United States v. Hester , 199 F.3d 1287 ( 2000 )

  •                                                                         PUBLISH
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                             ________________________  ELEVENTH CIRCUIT
                                    No. 97-9232                THOMAS K. KAHN
                             ________________________              CLERK
                        D. C. Docket No. 93-00007-3-CR-DF
                     Appeal from the United States District Court
                         for the Middle District of Georgia
                                  (January 7, 2000)
    Before BLACK and WILSON, Circuit Judges, and RONEY, Senior Circuit Judge.
    BLACK, Circuit Judge:
          After a jury convicted Appellant Samuel J. Hester of 5 counts relating to the
    production and sale of marijuana, the district court imposed a 20-year mandatory
    minimum sentence which significantly exceeded the range prescribed by the
    Sentencing Guidelines. Appellant contends that the district court erred in imposing
    the mandatory minimum sentence because the disparity between the Guidelines
    and the mandatory minimum violates the Due Process and Equal Protection
    Clauses and because the amount of marijuana involved constitutes an element of
    the offense which the Government did not prove beyond a reasonable doubt. We
    discern no error and affirm.
                                    I. BACKGROUND
          On April 15, 1994, a jury convicted Appellant of conspiracy to manufacture,
    possess with intent to distribute, and distribute marijuana; manufacture of
    marijuana; distribution of marijuana; possession with intent to distribute marijuana;
    and possession of a firearm by a convicted felon. The Government filed a notice of
    enhancement based on Appellant’s prior Georgia conviction for the sale of
    marijuana. At Appellant’s first sentencing, the district court found Appellant
    responsible for 2,924 marijuana plants. United States Sentencing Guidelines §
    2D1.1(c)(4), as then in effect, instructed the district court to impose an equivalency
    of one kilogram per plant for an offense involving more than 50 plants. This
    produced a Guideline range of 240 to 262 months. Similarly, 21 U.S.C. §
    841(b)(1)(A)(vii) contains a mandatory minimum sentence of 20 years for a drug
    amount in excess of 1,000 plants combined with a prior conviction. The district
    court selected the upper end of the Guideline range and sentenced Appellant to 262
    months. Appellant filed his first notice of appeal on February 10, 1995.
          Effective November 1, 1995, the Sentencing Commission changed the
    Guidelines by adding Amendment 516 which applies retroactively. Amendment
    516 altered the weight calculation with respect to marijuana plants and instructed
    district courts to use a standard of 100 grams per plant (or the actual weight of the
    plant if higher) regardless of the number of plants involved in the offense. The
    Amendment reveals that the Sentencing Commission felt that 100 grams per plant
    better reflected the true weight of marijuana plants. Accordingly, on May 20,
    1996, this Court affirmed Appellant’s conviction but remanded for resentencing in
    light of Amendment 516.
          On remand, on July 5, 1996, the district court observed that with the
    application of Amendment 516 the Guideline range reached from 108 to 135
    months but that the statutory mandatory minimum remained at 20 years. The
    district court thus imposed the mandatory minimum sentence. This appeal
                                      II. DISCUSSION
          Appellant offers two arguments against the imposition of the mandatory
    minimum sentence. First, Appellant claims that the difference between the
    Guideline range and the statutory mandatory minimum violates the Due Process
    and Equal Protection Clauses. Second, Appellant maintains that the Government
    failed to prove the amount of drugs as an element of the offense beyond a
    reasonable doubt. This Court reviews the factual findings of the district court for
    clear error but reviews the district court’s interpretation of the Sentencing
    Guidelines de novo. See United States v. Moore, 
    6 F.3d 715
    , 718 (11th Cir. 1993).
    We review constitutional challenges to a statutory scheme de novo. See United
    States v. Dascenzo, 
    152 F.3d 1300
    , 1301 (11th Cir. 1998).
    A. Validity of the Sentencing Scheme
          In United States v. Osburn, this Court upheld the former sentencing
    structure, under § 841(b)(1)(B)(vii) and § 2D1.1 of the Guidelines, in the face of a
    constitutional challenge. 
    955 F.2d 1500
     (11th Cir. 1992). We explained that
    Congress could rationally have decided that large-scale drug traffickers present a
    greater danger to society and deserve harsher punishment. See id. at 1508.
    Appellant now asks us to conclude that Congress acted irrationally, and thus in
    violation of the Constitution, by standardizing the plant to weight conversion ratio
    in the Sentencing Guidelines without a concomitant change in the governing
    statute.1 The only Court of Appeals that has considered this issue rejected
    Appellant’s argument. See United States v. Marshall, 
    95 F.3d 700
    , 701 (8th Cir.
           We agree with the Eighth Circuit that Amendment 516 did not render the
    sentencing regime unconstitutional. We need not determine Congress’s
    justification for approving the Amendment; we need only examine the decision to
    evaluate whether it rests on a rational basis. Congress could have approved of a
    more uniform approach to plant and weight equivalency while it decided to
    maintain a severe penalty for large-scale traffickers. We approved of such a
    consideration in Osburn. Congress might have acted incrementally and ratified the
    Guideline change as a precursor to Congress’s reconsideration of the statutory
    mandatory minimum. Such an act by Congress would survive a rational basis
    review. See Williamson v. Lee Optical Co., 
