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. e du/thir dc ir c uit_2001/143Filed June 29, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 99-5738

UNITED STATES OF AMERICA,

v.

JOSEPH BUTCH Appellant

On Appeal From the United States District Court For the District of New Jersey (D.C. Criminal No. 98-00390) District Judge: Honorable Stephen M. Orlofsky

Submitted Under Third Circuit LAR 34.1(a) April 24, 2001

Before: BARRY, AMBRO and ALDISER T, Circuit Judges

(Filed: June 29, 2001)

Mark W. Catanzaro
Suite 208

513 South Lenola Road

Blason IV Moorestown, NJ 08057

Attorney for Appellant, Joseph ButchRobert J. Cleary

United States Attorney

George S. Leone Chief, Appeals Division

970 Broad Street Newark, NJ 07102-2535

Norman J. Gross, Assistant United States Attorney Camden Federal Building and
United States Courthouse 401 Market Street, Fourth Floor Camden, NJ 08101-2098

Attorneys for Appellee, United States
of America

OPINION OF THE COURT

AMBRO, Circuit Judge:

Joseph Butch challenges his conviction following a jury
trial in the United States District Court for the D istrict of New Jersey (the "District Court") on one count of v iolating 21 U.S.C. S 846 by conspiring to distribute and to possess with intent to distribute oxycodone, a Schedule II narcotic controlled substance, contrary to 21 U.S.C.S 841(a) (1). He also challenges the sentence imposed by the Distric t Court. Butch alleges that the District Court (1) impr oper ly admitted evidence of prior thefts of oxycodone at t rial, (2) erred in determining the applicable sentencing rang e under the United States Sentencing Guidelines by attribut ing to him the entire weight of each pill rather than calc ulating the amount of the controlled substance per pill, an d (3) erred by failing to submit the weight of the contro lled substance to the jury for a factual determination b eyond a reasonable doubt in light of Apprendi v. New Jersey , 530 U.S. 466 (2000). We have jurisdiction over this app eal pursuant to 28 U.S.C. S 1291. For the r easons that follow,
we will affirm the conviction and sentence.

2I.

At the time of this alleged criminal activity, Butc h was employed as a scheduler and dispatcher for two r el ated, Philadelphia-based commercial truck and driver leas ing companies, Marano Truck Lease ("Marano") and Americ an Helper ("AH"). Marano and AH leased trucks and driv ers to the courier service Rapid Delivery Services ("RDS") . RDS in turn was employed by Amerisource, a wholesale distr ibutor of pharmaceutical drugs and other medical pr oducts , to deliver those products from its war ehouse in Thoro fare, New Jersey, to hospitals and pharmacies.

From September, 1997 through January, 1998, Butch scheduled Robert Manning ("Manning"), a temporary d river for AH, to a delivery route for Amerisour ce. Accor ding to Manning's testimony, on January 7, 1998 Butch of fe red Manning $5000 to help him steal a tote of Amerisour ce's pharmaceutical drugs from the back of the delivery truck that Manning would be driving the next day. Manning agreed. On January 8, 1998, Manning met Butch and another man at a Burger King restaurant on Front St reet in Philadelphia. Butch retrieved a plastic tote contai ning the drugs from the back of the truck. After Manning had resumed his route, Butch discovered that he had sto len the wrong tote. Butch called Manning and arranged to ha ve the third man meet Manning at a Dunkin' Donuts shop to pick up the correct tote, which he did. When Manning arr ived later at the Veteran's Administration hospital in Philadelphia, he called the police and reported the theft as planned. Several days later, Butch gave Manning the agreed-upon $5000.

In April and May of 1998, Butch twice solicited Man ning to steal pharmaceutical drugs from Amerisource truc ks that others were driving. Butch identified the truc ks, the delivery routes and the drug totes, and gave Mannin g the key. Manning was to follow the trucks and steal the drugs
when the drivers left the trucks unattended. Mannin g took the keys, but did not follow through with the theft of any drugs.

