IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

No. 96-20727

________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL LEE CHANDLER,

Defendant-Appellant.

_________________________________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

________________________________________________________________________________ October 10, 1997

Before POLITZ, Chief Judge, BENAVIDES and PARKER, Circuit Judges.

BENAVIDES, Circuit Judge:

The defendant, Michael Lee Chandler, appeals the sentence imposed following his guilty plea

to one count of possessing cocaine base with intent to distribute, in violation of 21 U.S.C. §

841(a)(1). For the reasons set forth below, we vacate and remand for resentencing.

I.

On July 21, 1995, Houston Police Officer Steve Frank was patrolling the Irvington Village

Apartment Complex, a federally funded public housing complex, located in Houston, Texas, as part

of his regular assignment. At approximately 11:30 p.m., Officer Frank observed Chandler, who was

sitting on a bicycle, leaning into the win do w o f a Chevy Blazer and speaking to the driver. When2

Off icer Frank saw Chandler, he noticed that Chandler’s bicycle had no headlight, which was a

violation of a city ordinance. Officer Frank also suspected, based on his experience as a po lice

officer, t hat Chandler might be dealing in narcotics. Based on these observations, Officer Frank

started to approach Chandler.

When Chandler o bserved Officer Frank approaching him, Chandler turned and fled on his

bicycle. A chase ensued. During the chase, Chandler threw a medicine bottle he was carrying into

some nearby bushes. Shortly thereafter, Officer Frank caught Chandler, handcuffed him, and placed

him in the back of his patrol car. Officer Frank then retrieved the medicine bottle, the contents of

which field-tested posi t ive for the presence of cocaine. Laboratory tests later revealed that the

medicine bottle contained 13.2 grams of crack cocaine. In addition, during a routine pat-down search

of the defendant, Officer Frank discovered that Chandler had $2600 in cash, mostly in small

denominations, on his person.

On August 11, 1995, Chandler was charged in a one-count indictment with possession with

intent to distribute five or more grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B), and 860. Although the indictment cited 21 U.S.C. § 860, counsel for the government

conceded at oral argument that it was never the government’s intention to charge the defendant with

violating § 860. Instead, counsel stated that the government sought to charge the defendant under

§ 841(a)(1) and then seek a sentence enhancement under § 860.

On March 11, 1996, Chandler pleaded guilty to violating § 841(a)(1) (possession with intent

to distribute a controlled substance). At the rearraignment, the district court advised Chandler of the

penalties for violating § 841(a )(1) as those penalties are prescribed in § 841(b)(1)(B)(iii).

Specifically, the court advised Chandler that the offense to which he pleaded guilty carried a3

punishment of five to forty years imprisonment, up to four years of supervised release, and up to a

two millio n dollar fine. At no point during the rearraignment did the court inform the defendant of

the penalties associated with violating § 860.

In preparation for sentencing, the court instructed the Probation Officer to prepare a

presentence investigation report (“PSR”). The PSR in this case reflected a base offense level of 26

under U.S.S.G. § 2D1.1, but added a two-level increase under U.S.S.G. § 2D1.2 because the offense

occurred near a protected location, as defined by 21 U.S.C. § 860. After a three level reduction for

acceptance of responsibility, the PSR reflected a total offense level of 25. Based on four criminal

history points, the PSR Addendum reflected a criminal history category of III, resulting in an

imprisonment range of seventy to eighty-seven months. The PSR also reflected harsher penalties than

those discussed at the rearraignment. In particular, the PSR reflected that the statutory punishment

range was five to eighty years imprisonment, up to eight years of supervised release, and up to a four

million dollar fine.

Chandler filed a written objection to the PSR, in which he objected, inter alia

, to the twolevel increase under § 2D1.2. According to Chandler, the increase under § 2D1.2 was inappropriate

because he had not pleaded guilty to violating 21 U.S.C. § 860. At the sentencing on July 29, 1996,

the district court overruled Chandler’s o bject ions and sentenced Chandler to eighty-seven months

imprisonment, to be followed by an eight-year term of supervised release. In addition, although the

district court did not fine Chandler, finding that he lacked the resources to pay such a fine, the district

court did impose a fifty dollar special assessment. Finally, the district court ordered that Chandler

pay half of his prison earnings, if any, to his daughter’s mother for child support.4 II.

