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. e du/thir dc ir c uit_2002/147PRECEDENTIAL

Filed March 4, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-2486

UNITED STATES OF AMERICA

v.

DEAN "RAS" HENRY Dean Henry, Appellant

On Appeal From the District Court of the Virgin Islands (D.C. Crim. No. 99-cr-00358) District Judge: Honorable Thomas K. Moore

Argued: December 4, 2001

Before: BECKER, Chief Judge, NYGAARD and COWEN, Circuit Judges.

(Filed: March 4, 2002)

CHARLES S. RUSSELL, JR., ESQUIRE (ARGUED) Moore & Dodson, P.C. No. 14A Norre Gade, P.O. Box 310 Charlotte Amalie, St. Thomas, VI

00804

Counsel for AppellantDAVID L. ATKINSON, ESQUIRE

United States Attorney

KIM L. CHISHOLM, ESQUIRE (ARGUED) Assistant United States Attorney

United States Courthouse & Federal Building 5500 Veterans Drive, Suite 260 Charlotte Amalie, St. Thomas, Virgin Islands 00802

Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge:

This is yet another Apprendi case. See Apprendi v. New Jersey, 530 U.S. 466 (2000). It comes to us in a no vel procedural posture: (1) Apprendi was decided betwee n the guilty plea and the sentencing; (2) the defendant c learly raised the Apprendi issue at sentencing; and (3) th e defendant demonstrated what we find to be non-harml ess Apprendi error.

The defendant is Dean Henry, who appeals from the judgment of the District Court of the Virgin Island s which imposed a sentence following a guilty plea to a one -count indictment charging him with possession with intent to distribute 5 grams or more of cocaine base, in viol ation of 21 U.S.C. SS 841(a)(1) and 841(b)(1)(B)(iii). Altho ugh Henry entered a plea to possession with intent to distrib ute a controlled substance, he has never admitted to poss essing cocaine and it appears highly possible, in light of the less than textbook perfect police investigation, that th e only controlled substance that he possessed was marijuan a. Henry submits that both the identity and quantity o f the drugs were elements of the crime that he was entitl ed to have determined beyond a reasonable doubt. Thus, he contends, the District Court violated the teachings of Apprendi when it alone determined these issues (by a preponderance of the evidence) at the sentencing he aring,

2sentencing him to the mandatory minimum sentence of 60

months for cocaine base under S 841(b)(1)(B)(iii).

The primary question on appeal is whether facts tha t determine in the first instance the statutory maxim um under which a defendant is to be sentenced -- here particularly drug identity -- are elements that nee d to be determined beyond a reasonable doubt by a jury. Thi s question is governed by Apprendi and by our recent opinion in United States v. Barbosa, 271 F.3d 438 (3d Cir. 2001), where we held that the statutory maximum penalty th at can be imposed on a defendant when drug identity is not known or found by the jury is one year, the lowest statutory maximum under the "catch-all" provisions of S 841. See Barbosa, 271 F.3d at 455. What the Distr ict Court (understandably) failed to appreciate (since Barbosa had not yet been decided) was that, like th e court in Barbosa, it could not "unequivocally determine" which provision of S 841(b) to invoke without a jury dete rmination as to the identity of the drug beyond a reasonable doubt because it "cannot simply assume that only [marijua na or cocaine is] implicated merely because the evidence was so constrained." Id. at 456. Rather, pursuant to Appre ndi, any determination of drug identity in this case would b e"legally significant because it [would] increase[ ] . . . th e maximum range within which the judge could exercise his dis cretion." Apprendi, 530 U.S. at 474. We thus agree with Henry that there has been an Apprendi violation, for Henry was sentenced to 60 months in prison after the identity and quantity of the controlled substance were determine d by the sentencing court (by a preponderance of the evi dence).

