2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-4-2002

USA v. Henry

Precedential or Non-Precedential:

Docket 1-2486

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Recommended Citation

"USA v. Henry" (2002). 2002 Decisions. Paper 147.

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PRECEDENTIAL 

 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 Appellant 
 DAVID 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 novel 

procedural posture: (1) Apprendi was decided between the 

guilty plea and the sentencing; (2) the defendant clearly 

raised the Apprendi issue at sentencing; and (3) the 

defendant demonstrated what we find to be non-harmless 

Apprendi error. 

The defendant is Dean Henry, who appeals from the 

judgment of the District Court of the Virgin Islands 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 violation of 

21 U.S.C. SS 841(a)(1) and 841(b)(1)(B)(iii). Although Henry 

entered a plea to possession with intent to distribute a 

controlled substance, he has never admitted to possessing 

cocaine and it appears highly possible, in light of the less 

than textbook perfect police investigation, that the only 

controlled substance that he possessed was marijuana. 

Henry submits that both the identity and quantity of the 

drugs were elements of the crime that he was entitled 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 hearing, 

 2 
sentencing 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 that 

determine in the first instance the statutory maximum 

under which a defendant is to be sentenced -- here 

particularly drug identity -- are elements that need to be 

determined beyond a reasonable doubt by a jury. This 

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 that 

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 District 

Court (understandably) failed to appreciate (since 

Barbosa had not yet been decided) was that, like the court 

in Barbosa, it could not "unequivocally determine" which 

provision of S 841(b) to invoke without a jury determination 

as to the identity of the drug beyond a reasonable doubt 

because it "cannot simply assume that only [marijuana or 

cocaine is] implicated merely because the evidence was so 

constrained." Id. at 456. Rather, pursuant to Apprendi, any 

determination of drug identity in this case would be"legally 

significant because it [would] increase[ ] . . . the maximum 

range within which the judge could exercise his discretion." 

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 determined by 

the sentencing court (by a preponderance of the evidence). 

Unlike Barbosa and United States v. Vazquez, 271 F.3d 

93 (3d Cir. 2001) (en banc), this judgment is not subject to 

plain error review, for an objection was timely made in the 

District Court. While the government is correct that the 

sentence imposed does not offend the 60-month statutory 

maximum for possession with intent to distribute 

marijuana, the District Court's error is not harmless since, 

under Barbosa, we cannot assume the identity of the drug 

merely because the evidence presented at the sentencing 

hearing was limited to marijuana or cocaine base. 

Inasmuch as the identity of the drug is relevant to

 3 
determining the statutory maximum, we cannot know 

which statutory maximum is applicable. Rather, we are 

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 beyond a 

reasonable doubt that the Apprendi violation was harmless. 

Accordingly, we will vacate the judgment. 

Having concluded that the Apprendi violation was not 

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 intent to 

distribute a controlled substance under S 841(a)(1) and all 

that is left to be determined is the identity and quantity of 

the substance. While the suggestion has been made that 

the Sentencing Court might make the determination 

pursuant to normal evidentiary standards (in contrast to 

the regime at sentencing, see Fed. R. Evid. 1101(a) and 

United States v. Sciarrino, 884 F.2d 95 (3d Cir. 1989)), or 

even under the beyond a reasonable doubt standard, 

Apprendi teaches us that "any fact that increases the 

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 490 

(emphasis added). Although Henry does not desire to

withdraw his guilty plea, consistent with the mandate of 

Apprendi, we will remand the case to the District Court 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 jury 

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 investigation, 

the agents primarily relied on a "confidential informant" 

known as Ikal Stewart to conduct narcotics purchases from 

the targets while under audio and video surveillance. 

 4 
The Pearson Gardens investigation commenced on the 

morning of February 17, 1999. Special Agent McCollum 

told Stewart that he was to attempt to purchase"crack" 

cocaine from Merlin Clark. Before Stewart went into the 

apartment project, McCollum searched Stewart, placed a 

recording device and transmitter on him, and gave him 

$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, the video 

could not be linked up with the audio, and the agents had 

to rely on Stewart to verify the numerous voices that 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, where he 

