*After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case therefore is ordered

submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 29 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL J. CERNOBYL,

Defendant-Appellant.

No. 00-7033

Appeal from the United States District Court

for the Eastern District of Oklahoma

(D.C. No. 99-CR-49-B)

Submitted on the briefs:*

D. Michael Littlefield, Assistant United States Attorney and Sheldon J. Sperling,

United States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.

Donn F. Baker, Tahlequah, Oklahoma, for Defendant-Appellant.

Before SEYMOUR, EBEL and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.
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Defendant-Appellant Michael J. Cernobyl (“Cernobyl”) pled guilty to

possession of marijuana with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1). The district court calculated his sentence on the basis of marijuana

found in his home and car, as well as on the basis of his own admission that he

had transported large amounts of marijuana over an extended period of time. 

Cernobyl appealed. His initial argument to the court centered on his contention

that the evidence relied upon by the district court was unreliable. Following the

Supreme Court’s opinion in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000),

Cernobyl successfully moved for supplemental briefing on the issue of whether

his sentence was unlawful in light of Apprendi. In his supplemental brief,

Cernobyl argued that 21 U.S.C. § 841 is facially unconstitutional in light of

Apprendi, and, in the alternative, that the district court erred in basing his

sentence on drug quantities that were not alleged in his indictment and proved

beyond a reasonable doubt. We hold that § 841 is not facially unconstitutional,

but that the district court’s sentence constituted plain error in light of Apprendi,

and we therefore VACATE Cernobyl’s sentence and REMAND for resentencing.

I. BACKGROUND

Cernobyl was arrested in January 1999 after Oklahoma State Trooper Mike

Smith (“Trooper Smith”) stopped a car in which Cernobyl was traveling as a

passenger. Trooper Smith detected the odor of unburned marijuana in the vehicle,
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and then sought and obtained permission to search the car from the driver, Merle

Thomason (“Thomason”). Trooper Smith discovered sixty-six pounds of

marijuana in the trunk and arrested Thomason, Cernobyl, and another passenger. 

Cernobyl later admitted to Trooper Smith that the marijuana belonged to him. 

Cernobyl went on to inform Trooper Smith that he was “unlucky” because he

arrested Cernobyl with an unusually small amount of marijuana, and that

Cernobyl transported between 100 and 400 pounds of marijuana on a bi-weekly or

monthly basis. Although he was only twenty-eight years old at the time of his

arrest, Cernobyl told Trooper Smith he had been engaged in drug trafficking for

seventeen to twenty years. Cernobyl subsequently told two agents of the United

States Drug Enforcement Agency (“DEA”) that he earned approximately $11,000

to $15,000 per month in this manner, and that he had been transporting drugs for

approximately three years. Cernobyl later recanted these statements, however,

telling the probation officer who prepared his pre-sentencing report that he was

merely “bragging” to impress Trooper Smith and the DEA agents.

The DEA agents who interviewed Cernobyl obtained a search warrant for

his residence to look for additional evidence of illegal drug activity. The search

uncovered approximately thirty-eight pounds of marijuana hidden in Cernobyl’s

garage and $11,000 in cash concealed beneath a bathroom sink.
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The Government indicted Cernobyl on two counts of possession of

marijuana stemming from the seizures of drugs from his home and from

Thomason’s vehicle in violation of 21 U.S.C. § 841(a)(1). The indictment did not

allege any specific amount of marijuana believed to have been in Cernobyl’s

possession. Cernobyl raised Fourth Amendment objections to the search of his

home, and the district court suppressed all of the evidence derived from that

search for purposes of trial. Cernobyl then pled guilty to the first count of the

indictment charging him with possession with intent to distribute the marijuana

found in Thomason’s car.

Because of a perceived lack of corroborating evidence to support

Cernobyl’s admissions of prior drug trafficking, the pre-sentencing report

prepared by the U.S. probation officer recommended that Cernobyl be sentenced

only on the basis of the sixty-six pounds of marijuana found in Thomason’s truck. 

