UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________





No. xx-3038



_________________________________________________________



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxx, Defendant-Appellant.

_____________________________________________





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



_____________________________________________





REPLY BRIEF OF AMICUS CURIAE ON BEHALF OF APPELLANT

_____________________________________________









A.J. KRAMER

FEDERAL PUBLIC DEFENDER



SANDRA ROLAND

ASSISTANT FEDERAL PUBLIC DEFENDER

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500







District Court

Cr. No. xx-599-13 (TFH)

TABLE OF CONTENTS





TABLE OF AUTHORITIES ii



ARGUMENT



A CERTIFICATE OF APPEALABILITY SHOULD ISSUE BECAUSE PETITIONER HAS SHOWN THAT IT IS DEBATABLE WHETHER HIS MAXIMUM SENTENCES WERE UNCONSTITUTIONALLY INCREASED FROM TWENTY YEARS, FIVE YEARS AND TEN YEARS, RESPECTIVELY, TO LIFE IN PRISON BASED ON FACTS THAT WERE NEVER SUBMITTED TO A JURY NOR PROVEN BEYOND A REASONABLE DOUBT 1



I. Introduction 1

II. Teague v. Lane, 489 U.S. 288 (1989) Does Not Govern

Issuance of a Certificate of Appealability and Does Not Preclude

Retroactive Application of Apprendi v. New Jersey,

530 U.S. 466 (2000) 4



III. Alternatively, The Apprendi Rule Falls Within Teague's Nonretroactivity Exception For Watershed Rules Of Criminal Procedure 8



IV. Appellant Has Made A Substantial Showing of the Denial of a

Constitutional Right 10



V. Conclusion 15



CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES



CASES



*Cooper v. Sowders,

837 F.2d 284 (6th Cir. 1988) 9





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________



No. xx-3038

_________________________________________________________________



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxxxxx, Defendant-Appellant.

_________________________________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________________________________



REPLY BRIEF OF AMICUS CURIAE

_________________________________________________________________



A CERTIFICATE OF APPEALABILITY SHOULD ISSUE BECAUSE PETITIONER

HAS SHOWN THAT IT IS DEBATABLE WHETHER HIS MAXIMUM SENTENCES WERE UNCONSTITUTIONALLY INCREASED FROM TWENTY YEARS, FIVE YEARS AND TEN YEARS, RESPECTIVELY, TO LIFE IN PRISON BASED ON FACTS THAT WERE NEVER SUBMITTED TO A JURY NOR PROVEN BEYOND A REASONABLE DOUBT



I. Introduction.

This Court should reconsider its denial of petitioner's application for a certificate of appealability, and should grant the certificate and set a briefing schedule, because appellant "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). To prevail in his request for a certificate of appealability, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). As the government agrees (Government's Opposition at 1), the petitioner is not required to show that he should prevail on the merits. Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (quoting Gordon v. Willis, 516 F. Supp. 911, 913 (N.D. Ga. 1980)).

As to the charge of conspiracy to distribute or possess with intent to distribute a controlled substance (Count Three), petitioner's jury was instructed as follows (Vol 55, 136-137, 140-141) (emphasis supplied), see Attachment A:

The second element of the offense, which the government must prove beyond a reasonable doubt, is that a particular defendant knowingly and willfully participated in the conspiracy, with the specific intent to distribute or possess with intent to distribute a mixture and substance containing a detectable amount of cocaine, PCP, cocaine base, heroin or marijuana.



* * *



Moreover, the government is required to prove only that the defendants agreed to distribute or possess with intent to distribute a quantity of a controlled substance named in the indictment. The actual amount of a controlled substance involved or the amount alleged in the indictment is not important and is not an element of this count.

As to Count Three, the jury convicted petitioner of conspiring to distribute and possess with intent to distribute a "detectable amount of cocaine, PCP, cocaine base, heroin, or marijuana." (Vol. 55, 136-137) (emphasis supplied) (Attachment A). The statutory penalties for a "detectable amount" of those substances are 0-20 years imprisonment (cocaine), 0-20 years imprisonment (PCP), 0-20 years imprisonment (cocaine base), 0-20 years (heroin), or 0-5 (marijuana). See 21 U.S.C. 841(b)(1)(C) and (b)(1)(D). Using a preponderance of the evidence standard, however, the district court found facts not found by the jury and sentenced petitioner to life imprisonment under 841(b)(1)(A) and (b)(1)(B).

