Guideline Sentencing Update

Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions

on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy

statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be considered a recommendation or official policy of the Center; any views expressed are those of the author.

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 11, no. 2 Nov. 22, 2000

Offense Conduct

Drug Quantity

Eleventh Circuit holds Apprendi requires reversal of

drug quantity finding by court and also affects calculation under career offender guideline. Defendant was

found guilty by a jury of possession of crack cocaine with

intent to distribute in violation of 21 U.S.C. § 841(a)(1).

The sentencing court determined that defendant possessed forty-one grams of crack, an amount that allows a

maximum term of forty years under § 841(b)(1)(B), and

sentenced defendant to 360 months after calculating a

guideline range of 360 months to life. (Note: The court

mistakenly referenced § 841(b)(1)(A) in sentencing, but

that does not affect the ultimate result on appeal.) The

defendant challenged the government’s motion under

§ 851 to enhance his sentence for three prior felony drug

convictions, which would have increased the statutory

maximum to life under § 841(b)(1)(B) and to forty years

under § 841(b)(1)(C), but the district court never ruled on

that issue.

The appellate court remanded, finding that Apprendi

v. New Jersey, 120 S. Ct. 2348 (2000), overruled its prior

precedent regarding “what may be determined by a sentencing judge by a preponderance of the evidence and

what must be charged in an indictment and decided by a

jury beyond a reasonable doubt. . . . Applying Apprendi’s

constitutional principle to section 841 cases, it is clear

that the principle is violated if a defendant is sentenced to

a greater sentence than the statutory maximum based

upon the quantity of drugs, if such quantity is determined

by the sentencing judge rather than the trial jury. The

statutory maximum must be determined by assessing the

statute without regard to quantity. This means that sections 841(b)(1)(A) and 841(b)(1)(B) may not be utilized

for sentencing without a finding of drug quantity by the

jury. If a provision of section 841(b) that does not contain

a quantity amount applies, for example, section

841(b)(1)(C), then a convicted defendant may still be

sentenced under that provision. In short, we hold today

that drug quantity in section 841(b)(1)(A) and section

841(b)(1)(B) cases must be charged in the indictment and

proven to a jury beyond a reasonable doubt in light of

Apprendi.”

Therefore, the defendant here “may only be sentenced

under section 841(b)(1)(C), which provides punishment

for conviction of an undetermined amount of crack cocaine” and limits the sentence to “not more than 20 years”

or, if defendant has a prior felony drug conviction, “not

more than 30 years.” Although the government initially

filed notice under § 851, defendant “was not sentenced

under the section 851 enhancement by the district court

and because there was no objection or appeal on that

issue, we treat the Government as having abandoned its

request for a section 851 enhancement.” Thus, the allowable maximum is twenty years.

These findings will also affect defendant’s guideline

range. Although not used for § 851 purposes, his prior

offenses were used to classify him as a career offender,

and his offense level was determined by the table in USSG

§ 4B1.1. The applicable offense level for his offense of

conviction was 30, which the district court initially raised

under § 4B1.1 to 37 because it had determined defendant’s “offense statutory maximum” was life. However,

under § 841(b)(1)(C) without a prior felony drug conviction, defendant’s offense statutory maximum is twenty

years and § 4B1.1 sets his offense level at 32. Given his

criminal history and other adjustments, defendant’s sentencing range would thus be 210–262 months, or 210–240

months in light of the statutory maximum and USSG

§ 5G1.1. The appellate court remanded for resentencing.

U.S. v. Rogers, 228 F.3d 1318, 1326–30 (11th Cir. 2000).

Fifth Circuit holds Apprendi requires jury determination of drug quantity that raises statutory maximum;

court later holds Apprendi does not apply to mandatory

minimum that does not exceed applicable statutory

maximum. Defendants were convicted after trial of

methamphetamine offenses, 21 U.S.C. §§ 841(a) and 846.

“As had been the practice in this circuit, no specified

amount of drugs were charged in the indictment or submitted to the jury.” The sentencing court determined

quantity by a preponderance of the evidence and sentenced one defendant to 235 months, the other to two

concurrent life sentences. Under § 841(b), the maximum

sentence for a defendant with no prior felony drug convictions is twenty years when no drug amount is specified, thirty years with a prior conviction.