On May 19, 1998, Butch offered $5000 to George Fron ick ("Fronick"), another AH driver who made deliveries for

3Amerisource, to help him steal pharmaceutical drugs from

the truck Fronick was driving. Fronick r eported th e plan to his supervisor at RDS, and the FBI and DEA wer e no tified. Investigators for the two agencies arranged for Fr onick to cooperate in apprehending Butch.

After a failed attempt on May 20, 1998, Butch again solicited Fronick to assist him in his theft plans. Fronick reported the solicitation to his supervisor , and t he investigators supplied Fronick with a concealed mic rocassette recorder and a video camera to place in th e back of his truck. On June 4, 1998, Butch detailed the p lan to have Fronick arrive at Mercy Hospital at 6:30 a.m., drive the front of the truck up to the loading dock, and unlock
the back of the truck. A third man would unload the totes from the back of the truck. Fronick was then to get rid of the padlock, and report the theft to the police. Th is
conversation was recorded on the micr o-cassette ca rried by Fronick. The third man was Manning, who testified t hat Butch instructed him to take the drugs from the bac k of the truck, deliver them to Butch at a Dunkin' Donut s shop near the Marano facility, and report to a job Butch had
scheduled for him.

Early the next morning, Fronick met Butch at a gas station and went over the plan. Butch gave Fr onick two plastic trash bags, told him to put the boxes of dr ugs into the bags, and to leave them at the back of the truc k. Fronick picked up the delivery and drove his truck to Mercy Hospital according to Butch's instructions. When he reached the hospital parking lot, Fronick activated the hidden camera in the truck and proceeded with the p lan. In addition to the hidden camera and the hospital's ow n surveillance camera, the investigators had the enti r e scene under surveillance. They observed Butch and another man, Fred Moll ("Moll"), sitting inside Moll's car. They also observed Manning approach the truck, remove two pla stic bags containing the boxes of pharmaceutical drugs, and place them into the trunk of his car. As Manning at tempted to drive out of the hospital parking lot, the inves tigators stopped and arrested him, seizing the bags fr om th e trunk. Other agents blocked Moll's car and arrested Moll a nd Butch. The bags contained 26,400 Endocet tablets, a

4generic form of Percocet, each tablet containing

approximately 4.4 milligrams of oxycodone and 325 milligrams of acetaminophen. See Physicians' Desk Reference 1211 (55th ed. 2001).

On June 18, 1998 a federal grand jury sitting in Ne wark, New Jersey returned a one count indictment, chargin g "[f]rom on or about May 19, 1998 to on or about Jun e 5, 1998, . . . Joseph Butch did knowingly and intentio nally conspire and agree with others to distribute and to possess with intent to distribute oxycodone, a Schedule II narcotic drug controlled substance, contrary to T itle 21, U nited States Code, Section 841(a)(1), [i]n violation of T itle 21 United States Code, Section 846." The indictment di d not specify the quantity of oxycodone attributable to B utch.

On April 26, 1999, the Government filed a motion in limine seeking the admission of evidence of Butch's January and May, 1998 dealings with Manning as intr insic to the conspiracy charged or, alter natively, as ad missible under Federal Rule of Evidence 404(b). On May 3, 19 99, the day that the jury trial began, the District Cou rt issued a published opinion1 denying the Government's motio n to admit the evidence as intrinsic to the conspiracy a nd as evidence of a common scheme and plan.2 However, th e District Court admitted under Rule 404(b) the testi mony of Manning for the limited purpose of establishing the background of the conspiracy as charged in the indi ctment. The District Court also recited the limiting instru ction it intended to accompany the evidence.

The Government introduced evidence of the January a nd May, 1998 events at trial. The limiting instruction was given. Butch testified in his own defense, denying any criminal intent and claiming that it was Manning wh o had solicited him to steal the drugs. Butch also testif ied that he pretended to participate in the scheme in or der to catch Manning in the act. The jury rejected Butch's defen se and

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1. See United States v. Butch, 48 F . Supp. 2d 453 (D.N.J. 1999).

