2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-29-2001

United States v. Butch

Precedential or Non-Precedential:

Docket 99-5738

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Recommended Citation

"United States v. Butch" (2001). 2001 Decisions. Paper 143.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/143
Filed 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 Butch 
 Robert 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 District of 

New Jersey (the "District Court") on one count of violating 

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 District Court. 

Butch alleges that the District Court (1) impr operly 

admitted evidence of prior thefts of oxycodone at trial, (2) 

erred in determining the applicable sentencing range under 

the United States Sentencing Guidelines by attributing to 

him the entire weight of each pill rather than calculating 

the amount of the controlled substance per pill, and (3) 

erred by failing to submit the weight of the controlled 

substance to the jury for a factual determination beyond a 

reasonable doubt in light of Apprendi v. New Jersey, 530 

U.S. 466 (2000). We have jurisdiction over this appeal 

pursuant to 28 U.S.C. S 1291. For the r easons that follow, 

we will affirm the conviction and sentence. 

 2 
I. 

At the time of this alleged criminal activity, Butch was 

employed as a scheduler and dispatcher for two r elated, 

Philadelphia-based commercial truck and driver leasing 

companies, Marano Truck Lease ("Marano") and American 

Helper ("AH"). Marano and AH leased trucks and drivers to 

the courier service Rapid Delivery Services ("RDS"). RDS in 

turn was employed by Amerisource, a wholesale distributor 

of pharmaceutical drugs and other medical pr oducts, to 

deliver those products from its war ehouse in Thorofare, 

New Jersey, to hospitals and pharmacies. 

From September, 1997 through January, 1998, Butch 

scheduled Robert Manning ("Manning"), a temporary driver 

for AH, to a delivery route for Amerisour ce. According to 

Manning's testimony, on January 7, 1998 Butch of fered 

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 Street in 

Philadelphia. Butch retrieved a plastic tote containing the 

drugs from the back of the truck. After Manning had

resumed his route, Butch discovered that he had stolen the 

wrong tote. Butch called Manning and arranged to have the 

third man meet Manning at a Dunkin' Donuts shop to pick 

up the correct tote, which he did. When Manning arrived 

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 Manning 

to steal pharmaceutical drugs from Amerisource trucks 

that others were driving. Butch identified the trucks, the 

delivery routes and the drug totes, and gave Manning the 

key. Manning was to follow the trucks and steal the drugs 

when the drivers left the trucks unattended. Manning took 

the keys, but did not follow through with the theft of any 

drugs. 

On May 19, 1998, Butch offered $5000 to George Fronick 

("Fronick"), another AH driver who made deliveries for 

 3 
Amerisource, to help him steal pharmaceutical drugs from 

the truck Fronick was driving. Fronick r eported the plan to 

his supervisor at RDS, and the FBI and DEA wer e notified. 

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 the 

investigators supplied Fronick with a concealed microcassette recorder and a video camera to place in the back 

of his truck. On June 4, 1998, Butch detailed the plan 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. This 

conversation was recorded on the micr o-cassette carried by 

Fronick. The third man was Manning, who testified that 

Butch instructed him to take the drugs from the back of 

the truck, deliver them to Butch at a Dunkin' Donuts 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 drugs into 

the bags, and to leave them at the back of the truck. 

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 plan. In 

addition to the hidden camera and the hospital's own 

surveillance camera, the investigators had the entir 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 plastic 

bags containing the boxes of pharmaceutical drugs, and 

place them into the trunk of his car. As Manning attempted 

to drive out of the hospital parking lot, the investigators 

stopped and arrested him, seizing the bags fr om the trunk. 

Other agents blocked Moll's car and arrested Moll and 

Butch. The bags contained 26,400 Endocet tablets, a

 4 
generic 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 Newark, 

New Jersey returned a one count indictment, charging 

"[f]rom on or about May 19, 1998 to on or about June 5, 

1998, . . . Joseph Butch did knowingly and intentionally 

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, United 

States Code, Section 841(a)(1), [i]n violation of Title 21 

United States Code, Section 846." The indictment did not 

specify the quantity of oxycodone attributable to Butch. 

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 intrinsic 

to the conspiracy charged or, alter natively, as admissible 

under Federal Rule of Evidence 404(b). On May 3, 1999, 

the day that the jury trial began, the District Court issued 

a published opinion1 denying the Government's motion to 

admit the evidence as intrinsic to the conspiracy and as 

evidence of a common scheme and plan.2 However, the 

District Court admitted under Rule 404(b) the testimony of 

Manning for the limited purpose of establishing the

background of the conspiracy as charged in the indictment. 