“This case presents the question recently left unanswered in U.S. v. Meshack, 225 F.3d 556 . . . (5th Cir. 2000)

[11 GSU #1], whether drug quantities under § 841(b) are

sentencing factors or elements of the offense. We conclude that there is no reasonable construction of § 841

that would allow us to avoid the broad constitutional rule

of Apprendi. Notwithstanding prior precedent of this circuit and the Supreme Court that Congress did not intend

drug quantity to be an element of the crime under 21

U.S.C. §§ 841 and 846, we are constrained by Apprendi to

find in the opposite.”
2 Guideline Sentencing Update, vol. 11, no. 2, November 22, 2000 • a publication of the Federal Judicial Center

“The relevant inquiry is now whether a factual determination is involved, and whether that determination

increases the sentence beyond the maximum statutory

penalty. . . . Section 841 clearly calls for a factual determination regarding the quantity of the controlled substance, and that factual determination significantly increases the maximum penalty from 20 years under

§ 841(b)(1)(C) to life imprisonment under § 841(b)(1)(A).

Therefore, we hold that if the government seeks enhanced

penalties based on the amount of drugs under 21 U.S.C.

§ 841(b)(1)(A) or (B), the quantity must be stated in the

indictment and submitted to a jury for a finding of proof

beyond a reasonable doubt.”

The court found that Apprendi does not affect the 235-

month sentence given to one defendant because it is

within the lowest applicable statutory maximum term of

twenty years. It rejected that defendant’s argument that

“Apprendi prohibits the trial court from determining the

amount of drugs for relevant conduct purposes under the

Sentencing Guidelines . . . . The decision in Apprendi was

specifically limited to facts which increase the penalty

beyond the statutory maximum, and does not invalidate

a court’s factual finding for the purposes of determining

the applicable Sentencing Guidelines.” However,

defendant’s five-year term of supervised release must be

reduced to the three years authorized under

§ 841(b)(1)(C) and 18 U.S.C. § 3583(b)(2).

As for the other defendant’s life sentences, which were

based partly on his prior felony drug convictions, “the

sentencing court did not err by using Beman’s prior convictions to enhance his sentence, even though the prior

convictions were not submitted to the jury. See Apprendi,

. . . 120 S. Ct. at 2362–63 . . . . Nevertheless, even considering the proper enhancement, the maximum penalty for

Beman under § 841(b)(1)(C) is 30 years on each count.

Because the district court sentenced Beman to two concurrent life sentences, we remand Beman’s case for resentencing consistent with this opinion.”

U.S. v. Doggett, 230 F.3d 160, 164–66 (5th Cir. 2000).

In a case decided after Doggett, defendant was convicted of a crack cocaine count under § 841(a); he also had

a previous conviction for a felony drug offense. There was

no quantity finding by the jury, and the sentencing court

imposed a mandatory twenty-year sentence under

§ 841(b)(1)(A) based on its finding that the offense involved more than fifty grams of cocaine base. Defendant

“argues that because subsection (C) of § 841(b)(1) applies

in the absence of an allegation and jury finding of drug

quantity, the district court could not impose the statutory

minimum sentence of twenty years under § 841(b)(1)(A)

based on a non-jury determination of drug quantity. We

disagree. Although Doggett involved a Sentencing Guidelines enhancement, its reasoning and its holding apply

with equal force to a statutory minimum sentence.”

 In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the

Supreme Court held that a sentencing judge could impose a mandatory minimum sentence, based on a preponderance of the evidence finding, that was within the

applicable statutory maximum. “In Apprendi, the Court

emphasized that McMillan remains good law . . . . Our

examination of Apprendi in light of McMillan and Doggett

leads inexorably to the conclusion that, as Keith’s sentence did not exceed the maximum sentence of thirty

years under § 841(b)(1)(C), the offense established by the

jury’s verdict [and defendant’s prior conviction], it does

not run afoul of Apprendi’s constitutional limitations.”

U.S. v. Keith, No. 99-50692 (5th Cir. Oct. 17, 2000) (per

curiam). See also U.S. v. Pounds, No. 99-15058 (11th Cir.

Oct. 20, 2000) (per curiam) (affirmed: Apprendi is inapplicable to § 924(c)(1)(A)(iii), which mandates minimum

term of ten years when a firearm is discharged during a

crime of violence, “because every conviction under

§ 924(c)(1)(A) carries with it a statutory maximum sentence of life imprisonment, regardless of what subsection

the defendant is sentenced under”).

Fourth Circuit agrees Apprendi requires jury finding

of quantity to raise statutory maximum, but holds sentencing court determines guideline range within the

applicable statutory maximum. Defendants were found

guilty by a jury of conspiracy to distribute cocaine, 21

U.S.C. § 846. With no drug quantity charged or submitted

to the jury, the sentencing court determined the amount

and sentenced one defendant to 210 months, the other to

292. However, under Apprendi, without a quantity finding

by the jury “a violation of §846 authorizes sentences for

the defendants under § 841(b)(1)(C) to terms of not more

than twenty years.”