Unlike Barbosa and United States v. Vazquez, 271 F. 3d 93 (3d Cir. 2001) (en banc), this judgment is not s ubject to plain error review, for an objection was timely mad e in the District Court. While the government is correct tha t the sentence imposed does not offend the 60-month statu tory maximum for possession with intent to distribute marijuana, the District Court's error is not harmle ss since, under Barbosa, we cannot assume the identity of the drug merely because the evidence presented at the senten cing hearing was limited to marijuana or cocaine base. Inasmuch as the identity of the drug is relevant to

3determining the statutory maximum, we cannot know

which statutory maximum is applicable. Rather, we a re constrained to evaluate Henry's sentence under the lowest "catch-all" maximum penalty of one year. Since his sentence exceeded one year, we cannot conclude beyo nd a reasonable doubt that the Apprendi violation was ha rmless. Accordingly, we will vacate the judgment.

Having concluded that the Apprendi violation was no t harmless, we are presented with the novel issue of the proper disposition in a case where a defendant has pleaded guilty to the generic crime of possession with inte nt to distribute a controlled substance under S 841(a)(1) and all that is left to be determined is the identity and q uantity of the substance. While the suggestion has been made t hat the Sentencing Court might make the determination pursuant to normal evidentiary standards (in contra st to the regime at sentencing, see Fed. R. Evid. 1101(a) and United States v. Sciarrino, 884 F.2d 95 (3d Cir. 19 89)), or even under the beyond a reasonable doubt standard, Apprendi teaches us that "any fact that increases t he penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved[to it] beyond a reasonable doubt." Apprendi, 530 U.S. at 4 90 (emphasis added). Although Henry does not desire to withdraw his guilty plea, consistent with the manda te of Apprendi, we will remand the case to the District C ourt for a determination by a jury beyond a reasonable doubt as to the identity and quantity of the drug possessed by Henry with intent to distribute. We see no reason why a j ury cannot be convened for the sole purpose of deciding the

facts that will determine the sentence.

I.

In 1999, a drug task force in St. Thomas comprising several local and federal law enforcement agencies,

conducted an undercover narcotics and firearms investigation in an apartment project in St. Thomas known as Pearson Gardens. For the purpose of this investi gation, the agents primarily relied on a "confidential info rmant" known as Ikal Stewart to conduct narcotics purchase s from the targets while under audio and video surveillanc e.

4The Pearson Gardens investigation commenced on the

morning of February 17, 1999. Special Agent McCollu m told Stewart that he was to attempt to purchase"cra ck"

cocaine from Merlin Clark. Before Stewart went into the apartment project, McCollum searched Stewart, place d a recording device and transmitter on him, and gave h im $500. Stewart was then dropped off near the Pearson Gardens complex and observed by task force agents, some of whom were in a surveillance van equipped with a video camera. Due to a failure in the video equipment, th e video could not be linked up with the audio, and the agen ts had to rely on Stewart to verify the numerous voices th at were recorded that day. As a result, the record of what exactly happened that day is not clear.

Dean Henry is a lifelong resident of St. Thomas, wh ere he is a self-employed taxi operator. Henry, who freque nted Pearson Gardens, was present on February 17, 1999, and in the weeks prior to the investigation had sold St ewart an ounce of marijuana. On the day in question, Henry a nd Stewart held a discussion regarding the price and t erms of a drug transaction, which was observed on a videota pe made by Officer Manning and recorded via the transm itter device. Henry subsequently left Pearson Gardens for approximately 20 or 30 minutes, during which time S tewart was talking with two other investigation targets, b oth of whom were suspected of involvement in drugs. The vi deo equipment malfunctioned at this time. When Henry reappeared, he and Stewart went into an apartment i n the complex to conduct the drug transaction, but there was no video, and only unintelligible audio surveillance o f these events. Henry, as well as another individual who ob served the transaction, testified that the drug involved w as marijuana and that Stewart secreted the drug on his person. Stewart was then observed leaving the apart ment and walking toward the rendezvous area to meet McCo llum. During this time he was out of sight for 4 to 12 mi nutes.