The District Court also recited the limiting instruction it 

intended to accompany the evidence. 

The Government introduced evidence of the January and 

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 who had 

solicited him to steal the drugs. Butch also testified that he 

pretended to participate in the scheme in or der to catch 

Manning in the act. The jury rejected Butch's defense and 

_________________________________________________________________ 

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 intertwined with the 

conspiracy as charged, and not part of a single criminal episode. 

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

Court sentenced Butch to 240 months (20 years) 

imprisonment, the statutory maximum for the crime of 

which he was convicted. 

II. 

Butch's initial challenge on appeal is that the District 

Court improperly permitted the Gover nment to introduce 

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 argues that 

the testimony of specific events admitted to establish the 

background of a conspiratorial relationship goes well 

beyond the limited, general questioning that this Court 

permits. See United States v. O'Leary, 739 F.2d 135 (3d Cir. 

1984). Second, he argues that the probative value of the 

evidence is substantially outweighed by its pr ejudicial 

effect. We review the District Court's decision to admit 

evidence under Rule 404(b) for an abuse of discr etion, 

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 United 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 evidence 

of a conspiratorial relationship pursuant to Rule 404(b). 

The "threshold inquiry a court must make before 

admitting similar acts evidence under Rule 404(b) is 

whether that evidence is probative of a material issue other 

_________________________________________________________________ 

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 character of a person in 

order 

 to show action in conformity therewith. It may, however, be 

 admissible for other purposes, such as proof of motive, 

opportunity, 

 intent, preparation, plan, knowledge, identity, or absence of 

mistake 

 or accident, provided that upon request by the accused, the 

 prosecution in a criminal case shall pr ovide reasonable notice in 

 advance of trial, or during trial if the court excuses pretrial 

notice 

 on good cause shown, of the general nature of any such evidence it 

 intends to introduce at trial. 

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

686 (1988). This Court recently set out a four -factor 

standard governing the admissibility of evidence pursuant 

to Rule 404(b), which requires: (1) a pr oper evidentiary 

purpose; (2) relevance under Rule 402; (3) a weighing of the 

probative value of the evidence against its pr ejudicial effect 

under Rule 403; and (4) a limiting instruction concerning 

the purpose for which the evidence may be used. United 

States v. Mastrangelo, 172 F.3d 288, 294 (3d Cir. 1999). 

The District Court found that the Government met its 

burden of articulating the requisite "chain of logical 

inferences" in support of a proper evidentiary purpose, 

satisfying the first prong. Butch, 48 F. Supp. 2d at 459 

(citing Mastrangelo, 172 F.3d at 294). Because Manning's 

testimony was "logically relevant to explain his role in the 

criminal enterprise" and because it "would give the jury a 

complete story of the crime by explaining the cir cumstances 

of the alleged relationship between the alleged 

conspirators," the District Court found the testimony 

relevant under the second prong. Id. at 460. Under the Rule 

403 balancing test, the District Court concluded that the 

probative value of Manning's testimony outweighed any 

prejudicial effect. "As an alleged participant in the charged 

conspiracy, Manning's testimony is significantly probative 

of the formation of his criminal relationship with Butch in 

January, 1998, as well as[ ] the further development of that 

relationship during the events of early May, 1998." Id. 

Moreover, the evidence of the prior criminal activity detailed 

a similar crime against the same victim, without the use of 

violence or threats, and thus the testimony to this effect 

was not overly prejudicial. Thus, the District Court 

concluded that the evidence "does not rise to the level 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 eliminate an 

"undue tendency . . . suggest[ing] a decision on an

improper basis . . . ." See Fed. R. Evid. 403, Advisory 

Committee's Note.4 

_________________________________________________________________ 

4. Deciding on the Government's motion in limine, the District Court 

stated: 

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

published opinion of Manning's testimony under the 

Mastrangelo factors, Butch cannot demonstrate an abuse of 

discretion. This Court has held that "testimony of . . . a coconspirator . . . could be considered r elevant to provide 

necessary background information, to show an ongoing 

relationship between [the defendant and a co-conspirator], 

and to help the jury understand the co-conspirator's role in 

the scheme." United States v. Simmons, 679 F.2d 1042, 

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'Leary and 

 the Government's evidentiary purposes in this case are 

 identical, namely, to show background of the charges, 

 the witness' and the defendant's relationship, and their 

 concerted action. In light of Simmons, Harris, 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 events of January and 

 early May, 1998, at the conclusion of Manning's testimony, and 

 again when I charge the jury, I will instruct the jury as follows: 

 Evidence that Mr. Butch was involved in a criminal enterprise 

 with Mr. Manning in January, 1998, and with Mr. Manning and 

 Mr. Frederick Moll in early May, 1998, has been 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 prior to May 19, 1998. 