2. The indictment alleged a conspiracy fr om May 19 to June 5, 1998, which in the District Court's opinion render ed the events in January and early May, 1998 too remote to be inextricably inter twined with the conspiracy as charged, and not part of a single cri minal episode.

5on May 11, 1999, convicted him of the charge. The D istrict

Court sentenced Butch to 240 months (20 years) imprisonment, the statutory maximum for the crime o f
which he was convicted.

II.

Butch's initial challenge on appeal is that the Dis trict Court improperly permitted the Gover nment to intro duce evidence of his January and May, 1998 dealings with Manning under Federal Rule of Evidence 404(b).3 The nature of his objection is twofold. First, Butch ar gues that the testimony of specific events admitted to establ ish the background of a conspiratorial relationship goes we ll beyond the limited, general questioning that this C ourt permits. See United States v. O'Leary, 739 F.2d 135 (3d Cir. 1984). Second, he argues that the probative value o f the evidence is substantially outweighed by its pr ejud icial
effect. We review the District Court's decision to admit evidence under Rule 404(b) for an abuse of discr et ion, which "may be reversed only when `clearly contrary to reason and not justified by the evidence'." United States v. Balter, 91 F.3d 427, 436 (3d Cir. 1996) (citing Uni ted States v. Bethancourt, 65 F.3d 1074, 1079 (3d Cir. 1995)). We
conclude that the District Court did not abuse its discretion in admitting Manning's testimony as background evid ence of a conspiratorial relationship pursuant to Rule 4 04(b).

The "threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) i s whether that evidence is probative of a material is sue other

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3. Federal Rule of Evidence 404(b) provides:

(b) Other crimes, wrongs, or acts. Evidence of other crimes,

wrongs, or acts is not admissible to prove the chara cter of a person in

order to show action in conformity therewith. It m ay, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identi ty, or absence of
mistake or accident, provided that upon request by t he accused, the prosecution in a criminal case shall pr ovid e reasonable notice in advance of trial, or during trial if the cou rt excuses pretrial
notice on good cause shown, of the general nature o f any such evidence it
intends to introduce at trial.

6than character." Huddleston v. United States, 485 U .S. 681,

686 (1988). This Court recently set out a four -fac tor standard governing the admissibility of evidence pu rsuant to Rule 404(b), which requires: (1) a pr oper evide ntiary purpose; (2) relevance under Rule 402; (3) a weighi ng of the probative value of the evidence against its pr ejud icial effect under Rule 403; and (4) a limiting instruction conc erning the purpose for which the evidence may be used. Uni ted States v. Mastrangelo, 172 F.3d 288, 294 (3d Cir. 1 999).

The District Court found that the Government met it s burden of articulating the requisite "chain of logi cal inferences" in support of a proper evidentiary purp ose, satisfying the first prong. Butch, 48 F. Supp. 2d a t 459 (citing Mastrangelo, 172 F.3d at 294). Because Mann ing's testimony was "logically relevant to explain his ro le in the criminal enterprise" and because it "would give the jury a complete story of the crime by explaining the cir c umstances of the alleged relationship between the alleged conspirators," the District Court found the testimo ny relevant under the second prong. Id. at 460. Under the Rule 403 balancing test, the District Court concluded th at the probative value of Manning's testimony outweighed a ny prejudicial effect. "As an alleged participant in t he charged conspiracy, Manning's testimony is significantly pr obative of the formation of his criminal relationship with Butch in January, 1998, as well as[ ] the further developmen t of that relationship during the events of early May, 1998." Id. Moreover, the evidence of the prior criminal activi ty detailed a similar crime against the same victim, without th e use of violence or threats, and thus the testimony to this effect was not overly prejudicial. Thus, the District Cour t
concluded that the evidence "does not rise to the l evel of the distracting, confusing, or emotionally char ged evidence from which Rule 403 protects a criminal defendant." Id. at 461. Finally, the District Court gave the requisite limiting instruction to satisfy the fourth prong and elimina te an "undue tendency . . . suggest[ing] a decision on an improper basis . . . ." See Fed. R. Evid. 403, Advi sory Committee's Note.4