When McCollum picked up Stewart, the latter produce d a baggie with a substance that field-tested positiv e for "crack" cocaine. There is no evidence that any of t he agents proceeded to search Stewart's person to confirm tha t he had no other drugs on him at the time. Stewart, how ever,

5later admitted that he had hid some "crack" cocaine in his

sleeve on that day in order to "lace" a marijuana c igarette. This obviously had not been discovered in the morni ng search. When the FBI subsequently learned of Stewar t's behavior, they no longer considered him to be a rel iable

confidential source and sent him to California to e nroll in a drug treatment program at the government's expens e. Stewart has since left the program, and was unavail able to testify at Henry's sentencing hearing.

Henry was charged in a one-count indictment with possession with intent to distribute 5 grams or mor e of cocaine base, in violation of 21 U.S.C. SS 841(a)(1 ) and 841(b)(1)(B)(iii). He subsequently pleaded guilty t o possession with intent to distribute a controlled s ubstance, in violation of 21 U.S.C. S 841(a)(1). Under the la w at the time of his plea, the identity and quantity of the controlled substance was a sentencing factor to be judicially determined by a preponderance of the evidence at a sentencing hearing. See United States v. Watts , 51 9 U.S. 148, 156 (1997). Thus, Henry did not plead to any s pecific drug or quantity. Henry did offer to plead to one o unce of marijuana, but the government would not agree to th is plea.

Subsequent to acceptance of the plea, the Supreme C ourt held in Apprendi v. New Jersey, 530 U.S. 466, 490 ( 2000), 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 beyond a reasonable doubt." As a result of this decision, and prior to the sentencing hearing, Henr y requested the District Court to empanel a jury to d etermine the identity and weight of the controlled substance beyond

a reasonable doubt. He did not move to withdraw his guilty plea (and counsel stated at oral argument that Henr y does not desire to do so). The Court denied the request, holding that Apprendi did not apply because a conviction fo r either distribution of marijuana or cocaine base would res ult in a guidelines sentence less than the forty-year "statu tory maximum penalty" that the court concluded would app ly to a drug distribution crime. Thus, the court held a sentencing hearing on May 23, 2001, resolving the i dentity

6and quantity issues under a preponderance of the ev idence

standard. The District Court found that the substan ce distributed by Henry was 22 grams of cocaine base. Accordingly, Henry was sentenced to the "mandatory minimum" sentence applicable to distribution of 22 grams of cocaine base -- five years. See 21 U.S.C. S 841(b)(1)(B)(iii).

This timely appeal followed. The District Court of the Virgin Islands had jurisdiction pursuant to 48 U.S. C. S 1612 and 18 U.S.C. S 3231. We have appellate juri sdiction

under 28 U.S.C. S 1291. We review de novo a Distri ct Court's application of the Sentencing Guidelines an d the possible constitutional implication of Henry's sent ence under Apprendi. United States v. Williams, 235 F.3d 858, 861 (3d Cir. 2000).

II.

We recently addressed the quantity and identity iss ues, respectively, in United States v. Vazquez, 271 F.3d 93 (3d Cir. 2001) (en banc), and United States v. Barbosa, 271 F.3d 438 (3d Cir. 2001). In Vazquez we held that "a n Apprendi violation . . . occurs if the drug quantit y is not found by a jury beyond a reasonable doubt and the defendant's sentence under S 841 exceeds [the statu tory maximum]." Vazquez, 271 F.3d at 98 (emphasis added)

. Similarly, in Barbosa we held that drug identity mu st be found by a jury beyond a reasonable doubt when the "defendant would be exposed to greater punishment depending upon . . . the identity of the controlled substance." Barbosa, 271 F.3d at 454. Although neit her Vazquez nor Barbosa established a bright line rule that drug quantity and/or identity is always an element that must be found beyond a reasonable doubt by a jury, inasmuch as both identity and quantity are relevant to determining what the statutory maximum is when the sentence imposed is greater than the "catch-all" ma ximum of one year, we conclude that, under Vazquez and Ba rbosa, Apprendi has been violated in this case.