is a self-employed taxi operator. Henry, who frequented 

Pearson Gardens, was present on February 17, 1999, and 

in the weeks prior to the investigation had sold Stewart an 

ounce of marijuana. On the day in question, Henry and 

Stewart held a discussion regarding the price and terms of 

a drug transaction, which was observed on a videotape 

made by Officer Manning and recorded via the transmitter 

device. Henry subsequently left Pearson Gardens for

approximately 20 or 30 minutes, during which time Stewart 

was talking with two other investigation targets, both of 

whom were suspected of involvement in drugs. The video 

equipment malfunctioned at this time. When Henry 

reappeared, he and Stewart went into an apartment in the 

complex to conduct the drug transaction, but there was no 

video, and only unintelligible audio surveillance of these 

events. Henry, as well as another individual who observed 

the transaction, testified that the drug involved was 

marijuana and that Stewart secreted the drug on his

person. Stewart was then observed leaving the apartment 

and walking toward the rendezvous area to meet McCollum. 

During this time he was out of sight for 4 to 12 minutes. 

When McCollum picked up Stewart, the latter produced 

a baggie with a substance that field-tested positive for 

"crack" cocaine. There is no evidence that any of the agents 

proceeded to search Stewart's person to confirm that he 

had no other drugs on him at the time. Stewart, however, 

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

sleeve on that day in order to "lace" a marijuana cigarette. 

This obviously had not been discovered in the morning 

search. When the FBI subsequently learned of Stewart's 

behavior, they no longer considered him to be a reliable 

confidential source and sent him to California to enroll in 

a drug treatment program at the government's expense. 

Stewart has since left the program, and was unavailable to 

testify at Henry's sentencing hearing. 

Henry was charged in a one-count indictment with 

possession with intent to distribute 5 grams or more of 

cocaine base, in violation of 21 U.S.C. SS 841(a)(1) and 

841(b)(1)(B)(iii). He subsequently pleaded guilty to 

possession with intent to distribute a controlled substance, 

in violation of 21 U.S.C. S 841(a)(1). Under the law 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 , 519 U.S. 

148, 156 (1997). Thus, Henry did not plead to any specific 

drug or quantity. Henry did offer to plead to one ounce of 

marijuana, but the government would not agree to this 

plea. 

Subsequent to acceptance of the plea, the Supreme Court 

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, Henry 

requested the District Court to empanel a jury to determine 

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 Henry does 

not desire to do so). The Court denied the request, holding 

that Apprendi did not apply because a conviction for either 

distribution of marijuana or cocaine base would result in a 

guidelines sentence less than the forty-year "statutory 

maximum penalty" that the court concluded would apply to 

a drug distribution crime. Thus, the court held a 

sentencing hearing on May 23, 2001, resolving the identity 

 6 
and quantity issues under a preponderance of the evidence 

standard. The District Court found that the substance 

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 jurisdiction 

under 28 U.S.C. S 1291. We review de novo a District 

Court's application of the Sentencing Guidelines and the 

possible constitutional implication of Henry's sentence 

under Apprendi. United States v. Williams, 235 F.3d 858, 

861 (3d Cir. 2000). 

II. 

We recently addressed the quantity and identity issues, 

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 "an 

Apprendi violation . . . occurs if the drug quantity is not 

found by a jury beyond a reasonable doubt and the 

defendant's sentence under S 841 exceeds [the statutory 

maximum]." Vazquez, 271 F.3d at 98 (emphasis added). 

Similarly, in Barbosa we held that drug identity must 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 neither 

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" maximum 

of one year, we conclude that, under Vazquez and Barbosa, 

Apprendi has been violated in this case. 

Barbosa involved the appeal of a man convicted for 

possession with intent to distribute more than 50 grams of 

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

there was a dispute as to whether Barbosa, a "swallower," 

intended to transport heroin or cocaine (he maintained that 

he thought he had swallowed heroin, but what he excreted 

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 intended to 

transport into the country should have been submitted 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 conviction 

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 determination 

beyond a reasonable doubt, we observed: 

 Congress separated controlled substances into five 

 drug schedules, which are updated and republished on 

 an annual basis. See 21 U.S.C. SS 802(6), 812(a). . . . 

