United States v. Prince , 330 F. App'x 380 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-20-2009
USA v. Prince
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4408
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4408
UNITED STATES OF AMERICA
v.
TYRONE PRINCE,
Appellant
APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS,
DIVISION OF ST. THOMAS/ST. JOHN
(D.C. Crim. No. 05-cr-00076-10)
District Judge: Honorable Curtis V. Gomez
Submitted Under Third Circuit LAR 34.1(a)
April 20, 2009
Before: BARRY, HARDIMAN, and COWEN, Circuit Judges
(Opinion Filed: May 20, 2009)
OPINION
BARRY, Circuit Judge
Defendant Tyrone Prince was charged in a superseding indictment with two counts
of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841. A
jury convicted him of the substantive offense—possession with intent to distribute
cocaine base—but found that the government failed to prove the quantities of cocaine
base alleged in the indictment that would have supported a mandatory minimum sentence.
Prince was sentenced to a within-guidelines term of imprisonment of 33 months.
On appeal, Prince asks us to vacate his conviction, contending that the government
failed to prove an essential element of the charged offense—quantity. He claims that he
should have been acquitted or, in the alternative, that the District Court should have
specifically instructed the jury on the lesser included offense of simple possession. He
also argues that, in the absence of a jury finding of specific quantity, he should have been
sentenced under the guideline addressed to offenses involving the minimum amount of
cocaine base. We will affirm. 1
I.
The specific statutory offense charged in the indictment does not square precisely
with the offense of conviction. The indictment charges Prince with possession with intent
to distribute crack cocaine in two counts, which correspond to varying quantities sold on
different dates—26 grams on November 16, 2004, and 27 grams on November 23,
2004—for a total quantity of 53 grams. The criminal statute charged is 21 U.S.C. §§
841(a)(1), (b)(1)(A)(iii), and (b)(1)(B)(iii). Subsection (a)(1) is the substantive conduct
element: possession with intent to distribute a controlled substance. Subsection
1
We have jurisdiction over this appeal under 28 U.S.C. § 1291.
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(b)(1)(A)(iii), which is listed under the “Penalties” subheading, calls for a mandatory
minimum term of imprisonment of 10 years for a violation involving 50 grams or more of
a mixture containing cocaine base, while subsection (b)(1)(B)(iii) sets the minimum at 5
years for 5 grams or more. Given the quantities alleged, Prince could have been charged
under (A)(iii) or (B)(iii), but the indictment does not specify which one actually applied to
him. We will use the 5-gram threshold—(B)(iii)—as it does not appear that the
government sought the 10-year mandatory minimum called for under (A)(iii), and every
reference in the record to a quantity threshold is to 5 grams.
At trial, Prince admitted that he had sold crack cocaine to a confidential source, but
testified, without specifics, that the quantity involved was less than the amount the
government entered into evidence. The Presentence Investigation Report (“PSR”)
prepared by the Probation Office indicates that Prince sold 1.6 grams of crack cocaine on
November 16, 2004 and 2.4 grams on November 23, 2004, for a total of 4.0 grams. (PSR
¶¶ 14-18.) While there are several passing references to those amounts in the record, it is
not entirely clear how the Probation Office arrived at that total. The prosecutor referred
to “the chemists’ testimony” at the charge conference (App. 45), but that testimony is not
in the record before us.
At the conclusion of trial, the District Court submitted to the jury a verdict form
with two questions on each count pertaining to Prince. Asked whether Prince “knowingly
and intentionally distribut[ed] . . . a detectable amount of a controlled substance . . . as
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charged in the indictment,” the jury answered “Guilty” on both counts. (Id. 12-13.) Next,
when asked whether the government proved that 5 grams or more of crack was involved,
the jury marked the space indicating “No.” (Id.) Thus, the jury found Prince guilty of the
substantive conduct element of the offense—the knowing and intentional distribution of a
controlled substance—but not in an amount triggering a mandatory minimum sentence
under § 841(b)(1)(B)(iii).
After the jury returned its verdict, Prince moved for judgment of acquittal pursuant
to Federal Rule of Criminal Procedure 29(c), arguing that the government failed to prove
what he considered “an element of the offense”: the quantity of drugs required to meet §
841(b)(1)(B)(iii). The District Court denied the motion. At sentencing, Prince relied on
substantially the same argument, albeit couched as an objection to the calculation of the
base offense level in the PSR. He argued that, because the jury did not return a verdict
with a specific quantity finding, his advisory guideline range should be calculated in
accordance with the minimum quantity guideline, U.S.S.G. § 2D1.1(c)(14). The Court
denied Prince’s objections and adopted the recommended sentence in the PSR.