Barbosa involved the appeal of a man convicted for possession with intent to distribute more than 50 g rams of

7cocaine base and sentenced to 21 years in prison. A t trial,

there was a dispute as to whether Barbosa, a "swall ower," intended to transport heroin or cocaine (he maintai ned that he thought he had swallowed heroin, but what he exc reted following his apprehension was cocaine). While the jury found Barbosa guilty of trafficking in a controlled substance, the case was tried pre-Apprendi and the jury was not asked to make findings with respect to the identity or quantity of the substance. On appeal, Barbosa challenged his sentence based, in part, on Apprendi

, arguing that the issue of which substance he intend ed to transport into the country should have been submitt ed to the jury and determined beyond a reasonable doubt. We agreed with Barbosa that drug identity should have been submitted to the jury, but we affirmed his convicti on because, under the facts of the case, there was no plain

error.

In concluding that Apprendi had been violated when drug identity was not submitted to the jury for a determ ination beyond a reasonable doubt, we observed:

Congress separated controlled substances int o five drug schedules, which are updated and republ ished on an annual basis. See 21 U.S.C. SS 802(6), 81 2(a). . . . Congress . . . provided for several "catch-a ll" provisions, all of which generally contain n o reference to specific drug quantity or drug identity, except by schedule number. See, e.g., [21 U.S.C.] S 84 1(b)(1)(C) ("In the case of a controlled substance in s chedule I or II . . ."); id. S 841(b)(1)(D) (". . . in th e case of any controlled substance in schedule III . . .") ; id. S 841(b)(2) ("In the case of any controlled substance in schedule IV . . ."); id. S 841(b)(3) ("In th e case of a controlled substance in schedule V . . ."). The maximum penalties under these "catch-all" pr ovisions range from one year (schedule V) to twenty y ears (schedules I and II).

Id. Thus, there are different "catch-all" maximums depending on drug quantity and identity. In Barbosa 's case, we noted that "under the facts found by the jury, w e [could not] unequivocally determine which of the `catch-al l' provisions to invoke against Barbosa. Only under th e

8`catch-all' provision for a schedule I or II contro lled

substance would [his] twenty year sentence be withi n the prescribed statutory maximum." Id. at 455 (citation omitted). Since Apprendi requires us to analyze the permissible sentences authorized by the jury's verd ict, which, in Barbosa's case, did not have any factual finding as to drug identity, we concluded that we could not "simply assume that only schedule I and II controlled subst ances are implicated merely because the evidence [present ed to the jury] was so constrained." Id. at 456. Rather, since identity was not submitted to the jury, we held tha t Barbosa's twenty-year sentence "far exceeded the st atutory maximums under the potentially applicable `catch-al l' provisions . . . ." Id. In particular, not knowing the identity of the drug, we concluded that the only "catch-all" maximum penalty that could be imposed on Barbosa wa s one year -- the lowest statutory maximum under the "catch-all" provisions. See 21 U.S.C.S 841(b)(3).

Recognizing that prior cases had concluded that dru g identity was a sentencing factor, not an element of the crime that had to be submitted to the jury, we did not go so far as to decide that identity is always an elem ent. Cf. Vazquez, 271 F.3d at 108 (Becker, C.J., concurring) ("[D]rug type and quantity are always elements of a n offense under S 84, and therefore must always be submitted to the jury for proof beyond a reasonable doubt.") (emphasis in original). Rather, we reaffir med that "even after Apprendi, drug identity will not always be an element of a S 841(a) offense. . . . So long as the resulting, and possibly enhanced, sentence is below the statut ory maximum authorized by the jury's factual findings , no Apprendi problem exists." Barbosa, 271 F.3d at 456- 57 (emphasis added). However, what we did conclude in Barbosa is that in cases where drug identity is not known or found by the jury, "drug identity would not be a n element [only] in those cases where the sentence im posed is below the lowest `catch-all' maximum of one year found in S 841(b)(3) . . . ." Id. at 457. This result was driven by our observation that, without a jury determination on the particular substance, we cannot assume the identity and, thereby, the provision under which the individual s hould be sentenced. Thus, the rule of Barbosa is that when t he jury's

9factual findings do not include a finding as to the identity

of the drug beyond a reasonable doubt, Apprendi wi ll be

violated when the sentence exceeds the lowest "catc h-all" statutory maximum of one year. See 21 U.S.C.S 841(b )(3).

