Michael Young, New York, NY, for Defendant-Appellant Jason Thomas . Appellant Ramse Thomas . The indictment did not specifically allege the quantity of cocaine involved in any of the counts. The District Court sentenced Jason Thomas to 170 months' imprisonment and 8 years of supervised release, based on a finding that he had possessed, distributed, and conspired with respect to 2.073 kilograms of cocaine. Grady Thomas was sentenced to 168 months' imprisonment and 5 years of supervised release, based on similar calculations.
Defendants raise numerous challenges in connection with their convictions and sentences.
It has been the settled law of this and other Circuits that in crimes charged under 21 U.S.C. 841, the quantity of the drug involved is not an element of the offense to be determined by the jury beyond a reasonable doubt. Interpreting that statute, the Supreme Court held that the facts of serious bodily injury or death constituted elements of the offense, rather than mere sentencing factors, and therefore had to be charged in the indictment and proved to the jury beyond a reasonable doubt. In reaching this conclusion, the Court examined the wording of the statute, comparable federal and state statutes, and the statute's legislative history. See id. at 1219-22. The Court found these to be inconclusive, but determined that the fairest construction of 2119 was one that treated serious bodily harm as an element, rather than merely an enhancement, of the offense.