## 1997 D e c i sion s O p inion s of the U nit e d
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. e du/thir dc ir c uit_1997/106Filed 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 AppelleeStephen 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 o f
conviction and sentence entered in the district cou rt on an indictment charging him with distribution of at lea st five grams of a mixture or substance containing a detect ible amount of cocaine base, which, as a matter of conve nience, we will call simply cocaine base. A jury found Lewi s guilty under 21 U.S.C. § 841(a)(1) ("section 841(a)(1)") w hich prohibits the distribution of a controlled substanc e. 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 inst ructed the jury that it could find him guilty whether he had distributed cocaine powder or cocaine base. He argu es that this instruction infringed upon the jury's fact-fin ding
function. He also contends that because the court instructed the jury that it could find him guilty w hether he distributed cocaine powder or cocaine base, the bas is for its finding of guilt cannot be determined. He thus asse rts that
the district court erred because it sentenced him f or distribution of cocaine base rather than powder coc aine. He claims that this error prejudiced him as the mandat ory minimum penalties for distribution of cocaine base in section 841(b) are more severe than those for the distribution of powder cocaine. Finally, Lewis argu es that even if we uphold his conviction he is entitled to a remand for resentencing because the government failed to p rove by

2a 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 tha t 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 ch arged under section 841(a)(1) distributed, provided it de termines
that the defendant distributed a controlled substan ce. It further argues that the district court was correct in determining for sentencing purposes the identity of the controlled substance that Lewis distributed, for th e "type and quantity of the controlled substance in an offe nse is an issue of fact to be decided by the court at sentenc ing." Br. at 4. Finally, the government argues that the distr ict court's finding that Lewis distributed cocaine base was not clearly

erroneous.

We have jurisdiction pursuant to 28 U.S.C. § 1291 a nd 18 U.S.C. § 3742(a). The district court had jurisdi ction pursuant to 18 U.S.C. § 3231. We exercise plenary r eview 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 ini tiated a purchase of cocaine from Lewis. Lewis informed Jo nes 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 mor e. Lewis then procured an additional 50 dime bags of cocaine , which he also gave to Jones. Jones, in turn, paid Lewis f or the cocaine. Laboratory analysis showed that Jones purc hased

37.5 grams of cocaine base from Lewis. App. at 35. B ased on

these events, a grand jury returned a two-count ind ictment charging Lewis with distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) and distribution of cocain e base within 1,000 feet of a public housing project in vi olation 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 i nto the difference between cocaine base and cocaine powder, explaining that the difference was not relevant. Ap p. at 300-04. Lewis also testified, denying that he distr ibuted crack, and contending that he had sold cocaine powd er 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 c ocaine powder or cocaine base. App. at 348-49, 361, 393-94 , 396.

The jury found Lewis guilty of distribution of coca ine but found him not guilty of distribution of cocaine wit hin 1,000 feet of a public housing project. We cannot ascerta in from
the verdict whether it concluded that Lewis distrib uted cocaine base or powder cocaine or, indeed, even whe ther it reached a unanimous conclusion on this point. On Ma y 30, 1996, the district court sentenced Lewis to a custo dial term of 120 months, a $500 fine, eight years of supervis ed release and a $50 special assessment, the sentence being predicated on its finding that Lewis distributed co caine base. As we have indicated, this finding was signif icant 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 relati ng to the validity of a conviction before questions relat ing to a sentence, in this case we reverse that order becaus e our determination of the sentencing issues informs our result on the issues relating to the conviction. Section 8 41(a)(1),

4which is entitled "Unlawful acts," prohibits the di stribution

of controlled substances. It states:

(a) Except as authorized by this subchapter, it sha ll be unlawful for any person knowingly or intentional ly

--

(1) to manufacture, distribute, or dispense, or pos sess with intent to manufacture, distribute or dispense, a controlled substance;

. . .

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

Except as otherwise provided in section 859, 860, o r 861 of this title, any person who violates subsecti on (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 bas e; . . . 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 mandat ed 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 othe r hand, the sentence for distributing at least five grams o f cocaine does not include the five-year minimum term. Sectio n 841(b)(1)(C).

We have held that the district court rather than th e jury determines the weight of drugs involved in a sectio n 841 offense as the amount of drugs involved in an offen se 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

5585, 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 identit y of the controlled substance in a section 841(a)(1) case al so is a sentencing factor, we conclude that a logical appli cation 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 quan tity of cocaine to another state. After the police seized t he 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 coc aine with intent to distribute. The quantity of cocaine in th e package sent was a hotly contested issue because in the eve nt of conviction its weight would impact significantly on the statutorily available sentence. At trial, the distr ict 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 substanti ve offense, as laid out in section 841(a), and the sen tencing provisions, which are set forth in section 841(b). Thus, we held that "§ 841(b) is merely a penalty provision t o 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, ina smuch as section 841(b) rather than section 841(a) deals with the weight of controlled substances, we remanded Chappl e for
the district court to resentence on the basis of it s determination of the quantities involved. We conclu de that inasmuch as section 841(b) specifies both the quant ities
and identities of controlled substances to be consi dered 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.

