* Of the Ninth Circuit, sitting by designation.

** Of the District of Massachusetts, sitting by designation. 

# United States Court of Appeals

For the First Circuit

No. 98-1808
UNITED STATES OF AMERICA, Appellee,

v.
RAFAEL COLLAZO-APONTE, Defendant, Appellant.

ON REMAND FROM THE UNITED STATES SUPREME COURT APPEAL FROM A FINAL JUDGMENT OF CONVICTION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José Antonio Fusté, U.S. District Judge ]

Before
Torruella, Circuit Judge , Wallace, * Senior Circuit Judge , and O'Toole, Jr., ** District Judge

.

Rafael Collazo-Aponte , pro se. Lena Watkins , Trial Attorney, Criminal Division, U.S. Department of Justice, was on brief for appellee.

February 28, 2002-2--3- TORRUELLA, Circuit Judge . On June 27, 2000, this Court affirmed the conviction and sentence of appellant Rafael Collazo-Aponte ("Collazo-Aponte") for a drug-relate d gun offense and for his participation in a drug conspiracy. Collazo-Aponte appealed our
de cision to the Supreme Court of the United States. The Supreme Court granted appellant's petition for a writ of certiorari , vacated this

Court's judgment, and remanded the case to this Court for further consideration in light of A pprendi v. Ne w Jersey , 530 U.S. 466 (2000).
Upon r econsideration, we affirm appellant's convictions but vacate his

sentence in part and remand for re-sentencing consistent with this opinion.

BACKGROUND
A. Facts Elicited at Trial

In th e mid-1980s, a drug-dealing conspiracy was formed in the Virgilio Dávila public housing p roject in Bayamón, Puerto Rico. The conspirators processed and packaged cocaine and heroin for delivery to
various drug distribution points throughout Puerto Rico. In February
1993, the drug o rganization splintered into rival factions when the
Rosario-Rod ríguez brothers murdered a fellow conspirator, Richard Muñoz-Candelaria. A series of retaliatory murders ensued as members of

t he organization engaged in hunting expediti ons to kill the RosarioRodríguez brothers.-4- Collazo-Aponte joined the conspiracy shortly after the "war"commenced, when the organization began storing drugs at a coconspi rator's bar where appellant worked. At trial, two cooperating witnesses testified that on numerous occasions they delivered money to Collazo-Aponte in exchange for drugs. When appellant was finally
arrested, he was carrying more than 1,000 "decks" of heroin, worth $10,000.

On June 26, 1997, a federal grand jury indicted CollazoAponte on charges of using and carrying a firearm during and in
relation to a drug conspiracy in violation of 18 U.S.C. § 924 (c)(1)
(A), and of conspiracy to poss ess with intent to distribute cocaine
base, cocaine, and heroin in violation of 21 U.S.C. §§ 841 , 846. On February 16, 1998, the jury found appellant guilty of both charges.

At the sentencing hearing, the judge found by a preponderance
of the evidence that Collazo-Aponte was responsible for "more than 30
kilos of heroin, 150 kilos of cocaine, and/or 1.5 kilos of crack
cocaine." After assessing appellant's criminal history and the extent
of his participation in the offense, the district court sentenced appellant to 151 months' imprisonment for the drug conspiracy count.

During sentencing fo r the gun count, the government argued
that appellant should not be sentenced under the base offense of § 924(c)(1)(A), but rather under the more severe punishment offered by §
924(c)(1)(B). Whereas § 924(c)(1)(A) offers a statutory minimum of-5-

five years' imprisonment, § 924(c)(1) (B) mandates an enhanced sentence
of no less than ten years' imprisonmen t for the use or carrying of a semiautomatic weapon during a crime of violence. To prove appellant's
violation of § 924(c)(1)(B), the government cited two instances in
which co-conspirators used semiautomatic weapons during the period of

C ollazo-Aponte's participation in the conspiracy

- namely, a double

mu rder in April 1994 and the shooting of a police officer in September

1994. The government argued that since the use of semiautomatic
firearms by co-conspirators was foreseeable, Collazo-Aponte should be
held accountable for it.