 Congress . . . provided for several "catch-all" 

 provisions, all of which generally contain no reference 

 to specific drug quantity or drug identity, except by 

 schedule number. See, e.g., [21 U.S.C.] S 841(b)(1)(C) 

 ("In the case of a controlled substance in schedule I or 

 II . . ."); id. S 841(b)(1)(D) (". . . in the 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 the case of a 

 controlled substance in schedule V . . ."). The 

 maximum penalties under these "catch-all" provisions 

 range from one year (schedule V) to twenty years 

 (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, we [could 

not] unequivocally determine which of the `catch-all' 

provisions to invoke against Barbosa. Only under the 

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

substance would [his] twenty year sentence be within the 

prescribed statutory maximum." Id. at 455 (citation

omitted). Since Apprendi requires us to analyze the

permissible sentences authorized by the jury's verdict, 

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 substances 

are implicated merely because the evidence [presented to 

the jury] was so constrained." Id. at 456. Rather, since 

identity was not submitted to the jury, we held that 

Barbosa's twenty-year sentence "far exceeded the statutory 

maximums under the potentially applicable `catch-all' 

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 was 

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 drug 

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 element. Cf. 

Vazquez, 271 F.3d at 108 (Becker, C.J., concurring)

("[D]rug type and quantity are always elements of an 

offense under S 84, and therefore must always be 

submitted to the jury for proof beyond a reasonable

doubt.") (emphasis in original). Rather, we reaffirmed 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 statutory 

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 an 

element [only] in those cases where the sentence imposed 

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 should be 

sentenced. Thus, the rule of Barbosa is that when the jury's 

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

of the drug beyond a reasonable doubt, Apprendi will be 

violated when the sentence exceeds the lowest "catch-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 received 

exceeds one year, the lowest statutory maximum "under 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 plead to 

any particular substance. The government points out that 

Henry "expressly admitted" to marijuana during the plea 

colloquy; however we decline to adjudicate this appeal as if 

Henry pleaded guilty to possession with intent to distribute 

marijuana. Henry's counsel stated to the Court that"[i]t is 

the defendant's position that the substance involved was 

marijuana," and that he was pleading guilty only to the 

crime as alleged in Count 1, which did not reference any 

particular substance.1 

_________________________________________________________________ 

1. The plea colloquy makes clear not only that Henry maintained that he 

was in possession of marijuana, not cocaine, but also 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 disagreement 

 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 Count 

 1. But he does disagree as to the substance,

 Your Honor. 

 10 
We acknowledge that a lay reader may wonder what the 

harm would be in evaluating this appeal as if Henry had 

pleaded guilty to possession with intent to distribute 

marijuana since Henry expressly argued that the substance 

was marijuana. However, while Henry has always 

maintained that he possessed marijuana and not cocaine, 

his admission does not change the fact that Henry did not 

plead guilty to possession with intent to distribute 

marijuana. There is no indication that he was charged 

_________________________________________________________________ 

 GOV'T COUNSEL: Your Honor, it appears -- and this is discussion 

 [sic] that defense counsel and the Government 

 would have -- is that under the Third Circuit 

 and other circuits the identity as well as the 

 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 Defendant 

 would be pleading to possession of a controlled 

 substance. . . . 

 *** 

 COURT: Mr. Henry, do you agree the Government could prove the 

 facts against you as stated by [the government's attorney], 

 with the exception of the identity of the substance? 

 *** 

 COURT: [T]he issue of what that substance was will be, of course, 

 reserved for sentencing. . . . 

 COURT: . . . Now, I'm going to read the Indictment and after I have 

 read it, I'm going to ask how you plead to it, guilty or not 

 guilty? And I'm going to omit the portion of the Indictment 

 which identifies the substance. Now, the Grand Jury 

 charges that this Count 1, on or about February 17 of 

 1999, at St. Thomas, in the District of the Virgin Islands, 

 the Defendant Dean "Ras" Henry, did knowingly and 

 intentionally possess with intent to distribute 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. 

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

Henry's admission, in and of itself, cannot be deemed a 

plea of guilty to the crime when he was never charged with 

that crime, especially since the government maintains 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 to 

practical realities. Rather, in this case, we are constrained 

by the rule of Barbosa that when there is no finding beyond 

a reasonable doubt or stipulation as to the controlled 

substance, the court cannot simply assume the substance 

is of a particular kind. Moreover, the District Court stated 

explicitly that it was omitting any reference to drug identity 

when it read the Indictment to which Henry pleaded guilty. 

See supra note 1. 