Chandler raises four issues on appeal. First, Chandler argues that the district court improperly

increased his sentence on the basis of 21 U.S.C. § 860 and U.S.S .G. § 2D1.2. According to

Chandler, § 860 is a substantive offense and its enhanced penalties, including application of U.S.S.G.

§ 2D1.2, apply only when a person is convicted of violating § 860. Second, Chandler argues that,

because § 860 is a substantive offense, the indictment was fundamentally defective because it failed

to allege the essential elements of § 860. Third, Chandler argues that, because § 860 is a substantive

offense, the district court failed to comply with Rule 11 of the Federal Rules of Criminal Procedure

by not informing him of the penalties associated with violating § 860. Finally, defendant argues that

the district court lacked authority to order the defendant to make child support payments as a criminal

sanction.

A.

1.

The threshold issue in this case is whether 21 U.S.C. § 860 is a substantive offense or merely

a penalty enhancer of 21 U.S.C. § 841(a)(1). “The legal characterization of 21 U.S.C. § 860 and its

relation to § 841 are questions of law to be decided de novo.” U nited States v. Smith

, 13 F.3d 380,

382 (10th Cir. 1993); see United States v. Courtney , 979 F.2d 45, 48 (5th Cir. 1992).

The government, relying on a number of cases from this circuit which refer to 21 U.S.C. §

860 as a sentence enhancer, see, e.g.

, United States v. Smith

, 13 F.3d 860 (5th Cir. 1994); United

States v. Echevaria , 995 F.2d 562 (5th Cir. 1993); United States v. Wake , 948 F.2d 1422 (5th Cir.

1991), arg ues t hat Chandler’s conviction was properly increased under § 860. Although we5

recognize that each of those cases refers to § 860 or 21 U.S.C. § 845a (now recodified as § 860) as

a sen t ence enhancer, not one of those cases directly addressed the issue of whether § 860 was a

substantive offense or merely a sentence enhancer of § 841(a)(1).

For example, in Smith

, the defendants were convicted of three drug offenses in connection

with the sale of crack cocaine to an undercover police officer. On appeal, the defendants argued that

the district court miscalculated the quantity of crack cocaine to be considered in their sentencing.

Agreeing with one of the defendants, the court reversed and remanded for resentencing. At the end

of the opinion, the court noted that the drug offense for which the defendants were convicted

occurred within 1000 fe et o f a school. According to the court, this brought into play the federal

sentencing enhancement statute of 21 U.S.C. § 860. Although the court raised the possibility that

an enhanced sentence was appropriate, the court specifically noted that the issue was not raised by

the government and was not before the court. Smith , 13 F.3d at 868.

Likewise, in Echevaria

, the defendant p leaded guilty to possession of crack cocaine with

intent to distribute in violation of 21 U.S.C. § 841(a)(1). E chevari a , 995 F.2d at 562. At the

sentencing hearing, the district court found that Echevaria’s offense occurred within 1000 feet of a

“protected area” and enhanced the defendant’s sentence under U.S.S.G. § 2D1.2 . On appeal,

Echevaria challenged only whether a private kindergarten is a protected location within the meaning

of § 860. Echevaria , 995 F.2d at 563. Thus, whether § 860 was a substantive offense or merely a

sentence enhancer of § 841(a)(1) was not before the court.

Finally, in Wake

, the defendant was specifically charged with and co nvicted of, i nter alia

,

possessing with intent to distribute a controlled substance within 1000 feet of a school. 948 F.2d at

1425. On appeal, the defendant did not contest the jury’s finding that he possessed cocaine within1 The government’s reliance on U nited States v. Ekinci , 101 F.3d 838 (2d Cir. 1996), and United States v.

Zorrilla

, 93 F.3d 7 (1st Cir. 1996), is also misplaced. In E kinci

, although the Second Circuit stated that § 860 provides

an enhanced penalty for violating § 841(a)(1) within 1000 feet of a protected area, the issue was not before the court

because the defendant was specifically charged with an d convicted of dispensing, distributing, and possessing with

intent to distribute a controlled substance within 1000 feet of a school. 101 F.3d at 839. The sole issue on appeal was

whether § 860 prohibits “dispensing” controlled substances within 1000 feet of a protected area.

