise of the Government’s invited error argument is that Stone requested a lesser-included charge of conspiracy to possess more than five grams of a substance containing cocaine base—the crime described in the third sentence of § 844(a). We conclude, however, that the trial judge gave a lesser-included offense instruction on conspiracy to commit the first sentence offense. The trial judge reiterated his instruction to the jury on the offense of conspiracy to possess a controlled substance with intent to distribute, absent the element of the intent to distribute. From this, it is clear that the trial judge only subtracted elements from the conspiracy to possess with intent to distribute offense in order to derive the offense of conspiracy to possess a controlled substance.
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 § 844(a) as related to sentencing was an issue before the district court. The defendant did not invite being sentenced as a felon under § 844(a) as opposed to being sentenced as a misdemeanant. The sentencing *22 issue was, therefore, not forfeited nor knowingly and understandingly waived. Given that the defendant was convicted of conspiracy to commit the offense stated in the first sentence of § 844(a), it was inappropriate for the trial judge to sentence him as though he were convicted for conspiracy to commit the offense described in the third sentence of that statute. Stone was convicted of a misdemeanor. We VACATE the Count I sentence of Stone.
C ONCLUSION 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.
Notes
[1] Defendant Kelly Knight Stone was also charged with possession of a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Count II), dealing firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A) (Count III), seven counts of making false and fictitious statements in the acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6) (Counts IV-X), and unlawful sale of a firearm in violation of 18 U.S.C. § 922(d) (Count XI).
[2] As will be indicated, the law on the issue was certainly not clear.
[3] Stone was also found guilty of engaging in the business of selling firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A) (Count III) and five counts of making false or fictitious statements in the acquisition of firearms in violation of 18 U.S.C. § 922(a)(6) (Counts IV, V, VI, IX and X). He was sentenced to sixty months imprisonment for the conviction of the sale of firearms without a license and was sentenced to 120 months incarceration for the five counts of making false or fictitious statements in the acquisition of firearms. All sentences were to run concurrently with his 188 month sentence for possession of controlled substance.
[4] After the trial, this court held that the Government must prove that the defendant knew that he did not have the requisite license to engage in the business of dealing in firearms. United States v. Sanchez-Corcino , 85 F.3d 549 (11 Cir. 1996). Because the instruction given the jury did not contain this knowledge requirement, it was defective.
[5] Count I of the indictment states: That between on or about January 1, 1994, and continuing thereafter, up to and including May 30, 1995, in the Northern District of Florida and elsewhere, defendants, K ELLY K NIGHT S TONE , K ELLY L EE S TRICKLIN , and M ICHAEL L EE S TRICKLIN did unlawfully combine, conspire, confederate, agree and have a tacit understanding with each other and other persons not charged in this indictment . . . to knowingly and intentionally possess with intent to distribute the controlled substance cocaine base, commonly known as “crack cocaine,” in violation of Title 21, United States Code, Sections 841(a)(1) and (b)(1)(A)(iii). All in violation of Title 21, United States Code, Section 846. Section 841(b)(1)(A)(iii) provides for the following penalties: Any person who violates subsection (a) of this section shall be sentenced as follows: (1)(A) In the case of a violation of subsection (a) of this section involving-- (iii) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base; 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 Title 18, or $4,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individual, or both (emphasis added).
[6] In the discussions between the judge and the parties, the greater offense was consistently referred to as conspiracy to possess cocaine base with intent to distribute, not simply conspiracy to possess a controlled substance with intent to distribute. Similarly, the offense on which the lesser-included offense instruction was to be given was referred to as conspiracy to possess cocaine base, not simply conspiracy to possess a controlled substance.
[7] Section 844(a) was amended on October 3, 1996 to include, between the first and second sentence a sentence relating to the crime of possessing a list I chemical pursuant to a revoked or suspended registration. Our references to sentence numbers are to the sentences in the statute prior to this amendment.
[8] We note that Florida law also places a host of disabilities on convicted felons that are not placed on mere misdemeanor offenders. Included among the disabilities are withdrawal of voting rights, Fla. Stat. Ann § 40.013; the right to run for political office, Fla. Const. 6 § 4; the right to possess a firearm, Fla. Stat. Ann § 790.23; the right to be a firefighter, Fla. Stat. Ann § 633.34; the right to administrate the estate of a deceased, Fla. Stat. Ann § 733.302; and the right to enter certain professions or hold particular licenses (private investigator, yacht broker, &c.).
[9] This court has held similarly. See United States v. Bennett,
[10] The Seventh Circuit Court of Appeals discussion of Spaziano v. Florida,
[11] This circuit is among those to have determined that the number of prior convictions is generally a
sentencing factor. See United States v. McGatha,
[12] This court has held that sentencing factors, such as those set out in § 841(b)—including the amount of
the controlled substance that the defendant is charged with possessing—need not be averred in the indictment.
United States v. Harden,
[13] The Act had come together rather informally and as a result there was little in the way of legislative history predating the passage of the Act. See Hon. Daniel P. Moynihan, Drug Addiction is a Disease of the Brain, 135 Cong. Rec. S7091-02, S7091-S7093 (1989).
[14] We note with interest that Almendarez-Torres affirms a decision of the Fifth Circuit at
[15] In any case, the trial judge could not have instructed on the third sentence offense. Elements of the
offense under § 846 and the third sentence of § 844(a)—agreement to (1) possess cocaine base (2) in an amount of
greater than five grams—are not shared with the parent offense. The Supreme Court has advanced an elements test
for evaluating whether one offense is a lesser-included offense of another offense. Schmuck v. United States, 489
U.S. 705, 716 (1989). For an offense to be a lesser-included offense of a parent offense, its elements must be
contained within the elements of the parent offense, i.e., the elements of the prospective lesser-included offense must
be a subset of those contained in the parent offense. Id. Failure of a “lesser-included offense” to have all of its
elements contained in a parent offense results in constructive amendment of the indictment in violation of the Grand
Jury Clause of the Fifth Amendment. See Schmuck v. United States,
[16] See United States v. Michael, supra,