III.

A.

In this case, as in Barbosa, an Apprendi violation has occurred because Henry was convicted without having the identity of the drug determined by a jury beyond a reasonable doubt and the sentence that Henry receiv ed exceeds one year, the lowest statutory maximum "und er the potentially applicable `catch-all' provision[ ] . . . ." Barbosa, 271 F.3d at 456. Henry pleaded guilty to S 841(a)(1 ), possession of a controlled substance, but did not p lead to any particular substance. The government points out that Henry "expressly admitted" to marijuana during the plea colloquy; however we decline to adjudicate this app eal as if Henry pleaded guilty to possession with intent to d istribute marijuana. Henry's counsel stated to the Court that "[i]t is the defendant's position that the substance involve d was marijuana," and that he was pleading guilty only to the crime as alleged in Count 1, which did not referenc e any particular substance.1

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1. The plea colloquy makes clear not only that Henr y maintained that he was in possession of marijuana, not cocaine, but al so that he did not plead to any particular substance:

HENRY'S COUNSEL: Your Honor . . . Mr. Henry is pleading guilty to possession with intent to distribute a controlled substance. There is a disagreemen t

between the Government and the Defendant as to exactly what that substance was and the weight and quality of it. It is the Defendant's position that the substance involved was marijuana, and it's his intent to plead guilty to the crime as alleged in Coun t 1. But he does disagree as to the substance,

Your Honor.

10We acknowledge that a lay reader may wonder what th e

harm would be in evaluating this appeal as if Henry had pleaded guilty to possession with intent to distrib ute marijuana since Henry expressly argued that the sub stance was marijuana. However, while Henry has always maintained that he possessed marijuana and not coca ine, his admission does not change the fact that Henry d id not plead guilty to possession with intent to distribut e marijuana. There is no indication that he was charg ed

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GOV'T COUNSEL: Your Honor, it appears -- and this is discussion [sic] that defense counsel and the Governmen t

would have -- is that under the Third Circui t and other circuits the identity as well as t he quantity of this controlled substance is a sentencing factor, so that the determination of what the substance is is made by the sentencing court as a matter of the Court's decision and not the jury. So that the Defen dant would be pleading to possession of a control led

substance. . . .

***

COURT: Mr. Henry, do you agree the Governmen t could prove the facts against you as stated by [the governme nt's attorney], with the exception of the identity of the su bstance?

***

COURT: [T]he issue of what that substance wa s will be, of course, reserved for sentencing. . . .

COURT: . . . Now, I'm going to read the Indi ctment and after I have read it, I'm going to ask how you plead to i t, guilty or not guilty? And I'm going to omit the portion of the Indictment which identifies the substance. Now, the Gra nd Jury charges that this Count 1, on or about Febru ary 17 of 1999, at St. Thomas, in the District of the Virgin Islands, the Defendant Dean "Ras" Henry, did knowingl y and intentionally possess with intent to distrib ute a controlled

substance in violation of Title 21 of the U. S. Code, Section 841(a)(1) and as follows: Mr. Henry, how do you plead to the charge, guilty or not guilty?

HENRY: Guilty.

11under 21 U.S.C. S 841(b)(1)(D), the provision for m arijuana.

Henry's admission, in and of itself, cannot be deem ed a plea of guilty to the crime when he was never charg ed with that crime, especially since the government maintai ns that he is not guilty of that crime, but of the crime of possession

with intent to distribute cocaine. Criminal trials are governed by rules and, thus, we cannot always bow t o practical realities. Rather, in this case, we are c onstrained by the rule of Barbosa that when there is no findin g beyond a reasonable doubt or stipulation as to the control led substance, the court cannot simply assume the subst ance is of a particular kind. Moreover, the District Cou rt stated explicitly that it was omitting any reference to dr ug identity when it read the Indictment to which Henry pleaded guilty. See supra note 1.