The judgment of conviction states that Prince was adjudicated guilty of 21 U.S.C.
§ 841(b)(1)(C). Section 841(b)(1)(C) sets forth the possible penalties for a violation of §
841(a)(1) involving an amount of crack cocaine that does not exceed the threshold for a
mandatory minimum—in other words, a crack distribution offense involving less than 5
grams. Thus, while § 841(b)(1)(C) provides for a maximum twenty-year sentence, it does
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not require imposition of a mandatory minimum sentence.
II.
Prince argues that, because the government failed to prove the “requisite element”
of 5 grams or more of cocaine base charged in the indictment, the District Court should
either have granted his Rule 29 motion for acquittal or instructed the jury to consider a
lesser included misdemeanor—simple possession pursuant to 21 U.S.C. § 844(a). He is
incorrect.
The evidence adduced at trial did not support a quantity finding above the 5-gram
mandatory minimum threshold charged by the government. The jury determined,
however, that Prince engaged in the substantive conduct charged under § 841(a)(1), and
that this conduct involved an unspecified quantity of crack cocaine consistent with §
841(b)(1)(C). In effect, Prince avoided a mandatory minimum sentence by dropping one
level on the penalty scale established by Congress for the punishment of drug distribution
offenses under § 841.
In arguing that he should have been sentenced under 21 U.S.C. § 844(a), Prince
misreads our holding in United States v. Lacy, 446 F.3d 448 (3d Cir. 2006), to provide
that the only “lesser included offense” 2 for a violation of § 841(a)(1) is simple possession
2
An offense “necessarily included in the offense charged” under Federal Rule of
Criminal Procedure 31(c) “is one that does not require proof of any additional element
beyond those required by the greater offense.” Gov’t of the V.I. v. Joseph, 765 F.2d 394,
396 (3d Cir. 1985) (emphasis omitted).
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pursuant to § 844(a).3 While, in Lacy, we held that § 844(a) is a lesser included offense
of § 841(a)(1), 446 F.3d at 454-55, we did not hold that it is the only one. Section
841(b)(1)(C)—the penalty subsection cited in the Court’s judgment—when coupled with
§ 841(a)(1), punishes (1) knowing or intentional (2) possession (3) with intent to
distribute (4) a controlled substance. As evidenced by its completed verdict sheet, the
jury found that the government proved each of these elements beyond a reasonable doubt.
The jury’s determination that the quantity proved at trial did not exceed the 5-gram
threshold is of no significance, because § 841(b)(1)(C) does not require proof of a
specified drug quantity.
Prince does not explain why the District Court should have looked past the jury’s
finding that he met the “intent to distribute” element of § 841(a)(1) and (b)(1)(C) such
that a sentence in accordance with § 844(a) was the only appropriate option. Nor can he
contend that his sentence in excess of the one-year ceiling imposed for a conviction of §
844(a) was in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000),4 because the
finding of intent that distinguishes a § 841 offense from a § 844(a) offense was made by
the jury. Accordingly, Prince was properly convicted under § 841(b)(1)(C).
3
Prince seeks a sentence in accordance with § 844(a) because he would be subject to
a maximum one-year prison term. See 21 U.S.C. § 844(a) (“Any person who violates this
subsection may be sentenced to a term of imprisonment of not more than 1 year . . . .”).
4
The Supreme Court held in Apprendi that a defendant’s constitutional rights are
violated when his prescribed statutory maximum penalties are increased by any fact, other
than a prior conviction, that a jury does not find beyond a reasonable doubt. 530 U.S. at
490. Such facts are the “functional equivalent[s]” of “elements” of an aggravated offense
with a higher statutory maximum. Id. at 494 n.19.
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Prince’s second argument—that he should have been sentenced pursuant to the
minimum quantity guideline, U.S.S.G. § 2D1.1(c)(14), which carries a base offense level
of 12—is also incorrect. For sentencing purposes, drug quantity is considered relevant
conduct determinable by the sentencing court, see U.S.S.G. § 2D1.1, cmt. n.12, and
Prince does not dispute that his criminal conduct involved a total of 4 grams of crack
cocaine. Accordingly, we see no reason to upset the sentence.
III.
For the reasons set forth above, we will affirm the judgment of conviction.
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