    348 U.S. 483
    , 489, 
    75 S. Ct. 461
    , 465
             Of course, the passage of Amendment 516 did not alter the mandatory minimum
    sentence contained in the statute. See United States v. Eggersdorf, 
    126 F.3d 1318
    , 1320-21 (11th
    Cir. 1997). See also U.S.S.G. § 5G1.1(b) (explaining that when the mandatory minimum
    exceeds the applicable guideline range, the mandatory minimum becomes the guideline
    (1955). Under either approach, Congress did not act irrationally by approving
    Amendment 516.2
           This conclusion comports with other decisions that have considered arguable
    discrepancies between mandatory minimums and the Sentencing Guidelines. See,
    e.g., Neal v. United States, 
    516 U.S. 284
    , 296, 
    116 S. Ct. 763
    , 769 (1996)
    (upholding mandatory minimum with respect to LSD sentence despite its potential
    conflict with a provision of the Guidelines). It also reflects the general view that
    Congress enjoys wide latitude in deciding the severity of punishment for drug
    offenses. See, e.g., United States v. Solomon, 
    848 F.2d 156
    , 157-58 (11th Cir.
    1998) (upholding punishment based on drug weight regardless of purity).
           Finally, we reject Appellant’s argument that the sentencing regime treats
    similar offenders differently in violation of the Equal Protection Clause. Appellant
    points out that two offenders with his criminal history and role in the offense
    caught with 999 and 1000 plants respectively would face guideline ranges of 86 to
    108 months and 108 to 135 months but mandatory minimum sentences of 120
    months and 240 months. While Appellant correctly describes the applicable
              We also observe, but do not decide, a hidden peril in Appellant’s argument: as the First
    Circuit noted in a discussion of Amendment 488, “[w]ere a court to conclude that the [Guideline
    and statutory approaches] cannot coexist constitutionally, it seems virtually certain that
    Amendment 488, rather than [the statute] would be struck down, and with it the Guidelines
    sentence reduction.” United States v. Dimeo, 
    28 F.3d 240
    , 241 n.4 (1st Cir. 1994).
    sentences, he fails to recognize that Congress must draw lines between classes of
    offenders and that those lines might appear arbitrary at the edges. We have already
    approved of this sentencing regime, which sharply distinguishes between the
    possession of certain numbers of plants, see Osburn, 955 F.2d at 1507, and we do
    so again here.
    B. Drug Amount as an Element of the Offense
          The parties agree, as they must, that in order to obtain a conviction the
    Government must charge all of the elements of an offense, submit all the elements
    to a jury, and prove all of them beyond a reasonable doubt. See Jones v. United
    States, ___ U.S. ___, 
    119 S. Ct. 1215
    , 1219 (1999). The parties also agree that the
    Government did not consider the number of marijuana plants an element of
    Appellant’s offense. Instead, while the Government clearly introduced evidence at
    trial regarding the number of plants involved, the district court determined the
    actual number of plants at sentencing.
          Appellant argues, based on Jones, that the number of plants constitutes an
    element of his offense which the Government failed to prove beyond a reasonable
    doubt. While this Court has not yet had an opportunity to address Jones, we have
    clearly rejected the characterization of the amount of drugs as an element of the
    offense under 841. See United States v. Perez, 
    960 F.2d 1569
    , 1574-76 (11th Cir.
    1992) (reaffirming that weight or quantity of a controlled substance does not
    constitute an element of the offense under § 841); United States v. Cross, 
    916 F.2d 622
    , 623 (11th Cir. 1990) (holding that nature and quantity of controlled substance
    is a sentencing provision, not an element, applicable only after conviction under §
    841(a)); United States v. Williams, 
    876 F.2d 1521
    , 1524-25 (11th Cir. 1989)
    (concluding that “nature and quantity of the controlled substance are relevant only
    to sentencing and do not constitute elements of a lesser included offense”).
    Accordingly, binding authority in this Circuit forecloses Appellant’s argument
    unless the Supreme Court decided otherwise in Jones. We now turn to that issue.
          In Jones v. United States, the Supreme Court examined the federal
    carjacking statute, 18 U.S.C. § 2119, to determine if it defined three distinct
    offenses or one offense with a choice of three maximum penalties. 119 S. Ct. at
    1217. The Court concluded that the statute did not clearly resolve the question. It
    commented that two subsections provided for significantly higher penalties and
    relied on further facts such as injury and death “that seem quite as important as the
    elements in the principal paragraph.” Id. at 1219. The Court then observed that
    the statute was “unlike most offense-defining provisions in the federal criminal
    code, which genuinely stand on their own grammatical feet thanks to phrases such
    as ‘shall be unlawful’” and recommended examining other, similar statutes to
    discern Congress’ intent. Id. at 1219-20. It noted that many statutes consider
    injury or death elements of an offense because the statutes use them to differentiate
    between types of offenses such as robbery and aggravated robbery. The Court then
    announced that while it believed the fairest reading of § 2119 would treat serous
    bodily harm as an element of the offense, it would resolve any doubt in favor of the
    defendant. Id. at 1222.
          In the next section of the opinion, the Court canvassed its past cases to
    remind courts of the principle that the Government must allege and prove every
    element of the crime beyond a reasonable doubt and cannot shift the burden of
    proof on an element to the defense. See id. at 1227-28. The Court noted that in its
    last Term it approved the use of recidivism as a sentencing factor, not an element