In sum, for purposes of analyzing this appeal, we d ismiss any argument that Henry actually pleaded guilty to possession with intent to distribute marijuana. Thi s conclusion is bolstered by the District Court's sta tement in its order denying Henry's request to apply Apprendi , stating that it "accepted Henry's plea of guilty to the gen eric section 841(a)(1) violation of knowingly and intentionally possessing

with the intent to distribute an unidentified subst ance" (emphasis added).2

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2. Were we to conclude that Henry pleaded guilty to possession of marijuana, we would know the applicable statutory m aximum and would

be able to determine whether he received a sentence that exceeded that maximum. Moreover, if Henry had pleaded guilty to p ossession of marijuana, Apprendi would not be implicated since t he 60-month sentence that Henry received is no more than the st atutory maximum allowed for marijuana under 21 U.S.C. S 841(b)(1)(D ). See, e.g., Edwards v. United States, 523 U.S. 511 (1998) (upholding se ntence where jury did not determine the identity of the substance since t he sentence imposed was within the lowest statutory maximum which would apply to either substance at issue); United States v. Williams , 23 5 F.3d 858 (3d Cir. 2000) (holding it to be irrelevant that the court d etermined a fact that increased the statutory maximum when the actual sen tence imposed was below the original statutory maximum). To be su re, a 60-month sentence for possession with intent to distribute m arijuana under 21 U.S.C. S 841(b)(1)(D) might constitute error under the Sentencing Guidelines in a case such as this, where the senten ce is outside the

12B.

Not knowing the identity or quantity of the substan ce, the District Court proceeded to conclude that Appre ndi did not apply because it determined that "[t]he range o f punishment facing Henry for conviction under sectio n 841(a)(1) extends from a statutory maximum penalty of five years imprisonment and a fine for five grams or mor e of marijuana, see 21 U.S.C. S 841(b)(1)(D), to a statu tory maximum of forty years, with a mandatory minimum of five years, and a fine for five grams or more of cocaine base, see 21 U.S.C. S 841(b)(1)(B)(iii)." The District Court relied on United States v. Williams, 235 F.3d 858 (3d Cir. 20 00), which held that, post-Apprendi, it is up to the jud ge to determine the applicable statutory range by applyin g the sentencing guidelines, and that Apprendi is not vio lated as long as that range does not exceed the statutory ma ximum. Applying Williams, the District Court concluded tha t Apprendi was not implicated in this case because th e Guideline range "as calculated in the presentence r eport for Mr. Henry does not and cannot exceed the statutory maximum of forty years," which is the statutory max imum applicable to possession with intent to distribute cocaine base under S 841(b)(1)(B)(iii). The District Court proceeded to determine the identity of the substance by a preponderance of the evidence, which is the appropr iate standard that applies at a sentencing hearing. See United States v. Watts, 519 U.S. 148, 156 (1997) ("The Gui delines state that it is `appropriate' that facts relevant to sentencing be proved by a preponderance of the evidence, USSG S 6A1.3 comment, and we have held that application of the preponderance standard at sentencing generally sati sfies due process.").

The teachings of Williams, however, are not applica ble since we are not dealing with the District Court's

___________________________________________________ ______________

applicable guideline range, notwithstanding the fac t that Apprendi would not be implicated. See U.S. Sentencing Guidelines M anual S 5K2.O. However, it is precisely because we do not know the identity of the drug, and, thus, the applicable statutory maximum in the first place, that Apprendi is implicated in this case.

13sentencing within a guideline range below a known

statutory maximum. Indeed, post-Apprendi,"a Distric t Court's sentence that is under the statutory maximu m cannot be constitutionally objectionable under Appr endi." Williams, 235 F.3d at 863. In this case, however, a ny determination on drug identity would be "legally si gnificant because it [would] increase[ ] . . . the maximum ra nge within which the judge could exercise his discretio n." Apprendi, 530 U.S. at 474.