“Pursuant to Apprendi, in order for imprisonment penalties under § 841(b)(1)(A) or (B) to apply to the defendants, . . . the drug quantity must be treated as an element

[of the offense]: charged in the indictment, submitted to

a jury, and proven to beyond a reasonable doubt. Where

no drug quantity is charged in the indictment or found by

a jury, but a jury has found a violation of § 841(a), the

standard statutory term of imprisonment is not more

than twenty years. See § 841(b)(1)(C). In these cases,

where the quantity is not charged, the drug amount is still

a proper aggravating or mitigating factor to be considered

by the judge in determining a sentence at or below the

statutory maximum sentence. . . . Thus, the judge still may

determine the amount of drugs by a preponderance of the

evidence for the purposes of calculating the offense level

and relevant conduct under the U.S. Sentencing Guidelines.” See also USSG § 5G1.1(a).

Therefore, for the defendant sentenced to 210 months,

“consideration by the district court judge of the quantity

of drugs in determining the appropriate sentence at or

below the statutory maximum was proper under
Guideline Sentencing Update, vol. 11, no. 2, November 22, 2000 • a publication of the Federal Judicial Center 3

Apprendi.” That sentence was remanded, however, for

more specific quantity findings.

For the defendant sentenced to 292 months, “it is clear

that the district court did not sentence in accordance with

the applicable statutory penalty of § 841(b)(1)(C), . . .

which authorizes a term of imprisonment not more than

twenty years.” Although the court’s action was proper

under the circuit’s prior rule “that drug quantity is a sentencing factor that may be proven by a preponderance of

the evidence,” that rule “must be abandoned to the extent

that the rule is inconsistent with Apprendi,” and defendant should be resentenced accordingly.

U.S. v. Angle, 230 F.3d 113, 121–24 (4th Cir. 2000).

Sixth Circuit affirms, on review for plain error, sentences on multiple counts that exceed the statutory

maximum allowable under Apprendi for each individual count. Defendants were convicted by a jury of

conspiracy to distribute and to possess with the intent to

distribute cocaine base. Three of the four defendants

were also convicted on substantive distribution counts.

The district court determined drug quantity at sentencing and sentenced one defendant to 292 months, the

other three to 360 months each. Defendants challenged

their sentences in light of Apprendi.

The Sixth Circuit previously found Apprendi applied to

the determination of whether death resulted from the

distribution of drugs because it would raise the statutory

maximum. See U.S. v. Rebmann, 226 F.3d 521 (6th Cir.

2000) [11 GSU #1]. The court now found “the principles set

forth in Apprendi applicable to [these] cases.” Because

there was no mention of quantity in the indictment and

the jury made no findings regarding quantity, the statutory maximum for each count was limited to twenty years

under § 841(b)(1)(C).

“Defendants, however, failed to object to the district

judge making the determination of drug quantities.

Where there has been no objection, review is for plain

error.” Although the court found that failure to follow

Apprendi met the requirements for plain error and requires resentencing one defendant, “the government

contends that the sentencing errors . . . with respect to

[three defendants] were not prejudicial and, therefore,

should not be noticed on plain error review. These defendants were convicted [of two or more charges], each of

which carries a statutory maximum of twenty years pursuant to 21 U.S.C. § 841(b)(1)(C). Thus, the total statutory

maximum is dramatically increased depending on the

number of counts of which each defendant was convicted. The government argues that there would be no

change in defendants’ sentences if remanded for resentencing. Rather than running the sentences concurrently,

the Sentencing Guidelines would require that the sentence imposed on one or more of the substantive counts

run consecutive to the sentence on the conspiracy count,

to the extent necessary to produce a combined sentence

equal to the total punishment. See U.S.S.G. § 5G1.2(d).”

The court first noted that Apprendi “appears to foreclose this argument” because it ruled that, even if the

same sentence could have been given by using consecutive sentences, it was “legally significant” that the count in

question in that case could double the possible statutory

maximum. “However, the decision in Apprendi was not

limited by the standard of review for plain error. . . . In the

case of defendants Linton, Hill, and Powers, we find that

they were not prejudiced and that the fairness of the

proceedings was not affected by the error since, absent

the error, their sentences would have been the same as

those which were imposed. We therefore decline to exercise our discretion as to these three defendants because

they can show no meaningful benefit they would receive

from vacating their sentences and remanding for resentencing.”