 You may not, however, consider this evidence of Mr. Butch's prior 

 involvement in a criminal enterprise in deciding whether or not 

 the Government has proven Mr. Butch's guilt beyond a reasonable 

 doubt for the offense charged in the Indictment. For the limited 

 purpose for which this evidence has been received, 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 instruction actually given by 

the District Court mirrors this instruction. 

 8 
 Accordingly, I find that the Government has sufficiently 

 proffered a proper evidentiary purpose for introducing 

 into evidence the January and early May, 1998, events. 

Butch, 48 F. Supp. 2d at 460 (citations omitted). We agree 

with the District Court's reading of O'Leary, and can 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 that 

the District Court erred when it attributed to him the gross 

weight of the Endocet pills rather than the net weight of the 

controlled substance oxycodone in the pills. This error, he 

contends, resulted in an incorrect range under the 

Sentencing Guidelines. Our review of the District Court's 

interpretation and application of the Sentencing Guidelines 

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 Butch did 

not contest, the 26,400 Endocet pills had a combined 

weight of 14.49 kilograms. See Presentence Report ("PSR") 

_________________________________________________________________ 

5. We also agree with the Gover nment's contention that it also could 

have introduced the evidence under Rule 404(b) to rebut Butch's 

testimony that he acted without criminal intent. Such 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 involvement with the codefendant in a marijuana trafficking and conspiracy properly admitted 

under Rule 404(b) as relevant to intent and to rebut defense of innocent 

association); see also United States v. Howell , 231 F.3d 615, 628-29 (9th 

Cir. 2000) (admitting evidence of appellant's previous drug-trafficking 

convictions under Rule 404(b) to rebut claimed innocent motive for being 

present where drugs were found); United States v. Williams, 31 F.3d 522, 

527 (7th Cir. 1994) (ruling evidence r egarding appellant's prior drug 

smuggling was properly admitted in a drug-trafficking conspiracy 

prosecution to rebut defense that he was merely an innocent Spanish 

interpreter for a co-conspirator). 

 9 
at P18. Because oxycodone, the controlled substance in 

Endocet, is not one for which the Sentencing Guidelines' 

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 oxycodone 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 District 

Court overruled Butch's objection to the PSR's calculation 

of drug quantity attributable to him "because the PSR 

accurately reflects the appropriate drug equivalency 

calculation under the United States Sentencing Guideline 

Section 2D1.1." The District Court imposed a two-level 

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 then 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 penalty of 

240 months, the District Court sentenced Butch to the 

statutory maximum pursuant to S 5G1.1 of the Sentencing 

Guidelines, which provides that "wher e the statutorily 

authorized maximum sentence is less than the minimum of 

the applicable guideline range, the statutorily authorized 

maximum sentence shall be the guideline sentence." 

In support of his argument, Butch cites to Amendment 

517 to the Sentencing Guidelines,8 applicable to Schedule I 

_________________________________________________________________ 

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

case. 

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

8. Amendment 517 

 modifies S 2D1.1 . . . with respect to the determination of the 

offense 

 levels for Schedule I and II Depressants . . . by applying the Drug 

 Quantity Table according to the number of pills, capsules or 

tablets 

 rather than by the gross weight of the pills, capsules or tablets. 

 . . . The current guidelines use the total weight of the pill, 

capsule, 

 or tablet containing the controlled substance. This method leads to 

 10 
or II Depressants, which equates one unit or one pill to one 

gram of marijuana (as opposed to the 500 grams of 

marijuana figure used by the District Court). He argues 

that because, under the language of 28 C.F.R.S 1308.12(e), 

oxycodone acts like a depressant and is not specifically 

excepted or listed in another schedule, oxycodone qualifies 

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 marijuana, 

not 7,245 kilograms. The resultant base of fense level would 

then be 18. Alternatively, using the net weight of the 

oxycodone would result in an equivalency of 59 kilograms 

of marijuana and a base offense level of 20. Butch invokes 

the rule of lenity9 to resolve the alleged ambiguity in the 

Sentencing Guidelines with respect to the calculation of the 

drug equivalency of oxycodone after Amendment 517. 