    of the offense. See id. at 1226-27 (citing Almendarez-Torres v. United States, 
    118 S. Ct. 1219
     (1998)). The Court commented in a footnote that
          under the Due Process Clause of the Fifth Amendment and the notice
          and jury trial guarantees of the Sixth Amendment, any fact (other than
          prior conviction) that increases the maximum penalty for a crime must
          be charged in an indictment, submitted to a jury, and proven beyond a
          reasonable doubt.
    119 S. Ct. at 1224 n.6.
          This language allows two plausible readings of Jones. First, footnote six
    means exactly what it says: any factor which can increase the maximum penalty for
    an offense constitutes an element of that offense.3 Second, when a court finds a
    statute and its legislative history unclear,4 the court should err in favor of the
    defendant and consider an element of the offense any factor which increases the
    maximum penalty for the offense.
           The latter reading correctly reflects the Court’s opinion in Jones. If the
    Court meant to announce a rule that any factor which increases the maximum
    penalty counts as an element, then it would render irrelevant the detailed analysis
    of the statute and its legislative history discussed in the first part of the opinion. In
    other words, if any factor that increases the maximum penalty amounts to an
    element of the crime, the Court did not need to bother with determining whether or
    not Congress considered it an element. It seems that the Court proceeded with its
    analysis only because it first found Congress’ intent ambiguous. See id. at 1222.
    In addition, a broad rule would have sweeping implications for factors that
             Appellant urges us to reach this result. Appellant also attempts to take a more
    moderate approach. He argues that we should certainly find that the amount of drugs constitutes
    an element of the offense when the amount leads to a dramatic increase in sentence even if we
    decide that weight is not an element when faced with trivial increases.
              Assuming, of course, that courts keep in mind the separate limitation that Congress
    cannot shift the burden of proof on elements of the offense to defendants even if Congress
    clearly attempts to do so.
    Congress has traditionally considered sentencing considerations, not elements of
    the crime.5
           Other circuits have adopted the narrower reading of Jones. Three circuits
    reexamined whether the enhanced penalties based upon the type of firearm in 18
    U.S.C. § 924(c)(1) constitute elements of the offense. See United States v. Eads,
    191 F.3d 1206
     (10th Cir.1999), petition for cert. filed, ___ S. Ct. ___ (U.S. Nov. 1,
    1999) (No. 99-6907); United States v. Baldwin, 
    186 F.3d 99
     (2d Cir.1999), cert.
    denied, ___ S. Ct. ___ (U.S. Nov. 29, 1999); United States v. Castillo, 
    179 F.3d 321
     (5th Cir. 1999), petition for cert. filed, ___ S. Ct. ___ (U.S. Oct. 15, 1999)
    (No. 99-658). The Tenth Circuit held that the enhancement did not constitute an
    element of the offense. It noted that the broad language in footnote six of Jones
    “seems to call this rationale into question” but decided that its ruling did not run
    afoul of Jones because of a “more reasonable reading of Jones, one that anchors its
    holding to its facts, i.e., the statutory provision involved.” 191 F.3d at 1213-14.
    The Fifth Circuit decided that, unlike Jones, the legislative history regarding §
    924(c)(1) never indicated an intent to create a new offense based on the type of
    weapon and thus the enhancement amounted to only a sentencing factor. See
              In fact, tradition played a central role in the Court’s decision to allow recidivism as a
    sentencing factor just one year earlier in Almendarez-Torres, and Jones explicitly refused to
    disturb that precedent. See id. at 1227.
    Castillo, 179 F.3d at 328. The Second Circuit also took this approach. That court
    commented that Congress divided the statute into two sections—§ 922 “Unlawful
    acts” and § 924 “Penalties.” See Baldwin, 186 F.3d at 101.
           Similarly, Congress divided § 841 into several subsections. Subsection (a)
    lists “Unlawful acts” while subsection (b) enumerates “Penalties.” As we have
    announced in our previous cases, Congress decided that the elements of a § 841
    offense do not include the weight of the drugs. This conclusion follows our latest
    case on the subject, United States v. Rutherford, 
    175 F.3d 899
     (11th Cir. 1999).
    Rutherford came after Jones, and, although it did not explicitly address the holding
    of Jones, it continued to rely on Williams and Cross for the proposition that the
    “nature of the controlled substance neither constitutes an element of the offense nor
    broadens the bases for conviction, but is relevant only for sentencing purposes.”
    175 F.3d at 906.6
                                          III. CONCLUSION
              Appellant also argues that we should utilize the rule of lenity or avoid the constitutional
    questions raised by the statute by holding that the district court had the authority to sentence
    Appellant under § 841(b)(1)(B) instead of § 841(b)(1)(A). Appellant would have us ignore the
    fact that while the former section governs offenses involving “100 or more marijuana plants
    regardless of weight,” the latter section explicitly applies when the offense involves more than
    1000 plants. We decline to do so because we think it clear that subsection (b)(1)(B) applies to
    offenses involving more than 100 but less than 1000 plants. In addition, because we do not
    observe any ambiguity in the statute, the rule of lenity does not apply.
          Congress did not create a constitutionally impermissible sentencing regime
    by approving Amendment 516 to the Sentencing Guidelines and the Government
    did not need to prove the amount of drugs as an element of Appellant’s offense.
    Accordingly, the district court properly sentenced Appellant to the statutory
    mandatory minimum.