U.S. v. Page, No. 99-5361 (6th Cir. Nov. 9, 2000) (Katz,

Dist. J.).

Seventh Circuit rejects habeas petition based on

Apprendi and summarizes limits of that case. A prisoner

filed a request for a second or successive collateral attack

on his federal sentence based on Apprendi. In this case,

that request could only be granted if Apprendi established

“a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable.” 28 U.S.C. §§ 2244(b)(2)(A), 2255.

“We held [previously] that retroactive application must

be declared by the Supreme Court itself. . . . Apprendi does

not state that it applies retroactively to other cases on

collateral review. No other decision of the Supreme Court

applies Apprendi retroactively to cases on collateral review. So, . . . no application based on Apprendi can be

authorized under § 2244(b)(2)(A) or § 2255.”

The appellate court went on to note that “[p]risoners

seem to think that Apprendi reopens every sentencing

issue decided by a federal court in the last generation. It

does not. All Apprendi holds is that most circumstances

increasing a statutory maximum sentence must be

treated as elements of the offense—and, if the defendant

has demanded a jury trial, this means that they must be

established beyond a reasonable doubt to the jury’s satisfaction. Apprendi does not affect application of the relevant-conduct rules under the Sentencing Guidelines to

sentences that fall within a statutory cap.”

“When a drug dealer is sentenced to less than 20 years’

imprisonment—the limit under 21 U.S.C. § 841(b)(1)(C)

for even small-scale dealing in Schedule I and II controlled substances—again Apprendi is irrelevant . . . . To

put this otherwise, Apprendi does not affect the holding of

Edwards v. United States, 523 U.S. 511 . . . (1998), that the

judge alone determines drug types and quantities when

imposing sentences short of the statutory maximum.
Guideline Sentencing Update, vol. 11, no. 2, Nov. 22, 2000

Federal Judicial Center

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Washington, DC 20002-8003

And, more to the point of Talbott’s application, Apprendi

does not affect the holding of Custis v. United States, 511

U.S. 485 . . . (1994), that the validity of prior convictions is

not open to reexamination at sentencing for a new offense, unless the defendant lacked counsel when convicted of the prior offenses.”

Talbott v. Indiana, 226 F.3d 866, 868–70 (7th Cir. 2000).

Accord Rodgers v. U.S., 229 F.3d 704, 706 (8th Cir. 2000) (per

curiam) (defendant cannot file second or successive motion under §2255 to vacate sentence based on Apprendi

“because the Supreme Court has not made Apprendi

retroactive to cases on collateral review, as required by the

plain language of § 2255. . . . Nowhere in the Apprendi

decision itself, or in any subsequent decision, does the

Supreme Court discuss Apprendi’s retroactivity. Therefore, Apprendi is not available to a prisoner filing a second

or successive petition under § 2255.”); In re Joshua, 224

F.3d 1281, 1283 (11th Cir. 2000) (same); Sustache-Rivera v.

U.S., 221 F.3d 8, 15 (1st Cir. 2000) (same).

See Outline at II.A.3.a and c

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Note to readers: The new edition of Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues (Sept.

2000), has been mailed to all recipients of GSU. If you have not received your copy by now, or would like to request

additional copies, please contact the FJC’s Information Services Office by fax at 202-502-4077.

Guideline Amendments

Some of the Nov. 1, 2000, amendments to the Sentencing

Guidelines will affect sections of Guideline Sentencing: An

Outline of Appellate Case Law on Selected Issues (Sept.

2000). Those sections are listed below, with a brief summary of the relevant amendments.

I.A.3 at p. 7 and IX.A.1 at p. 414: New policy statement

§ 5K2.21 specifically authorizes departures for dismissed

or uncharged conduct that was not otherwise accounted

for. The Background Commentary to § 1B1.4 was also

amended to reflect this policy. A majority of the circuits

had already reached this conclusion.

VI.C.1.c at p. 329: New policy statement § 5K2.20 provides

a definition of “aberrant behavior” and outlines the circumstances under which a departure may or may not be

appropriate. This resolves a split among the circuits with

new guidance that may affect the value of circuit precedent.

VI.C.2 at p. 340: New policy statement § 5K2.19 prohibits

departure at resentencing for rehabilitation efforts undertaken after imprisonment, even when exceptional,

and resolves a split among the circuits. Most circuits to

decide the issue had held that exceptional post-sentencing rehabilitation could warrant departure.

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