1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-14-1997

United States v. Lewis

Precedential or Non-Precedential:

Docket 96-1468

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Recommended Citation

"United States v. Lewis" (1997). 1997 Decisions. Paper 106.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/106
Filed May 14, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-1468 

UNITED STATES OF AMERICA 

v. 

ANTHONY LEWIS, 

a/k/a Tony Lewis, a/k/a Henry Lewis, a/k/a Antonio 

Lewis, a/k/a Tone 

Anthony Lewis, 

Appellant

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Crim. No. 95-00492) 

Argued April 14, 1997 

BEFORE: GREENBERG, ALITO, and SEITZ, Circuit Judges

(Filed: May 14,1997) 

Michael R. Stiles 

United States Attorney 

Walter S. Batty, Jr. 

Assistant United States Attorney 

Chief of Appeals 

Emily McKillip (argued) 

Assistant United States Attorney 

615 Chestnut Street, Suite 1250 

Philadelphia, PA 19106-4476 

 Attorneys for Appellee
Stephen P. Patrizio (argued) 

Dranoff & Patrizio 

Suite 1600 

117 S. 17th Street 

Philadelphia, PA 19103 

 Attorneys for Appellant

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

Appellant, Anthony Lewis, appeals from a judgment of 

conviction and sentence entered in the district court on an 

indictment charging him with distribution of at least five 

grams of a mixture or substance containing a detectible 

amount of cocaine base, which, as a matter of convenience, 

we will call simply cocaine base. A jury found Lewis guilty 

under 21 U.S.C. § 841(a)(1) ("section 841(a)(1)") which 

prohibits the distribution of a controlled substance. The 

court subsequently sentenced Lewis to 120 months in

prison under 21 U.S.C. § 841(b) ("section 841(b)") for 

distribution of at least five grams of cocaine base. Lewis 

contends that he is entitled to a new trial because, 

notwithstanding his indictment for distribution of at least 

five grams of cocaine base, the district court instructed the 

jury that it could find him guilty whether he had 

distributed cocaine powder or cocaine base. He argues that 

this instruction infringed upon the jury's fact-finding 

function. He also contends that because the court 

instructed the jury that it could find him guilty whether he 

distributed cocaine powder or cocaine base, the basis for its 

finding of guilt cannot be determined. He thus asserts that 

the district court erred because it sentenced him for 

distribution of cocaine base rather than powder cocaine. He 

claims that this error prejudiced him as the mandatory 

minimum penalties for distribution of cocaine base in 

section 841(b) are more severe than those for the 

distribution of powder cocaine. Finally, Lewis argues that 

even if we uphold his conviction he is entitled to a remand 

for resentencing because the government failed to prove by 

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a preponderance of the evidence that the controlled

substance he distributed was cocaine base. 

The government counters that to prove that Lewis 

violated section 841(a) it needed to prove only that he knew 

he was distributing a controlled substance even if he did 

not know its identity. It also asserts that a jury need not 

determine which controlled substance a defendant charged 

under section 841(a)(1) distributed, provided it determines 

that the defendant distributed a controlled substance. It 

further argues that the district court was correct in 

determining for sentencing purposes the identity of the 

controlled substance that Lewis distributed, for the "type 

and quantity of the controlled substance in an offense is an 

issue of fact to be decided by the court at sentencing." Br. 

at 4. Finally, the government argues that the district court's 

finding that Lewis distributed cocaine base was not clearly 

erroneous. 

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 

18 U.S.C. § 3742(a). The district court had jurisdiction 

pursuant to 18 U.S.C. § 3231. We exercise plenary review 

over the questions before us, except that we review the 

court's finding that Lewis distributed cocaine base to 

determine if the finding was clearly erroneous. 

I. FACTUAL AND PROCEDURAL HISTORY 

On February 17, 1995, Edward Jones, a confidential 

informant for the Drug Enforcement Administration (the 

"DEA"), went to Bristol Township, Pennsylvania, as 

instructed by DEA agents, to purchase $2,000 worth of 

crack cocaine from a particular person. App. at 219-21. 