The district court agreed, finding by a preponderance of the
evidence that appellant violated § 924(c)(1)(B). The court then imposed an enhanced sentence of ten years' imprisonment for the gun

count. B. Procedural History

Collazo-Aponte appealed his conviction and sentence to this

Court. U nit ed States v. Collazo-Aponte , 216 F.3d 163 (1st Cir. 2000).

He claimed, inter alia, that he should have received a five-year,
rather than the enhanced ten-year, sen tence for the gun count. More specifically, appellant argued that (1) the use or carrying of the

sem iautomatic weapons occurred prior to his joining the conspiracy, and (2) he could not have foreseen the use of semiautomatic weapons. Id.-6-

at 202. This Court rejected appellant's arguments, citing sufficient
evidence in the record to refute both claims.

One day before we decided Collazo-Aponte's appeal, however,
the Supreme Court rendered its opinion in Apprendi . Then, after this

Court affirmed Colla zo-Aponte's conviction and sentence, appellant sought a rehearing of his appeal raising new arguments in light of Apprendi

. On September 18, 2000, this Court denied Collazo-Aponte's petition for rehearing.

Appell ant then filed a petition for a writ of certiorari with the Supreme Court. On May 21, 2001, the Supreme Court granted appellant's pe tition, vacated this Court's judgment, and remanded the case to this Court for further consideration in light of Apprendi

. DISCUSSION

On June 26, 2000, the Sup reme Court decided Apprendi , which
has been described a s "a watershed change in constitutional law . . . ." 530 U.S. at 524 (O'Connor, J., dissenting). The A pprendi Cou r t
held that "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved be yond a reasonable
doubt." I d. at 490 (internal quotations omitted). Because this
hol ding was in contrast to then-existing practice, numerous appellants, including Collazo-Aponte, were given constitutionally-engineered
ammunition to attack their convictions and sentences.1

The government concedes this argument, in part, because the evidence used to establish appellant's guilt for the use of semiautomatic weapons pre-dates the amendment which authorizes an enhanced sentence for such conduct.
-7-

Relying on Apprendi , Collazo-Aponte argues (1) that his tenyear enhanced sentence for the gun count must be vacated since the jury never determined beyond a reasonable doubt that he carried a
semiautomatic weapon; (2) that his drug sentence must be vacated because the drug quantity at issue was neither decided by the jury nor proven beyond a reasonable doubt; and (3) that his conviction should be
vacated because § 841(b) is unconstitutional on its face. Since appellant's arguments are raised for the first time on appeal, we
revi ew them for plain error. See U nited States v. Eirby , 262 F.3d 31, 36 (1st Cir. 2001).

First, appellant argues that his ten-year enhanced sentence

f or the gun count must be vacated because, under Apprendi , the jur y
should h ave determined beyond reasonable doubt that he was accountable for the semiautomatic weapons used or carried by his co-conspirators.
The govern ment concedes that it was plain error for the district court to impose the enhanced sentence. 1 Given the government's concession, we vacate Collazo-Aponte's ten-year sentence.

The government proposes that we remand the case to substitute

a five-year consecutive sentence for t he ten-year enhanced sentence. The five-year sentence does not suffer from any of the constitutional-8-

infirmities that plague the ten-year sentence because (1) the original
indictment included a count charging appellant with violating §
924(c) (1)(A); and (2) the jury found appellant guilty of this charge beyond a reasonable doubt. Therefore, we remand the case to the district court to impose a sentence under § 924(c)(1)(A).