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4. Deciding on the Government's motion in limine, t he District Court

stated:

7In light of the District Court's thorough analysis in its

published opinion of Manning's testimony under the Mastrangelo factors, Butch cannot demonstrate an ab use of discretion. This Court has held that "testimony of . . . a coconspirator . . . could be considered r elevant to provide necessary background information, to show an ongoin g relationship between [the defendant and a co-conspi rator], and to help the jury understand the co-conspirator' s role in the scheme." United States v. Simmons, 679 F.2d 104 2, 1050 (3d Cir. 1982). This was precisely the purpose for which the Government sought to introduce Manning's testimony. Moreover, in its discussion of O'Leary, the
District Court noted:

The Government's evidentiary purposes in O'L eary and the Government's evidentiary purposes in thi s case are identical, namely, to show background of the charges,
the witness' and the defendant's relationshi p, and their concerted action. In light of Simmons, Harri s, Moore, and Pipola, Butch's attempt to limit O'Leary to its specific facts, though spirited, is without merit.

___________________________________________________ ______________

Prior to the Government's inquiry into the e vents of January and early May, 1998, at the conclusion of Mannin g's testimony, and again when I charge the jury, I will instruc t the jury as follows:

Evidence that Mr. Butch was involved in a cr iminal enterprise with Mr. Manning in January, 1998, and with Mr. Manning and Mr. Frederick Moll in early May, 1998, has b een admitted into evidence, but you may consider that evidence only as background to the offense charged in the Indictment, as evidence of Mr. Manning's and Mr. Butch's relationship prior to May 19, 1998, and as evidence of their concerted efforts p rior to May 19, 1998. You may not, however, consider this evidence of Mr. Butch's prior involvement in a criminal enterprise in deci ding whether or not the Government has proven Mr. Butch's guilt beyond a reasonable doubt for the offense charged in the Indictm ent. For the limited purpose for which this evidence has been rec eived, you may give it such weight as you feel it deserves. You may not, however, consider this evidence for any other purpose . See 1 Devitt, et al., Federal Jury Practice and Instructions S 11. 09 (4th ed).

Butch, 48 F. Supp.2d at 461. The limiting instructi on actually given by
the District Court mirrors this instruction.

8Accordingly, I find that the Government has sufficiently

proffered a proper evidentiary purpose for i ntroducing into evidence the January and early May, 199 8, events.

Butch, 48 F. Supp. 2d at 460 (citations omitted). W e agree with the District Court's reading of O'Leary, and c an find no abuse of the Court's discretion.5 As a result, we will
affirm Butch's conviction.

III.

Butch also challenges his sentence on the gr ound t hat
the District Court erred when it attributed to him the gross weight of the Endocet pills rather than the net wei ght of the controlled substance oxycodone in the pills. This e rror, he contends, resulted in an incorrect range under the Sentencing Guidelines. Our review of the District C ourt's interpretation and application of the Sentencing Gu idelines is plenary, whereas we review its findings of fact for clear error. United States v. Yeaman, 194 F.3d 442, 456 ( 3d Cir. 1999).

The District Court sentenced Butch to 240 months imprisonment, determined as follows. Accor ding to the DEA's laboratory report, the accuracy of which Butc h did not contest, the 26,400 Endocet pills had a combine d weight of 14.49 kilograms. See Presentence Report ( "PSR")

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5. We also agree with the Gover nment's contention that it also could have introduced the evidence under Rule 404(b) to r ebut Butch's testimony that he acted without criminal intent. Su ch evidence is permissible to show criminal intent and the absence of innocent association. See United States v. Zackson, 12 F.3d 1178, 1182-83 (2d Cir. 1993) (ruling evidence of appellant's prior in volvement with the codefendant in a marijuana trafficking and conspiracy properly admitted under Rule 404(b) as relevant to intent and to rebu t defense of innocent association); see also United States v. Howell , 23 1 F.3d 615, 628-29 (9th Cir. 2000) (admitting evidence of appellant's previ ous drug-trafficking convictions under Rule 404(b) to rebut claimed inno cent motive for being present where drugs were found); United States v. W illiams, 31 F.3d 522, 527 (7th Cir. 1994) (ruling evidence r egarding app ellant's prior drug smuggling was properly admitted in a drug-trafficki ng conspiracy prosecution to rebut defense that he was merely an innocent Spanish interpreter for a co-conspirator).