As to Count Two, the jury convicted petitioner of conspiracy to participate in a racketeer influenced corrupt organization ("RICO") in violation of 18 U.S.C. 1962(d), by conspiring to commit Racketeering Act 1 (charging conspiracy to distribute and possess with intent to distribute a "detectable amount of cocaine, PCP, cocaine base, heroin, or marijuana") and Act 44 (charging use of juveniles to distribute or possession with intent to distribute a mixture containing PCP or marijuana). See Attachments A and B. The jury was instructed to apply the instructions provided for the substantive offenses (Vol. 55, 118), i.e., it was not to make known its findings as to which of the controlled substances petitioner was responsible, nor was it to consider quantity. The RICO statute calls for a sentence of 0-20 years imprisonment, 18 U.S.C. 1963(a), or an enhanced penalty -- up to life imprisonment -- if the RICO violation was "based on a racketeering activity for which the maximum penalty includes life imprisonment." Id. Using a preponderance-of-the-evidence standard, the judge sentenced petitioner to life imprisonment finding that the maximum penalty for Act 1 included life imprisonment based on the type and quantity of drugs.

As to Count 36, the jury convicted petitioner of employing juveniles to "distribute or possess with intent to distribute a controlled substance" (Vol. 55, 146) (Attachment A) pursuant to 21 U.S.C. 845b(a)(1) (now 21 U.S.C. 861). The jury was not asked to make findings as to the type of controlled substance nor the quantity. (1) Section 845b(a)(1) provided for penalties up to twice the maximum punishment otherwise authorized by statute. Here, twice the maximum term of imprisonment otherwise authorized would have been 0-40 years imprisonment for a detectable amount of a mixture containing PCP, or 0-10 years imprisonment for a detectable amount of marijuana. See 21 U.S.C. 841(b)(1)(C) and (b)(1)(D). Using a preponderance of the evidence standard, however, the judge found facts not found by the jury and sentenced petitioner to life imprisonment under 841(b)(1)(A)(iv).

In summary, following conviction by a jury for a RICO conspiracy (Count Two) and an 846 conspiracy (Count Three), each involving a detectable amount of cocaine, PCP, cocaine base, heroin, or marijuana, and employing juveniles to distribute a detectable amount of a mixture containing PCP or marijuana (Count 36), petitioner faced penalties of 0-20, 0-5, and 0-10 years imprisonment, respectively. Yet, petitioner was sentenced to imprisonment for life on each count based on the judge's findings by a preponderance of the evidence that he was responsible for specific amounts of the most harshly punished controlled substances. It is as least debatable whether that result is impermissible under the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). A certificate of appealability should issue so that petitioner and the government can fully brief this issue on appeal.

II. Teague v. Lane, 489 U.S. 288 (1989), Does Not Govern Issuance of a Certificate of Appealability and Does Not Preclude Retroactive Application of Apprendi v. New Jersey, 530 U.S. 466 (2000).



Arguing that petitioner's claim cannot be heard under Teague v. Lane, 489 U.S. 288, 310 (1989) (Government's Opposition at 4-9), the government seeks to erect a procedural hurdle that the Supreme Court itself has not imposed at this stage of proceedings. Where a district court has rejected a petitioner's claim on the merits, as here, "the showing required to satisfy 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. At this stage, therefore, petitioner need not make any showing with regard to procedural grounds, and any procedural bar imposed by Teague v. Lane, 489 U.S. 288 (1989), is not applicable. (2)