The Government objected, arguing the district court should consider the

suppressed drugs along with Cernobyl’s statements to Trooper Smith and the DEA

agents as relevant conduct for sentencing under Section 1B1.3(a)(1)(A) of the

Federal Sentencing Guidelines. After conducting a sentencing hearing, the

district court determined that Cernobyl’s guilty plea, together with the

government’s evidence of relevant conduct, warranted a base sentencing level of

thirty-two. Specifically, the court sentenced Cernobyl on the basis of the court’s
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conclusion to a preponderance of the evidence that Cernobyl had possessed 3,701

pounds or 1678.77 kilograms of marijuana, including: (1) the sixty-six pounds

found in Thomason’s vehicle; (2) thirty-five pounds seized from his residence;

and (3) the judge’s finding that Cernobyl transported 100 pounds of marijuana per

month for a period of three years, which was based on Cernobyl’s own boasts to

Trooper Smith and the DEA agents.

Cernobyl filed timely notice of appeal. In his opening brief, Cernobyl

argued that the district court should not have based his sentence on 

his own allegedly unreliable admissions to police or on the drugs that were seized

from his home in violation of the Fourth Amendment. A short time before

Cernobyl filed his brief, the Supreme Court decided Apprendi v. New Jersey, 120

S.Ct. 2348 (2000), and we ordered supplemental briefing to determine whether his

sentence was unlawful in light of that decision. Cernobyl now argues that

Apprendi rendered 21 U.S.C. § 841 facially unconstitutional, and, in the

alternative, that the district court erred in sentencing him for possessing 3,701

pounds of marijuana without a jury’s conclusion that the evidence proved that he

possessed this amount beyond a reasonable doubt.

II. STANDARD OF REVIEW

Because the Supreme Court’s opinion in Apprendi was not issued until after

Cernobyl filed notice of appeal, he did not raise either of these challenges before
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the district court. We therefore review these issues for plain error. See United

States v. Hishaw, 235 F.3d 565, 574 (10th Cir. 2000). As such, “[r]eversal is only

warranted if there is: (1) an error; (2) that is plain or obvious; (3) affects

substantial rights; and [4] ‘seriously affect[s] the fairness, integrity[,] or public

reputation of judicial proceedings.’” Id. (quoting United States v. Olano, 507 U.S.

725, 732 (1993)).

III. DISCUSSION

A. Constitutionality of 21 U.S.C. § 841

Cernobyl first argues that Apprendi rendered 21 U.S.C. § 841 facially

unconstitutional. In Apprendi, the Supreme Court 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 beyond a

reasonable doubt.” 120 S.Ct. at 2362-63. Congress structured § 841 in two parts,

with § 841(a) defining the prohibited behavior, and § 841(b) setting forth a range

of penalties based on the quantities of drugs involved in the offense. Federal

courts have historically construed the provisions of § 841(a) as the substantive

elements of the offense, and the provisions of § 841(b) as sentencing factors

which could be submitted to a district court for a finding to a preponderance of

the evidence. See United States v. Jones, 235 F.3d 1231, 1234 (10th Cir. 2000). 

In light of Apprendi, however, we recently concluded that “the quantity of drugs
- 7 -

involved in a violation of § 841 is an essential element of the offense if that fact

exposes the defendant to a heightened maximum sentence under § 841(b)(1)(A) or

(B).” Jones, 235 F.3d at 1236. Thus, in order to increase a defendant’s sentence

for a conviction pursuant to § 841, drug quantities must be charged in an

indictment, submitted to a jury, and proved beyond a reasonable doubt. See id.;

United States v. Heckard, 238 F.3d 1222, 1234-35 (10th Cir. 2001); United States

v. Keeling, 235 F.3d 533, 538 (10th Cir. 2000); Hishaw, 235 F.3d at 575.

Cernobyl nevertheless argues that, to be consistent with our pre-Apprendi

case law and the plain language of § 841, we must preserve the historical

procedural dichotomy between §§ 841(a) and 841(b), find that § 841(b) violates

Apprendi, and therefore hold that the statute as a whole is facially

unconstitutional. We note that the Fourth, Fifth, and Eleventh Circuits have

considered this question and concluded that § 841 remains constitutionally viable,

albeit with relatively little substantive analysis of the question. See United States

v. Candelario, 240 F.3d 1300, 1311 n.16 (11th Cir. 2001), cert. denied __ S.Ct.