Similarly , in Z

orrilla

, despite the fact that the court stated that § 860 is “a sentence-enhancer, pu re and

simple,” Zorrilla

, 93 F.3d at 8, the issue was not before the court because the defendants were charged with aiding and

abetting the intended distribution of a controlled substance within 1000 feet of a school. 93 F.3d at 8. The sole issue

on appeal was whether § 860 was constitutional in light of the Supreme Court’s decision in United States v. Lopez

, 115 S. Ct. 1624 (1995).

6 1000 feet of a school or that he intended to distribute it somewhere. Instead, he argued that the

schoolyard statute did not apply unless the jury found that he in t ended to distribute the controlled

substance within 1000 feet of the protected ar ea. Thus, the question of whether § 845a was a

sentence enhancer or a substantive offense was neither before the court nor neces sary to the

resolution of the issue before it.

Contrary to the government’s assertions, therefore, th is court has not held that § 860 is a

sentence enhancer of § 84 1 rat her t han a substantive offense. 1 Accordingly, we now address the

issue.

In determining whether a statute constitutes a sentence enhancer or a substantive offense, we

look to the intent of Congress. S ee Garrett v. United States , 471 U.S. 773, 778, 105 S. Ct. 2407,

2411 (1985). As always, we begin with the plain language of the statute. S ee United States v.

Turkette

, 452 U.S. 576, 580, 101 S. Ct. 2524, 2527 (1981). Section 860 provides, in relevant part:

(a) Penalty

Any pe r son who violates section 841(a)(1) or section 856 of this title by distributing,

possessing with intent to distribute, or manufactu ring a controlled substance in or on, or

within one thousand feet of, the real property comprising a public or private elementary,

vocational, or secondary school or a public or private college, junior college, or university,

or a playground, or housing facilit y owned by a public housing authority, or within 100 feet

of a public or private y outh center, public swimming pool, or video arcade facilit y, is (except7

as provided in subsection (b) of this section) subject to (1) twice the maximum punishment

authorized by section 841(b) of this title; and (2) at least twice any term of supervised release

authorized by section 841(b) of this title for a first offense. A fine up to twice that authorized

by section 841(b) of this ti t le may be imposed in addition to any term of imprisonment

authorized by this subsection. Except to the extent a greater minimum sentence is otherwise

provided by section 841(b) of this title, a person shall be sentenced under this subsection to

a term of imprisonment of not less than one year. The mandatory minimum sent encing

provisions of this p aragraph shall not apply to offenses involving 5 grams or less of

marihuana.

21 U.S.C. § 860(a).

In United States v. Davis

, 801 F.2d 754, 756 (5th Cir. 1986), this court identified four factors

t o be used in determining whether Congress intended a statute to be a sentence enhancer or a

substantive offense: “(1) whether the statute predicates punishment upon conviction under another

section, (2) whether the statute mult iplies the penalty received under another section, (3) whether the

statute provides guidelines for the sentencing hearing, and (4) whether the statute i s ti tl ed as a

sentencing provision.” U

nited States v. Vasquez-Olvera

, 999 F.2d 943, 945 (5th Cir. 1993) (citing

Davis ).

Applying these factors to § 860, we conclude that § 860 is a substant ive o ffense and not

merely a sentence enhancer of § 841(a)(1). First, although § 860 incorporates the elements of §

841(a)(1) (“any person who violates § 841(a)(1)

. . . by distributing

. . .”), it requires that the

government prove a separate and distinct element

-- i.e., distribution within 1000 feet of a protected

location. S ee United States v. Smith

, 13 F.3d 380, 382-83 (1 0t h Cir. 1993) (holding that “§ 860

constitutes an ‘offense’ which has as an element of proof that the distribution occurred within 1000

feet of a protected place”). Thus, the first Davis factor, which we have described as “the foremost

feature of a sentence enhancement provision,” Vasquez-Olvera

, 999 F.2d at 945, does not weigh in

favor of viewing § 860 as a sentence enhancer.8

In addition, we note that § 860 does not provide any guidance for a sentence hearing, thereby

failing to satisfy the third Davis factor

. N or is the fourth Davis factor met. Congress titled § 860

“Distribution or manufacturing in or near schools and colleges.” This title, like the language of § 860

itself, indicates that Congress intended § 860 to be a separate substantive offense.