While unsuccessfully seeking that person, Jones met Lewis 

who offered to sell him crack cocaine. App. at 222. After 

obtaining permission from the DEA agents, Jones initiated 

a purchase of cocaine from Lewis. Lewis informed Jones 

that he had 25 dime bags with him, which he gave to

Jones, and then suggested that Jones drive him to a

residence belonging to a third person to obtain more. Lewis 

then procured an additional 50 dime bags of cocaine, which 

he also gave to Jones. Jones, in turn, paid Lewis for the 

cocaine. Laboratory analysis showed that Jones purchased 

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7.5 grams of cocaine base from Lewis. App. at 35. Based on 

these events, a grand jury returned a two-count indictment 

charging Lewis with distribution of cocaine base in violation 

of 21 U.S.C. § 841(a)(1) and distribution of cocaine base 

within 1,000 feet of a public housing project in violation of 

21 U.S.C. § 860. App. at 15-16. 

Jones testified at the trial, but during his crossexamination the district court barred any inquiry into the 

difference between cocaine base and cocaine powder,

explaining that the difference was not relevant. App. at 

300-04. Lewis also testified, denying that he distributed 

crack, and contending that he had sold cocaine powder to 

Jones. App. at 171-73. App. at 172-73. The district court, 

over Lewis's objection, instructed the jury that it could find 

Lewis guilty regardless of whether he distributed cocaine 

powder or cocaine base. App. at 348-49, 361, 393-94, 396. 

The jury found Lewis guilty of distribution of cocaine but 

found him not guilty of distribution of cocaine within 1,000 

feet of a public housing project. We cannot ascertain from 

the verdict whether it concluded that Lewis distributed 

cocaine base or powder cocaine or, indeed, even whether it 

reached a unanimous conclusion on this point. On May 30, 

1996, the district court sentenced Lewis to a custodial term 

of 120 months, a $500 fine, eight years of supervised 

release and a $50 special assessment, the sentence being 

predicated on its finding that Lewis distributed cocaine 

base. As we have indicated, this finding was significant for 

it is undisputed that the sentence for distributing powder 

cocaine would have been less than the sentence the court 

imposed. App. at 10-14. 

II. DISCUSSION 

a. Sentencing issues

While ordinarily we would consider questions relating to 

the validity of a conviction before questions relating to a 

sentence, in this case we reverse that order because our 

determination of the sentencing issues informs our result 

on the issues relating to the conviction. Section 841(a)(1), 

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which is entitled "Unlawful acts," prohibits the distribution 

of controlled substances. It states: 

(a) 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; 

. . . 

Section 841(b), entitled "Penalties," provides: 

Except as otherwise provided in section 859, 860, or 

861 of this title, any person who violates subsection (a) 

of this section shall be sentenced as follows: . . . 

(1)(B) In the case of a violation of subsection (a) of this 

section involving -- 

. . . . 

(iii) 5 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 5 years and

not more than 40 years. . . . 

The sentence mandated for distribution of at least 500 

grams of cocaine is the same as the sentence mandated for 

distribution of at least five grams of cocaine base -- not 

less than five years and not more than 40 years' 

imprisonment. Section 841(b)(1)(B)(ii). On the other hand, 

the sentence for distributing at least five grams of cocaine 

does not include the five-year minimum term. Section 

841(b)(1)(C). 

We have held that the district court rather than the jury 

determines the weight of drugs involved in a section 841 

offense as the amount of drugs involved in an offense is a 

sentencing factor. United States v. Chapple, 985 F.2d 729 

(3d Cir. 1993). Substantial authority supports this

conclusion. See, e.g., United States v. Madkour, 930 F.2d 

234, 237 (2d Cir. 1991); United States v. Cross, 916 F.2d 

622 (11th Cir. 1990); United States v. McNeese, 901 F.2d 

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585, 605 (7th Cir. 1990); United States v. Jenkins, 866 F.2d 

331, 334 (10th Cir. 1989); United States v. Wood, 834 F.2d 

1382, 1388-90 (8th Cir. 1987). While we seem never to 

have decided whether a determination of the identity of the 

controlled substance in a section 841(a)(1) case also is a 

sentencing factor, we conclude that a logical application of 

Chapple constrains us to hold that it is. Thus, the court 

determines the identity of the controlled substance at 

sentencing. 