9at P18. Because oxycodone, the controlled substance in

Endocet, is not one for which the Sentencing Guidel ines' Drug Quantity Table provides a base of fense level by unit of weight, the Probation Office looked to the Drug Equivalency Tables found in Application Note 10 of S 2D1.1. U.S. Sentencing Guidelines Manual, S 2D1.1(c) (1998 );6 PSR P17. According to those tables, one gram of oxycodo ne is equivalent to 500 grams of marijuana, resulting in this case to an equivalency of 7,245 kilograms of marijuana. PSR P18. The base offense level for this quantity is 34 . See U.S. Sentencing Guidelines Manual, S 2D1.1(c)(3). The Di strict Court overruled Butch's objection to the PSR's calc ulation of drug quantity attributable to him "because the P SR accurately reflects the appropriate drug equivalenc y calculation under the United States Sentencing Guid eline Section 2D1.1." The District Court imposed a two-le vel
enhancement to this base level for Butch's r ole as a manager or supervisor of the offense pursuant to S 3B1.1(c) of the Sentencing Guidelines. The District Court th en found Butch's criminal history category to be IV. See PSR PP 56-83.7 The effective Sentencing Guideline range was 262 to 327 months. However, given the statutory maximum penalt y of 240 months, the District Court sentenced Butch to t he statutory maximum pursuant to S 5G1.1 of the Senten cing Guidelines, which provides that "wher e the statuto rily
authorized maximum sentence is less than the minimu m of the applicable guideline range, the statutorily aut horized maximum sentence shall be the guideline sentence."

In support of his argument, Butch cites to Amendmen t 517 to the Sentencing Guidelines,8 applicable to Sc hedule I

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6. The 1998 edition of the Sentencing Guidelines is applicable in this

case.

7. Butch does not challenge either of these deter m inations on appeal.

8. Amendment 517

modifies S 2D1.1 . . . with respect to the d etermination of the

offense levels for Schedule I and II Depressants . . . by applying the Drug Quantity Table according to the number of pi lls, capsules or

tablets rather than by the gross weight of the pills , capsules or tablets. . . . The current guidelines use the total w eight of the pill, capsule, or tablet containing the controlled substanc e. This method leads to

10or II Depressants, which equates one unit or one pi ll to one

gram of marijuana (as opposed to the 500 grams of marijuana figure used by the District Court). He ar gues that because, under the language of 28 C.F.R.S 1308 .12(e), oxycodone acts like a depressant and is not specifi cally excepted or listed in another schedule, oxycodone q ualifies as a Schedule II Depressant. If this pr ovision of the Drug Equivalency Table were followed as Butch suggests, the drug equivalency would equal 26.4 kilograms of mari juana, not 7,245 kilograms. The resultant base of fense le vel would then be 18. Alternatively, using the net weight of the oxycodone would result in an equivalency of 59 kilo grams of marijuana and a base offense level of 20. Butch invokes the rule of lenity9 to resolve the alleged ambiguit y in the Sentencing Guidelines with respect to the calculati on of the drug equivalency of oxycodone after Amendment 517.