As we noted in Barbosa, "Apprendi compels us to foc us on the permissible sentences authorized by the jury 's verdict." 271 F.3d at 456 (emphasis added). Unlike Williams, where the parties stipulated to the ident ity and quantity of the drug, there was no such agreement i n this case. See Williams, 235 F.3d at 859. Henry's plea w as only to S 841(a)(1), the generic section for possession of a controlled substance. Thus, since drug identity was not determined beyond a reasonable doubt in this case, and Henry was sentenced to 5 years, which is greater th an the lowest "catch-all" maximum of one year, under Barbo sa there is an Apprendi violation.

C.

We have previously concluded that an Apprendi erro r is not a structural defect, but instead, is subject to harmless or plain error analysis, depending upon the presenc e of an objection at trial. Vazquez, 271 F.3d at 103. If th e defendant objects at trial, we review for harmless error. Since Henry raised the Apprendi issue at sentencing , we must determine, pursuant to Fed. R. Crim. Pro. 52(a ),

whether the error is harmless. See Neder v. United States, 527 U.S. 1, 7 (1999) (Fed. R. Crim. Pro. 52(a) "by its terms applies to all errors where a proper objection is m ade at trial."). Fed. R. Crim. Pro. 52(a) provides that"An y error, defect, irregularity or variance which does not aff ect substantial rights shall be disregarded."

In Apprendi, the "Supreme Court recognized a new constitutional right grounded in the Due Process Cl ause and the Sixth Amendment's notice and jury trial guarantees." Vazquez, 271 F.3d at 101. Thus, to det ermine

14whether the error was harmless, we apply the

constitutional harmless error analysis set forth in Chapman v. California, 386 U.S. 18 (1967), and ask "whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obt ained." Barbosa, 271 F.3d at 459 (citation omitted). The government bears the burden of persuasion. See Chap man, 386 U.S. at 24. A court should not find harmless er ror if "at the end of the examination [of the record],[we] can not conclude beyond a reasonable doubt that the jury ve rdict would have been the same absent error." Neder , 527 U.S. at

15.

The government submits, and we agree, that the statutory maximum sentence that Henry would have fa ced had the District Court determined that he possessed with intent to distribute marijuana would have been 60 m onths under S 841(b)(1)(D). It is also true that Henry wa s, in fact, sentenced to 60 months. As a result, the government argues that there is no harm since Henry's sentence did not exceed the lowest statutory maximum sentence that w ould apply to either marijuana or cocaine. For this prop osition, the government relies on Edwards v. United States, 523 U.S. 511 (1998), where the Supreme Court upheld the judge's power to make a determination under the sentencing guidelines with respect to drug identity when the sentence imposed is within the lowest statutory maximum which would apply under either of two possi ble drug substances.

We find, however, that Edwards is inapplicable to t his case. In Edwards, the District Court instructed the jury that "the government must prove that the conspiracy

. . . involved measurable amounts of cocaine or cocaine b ase." Id. at 513. The jury returned a general verdict of guilty. By so doing, the jury necessarily determined that the government had proven that the conspiracy involved cocaine or cocaine base. In this case, by contrast, there was no such determination, by a judge or a jury, with r espect to the identity of the substance. Thus, when the judge

sentenced the defendants in Edwards based on his fi nding that the illegal conduct involved both cocaine and cocaine base and the sentence imposed fell within the lower

15statutory maximum for cocaine, there was no error s ince

the element of drug identity had necessarily been determined by the jury. Since there was no such determination in this case, we fail to see how Edwa rds is controlling.

Moreover, we find the inquiry advanced by the government to be foreclosed by Barbosa. We cannot assume, simply because the evidence presented to th e District Court was so limited, that the drug was ei ther marijuana or cocaine. See Barbosa, 271 F.3d at 456 ("[B]ecause the identity of the drug was not submit ted to the jury, we cannot simply assume that only schedul e I and II controlled substances are implicated merely beca use the evidence was so constrained.").3 Moreover, if the s ubstance were marijuana, under all the relevant and applicab le factors under the sentencing guidelines, the maximu m sentence that Henry would have faced would have bee n six months. As the government acknowledged at oral argument, it is inconceivable that Henry would have

received a 60-month Guidelines sentence in this cas e if drug quantity was one ounce of marijuana given his