Second, Collazo-Aponte argues that his drug sentence must be
vacated because the drug quantity at issue was not proven beyond a reasonable doubt at trial, as required by Apprendi . Appellant's
argument, h owever, rests on an expansive reading of A pprendi that has
been explicitly and repeatedly rejected by this Court. We have consistently held that the Apprendi doctrine does not apply to
defendants who are sentenced to terms less than the o therwise applicable statutory maximum. See , e.g. , Eirby , 262 F.3d at 37; U nite d

States v. Duarte , 246 F.3d 56, 60 (1st Cir. 2001); United States v.
Baltas , 236 F.3d 27, 41 (1st Cir. 2001). Most succinctly, A pprendi does not require that all sentencing factors be submitted to a jury and

proven beyond a reasonable doubt, rather only those that "increase[] the penalty for a crime beyond the prescribed statutory maximum . . .
." 530 U.S. at 490.

In th e instant case, Collazo-Aponte's sentence for the drug conspiracy was a t least seven years less than the applicable statutory
maximum. S ee 21 U.S.C. § 841(b)(1)(C) (authori zing a term of imprisonment of not more than 20 years for a defendant who has been-9-

found guilty of a drug offense involving any quantity of cocaine, crack cocaine, or heroin). Because Apprendi 's constitutional requirements do

no t even apply to appellant's drug conspiracy sentence, we affirm the
151-month sentence. S ee Baltas , 236 F.3d at 41 (holding that "no
constitutional error occurs when the district court sentences the defendant within the statutory maximum, regardless that drug quantity was never determined by the jury beyond a reasonable doubt").

Lastly, Collazo-Aponte argues that his conviction should be
vacated because, post- App rendi , § 841(b) is unconstitutional on its
face . Section 841(a)(1) makes it unlawful to "manufacture, distribute,

or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." Section 841(b), in turn, provides
the pena lties for violations of § 841(a)(1), which vary depending upon drug type and quantity. Before A pp rendi was decided, only the elements specified in § 841(a)(1) needed to be proved to a jury beyond a
reasonabl e doubt; the penalty provisions set forth in § 841(b) were
administered by the sentencing judge under a preponderance of the
evidence standard. After A pprendi , however, all facts (other than prior convictions) that set the maximum possible p unishment under § 841(b) must be established beyond a reasonable doubt by the same body
that determines culpability under § 841(a). See E irby , 262 F.3d at 37 (finding that Apprendi applies to drug quantity determinations).-10-

Because of this shift, appellant concludes that § 841(b) can no longer withstand constitutional scrutiny.

We find Collazo-Aponte's argument unpersuasive because none of the provisions of § 841(b) contradicts Apprendi 's mandate. Section 841(b) does not require that sentencing judges determine the facts that
increase the penalty for the crime beyond the prescribed statutory

ma ximum. Nor does § 841(b) require that such facts be determined by a preponderance of the evidence. The statute is silent as to who makes
these findings and under what burden of persuasion. Hence, there is nothing in the statutory language that explicitly defies Apprendi

.

Moreover, the Constitution, as interpreted by Apprendi , simply makes the jury the decisionmaker and the reasonable-doubt
standard the prop er burden for facts that increase the penalty beyond the applicable statutory maximum. "How statutes are . . . implemented
[] to fulfil that requirement is a subject to which the Constitution
does not speak." U nited States v. Brough , 243 F.3d 1078, 1079 (7th
Cir. 2001); see also Un ited States v. Candelario , 240 F.3d 1300, 1311
n.16 (11th Cir. 2001) (characterizing as "without merit" a facial
ch allenge to §§ 841 and 846 under Apprendi ), cert. denied , --- U.S. ---
, 121 S. Ct. 2535 (2001); U nited State s v. Slaughter , 238 F.3d 580, 582
(5th Cir. 2000) (stating that "[w]e see no thing in the Supreme Court
decision in Apprendi which would permit us to conclude that 21 U.S.C.