Butch's argument fails for two reasons. His asserti on that
the net controlled substance should be used in dete rmining the base offense level is directly contrary to Appl ication Note A to the Drug Quantity Table, which pr ovides that "[u]nless otherwise specified, the weight of a cont rolled
substance set forth in the table refers to the enti re weight of a mixture or substance containing a detectable a mount of the controlled substance." See U.S. Sentencing Guidelines Manual, S 2D1.1(c), cmt. n.A. Mor eover, this argument was expressly rejected by this Court in Un ited

___________________________________________________ ______________

anomalies because the weight of most pills i s deter mined primarily by the filler rather than the controlled sub stance. Thus, heavy pills lead to higher offense levels even though th er e is little or no relationship between gross weight and the po tency of the pill. Applying the Drug Quantity Table accor ding to the number of pills will both simplify guideline application and mor e fairly assess

the
scale and seriousness of the offense.

Appendix C to the U.S. Sentencing Guidelines Manual , November 1, 1997, p. 341 ("Appendix C").

9. The rule of lenity provides that "when ambiguity in a criminal statute cannot be clarified by either its legislative histo ry or inferences drawn from the overall statutory scheme, the ambiguity is resolved in favor of the defendant." United States v. Pollen, 978 F.2d 7 8, 85 (3d Cir. 1992) (citing Rewis v. United States, 401 U.S. 808, 812 ( 1971)).

11States v. Gurgiolo, 894 F.2d 56 (3d Cir. 1990), whe rein we

reversed the District Court's calculation of the ap plicable drug quantity based on the net weight of the oxycod one in Percocet pills.

Indeed, Congress requires the whole drug to be weighed when the drug consists at least in p art of a detectable amount of Schedule I substances, such as LSD and heroin, which are the most danger ou s substances available. . . . In short, where Congress provides for full-weight conversion of Sched ule I, III and IV substances, there is no self-evident r eason to
conclude that it meant to treat Schedule II drugs differently.

Id. at 61.10

Second, oxycodone is not a Schedule II Depressant. It is a Schedule II Opiate, a classification distinguisha ble from Schedule II Depressants. See 21 U.S.C.S 812; 21 C.F .R. S 1308.12(b)(1); U.S. Sentencing Guidelines Manual, S 2D1.1(c). Consequently, Amendment 517 does not op erate to require that oxycodone be converted into a drug equivalency based on the number of pills as opposed to its weight. Although Butch is correct that the Amendmen t replaced the marijuana drug equivalencies for Sched ule I and II Depressants with a provision that one unit ( pill,

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10. The other Circuit Courts of Appeals to consider this issue are in agreement. See United States v. Limber opoulos, 26 F.3d 245, 252-53 (1st Cir. 1994) (concluding Application Note A applies t o Percodan, Percocet and Valium); United States v. Meitinger , 901 F.2d 27, 29 (4th Cir. 1990) (ruling the same with respect to Dilaudid, containi ng the active ingredient hydromorphone, a Schedule II Opiate), ce rt. denied, 498 U.S. 531 (1990); United States v. Blythe, 944 F .2d 356, 362 (7th Cir. 1991) (same); United States v. Young, 992 F .2d 207 (8th Cir.1993) (holding that the weight of the entire tablet and not just the am ount of the illegal hydromorphine contained therein should be used to c ompute the defendant's sentence); United States v. Cr owell, 9 F.3d 1452, 1454-55 (9th Cir. 1993) (same); United States v. Lazarchik, 924 F.2d 211, 214 (11th Cir. 1991) (concluding the same with r espect to hydrocodone (Tussionex) and diazepam (Valium)), cert. denied, 5 02 U.S. 827 (1991); United States v. Shabazz, 933 F.2d 1029, 1032-33 (D .C. Cir. 1991) (ruling that Application Note A applies to Dilaudid ), cert. denied, 502 U.S. 964 (1991).