In light of the fact that § 860 does not satisfy the first, third, or fourth Davis factors, we do

not consider the fact that § 860 doubles the penalties of § 841(a)(1) to be dispositive. Instead, we

conclude that 21 U.S.C. § 860 is a substantive offense rather than merely a sentence enhancer of 21

U.S.C. § 841(a)(1). In so holding, we note that this conclusion is consistent with the result reached

in United States v. Scott , 987 F.2d 261, 266 (5th Cir. 1993), in which we held that § 841(a)(1) is a

lesser included offense of § 860. It is axiomatic that if § 841(a)(1) is a lesser included offense of §

860, then § 860 is itself an offense and not merely a sentence enhancer. We further note that this

conclusion is in accord w it h t he position of virtually every other court of appeals, which “have

uniformly held [that] § 860 is a separate offense that requires proof of an element that is not listed

in § 841.” U

nited States v. McQuilkin , 78 F.3d 105, 109 (3d Cir. 1996) (citing cases from the

Fourth, Tenth, and District of Columbia circuits).

2.

Chandler next argues that the district court erred in applying U.S.S.G. § 2D1.2, which

provides for a two-point enhancement if an offense occurs near a protected location, to his sentence.

According to Chandler, § 2D1.2 is inapplicable to convictions under 2 1 U.S.C. § 841(a)(1). We

review a district court’s interpretation of the guidelines de novo

. S ee United States v. Brown

, 54 F.3d

234, 240-41 (5th Cir. 1995).9

As an init ial matter, we note that Chandler’s argument presupposes that he was convicted only

under § 841(a)(1) and not under § 860. As noted above, however, the government conceded at oral

argument that Chandler was charged only with violating § 841(a)(1) and not § 860. Nonetheless, the

government argues that this court’s opinions in Echevaria and Smith allow the district court to apply

U.S.S.G. § 2D1.2 to convictions under § 841(a)(1). Once again, the government has read those cases

too broadly.

As noted above, the defendant in Echevaria did not challenge the district court’s reliance on

U.S.S.G. § 2D1.2 in determining his sentence. Instead, the only issue on appeal was whether a private

kindergarten constituted a protected location within the meaning of § 860.

Likewise, in Smith

, the court did not directly address whether § 2D1.2 applied to convictions

under § 841(a)(1). Instead, the sole issue on appeal was whether the district court had properly

calculated the quantity of crack cocaine to be considered in the defendants’ sentencing. The court’s

discussion of the applicability of § 860 and § 2D1.2 to their sentences was, as the Smith court pointed

out, di cta. See Smith , 13 F.3d at 868.

Once again, therefore, contrary to the government’s assertions, neither Echevaria nor Smith

are dispositive of the issue presented in this case. Accordingly, we now address the applicability of

U.S.S.G. § 2D1.2 to convictions under 21 U.S.C. § 841(a).

Under the Sentencing Guidelines, a court engages in a nine step procedure for determining

the appropriate sentence for a defendant, only the first three of which are relevant for this discussion.

See U.S.S.G. § 1B1.1; United States v. Salery

, 836 F. Supp. 812, 812 (M.D. Ala. 1993). Fi rst,

ut ilizing the Statutory Index located in Appendix A, the court determines the offense guideline section

“most applicable to the offense of conviction.” See id. § 1B1.1(a). Once determined, the court then2 Guideline § 1B1.3(a) provides:

Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense

10 calculates “the overall ‘offense level’ based on a number of factors co nt ained in the applicable

guideline,” including the “base offense level” and “the specific offense characteristics.” S alery

, 836

F. Supp. at 812; see U.S.S.G. § 1B1.1(b). Pursuant to U.S.S.G. § 1B1.3, the base offense level and

the specific offense characteristics are determined based on the defendant’s relevant conduct. S ee

U.S.S.G. § 1B1.3. Third, the court makes any appropriate adjustments, authorized by Chapter Three,

based on, inter alia

, the identity of the vict im, the defendant’s role in the offense, and any obstruction

of justice. See U.S.S.G. § 1B1.1(c).