In Chapple, an individual, unaware that he was under 

police surveillance, attempted to send a large quantity of 

cocaine to another state. After the police seized the cocaine, 

the defendants were indicted and tried under 21 U.S.C. 

§ 846 for conspiracy to possess cocaine with intent to 

distribute. In addition, one defendant was indicted and 

tried under section 841(a)(1) for possession of cocaine with 

intent to distribute. The quantity of cocaine in the package 

sent was a hotly contested issue because in the event of 

conviction its weight would impact significantly on the 

statutorily available sentence. At trial, the district court 

ruled that the weight of the cocaine was an element of the 

substantive offense which the jury had to determine. The 

jury subsequently convicted the defendants. 

On appeal, we affirmed the convictions but vacated the 

sentences on the ground that section 841 clearly 

distinguishes between the elements of the substantive 

offense, as laid out in section 841(a), and the sentencing 

provisions, which are set forth in section 841(b). Thus, we 

held that "§ 841(b) is merely a penalty provision to be used 

at sentencing, after conviction of the substantive crime." 

Chapple, 985 F.2d at 731 (quoting United States v. Gibbs, 

813 F.2d 596, 600 (3d Cir. 1987)). Accordingly, inasmuch 

as section 841(b) rather than section 841(a) deals with the 

weight of controlled substances, we remanded Chapple for 

the district court to resentence on the basis of its 

determination of the quantities involved. We conclude that 

inasmuch as section 841(b) specifies both the quantities 

and identities of controlled substances to be considered in 

determining the sentence, Chapple requires us to hold that 

the district court was correct in its determination that the 

court should determine the type of cocaine Lewis 

distributed as a sentencing factor. 

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At bottom, resolution of the issue with respect to whether 

the jury or the court determines the identity of the 

controlled substance depends on how Congress defined the 

offense under section 841(a)(1). As we observed in United

States v. Conley, 92 F.3d 157, 165 (3d Cir. 1996), cert.

denied, 117 S.Ct. 1244 (1997), the Supreme Court has 

permitted a state to treat conduct which arguably was an 

element of an offense, the visible possession of a weapon, 

as a sentencing factor to be determined by the court rather 

than the jury. McMillan v. Pennsylvania, 477 U.S. 79, 106 

S.Ct. 2411 (1986). The Supreme Court made clear in 

McMillan that while there are constitutional limits beyond 

which a state may not go in allocating to the trial court 

factors affecting sentences, the requirement that the jury 

determine beyond a reasonable doubt that the defendant 

committed the crime depends on how the state defines the 

offense. See id. at 84-86, 106 S.Ct. at 2415-16. In United

States v. Gaudin, ___ U.S. ___, #6D 6D6D#, 115 S.Ct. 2310, 2321 

(1995), Chief Justice Rehnquist emphasized in his 

concurrence that "definition of the elements of a criminal 

offense is entrusted to the legislature, particularly in the 

case of federal crimes which are solely creations of 

statutes." 

In this case, Congress clearly defined the offense as the 

distribution of a "controlled substance," seemingly

purposely refraining from specifying a particular "controlled 

substance" in section 841(a)(1). Furthermore, section 

841(a)(1) is entitled "Unlawful acts," suggesting that the 

section completely sets forth the elements of the offenses it 

creates. While Congress could have enacted separate

statutes criminalizing the distribution of particular 

controlled substances, it did not do so. Instead, it 

characterized the determination of the identity and the 

weight of the controlled substance as penalty factors in 

section 841(b). We must honor that approach. 

United States v. Conley supports our result, as it 

indicates that the sentencing guidelines could make "the 

object of a conspiracy charged under 18 U.S.C. § 371 a 

matter for the sentencer rather than an element of the 

crime" without violating the Sixth Amendment right to a 

trial by jury. Conley, 92 F.3d at 166. Of course, we 

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acknowledge that the authority of Conley is somewhat 

limited here because the object of the conspiracy in that 

case was significant only with respect to the application of 

the sentencing guidelines while here the identity of the 

controlled substance was a factor in establishing the 

possible sentence under section 841(b). Nevertheless, there 

is likely no pertinent distinction to a defendant between a 

court determining facts applicable to setting a guidelines 

range and determining the sentence available under a 

statute. 