Butch's argument fails for two reasons. His assertion that 

the net controlled substance should be used in determining 

the base offense level is directly contrary to Application 

Note A to the Drug Quantity Table, which pr ovides that 

"[u]nless otherwise specified, the weight of a controlled 

substance set forth in the table refers to the entire weight 

of a mixture or substance containing a detectable amount 

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 United 

_________________________________________________________________ 

 anomalies because the weight of most pills is deter mined primarily 

 by the filler rather than the controlled substance. Thus, heavy 

pills 

 lead to higher offense levels even though ther e is little or no 

 relationship between gross weight and the potency 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 history or inferences drawn 

from the overall statutory scheme, the ambiguity is resolved in favor of 

the defendant." United States v. Pollen, 978 F.2d 78, 85 (3d Cir. 1992) 

(citing Rewis v. United States, 401 U.S. 808, 812 (1971)). 

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

reversed the District Court's calculation of the applicable 

drug quantity based on the net weight of the oxycodone in 

Percocet pills. 

 Indeed, Congress requires the whole drug to be 

 weighed when the drug consists at least in part of a 

 detectable amount of Schedule I substances, such as 

 LSD and heroin, which are the most danger ous 

 substances available. . . . In short, where Congress 

 provides for full-weight conversion of Schedule 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 distinguishable 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 operate 

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 Amendment 

replaced the marijuana drug equivalencies for Schedule I 

and II Depressants with a provision that one unit (pill, 

_________________________________________________________________ 

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 to Percodan, Percocet 

and Valium); United States v. Meitinger , 901 F.2d 27, 29 (4th Cir. 1990) 

(ruling the same with respect to Dilaudid, containing the active 

ingredient hydromorphone, a Schedule II Opiate), cert. 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 amount of the illegal 

hydromorphine contained therein should be used to compute 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, 502 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). 

 12 
capsule or tablet) equals one gram of marijuana, the 

Amendment by its own terms does not extend to Schedule 

II Opiates. Appendix C at 340. The Congressional intent 

behind Amendment 517 is clear. Congress specifically 

excepted Schedule I and II Depressants, not Schedule I and 

II Opiates. Had Congress intended to modify the Guidelines 

with respect to the latter, it would have done so. Those 

Circuit Courts of Appeals to consider the issue, albeit 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); United 

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 Opiates to be 

 measured by their active ingredients as opposed to the 

 gross weight of the drug, Congress pr esumably would 

 have done so. . . . . Amendment 517 was enacted to 

 clarify the law with respect to Schedule I and II 

 Depressants and Schedule III, IV and V contr olled 

 substances. Nothing more can be gleaned fr om 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 the 

Sentencing Guidelines with respect to oxycodone. The Drug 

Equivalency Tables provide that one gram of oxycodone is 

equivalent to 500 grams of marijuana. See U.S. Sentencing 

Guidelines Manual, S 2D1.1(c) (1998). Ther efore, Butch'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 conclude that 

 13 
there is a grievous ambiguity or uncertainty in the

statute."). 

In summary, we can find no error in the District Court's 

determination of the quantity of oxycodone attributable to 

Butch, nor in the application of the Sentencing Guidelines 

to this determination. 

IV. 

Butch's final argument on appeal is that the District 

Court erred by failing to submit the weight of the controlled 

substance to the jury for a factual determination beyond a 

reasonable doubt in light of Apprendi v. New Jersey, 530 

U.S. 466 (2000). The preliminary issue is whether Apprendi 

even applies to cases in which judicial factfinding at 

sentencing increases the Sentencing Guideline range, and 

thus the potential sentence, above the statutory maximum, 

but the actual sentence imposed is equal to the statutory 

maximum. Because Butch did not raise this claim in the 

District Court at sentencing, we review his challenge 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 Williams, the 

appellant argued that Apprendi was implicated because the 

trial court's finding of drug quantity incr eased the 

prescribed range of penalties and the maximum penalty to 

which he was exposed, even though his actual penalty did 

not exceed 20 years. Id. at 863. We ruled that "Apprendi is 

not applicable to [Appellant's] sentence, because the 

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"prescribed statutory 

 maximum" sentence for the crime of which the

 defendant was convicted and assess whether the 

 defendant's ultimate sentence exceeded it. If it did, the 

 court must consider . . . whether the enhanced 

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

 If it was, then the sentence is constitutional. If it was 

 not, then the sentence is unconstitutional. 

Id. at 237. Just as in Williams, Butch's claim fails 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. Butch's 

conviction and sentence. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 15