§§ 841(a) and (b), 846, and 860(a) are unconstitutional on their2 Appellant also challenges the constitutionality of 21 U.S.C. § 846,

which (a mong other things) makes the penalty provisions of § 841(b) applicable to anyone who conspires to violate § 841(a). Because § 846 is inextricably intertwined with § 841(b) an d simply offers another occasion to apply the penalties se t forth in § 841 (b), our ruling as to § 841(b) applies with equal force to § 846.
-11- face" ), c ert. denied , 532 U.S. 1045, 121 S. Ct. 2015 (2001); United

States v. Cernobyl , 255 F.3d 121 5, 1218-19 (10th Cir. 2001) (rejecting

an Apprendi -based facial challenge to § 841); United States v.
McCallister , 272 F.3d 228 (4th Cir. 2001); United States v. Kelly , 272
F.3d 622 (3d Ci r. 2001) (same); U nited States v. Martínez , 253 F.3d
251, 256 n.6 (6th Cir. 2001) (same); Unit ed States v. Woods , 270 F.3d 728, 729-30 (8th Cir. 2001) (same).

Thus, a shift in how judges implement § 841(b) simply does

not raise the constitutional doubts of which Collazo-Aponte complains. Because there is no constitutional defect inherent in the language or design of § 841, we find no impediment to appellant's conviction under
the statute. 2

Collazo-Aponte's second challenge to § 841(b) argues that
the statute is unconstitutional because it does not require proof beyond a reasonable doubt that the defendant knew of the specific quantity of cocaine involved in the offense. Since the plain language
of § 841(a) requires th at the proscribed acts be committed "knowingly
and intentiona lly," appellant claims that this mens rea requirement
sh ould extend to all the elements of the offense. S ee United States v.3 We disagree with appellant's characterization of the drug quantity

as an element of t he offense. Apprendi did not convert all sentencing factors into elements of the offense, only those that "increase[] the penalty for a crime beyond the prescribed statutory maximum . . . ." 530 U.S. at 490. Because the drug conspiracy sentence in this case
was wi thin the applicable statutory maximum, the drug quantity at issue never became an element of the offense.
-12- Ahmad , 101 F.3d 386, 390 (5th Cir. 1996) (applying mens rea requirement
in statute to all elements of offense) . He concludes by noting that since, pos t- A pprendi , § 841 (b) must be determined by a jury beyond
reasonable doubt, the drug quantity at issue is now an element of the offense to which the mens rea requirement should apply. 3

To determine whether Congress intended to impose the specific scienter requirement that appellant proposes, we must first examine the statutory language of § 841(b). See Staples v. United States , 511 U.S.
600, 605 (1 994) (noting that statutory language is the starting point in analyzing whether Congress intended to impose a mens rea requirement). The plain language of § 841(b) requires the government
to prove only that the offense "involved" a particular type and quantity of drug, not that the defendant knew that he was distributing that particular drug type and quantity. See United States v. Sheppard , 219 F.3d 766, 768 n. 2, 770 (8th Cir. 2000) (ruling that the statutory language of § 841(b) does not require the government to prove that
defendant kn ew of the specific drug type and quantity at issue). Thus, nothing in the statutory language of § 841(b) supports a mens rea requirement. Furthermore, a specific criminal intent requirement-13-

"s erves only to separate those who understand the wrongful nature of
their act from those who do not." United States v. X-Citement Video,

Inc. , 513 U.S. 64, 72 n.3 (1994). Thus, the presumption in favor of a
scienter requirement should only apply "to each of the statutory
elements that criminalize otherwise innocent conduct." I d. at 72. In the instant case, the drug quantity involved in appellant's offense is

not a factor that is necessary to the determination of whether his conduct is "criminal" or "innocent." Appellant is guilty whether he

cons pired to sell 30 kilos of heroin or 30,000. Because the amount of drugs at issue would not make appellant's behavior unpunishable, his argument necessarily fails.

CONCLUSION Given the government's concession, we vacate appellant's tenyear enhanced sentence imposed under § 924(c)(1)(B), and we remand the

case to the district court to impose an Appr endi -compliant sentence under § 924(c)(1)(A). We uphold the constitutionality of § 841(b), and thereby affirm appellant's conviction under it. Lastly, we a ffirm
appellant's sentence under the drug count, as it was within the applicable statutory maximum.

Affirmed in part, vacated in part, and remanded for action consistent with this opinion.