In any event, this case is not governed by Teague. In determining whether a new rule is to be applied retroactively to cases on collateral review, the Supreme Court has recognized the distinction between new rules of criminal procedure governed by Teague, and new rules of statutory substantive criminal law, to which Teague does not apply. See Bousley v. United States, 523 U.S. 614, 620 (1998)(["[B]ecause Teague by its term applies only to procedural rules, we think it is inapplicable to the situation in which this Court decided the meaning of a criminal statute enacted by Congress."); Davis v. United States, 417 U.S. 333, 341-42 (1974) (holding that new circuit court decision interpreting substantive reach of criminal statute to be applied retroactively to 2255 motions); United States v. McKie, 73 F.3d 1149, 1153 (D.C. Cir. 1996) (holding Teague does not bar retroactive application of new circuit rule interpreting substantive terms of 21 U.S.C. 844(a)).

Here, the government agrees that the decision in Apprendi implicates constitutional rights and was "new," (Government's Opposition at 4), but argues that the Apprendi announced a rule of criminal procedure subject to the strictures of Teague (Government's Opposition at 4-9). The government is wrong. The rule announced in Apprendi - that any fact that increases the penalty for a criminal offense beyond the statutory maximum constitutes an element of that offense which must be proved to a jury beyond a reasonable doubt - is a rule of constitutional substantive law and statutory interpretation. See Darity v. United States, 124 F.Supp. 2d 355, 358-61 (W.D.N.C. 2000) (applying Apprendi retroactively to cases on collateral review and concluding that Apprendi announced both a new rule of constitutional substantive law, which is automatically retroactive, and a new rule of constitutional procedural law, which comes within exception to Teague nonretroactivity doctrine).

In contrast to the Supreme Court's decision in United States v. Gaudin, 515 U.S. 506 (1995), which determined whether a judge or jury must decide an element of an offense that involved a mixed question of law and fact, the Apprendi decision went much further by defining which facts constitute an element of an offense. Apprendi recognized that the application of aggravating facts to enhance a sentence for a particular offense actually creates a different, greater offense than the one considered by the jury. See Apprendi, 120 S. Ct. at 2364-65 & n.19 ("[W]hen the term 'sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict. Indeed, it fits squarely within the usual definition of an 'element' of the offense.").

This Court has applied Apprendi to hold that "drug quantity is an element of the offense where a factual determination of the amount of drugs at issue may result in a sentence that exceeds a maximum sentence prescribed in the applicable statute." United States v. Fields, 2001 WL 241804 *2 (D.C. Cir. March 13, 2001). "This court's ruling to the contrary in United States v. Lam Kwong-Wah, 966 F.2d 682, 685-86 (D.C. Cir.), cert. denied, 506 U.S. 901 (1992), is no longer good law." Id. Thus, application of the new constitutional rule in Apprendi to 841 required the Court to construe the 841 to determine its elements. Accordingly, Teague's bar on the retroactive application of new rules of constitutional criminal procedure does not apply here.

III. Alternatively, The Apprendi Rule Falls Within Teague's Nonretroactivity Exception For Watershed Rules Of Criminal Procedure.

If this Court concludes that the Apprendi rule is procedural, rather than substantive, Apprendi meets the second Teague exception, which allows retroactive application of "watershed" procedural rules, which "alter our understanding of the bedrock procedural element essential to the fairness of the proceeding" and "without which the likelihood of an accurate conviction is seriously diminished." Sawyer v. Smith, 497 U.S. 227, 242-44 (1990) (quoting Teague, 489 U.S. at 311, 315).