There is substantial support for our result in other 

circuits. For example, in United States v. Barnes, 890 F.2d 

545 (1st Cir. 1989), the Court of Appeals for the First 

Circuit upheld a conviction and sentence in a case in which 

the indictment charged the defendant with possession of 

cocaine base with intent to distribute. In Barnes, the 

district court sentenced the defendant on the basis of its 

finding that the substance involved was cocaine base over 

her objection that one chunk of cocaine seized may not 

have contained cocaine base. The court explained that it 

was 

important to note that the court, not the jury, 

determines the quantity and type of controlled 

substance appropriate under 21 U.S.C. § 841(b). 

Section 841(b) describes the penalty provisions for

violations of section 841(a), in this case possession of 

a controlled substance with intent to distribute. 

Therefore, as a penalty provision, the district court 

judge determines the facts at the sentencing, and, on 

appeal, we review the court's factual findings, not the 

jury's verdict. 

Id. at 551 n.6 (citations omitted). 

Accordingly, in Barnes the court of appeals indicated that 

"the district court judge properly made a finding during the 

sentencing as to the quantity and type of the cocaine." Id.; 

See also, e.g., United States v. Bingham, 81 F.3d 617, 628- 

29 (6th Cir.), cert. denied, 117 S.Ct. 250 (1996); United

States v. McMurray, 34 F.3d 1405, 1414 (8th Cir. 1994), 

cert. denied, 115 S.Ct. 1164 (1995); United States v. Young, 

981 F.2d 180, 188 (5th Cir. 1992); United States v. Levy, 

904 F.2d 1026, 1034 (6th Cir. 1990). 

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In reaching our result, we recognize that the Court of 

Appeals for the Fifth Circuit in United States v. Bounds, 

985 F.2d 188, 194-95 (5th Cir. 1993), has held that

although the quantity of controlled substances does not 

constitute an element of the crime and is to be determined 

by the court at sentencing, the identity of the controlled 

substance is an element of the substantive crime to be 

determined by the jury. The Bounds court, however, did not 

provide any explanation for the distinction it drew in its 

differing treatment of the identity and weight of the 

controlled substance. Thus, we do not find Bounds

persuasive and we are unable to rely on it to distinguish 

Chapple from this case. 

We also are aware of opinions of other courts of appeals 

which have held that where a jury returns a general verdict 

of guilty to a conspiracy charge under 21 U.S.C. § 846 

covering several controlled substances, the court must treat 

the case as if the defendant conspired to commit an offense 

involving only the controlled substance carrying the lowest 

penalty under section 841(b). See United States v. Bounds, 

985 F.2d at 195; United States v. Owens, 904 F.2d 411, 

414-15 (8th Cir. 1990); Newman v. United States, 817 F.2d 

635, 637-38 (10th Cir. 1987); United States v. OrozcoPrada, 732 F.2d 1076, 1083 (2d Cir. 1984). In several of

these cases, the court of appeals remanded the case to the 

district court for a new trial unless the government 

consented to imposition of a sentence based on the 

controlled substance carrying the lowest penalty. 

But these conspiracy cases are not without detractors, 

because the Court of Appeals for the Seventh Circuit has 

held that where an indictment charges conspiracy to

distribute both powder cocaine and cocaine base, "as long 

as the jury finds that the defendants conspired to distribute 

any drug proscribed by § 841(a)(1), the judge possesses the 

power to determine which drug, and how much [for the 

purposes of sentencing the defendants]." United States v.

Edwards, 105 F.3d 1179, 1182 (7th Cir. 1997) (emphasis 

in original). While Edwards reached its conclusion for what 

it called the "simple" reason that under the sentencing 

guidelines "the judge alone determines which drug was 

distributed, and in what quantity," id. at 1180, the court 

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recognized that the distinction between powder cocaine and 

cocaine base was significant under section 841(b) as well as 

under the guidelines. Id. at 1181. Nevertheless, the court 

reached its result on the theory that the distinction was not 

germane to identifying the substantive offense committed, 

because an "indictment could charge the defendants with 

`conspiring to distribute controlled substances in violation 

of 21 U.S.C. § 841(a)' without identifying either the 

substances or the quantities." Id.