Document Info

DocketNumber: 97-9232

Citation Numbers: 199 F.3d 1287

Filed Date: 1/7/2000

Precedential Status: Precedential

Modified Date: 4/11/2017

Authorities (17)

United States v. Eggersdorf , 126 F.3d 1318 ( 1997 )

United States v. Rutherford , 175 F.3d 899 ( 1999 )

Williamson v. Lee Optical of Okla., Inc. , 348 U.S. 483 ( 1955 )

Neal v. United States , 516 U.S. 284 ( 1996 )

Almendarez-Torres v. United States , 523 U.S. 224 ( 1998 )

Jones v. United States , 526 U.S. 227 ( 1999 )

United States v. Eads , 191 F.3d 1206 ( 1999 )

United States v. Dimeo , 28 F.3d 240 ( 1994 )

United States v. Tommy Lee Williams, Leonard Williams , 876 F.2d 1521 ( 1989 )

United States v. Gerald Donald Cross and Dwane Heaton, Jr. , 916 F.2d 622 ( 1990 )

United States of America, Cross-Appellee v. George Nye ... , 955 F.2d 1500 ( 1992 )

United States v. Judith Perez, Marjorie Conrade , 960 F.2d 1569 ( 1992 )

United States v. James Thomas Moore , 6 F.3d 715 ( 1993 )

United States v. John R. Marshall , 95 F.3d 700 ( 1996 )

United States v. Christopher Dascenzo A.K.A. Christopher ... , 152 F.3d 1300 ( 1998 )

United States v. Jaime Castillo Brad Eugene Branch Renos ... , 179 F.3d 321 ( 1999 )

United States v. Fredderick Baldwin, AKA Frank Keith , 186 F.3d 99 ( 1999 )

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