__, No. 00-9956, 2001 WL 539656 (June 18, 2001); United States v. Slaughter,

238 F.3d 580, 582 (5th Cir. 2000) (“We see nothing in the Supreme Court

decision in Apprendi which would permit us to conclude that 21 U.S.C. §§ 841(a)

and (b) . . . are unconstitutional on their face.”), cert. denied, 121 S.Ct. 2015

(2001); United States v. Strachan, Nos. 99-4119, 99-4426, 2001 WL 208470, at
- 8 -

*5 n.* (4th Cir. Mar. 2, 2001) (unpublished). We now join these courts in holding

that § 841 remains constitutionally enforceable notwithstanding Apprendi.

At the heart of Cernobyl’s argument is an assumption that we are bound by

our pre-Apprendi holdings that drug quantity determinations under § 841(b)(1) are

to be submitted to a judge for finding by a preponderance of the evidence. 

Whatever force those cases may have had in the past, we are now bound by the

Supreme Court’s interpretation of the Due Process Clause in Apprendi itself.

 Apprendi compels us to submit to a jury questions of fact that may increase a

defendant’s exposure to penalties, regardless of whether that fact is labeled an

element or a sentencing factor. See 120 S.Ct. at 2365-66. Thus, to the extent that

Cernobyl relies on earlier cases holding that factual findings under § 841(b)(1)

can be submitted to the district court under a preponderance of the evidence

standard, his argument fails. See Jones, 235 F.3d at 1237 (“Apprendi strips

[cases removing drug quantity determinations from a jury pursuant to § 841(b)] of

their precedential value.”).

Conceding for the purposes of argument that Apprendi requires drug

quantities be proved beyond a reasonable doubt under § 841(b)(1), Cernobyl

contends in the alternative that our holding in Jones treads impermissibly on the

legislative powers of Congress by judicially rewriting the statute. Apprendi,

however, does not hold that legislatures can no longer have separate statutory
- 9 -

provisions governing a substantive offense and sentencing factors, as is the case

in § 841. It merely recognizes that the Due Process Clause entitles criminal

defendants to certain procedural protections, regardless of whether a statutory

provision is styled as a substantive offense or a sentencing factor. See Apprendi,

120 S.Ct. at 1265-66.

Moreover, application of Apprendi to § 841 is consistent with the plain

language of the statute. Section 841(b) itself is silent on the question of what

procedures courts are to use in implementing its provisions, and therefore the rule

in Apprendi in no way conflicts with the explicit terms of the statute. To the

contrary, our original interpretation of § 841 applied similar procedures for

findings of fact under §§ 841(a) and (b). See Jones, 235 F.3d at 1237 (citing

United States v. Crockett, 812 F.2d 626, 628-29 (10th Cir. 1987) (holding that

drug quantities must be charged in an indictment to justify a sentence

enhancement under § 841(b)(1))). The practice of allowing judges to sentence

offenders on the basis of drug quantities that were neither charged in an

indictment nor submitted to a jury arose only later, after the implementation of the

Federal Sentencing Guidelines. See Jones, 235 F.3d at 1237 (citing United States

v. Ware, 897 F.2d 1538, 1542-43 (10th Cir. 1990)).
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In sum, we find no inconsistency between Apprendi and § 841 that would

compel a conclusion that the statute as written is unconstitutional, and we proceed

to consider whether the district court erred in applying the statute.

B. Sentencing Error

The Government concedes that the district court plainly erred in its

application of § 841(b) in light of Apprendi. The Government’s indictment of

Cernobyl did not charge him with possessing any specific quantity of marijuana,

and his plea agreement, while not in the record, apparently did not admit to

possessing any specific quantity.

Rather, the district court based its sentence on a finding to a preponderance

of the evidence that Cernobyl possessed sixty-six pounds of marijuana in the car

that was stopped by Trooper Smith and thirty-five pounds of marijuana in his

home. In addition, the district court held that Cernobyl’s admissions of long-term

drug trafficking carried sufficient indicia of reliability to justify a finding that he

had transported 100 pounds of marijuana per month for a period of three years. 

Based on these calculations, the district court held that the appropriate offense

level under the Federal Sentencing Guidelines was thirty-two. Taking into

account a criminal history category of I and a two-level sentence reduction for

acceptance of responsibility, the district court imposed a sentence of eighty-seven
1Even after Apprendi, district courts are empowered to make findings to a

preponderance of the evidence in order to determine an appropriate offense level

under the Sentencing Guidelines. See Heckard, 238 F.3d at 1235-36. Cf.