The new rule announced in Apprendi is a watershed rule that involves the jury trial guarantee and the reasonable doubt standard -- therefore implicating the fundamental fairness and reliability of criminal proceedings. See In re Winship, 397 U.S. 358, 363 (1970) (indicating that proof by a preponderance in criminal case would deny fundamental fairness). Justice O'Connor, who authored the main opinion in Teague, speaking for four Justices in Apprendi, characterized the new rule in Apprendi as a "watershed change in constitutional law ... ." Apprendi, 120 S.Ct. at 2380 (O'Connor, J., dissenting). The Apprendi majority itself declared that "[a]t stake in this case are constitutional protections of surpassing importance," 120 S.Ct. at 2335, and listed as the first such protection the "proscription of any deprivation of liberty without 'due process of law ... .'" Id. Citing Winship, the Court emphasized the right to have guilt determined only on proof beyond a reasonable doubt. Id. at 2336. As one district court has held, "[t]here can be little doubt that the sweeping new requirement announced by the Court in Apprendi is so grounded in fundamental fairness that it may be considered of watershed importance." United States v. Murphy, 109 F.Supp.2d 1059, 1064 (D.Minn. 2000) (holding Apprendi retroactive to 2255 motions attacking 841 conviction and sentence); see also Darity v. United States, 124 F.Supp2d at 358-60 (holding that Apprendi should be applied retroactively to habeas petition attacking drug conviction and sentence under Teague's second exception); United States v. Robinson, Nos. 00 CIV. 7493 LAK, 97 CRIM. 1192 LAK, 2000 WL 1585686, at *1 (S.D. N.Y. Oct. 25, 2000) (applying Apprendi to initial 2255 motion challenging 841 conviction and sentence, following Murphy); People v. Beachem, 740 N.E.2d 389, 392-97 (Ill. App. 2000) (extending Apprendi to collateral proceedings under second Teague exception; "[t]he rights affirmed in Apprendi are at the core of our criminal justice system").

Although no circuit court has expressly decided whether the Apprendi rule falls within Teague's "watershed" exception, the government analogizes Apprendi to United States v. Gaudin, 515 U.S. 506 (1995), and notes that three circuits have rejected the argument that Gaudin announced a "watershed" rule under Teague (Government's Opposition at 7). Apprendi and Gaudin involve fundamentally different issues. In Gaudin, the question was not whether materiality was an element of 18 U.S.C. 1001 - that was undisputed - but, instead, whether it was the judge or jury who must decide whether the government proved that element. Thus, the Court's decision that the jury must make that determination only changed the decisionmaker and did not alter the elements of the offense. See United States v. Shunk, 113 F.3d 31, 35 (5th Cir. 1997). In contrast, Apprendi did change what the government must prove - "any fact that increases the penalty for a crime beyond the prescribed statutory maximum . . . ." 120 S. Ct. at 2362-63. This new rule actually alters the elements of numerous offenses, including the offenses under which petitioner was convicted. Thus, unlike the more limited rule in Gaudin, the Apprendi rule is a "watershed" rule because it defines the elements of particular offenses that must be proved beyond a reasonable doubt and requires a fundamental change in the prosecution of many crimes. See Murphy, 109 F.Supp.2d at 1064 (concluding that Apprendi "compels a radical shift in criminal procedure in federal drug cases").

In the instant case, petitioner received enhanced sentences based on drug type and quantity even though those elements were not found by a jury beyond a reasonable doubt. This error implicates the fundamental fairness of the proceeding and the accuracy of his conviction. See United States v. Nordby, 225 F.3d 1053, 1062 (9th Cir. 2000) (finding that after Apprendi, a jury must find drug quantity and drug type before a defendant can be sentenced for the enhanced offenses in 21 U.S.C. 841(b)(1)(A) and (b)(1)(B); "[t]he rights to a jury trial and the determination of guilt beyond a reasonable doubt are the bedrock of our constitutional system of justice." (citing Apprendi)). Because the Apprendi decision is based upon due process principles and proof beyond a reasonable doubt under the Fifth Amendment, as well as the jury trial guarantee under the Sixth Amendment, which are essential to the fairness and reliability of criminal proceedings, the new rule in Apprendi comes within the watershed exception of Teague and applies retroactively to 2255 motions.