In this case, the defendant pleaded guilty to violating 21 U.S.C. § 841(a)(1). According to

the Statutory Index, the court is instructed to apply U.S.S.G. § 2D1.1, and not U.S.S.G. § 2D1.2,

to violations of 21 U.S.C. § 841(a)(1). As the district court properly noted, applying § 2D1.1 to the

facts of this case res ult s in an offense level of 26. The government, however, argues that the

defendant’s offense level should be increased by two levels pursuant to § 2D1.2. According to the

government, this increase is warranted because the defendant committed the offense near a protected

location, which constitutes relevant conduct under the guidelines.

Although we agree that a court is instructed to consider relevant conduct in determining the

defendant’s offense level, a court does not enjoy unlimit ed discretion in determining what constitutes

relevant conduct. Instead, pursuant to U.S.S.G. § 1B1.3(a), conduct is relevant only to the extent

that it relates to (1) calculating the base offense level, (2) considering the specific offense

characteristics set forth in the particular guideline, (3) considering any cross-references contained in

the particular guideline, and (4) making any adjustments authorized by Chapter Three. 2 S ee Salery

,level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in

Chapter Three, shall be determined on the basis of the following:

(1)(A) all acts and omissions committed, aided, abetted, c ounseled, commanded, induced, procured, or

willfully caused by the defendant; and

(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise

un dertaken by the defendant in concert with others, whether or not charged as a conspiracy ), all

reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal

activity,

that occurred during the commission of the offense of conviction, in preparation for that offense, or in the

course of attempting to avoid detection or responsibility for that offense;

(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple

counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same

course of conduct or common scheme or plan as the offense of conviction;

(3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and

all harm that was the object of such acts and omissions; and

(4) any other information specified in the applicable guideline.

U.S.S.G. § 1B1.3.

11 836 F. Supp. at 814. In other words, once the court selects the appropriate guideline under step one,

the court can take relevant conduct into account only as it relat es to the factors set forth i n that

guideline. In this case, whether the offense occurred near a protected location is not relevant to any

of these factors. First, although § 2D1.1 sets forth a number of base offense levels, the applicable

base offense level is determined solely by the amount of controlled substances involved, and not by

location of the offense. Second, although § 2D1.1 sets forth four specific offense characteristics (e.g.,

whether a dangerous weapon was possessed during the commission of the offense), not one of these

characteristics includes whether t he o ffense occurred near a protected location as defined by 21

U .S.C. § 860. Third, although § 2D1.1 contains a cross reference to § 2A1.1, § 2D1.1 do es no t

contain a cross-reference to § 2D1. 2. Finally, although Chapter Three authorizes a number of

adjustments to the overall offense level ( e.g.

, adjustments based on the role of the defendant in the12

offense or the vulnerability of the victim), Chapter Three does not authori ze an adj ustm ent i f the

offense occurred near a protected location. S ee Salary

, 836 F. Supp. at 814. A ccordingly, we find

that the district court erred in applying § 2D1.2 to Chandler’s conviction under § 841(a)(1).

B.

Although we have held that 21 U.S.C. § 860 is a substantive o ffense and not merely a

sentence enhancer of 21 U.S.C. § 84 1(a)(1), we need not address the defendant’s next two

arguments, as each is relevant only if the government were to insist that the defendant was charged

and convicted under § 860. As noted above, however, counsel for the government conceded that the

defendant was charged only under § 841(a)(1), and not under § 860. Moreover, by defendant’s own

admission, he was properly charged under § 841(a)(1) and the plea colloquoy supports a conviction

under § 841(a)(1). Accordingly, we need not address the sufficiency of the indictment or the

adequacy of the plea colloquoy.

C.

As a final matter, we address Chandler’s argument that the district court improperly ordered

him to pay half of his prison earnings, if any, to his daughter’s mother as child support. Because we

can find no authority for such a sanction under § 841(a)(1), that sanction is vacated.

III.

For the reasons set forth above, we vacate and remand for resentencing not inconsistent with

this opinion.