6At bottom, resolution of the issue with respect to whether

the jury or the court determines the identity of th e controlled substance depends on how Congress define d 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 w as an element of an offense, the visible possession of a weapon, as a sentencing factor to be determined by the cour t 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 t he jury determine beyond a reasonable doubt that the defend ant committed the crime depends on how the state define s 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 c riminal offense is entrusted to the legislature, particular ly in the case of federal crimes which are solely creations o f
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, secti on 841(a)(1) is entitled "Unlawful acts," suggesting t hat the section completely sets forth the elements of the o ffenses it creates. While Congress could have enacted separate statutes criminalizing the distribution of particul ar controlled substances, it did not do so. Instead, i t characterized the determination of the identity and the weight of the controlled substance as penalty facto rs 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. § 37 1 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

7acknowledge that the authority of Conley is somewhat limited here because the object of the conspiracy i n that case was significant only with respect to the appli cation of the sentencing guidelines while here the identity o f the controlled substance was a factor in establishing t he possible sentence under section 841(b). Nevertheles s, there is likely no pertinent distinction to a defendant b etween a court determining facts applicable to setting a gui delines range and determining the sentence available under a

statute.

There is substantial support for our result in othe r circuits. For example, in United States v. Barnes , 890 F.2d 545 (1st Cir. 1989), the Court of Appeals for the F irst Circuit upheld a conviction and sentence in a case in which the indictment charged the defendant with possessio n 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 bas e over her objection that one chunk of cocaine seized may not have contained cocaine base. The court explained th at 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 possessi on of
a controlled substance with intent to distribute. Therefore, as a penalty provision, the district cou rt 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 d uring the sentencing as to the quantity and type of the cocai ne." 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).

8In reaching our result, we recognize that the Court of Appeals for the Fifth Circuit in United States v. B ounds

, 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 det ermined by the court at sentencing, the identity of the con trolled
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 t he controlled substance. Thus, we do not find Bounds persuasive and we are unable to rely on it to disti nguish Chapple from this case.

We also are aware of opinions of other courts of ap peals 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 m ust treat the case as if the defendant conspired to commit an offense involving only the controlled substance carrying th e 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. Oroz coPrada , 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 governmen t consented to imposition of a sentence based on the controlled substance carrying the lowest penalty.

But these conspiracy cases are not without detracto rs, because the Court of Appeals for the Seventh Circui t has held that where an indictment charges conspiracy to distribute both powder cocaine and cocaine base, "a s long as the jury finds that the defendants conspired to distribute

any drug proscribed by § 841(a)(1), the judge possesse s the power to determine which drug, and how much [for th e purposes of sentencing the defendants]." United Sta tes 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 senten cing guidelines "the judge alone determines which drug w as distributed, and in what quantity," id. at 1180, the court

9recognized that the distinction between powder coca ine and

cocaine base was significant under section 841(b) a s well as under the guidelines. Id. at 1181. Nevertheless, the court reached its result on the theory that the distincti on was not germane to identifying the substantive offense comm itted, 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 t he substances or the quantities." Id.

Because we conclude that the court at sentencing mu st determine the nature of the controlled substance, t he government need only have proved by a preponderance of
the evidence that Lewis distributed cocaine base. S ee Chapple , 985 F.2d at 731; see also United States v. James

, 78 F.3d 851, 857-58 (3d Cir.) (holding that governm ent 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 conclusio n that the government met this burden because a laboratory analysis established that the controlled substance involved was cocaine base. We thus affirm the sentence impos ed 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 the m. 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 wheth er the controlled substance was powder cocaine or cocaine base. Lewis asserts that this charge to the jury broadene d 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 th at the

10conviction must be vacated." In determining whether there has been a fatal variance, courts ascertain whether the variance affects "the substantial rights of the acc used 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 repro secution
for the same offense." United States v. Pierce , 893 F.2d 669, 676 (5th Cir. 1990) (citation omitted). Here the al leged 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 f act 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 impermi ssible 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. Knu ckles

, 581 F.2d 305 (2d Cir. 1978), the defendants were ch arged with possession and distribution of heroin but they alleged that the substance was cocaine. Nevertheless, the C ourt of Appeals for the Second Circuit affirmed the convict ion. 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 th e identity of the controlled substance is a sentencin g factor for the court, we do not see why the difference for sentencing purposes between powder cocaine and coca ine base should matter in a variance analysis. The Cour t 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 w as 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 o r distribution of a controlled substance need specify the

11identity of the substance since, as we have explain ed, the

identity of the substance is a sentencing factor ra ther than
an element of the offense. See United States v. Edw ards

, 105 F.2d at 1181. Accordingly, the allegation in th e indictment that Lewis distributed cocaine base prob ably 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 th e controlled substance and we do not question this pr actice. 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 convicti on 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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