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3. In Barbosa, reviewing under the plain error stan dard under Fed. R. Crim. P. 52(b), where the defendant bears the burde n of persuasion, we affirmed his conviction. We found that "Barbosa[cou ld not] show that the error affected his substantial rights. The evid ence established indisputably, and certainly beyond a reasonable dou bt, that Barbosa possessed with the intent to distribute 882 grams o f a controlled

substance and that this controlled substance was co caine base." Barbosa, 271 F.3d at 460. The inquiry under Barbosa was quite different from the inquiry we are presented with here. In Bar bosa, although the jury was not asked to determine beyond a reasonable doubt the identity of the substance, it was presented with a great dea l of evidence with respect to the identity of the drug. Noting that"[i ]ndeed, cocaine base and heroin were the only controlled substances pres ented to the jury through the evidence at trial, the former through t he testimony of the DEA forensic chemist," we proceeded to conclude tha t, "[n]onetheless, we may confidently infer that the jury, in convicting Barbosa and rejecting the entrapment defense, necessarily found the contr olled substance to be

cocaine base." Id. at 460. We also concluded that " a defendant who is in actual possession of a particular controlled substa nce, while intending to distribute another, may be punished for the drug wi th which he is found to be in possession." Id. at 459. Thus, intent is i rrelevant.

16criminal history score of 1. Under the Guidelines M anual,

these factors result in a punishment range of zero to six months. See U.S. Sentencing Guidelines Manual S 2D1.1(c)(17) (2000) (classifying the offense leve l as 6); U.S. Sentencing Guidelines Manual Sentencing Table (2000 ) (diagraming sentences based on offense level and cr iminal history). The District Court's conclusion that the substance was cocaine meant that Henry was subject to a manda tory minimum sentence of 60 months. Thus, the mere fact that Henry received a sentence that did not exceed the s tatutory maximum for marijuana does not render the error har mless

in this case.

D.

To recapitulate, we conclude that the error in this case was not harmless because we cannot say beyond a reasonable doubt that Henry would have received a 6 0- month sentence if the quantity and identity of the substance had been determined by a jury beyond a reasonable doubt. No evidence was presented to a ju ry for a determination of the identity and quantity issues . Rather, the evidence of drug identity and quantity was pres ented to the judge during the sentencing hearing and the determination was made by a preponderance of the evidence. We also note that, under the circumstance s, the rules of evidence did not apply. See Fed. R. Evid. 1101(d)(3). This raises the further complication of evaluating whether

there was sufficient evidence that would have led a jury to conclude beyond a reasonable doubt that the substan ce was cocaine, since it is not clear that the evidenc e presented to the District Court met the standard of admissibility of evidence presented to a jury for a determination beyond a reasonable doubt.

Two additional points buttress our conclusion. Firs t, 18 U.S.C. S 3661 prohibits any "limitation . .. on the [kind] of information" a sentencing court may consider about the defendant's "background, character and conduct." Th us, what the Court considered at the sentencing hearing could have encompassed information that would otherwise b e inadmissible if presented to a jury. Second, the Di strict Court stated during the sentencing hearing that it did not

17think that the government had established beyond a

reasonable doubt that the substance was cocaine, ra ther than marijuana.

IV.

Having concluded that there was an Apprendi violati on that was not harmless error, we are presented with the novel issue of the proper remedy in such a case (wh ere the defendant pleaded guilty to the general crime). App rendi teaches us that "Other than the fact of a prior con viction, any fact that increases the penalty for a crime bey ond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (emphasis added). We find it consistent with the mandate of Apprendi to reman d for a jury to determine these facts beyond a reasonable d oubt. This is what Henry requested in the District Court. We see no reason why a jury cannot be convened for the sol e purpose of deciding the facts that will determine t he sentence. After all, that is the job of the jury as fact-finder.

In view of the foregoing, the judgment of the Distr ict

Court will be vacated and the case remanded to that Court for a determination by a jury, beyond a reasonable doubt, as to the identity and quantity of the drug possess ed by Henry with intent to distribute, and then for resen tencing.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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