IV. Appellant Has Made A Substantial Showing of the Denial of a Constitutional Right.



Petitioner has made a substantial showing of the denial of a constitutional right. It is at least debatable among jurists of reason whether a district court can enhance a sentence above the statutory maximum authorized by the jury's findings based on its own factual findings by a preponderance of the evidence regarding type and quantity of drugs. See Apprendi, supra. It also is debatable among jurists of reason whether a court can impose a sentence based on its own factual findings by a preponderance of the evidence that the defendant was responsible for the most harshly punished object of a multi-object conspiracy where the jury has returned a general verdict. See Edwards v. United States, 523 U.S. 511, 515 (1998) (reserving question whether sentence imposed after general verdict rendered in multi-object 846 conspiracy could exceed statutory maximum authorized for most leniently punished object). Compare United States v. Nicholson, 231 F.3d 445, 454-455 (8th Cir. 2000) (where jury returned general verdict for possession with intent to distribute cocaine base, cocaine, marijuana or PCP, maximum sentence authorized is 5 years imprisonment for possession of marijuana); United States v. Rhynes, 196 F.3d 207, 238-239 (4th Cir. 1999) (where defendants charged with conspiracy to distribute or possess with intent to distribute heroin, cocaine, cocaine base or marijuana, sentence in excess of statutory maximum for least-punished object invalid); United States v. Dale, 178 F.3d 429, 432 & n.2 (6th Cir. 1999) (joining and citing the "[f]ive court of appeals [to] have held that when the jury returns a general verdict to a charge that a conspiratorial agreement covered multiple drugs, the defendant must be sentenced as if he distributed only the drug carrying the lower penalty"); United States v. Barnes, 158 F.3d 662, 667-668 (2d Cir. 1998) (when defendant is convicted under general verdict for conspiracy to possess more than one controlled substance, court is to assume that conviction is based on controlled substance carrying most lenient statutory penalty); United States v. Garcia, 37 F.3d 1359, 1370 (9th Cir. 1994) (same); United States v. Bounds, 985 F.2d 188, 195 (5th Cir. 1993) (same); Newman v. United States, 817 F.2d 635, 638 (10th Cir. 1987) (same); Brown v. United States, 299 F.2d 438, 441 (D.C. Cir. 1962) (vacating and remanding for resentencing under least severe statute where jury returned general verdict on one count charging multiple conspiracy and substantive offenses) with United States v. Swatzie, 228 F.3d 1278, 1282 (11th Cir. 2000) (sentence based on possession of 5 grams of cocaine base after conviction for possession with intent to distribute cocaine powder and cocaine base did not affect substantial rights where both substances seized from defendant's house and defendant did not dispute evidence or seek to discredit sources of evidence against him); United States v. Lewis, 113 F.3d 487 (3d Cir. 1997) (where multi-object conspiracy charged and general verdict rendered, highest penalty is permissible if, at sentencing, government proves defendant's responsibility for that type and amount by a preponderance of the evidence).

Petitioner can demonstrate that it is -- at the very least -- debatable whether reasonable jurists would find that the error caused him prejudice. On Count Three, as a result of the court's preponderance findings at sentencing that petitioner was responsible for specific amounts of specific drugs, his sentence was elevated from 5 years imprisonment for the least harshly punished object of the conspiracy (or 20 years imprisonment for the most harshly punished object) to life imprisonment. An "error that results in a longer sentence undoubtedly affects substantial rights." United States v. Anderson, 201 F.3d 1145, 1152 (9th Cir. 2000). (3) Such an error also seriously affects the fairness, integrity, and public reputation of the judicial proceedings. See United States v. Ford, 88 F.3d 1350, 1356 (4th Cir. 1996).

The government's argument that petitioner suffered no prejudice because "the court found 100 times the amount of cocaine, 3,000 times the amount of crack, and 1,000 times the amount of PCP mixture required to raise the maximum sentence to life imprisonment" (Government's Opposition at 9-10) is faulty for several reasons. First, it is far from clear that petitioner was in fact convicted of conspiring to possess those three controlled substances (rather than the other two charged controlled substances -- heroin or marijuana) since the government failed to request a special verdict form, as it should have. See Rhynes, 196 F.3d at 238 (sentence must not exceed statutory maximum for lowest penalty where jury returned general verdict in multi-object conspiracy and government "did not request a special verdict form, as was its obligation"); Barnes, 158 F.3d at 672 (it is "the government's responsibility to seek special verdicts") (quoting United States v. Orozco-Prada, 732 F.2d 1076, 1084 (2d Cir. 1984); United States v. Garcia, 37 F.3d 1359, 1370 (9th Cir. 1994) (in a multi-object conspiracy trial "it is the duty of the Government to seek a special verdict form" if the government will seek a sentence based on the most harshly punished object). The government makes no claim that the amount of heroin or marijuana greatly exceeded the amounts required to trigger a life sentence. Indeed, the government's opposition entirely ignores the existence of these two lesser-punished objections.