In sum, for purposes of analyzing this appeal, we dismiss 

any argument that Henry actually pleaded guilty to 

possession with intent to distribute marijuana. This 

conclusion is bolstered by the District Court's statement in 

its order denying Henry's request to apply Apprendi, stating 

that it "accepted Henry's plea of guilty to the generic section 

841(a)(1) violation of knowingly and intentionally possessing 

with the intent to distribute an unidentified substance" 

(emphasis added).2 

_________________________________________________________________ 

2. Were we to conclude that Henry pleaded guilty to possession of 

marijuana, we would know the applicable statutory maximum and would 

be able to determine whether he received a sentence that exceeded that 

maximum. Moreover, if Henry had pleaded guilty to possession of 

marijuana, Apprendi would not be implicated since the 60-month 

sentence that Henry received is no more than the statutory 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 sentence where jury did 

not determine the identity of the substance since the sentence imposed 

was within the lowest statutory maximum which would apply to either 

substance at issue); United States v. Williams , 235 F.3d 858 (3d Cir. 

2000) (holding it to be irrelevant that the court determined a fact that 

increased the statutory maximum when the actual sentence imposed 

was below the original statutory maximum). To be sure, a 60-month 

sentence for possession with intent to distribute marijuana 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 sentence is outside the 

 12 
B. 

Not knowing the identity or quantity of the substance, 

the District Court proceeded to conclude that Apprendi did 

not apply because it determined that "[t]he range of 

punishment facing Henry for conviction under section 

841(a)(1) extends from a statutory maximum penalty of five 

years imprisonment and a fine for five grams or more of 

marijuana, see 21 U.S.C. S 841(b)(1)(D), to a statutory 

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. 2000), 

which held that, post-Apprendi, it is up to the judge to 

determine the applicable statutory range by applying the 

sentencing guidelines, and that Apprendi is not violated as 

long as that range does not exceed the statutory maximum. 

Applying Williams, the District Court concluded that 

Apprendi was not implicated in this case because the 

Guideline range "as calculated in the presentence report for 

Mr. Henry does not and cannot exceed the statutory 

maximum of forty years," which is the statutory maximum 

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 appropriate 

standard that applies at a sentencing hearing. See United 

States v. Watts, 519 U.S. 148, 156 (1997) ("The Guidelines 

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 satisfies 

due process."). 

The teachings of Williams, however, are not applicable 

since we are not dealing with the District Court's 

_________________________________________________________________ 

applicable guideline range, notwithstanding the fact that Apprendi would 

not be implicated. See U.S. Sentencing Guidelines Manual 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. 

 13 
sentencing within a guideline range below a known 

statutory maximum. Indeed, post-Apprendi,"a District 

Court's sentence that is under the statutory maximum 

cannot be constitutionally objectionable under Apprendi." 

Williams, 235 F.3d at 863. In this case, however, any 

determination on drug identity would be "legally significant 

because it [would] increase[ ] . . . the maximum range 

within which the judge could exercise his discretion." 

Apprendi, 530 U.S. at 474. 

As we noted in Barbosa, "Apprendi compels us to focus 

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 identity and 

quantity of the drug, there was no such agreement in this 

case. See Williams, 235 F.3d at 859. Henry's plea was 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 than the 

lowest "catch-all" maximum of one year, under Barbosa 

there is an Apprendi violation. 

C. 

We have previously concluded that an Apprendi error is 

not a structural defect, but instead, is subject to harmless 

or plain error analysis, depending upon the presence of an 

objection at trial. Vazquez, 271 F.3d at 103. If the 

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 made at 

trial."). Fed. R. Crim. Pro. 52(a) provides that"Any error, 

defect, irregularity or variance which does not affect 

substantial rights shall be disregarded." 

In Apprendi, the "Supreme Court recognized a new 

constitutional right grounded in the Due Process Clause 

and the Sixth Amendment's notice and jury trial 

guarantees." Vazquez, 271 F.3d at 101. Thus, to determine 

 14 
whether 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 obtained." 

Barbosa, 271 F.3d at 459 (citation omitted). The 

government bears the burden of persuasion. See Chapman, 

386 U.S. at 24. A court should not find harmless error if "at 

the end of the examination [of the record],[we] cannot 

conclude beyond a reasonable doubt that the jury verdict 

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 faced 

had the District Court determined that he possessed with 

intent to distribute marijuana would have been 60 months 

under S 841(b)(1)(D). It is also true that Henry was, 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 would 

apply to either marijuana or cocaine. For this proposition, 

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 possible 

drug substances. 