Because we conclude that the court at sentencing must 

determine the nature of the controlled substance, the 

government need only have proved by a preponderance of 

the evidence that Lewis distributed cocaine base. See

Chapple, 985 F.2d at 731; see also United States v. James, 

78 F.3d 851, 857-58 (3d Cir.) (holding that government 

must prove by a preponderance of the evidence that cocaine 

base sold by defendant was actually crack if judge is to 

apply enhanced penalty under sentencing guidelines 

applicable to cocaine base), cert. denied, 117 S.Ct. 128 

(1996). The record in this case compels a conclusion that 

the government met this burden because a laboratory

analysis established that the controlled substance involved 

was cocaine base. We thus affirm the sentence imposed by 

the district court. 

b. Issues relating to the conviction

Lewis also has challenged the indictment and proofs, 

arguing that there was a fatal variance between them. In 

this regard, he points out that even though he was indicted 

for distributing in excess of five grams of cocaine base, the 

court charged the jury that it did not matter whether the 

controlled substance was powder cocaine or cocaine base. 

Lewis asserts that this charge to the jury broadened the 

indictment and violated his right to be tried only on an 

indictment returned by the grand jury. 

We reject this argument. As we explained in United States

v. Padilla, 982 F.2d 110, 113 (3d Cir. 1992) (emphasis in 

original), "[w]hen there is a variance between the indictment 

and the proof at trial and when that variance prejudices a 

substantial right of the defendant, we have held that the 

 10 
conviction must be vacated." In determining whether there 

has been a fatal variance, courts ascertain whether the 

variance affects "the substantial rights of the accused either 

(1) by insufficiently informing [the defendant] of the charges 

against him such that he is taken by surprise and 

prevented from presenting a proper defense, or (2) by 

affording him insufficient protection against reprosecution 

for the same offense." United States v. Pierce, 893 F.2d 669, 

676 (5th Cir. 1990) (citation omitted). Here the alleged 

variance clearly was not prejudicial because Lewis does not 

contend that he was unaware that he was being tried for 

the distribution of a controlled substance to Jones. Thus, 

Lewis was able fully to make his defense and there is no 

possibility that he will be indicted again for the events 

involved here. Lewis suffers from the unfortunate fact that 

his defense -- that he distributed powder cocaine--

amounted to a confession in front of the jury. 

Other courts have held that there is not an impermissible 

variance where the indictment charges the defendant with 

offenses involving one controlled substance but the

evidence shows that the offenses actually involved another 

controlled substance. Thus, in United States v. Knuckles, 

581 F.2d 305 (2d Cir. 1978), the defendants were charged 

with possession and distribution of heroin but they alleged 

that the substance was cocaine. Nevertheless, the Court of 

Appeals for the Second Circuit affirmed the conviction. 

While we recognize that in Knuckles the court pointed out 

that the variance did not affect the sentence, id. at 311, in 

view of our conclusion that the determination of the 

identity of the controlled substance is a sentencing factor 

for the court, we do not see why the difference for

sentencing purposes between powder cocaine and cocaine 

base should matter in a variance analysis. The Court of 

Appeals for the Fifth Circuit, in a holding similar to 

Knuckles, held that where the offense charged is 

distribution of cocaine powder but the evidence at trial 

showed that the substance was cocaine base, there was not 

a fatal variance. United States v. Pierce, 893 F.2d at 676. 

We also point out that we see no reason why an 

indictment under section 841(a)(1) for possession or 

distribution of a controlled substance need specify the 

 11 
identity of the substance since, as we have explained, the 

identity of the substance is a sentencing factor rather than 

an element of the offense. See United States v. Edwards, 

105 F.2d at 1181. Accordingly, the allegation in the 

indictment that Lewis distributed cocaine base probably 

was not needed. We hasten to add, however, that we are 

well aware that indictments under section 841(a)(1)

ordinarily do specify the identity and amount of the 

controlled substance and we do not question this practice. 

Accordingly, United States Attorneys should not take this 

opinion as signalling that that practice should be changed. 

III. CONCLUSION 

For the foregoing reasons, the judgment of conviction and 

sentence of May 30, 1996, will be affirmed. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

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