12capsule or tablet) equals one gram of marijuana, th e

Amendment by its own terms does not extend to Sched ule II Opiates. Appendix C at 340. The Congressional in tent behind Amendment 517 is clear. Congress specificall y excepted Schedule I and II Depressants, not Schedul e I and II Opiates. Had Congress intended to modify the Gui delines with respect to the latter, it would have done so. Those Circuit Courts of Appeals to consider the issue, al beit in unpublished form, have come to the same conclusion. See United States v. Carruthers, 215 F.3d 1328, 2000 WL 712382, *2 (6th Cir. 2000) (unpublished opinion); U nited States v. Flores, 112 F.3d 506, 1996 WL 599798, *2 (2d Cir. 1996) (unpublished opinion). As the Sixth Cir cuit explained:

Congress only intended to make an exception for Schedule I or II Depressants[,] not Schedule I or II Opiates-the category to which hydromorphones belong. Had it intended to make an exception for Opi ates to be measured by their active ingredients as oppo sed to the gross weight of the drug, Congress pr esumab ly would

have done so. . . . . Amendment 517 was enac ted to clarify the law with respect to Schedule I a nd II Depressants and Schedule III, IV and V contr olled substances. Nothing more can be gleaned fr o m the Amendment. Therefore, Defendant's contention that the legislative intent is inconsistent with the statute

must fall.

Carruthers, 215 F.3d 1328, 2000 WL 712382 at *2.

Moreover, no ambiguity exists in the operation of t he Sentencing Guidelines with respect to oxycodone. Th e Drug Equivalency Tables provide that one gram of oxycodo ne is equivalent to 500 grams of marijuana. See U.S. Sent encing Guidelines Manual, S 2D1.1(c) (1998). Ther efore, B utch's reliance on the rule of lenity is misguided. United States v. Johnson, 529 U.S. 53, 59 (2000) ("Absent ambiguity, the rule of lenity is not applicable to guide statutory interpretation."); Muscarello v. United States, 524 U.S. 125, 138-39 (1998) ("The rule of lenity applies only if, after seizing everything from which aid can be derived . . . we can make no more than a guess as to what Congr ess intended. . . . To invoke the rule, we must conclud e that

13there is a grievous ambiguity or uncertainty in the

statute.").

In summary, we can find no error in the District Co urt's determination of the quantity of oxycodone attribut able to Butch, nor in the application of the Sentencing Gui delines
to this determination.

IV.

Butch's final argument on appeal is that the Distri ct Court erred by failing to submit the weight of the controlled substance to the jury for a factual determination b eyond a reasonable doubt in light of Apprendi v. New Jersey , 530 U.S. 466 (2000). The preliminary issue is whether A pprendi even applies to cases in which judicial factfinding at sentencing increases the Sentencing Guideline range , and thus the potential sentence, above the statutory ma ximum, but the actual sentence imposed is equal to the sta tutory
maximum. Because Butch did not raise this claim in the District Court at sentencing, we review his challen ge for plain error. United States v. Mack , 229 F.3d 226, 234-35 & n.12 (3d Cir. 2000).

Our recent decision in United States v. W illiams, 235 F.3d 858 (3d Cir. 2000) controls this case. In Will iams, the appellant argued that Apprendi was implicated becau se the trial court's finding of drug quantity incr eased t he prescribed range of penalties and the maximum penal ty to which he was exposed, even though his actual penalt y did not exceed 20 years. Id. at 863. We ruled that "App rendi is not applicable to [Appellant's] sentence, because t he sentence actually imposed . . . was well under the original statutory maximum of 20 years." Id. at 863 (relying on Mack, 229 F.3d 226).

In Mack, Chief Judge Becker prescribed a two-step "Apprendi inquiry" under which

[a] court must first determine the"prescribe d statutory
maximum" sentence for the crime of which the
defendant was convicted and assess whether t he
defendant's ultimate sentence exceeded it. I f it did, the
court must consider . . . whether the enhanc ed

14sentence was based on "the fact of a prior c onviction."

If it was, then the sentence is constitution al. If it was not, then the sentence is unconstitutional.

Id. at 237. Just as in Williams, Butch's claim fail s to get past step one because the ultimate sentence imposed by the District Court did not exceed the "pr escribed statutory maximum" of 20 years. Apprendi is therefore not implicated.

V.

For the foregoing reasons, we will affir m Mr. Butc h's
conviction and sentence.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

15