Apprendi, 120 S.Ct. at 2361 n.13 (sentencing factors still may be submitted to a

court under a preponderance standard, in “cases that do not involve the imposition

of a sentence more severe than the statutory maximum for the offense established

by the jury’s verdict”); Hishaw, 235 F.3d at 577 (“In our view, as long as the

defendant’s sentence falls within the maximum established by statute, Apprendi

(continued...)

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months, which was at the low end of the Sentencing Guidelines range of eightyseven to 108 months.

Section 841(b)(1)(D) sets forth a maximum sentence of five years, or sixty

months, for persons convicted of possessing fewer than fifty kilograms of

marijuana. See § 841(b)(1)(D) (“In the case of less than 50 kilograms of

marihuana . . . such person shall . . . be sentenced to a term of imprisonment of

not more than 5 years . . . .”). Because Cernobyl was neither indicted nor

convicted of possessing more than fifty kilograms of marijuana, § 841(b)(1)(D)

defines his maximum sentence exposure. See United States v. Norby, 225 F.3d

1053, 1059 (9th Cir. 2000) (“[U]nder Apprendi, the ‘prescribed statutory

maximum’ for a single conviction under § 841 for an undetermined amount of

marijuana is five years.”). The district court’s sentence of eighty-seven month’s

imprisonment exceeded this maximum sentence by twenty-seven months, and the

sentence thus constituted an obvious error, satisfying the first two elements of the

plain error standard.1 For the same reason, we hold the error seriously affected
1

(...continued)

does not foreclose consideration of drug quantities beyond the offense of

conviction.”). In Cernobyl’s case, however, the district court’s consideration of

uncharged quantities of marijuana elevated his sentence beyond the maximum

allowed under the statute, and therefore falls afoul of Apprendi.

- 12 -

Cernobyl’s substantial rights. Finally, the fairness and integrity of the

proceedings are in doubt. Cernobyl was not indicted with possession of marijuana

on the basis of his admission of long-term drug dealing to Trooper Smith and the

DEA agents, and the Government was never required to submit its evidence of

such dealing to a fact finder for proof beyond a reasonable doubt. Furthermore,

given that Cernobyl later retracted his admissions, the sole evidence supporting a

sentence enhancement on this basis is now in dispute. Thus, this is not a case

where we can avoid reversing Cernobyl’s sentence because the evidence is

overwhelming or uncontroverted. Cf. Keeling, 235 F.3d at 539-40. Accordingly,

we hold the district court’s sentence constitutes plain error.

Nevertheless, we do not believe the evidence relied upon by the district

court was so lacking in minimum indicia of reliability as to be incapable of

supporting the court’s findings to a preponderance of the evidence. Cf. United

States v. Ryan, 236 F.3d 1268, 1273 (10th Cir. 2001) (“When drug quantity is at

issue, the government has the burden of proving the quantity of drugs for

sentencing purposes by a preponderance of the evidence, and the evidence relied

upon must have a minimum indicia of reliability.” (citations and quotations
- 13 -

omitted)). We review a district court’s factual findings in this context for clear

error, reversing “only if the district court’s finding was without factual support in

the record or we are left with the definite and firm conviction that a mistake has

been made.” Id.

In this case, the district court’s findings were based primarily on

Cernobyl’s own admission that he had transported a minimum of 100 pounds of

marijuana per month for a period of three years. Although the $11,000 in cash

and the marijuana found in Cernobyl’s home were suppressed by the district

court, the court was nevertheless entitled to consider them as evidence of relevant

conduct for sentencing purposes. Cf. id. at 1272 (a district court is entitled to

consider evidence seized in violation of the Fourth Amendment during

sentencing proceedings unless there is evidence the violation was committed with

the intent to secure an increased sentence.) Further, at Cernobyl’s sentencing

hearing a witness testified that Cernobyl had supplied him with marijuana in

quantities ranging from a quarter pound to thirty pounds for a period of several

months.

Thus, we reject Cernobyl’s contention that the district court’s findings of

relevant conduct were unsupported on the record, and we remand only because

the district court’s sentence exceeded the statutory maximum of 60 months and

thereby violated Apprendi.
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IV. CONCLUSION

Because the district court plainly erred imposing a sentence beyond the 60-

month maximum allowed by 21 U.S.C. § 841(b)(1)(D), we VACATE Cernobyl’s

sentence and REMAND the case to the district court for re-sentencing in

accordance with this opinion.