We find, however, that Edwards is inapplicable to this 

case. In Edwards, the District Court instructed the jury 

that "the government must prove that the conspiracy . . . 

involved measurable amounts of cocaine or cocaine base." 

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 respect to 

the identity of the substance. Thus, when the judge

sentenced the defendants in Edwards based on his finding 

that the illegal conduct involved both cocaine and cocaine 

base and the sentence imposed fell within the lower

 15 
statutory maximum for cocaine, there was no error since 

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 Edwards 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 the 

District Court was so limited, that the drug was either 

marijuana or cocaine. See Barbosa, 271 F.3d at 456 

("[B]ecause the identity of the drug was not submitted to 

the jury, we cannot simply assume that only schedule I and 

II controlled substances are implicated merely because the 

evidence was so constrained.").3 Moreover, if the substance 

were marijuana, under all the relevant and applicable 

factors under the sentencing guidelines, the maximum 

sentence that Henry would have faced would have been six 

months. As the government acknowledged at oral 

argument, it is inconceivable that Henry would have

received a 60-month Guidelines sentence in this case if 

drug quantity was one ounce of marijuana given his 

_________________________________________________________________ 

3. In Barbosa, reviewing under the plain error standard under Fed. R. 

Crim. P. 52(b), where the defendant bears the burden of persuasion, we 

affirmed his conviction. We found that "Barbosa[could not] show that 

the error affected his substantial rights. The evidence established 

indisputably, and certainly beyond a reasonable doubt, that Barbosa 

possessed with the intent to distribute 882 grams of a controlled 

substance and that this controlled substance was cocaine base." 

Barbosa, 271 F.3d at 460. The inquiry under Barbosa was quite different 

from the inquiry we are presented with here. In Barbosa, although the 

jury was not asked to determine beyond a reasonable doubt the identity 

of the substance, it was presented with a great deal of evidence with 

respect to the identity of the drug. Noting that"[i]ndeed, cocaine base 

and heroin were the only controlled substances presented to the jury 

through the evidence at trial, the former through the testimony of the 

DEA forensic chemist," we proceeded to conclude that, "[n]onetheless, we 

may confidently infer that the jury, in convicting Barbosa and rejecting 

the entrapment defense, necessarily found the controlled substance to be 

cocaine base." Id. at 460. We also concluded that "a defendant who is in 

actual possession of a particular controlled substance, while intending to 

distribute another, may be punished for the drug with which he is found 

to be in possession." Id. at 459. Thus, intent is irrelevant. 

 16 
criminal history score of 1. Under the Guidelines Manual, 

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 level as 6); U.S. 

Sentencing Guidelines Manual Sentencing Table (2000) 

(diagraming sentences based on offense level and criminal 

history). The District Court's conclusion that the substance 

was cocaine meant that Henry was subject to a mandatory 

minimum sentence of 60 months. Thus, the mere fact that 

Henry received a sentence that did not exceed the statutory 

maximum for marijuana does not render the error harmless 

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 60- 

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 jury for 

a determination of the identity and quantity issues. Rather, 

the evidence of drug identity and quantity was presented to 

the judge during the sentencing hearing and the 

determination was made by a preponderance of the 

evidence. We also note that, under the circumstances, 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 substance 

was cocaine, since it is not clear that the evidence 

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. First, 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." Thus, 

what the Court considered at the sentencing hearing could 

have encompassed information that would otherwise be 

inadmissible if presented to a jury. Second, the District 

Court stated during the sentencing hearing that it did not 

 17 
think that the government had established beyond a 

reasonable doubt that the substance was cocaine, rather 

than marijuana. 

IV. 

Having concluded that there was an Apprendi violation 

that was not harmless error, we are presented with the 

novel issue of the proper remedy in such a case (where the 

defendant pleaded guilty to the general crime). Apprendi 

teaches us that "Other 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." Apprendi v. New 

Jersey, 530 U.S. 466, 490 (2000) (emphasis added). We find 

it consistent with the mandate of Apprendi to remand for a 

jury to determine these facts beyond a reasonable doubt. 

This is what Henry requested in the District Court. We see 

no reason why a jury cannot be convened for the sole 

purpose of deciding the facts that will determine the 

sentence. After all, that is the job of the jury as fact-finder. 

In view of the foregoing, the judgment of the District 

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 possessed by 

Henry with intent to distribute, and then for resentencing. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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