Second, since the filing of the government's brief, this Court has addressed the issue of when Apprendi error requires relief on direct appeal. See United States v. Fields, Dk. 99-3138, 2001 WL 241804 (D.C. Cir. March 13, 2001). The Court found Apprendi error and remanded for the district court to "re-sentence the defendants based on the amount of drugs as to which there can be no doubt, i.e., where drug quantity is established by proof beyond a reasonable doubt." Id. at *6. The only evidence about which there could be no doubt was that which was proven by "concrete evidence" of amounts seized by law enforcement. Id. at *4 ("The only concrete evidence of drug quantity offered at the trial was from the seizures in this case and the testimony of Mr. Joseph Bono, a forensic chemist with the Drug Enforcement Administration."). Here, the "concrete evidence" would not support a beyond a reasonable doubt finding that petitioner was responsible for the quantity of cocaine, PCP and cocaine base used to calculate his sentence. The only concrete evidence connecting petitioner to the conspiracy was his arrest for possession with intent to distribute 68.02 grams of a mixture containing PCP and marijuana (Vol 2, 39-47), calling for a sentence of 0-5 years imprisonment (for marijuana) under 841(b)(1)(D) or 0-20 years imprisonment (for a mixture containing PCP) under 841(b)(1)(C). (4)

Finally, petitioner also was prejudiced because his terms of supervised release were unconstitutionally enhanced. On Count Two, petitioner was sentenced to the maximum supervised release period for a Class A felony (5 years), when he should have been sentenced to 2 years supervised release under 18 U.S.C. 3559(a)(3) and 3583(b)(2). On Count Three, petitioner was sentenced to the maximum supervised release period for a Class A felony (5 years), when he should have been sentenced to the statutory maximum for a Class C felony (3 years). On Count 36, petitioner was sentenced to twice the statutory maximum supervised release period for a Class C felony (10 years), when he should have been sentenced to twice the statutory maximum supervised release period authorized by 841(b)(1)(D) (4 years).

V. Conclusion.

Because petitioner has "made a substantial showing of the denial of a constitutional right," 28 U.S.C. 2253(c)(2), by demonstrating that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Slack, 529 U.S. at 484, this Court should reconsider its denial of petitioner's application for a certificate of appealability, and should grant the certificate and set a briefing schedule.

Respectfully submitted,



A.J. Kramer

Federal Public Defender

_________________________________

Sandra G. Roland

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500







CERTIFICATE OF SERVICE



I HEREBY CERTIFY that two copies of the foregoing Reply Brief of Amicus Curiae have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C. 20001, and has copy has been mailed to Mr. Gregory M. Thomas, Reg. No. 16673-016, P. O. Box 724, Edgefield, SC 29824 this 19th day of March, 2001.

___________________________________

Sandra G. Roland

1. The indictment, however, limited the allegation to one kilogram of a mixture containing PCP or a detectable amount of marijuana. See Attachment B.

2. For this same reason, the question whether petitioner can demonstrate "cause" for his failure to raise the issue at trial or on appeal is not relevant to the Court's determination whether to issue a certificate of appealability.Even if this Court considers the question of "cause," a certificate of appealability should be issued on that question because it is subject to debate by reasonable jurists. Compare United States v. Jones, 2001 WL 127300, *7 (E.D. La. February 9, 2001) ("Jones has shown adequate cause for his failure to raise this precise constitutional issue on appeal because neither Jones [v. United States, 526 U.S. 227, 243 n.6 (1999)] nor Apprendi had been rendered at the time of his guilty plea trial or his appeal.")) with United States v. Smith, 2001 WL 111590, *2 (7th Cir. February 8, 2001) (rejecting argument that defendant had cause for failure to raise Apprendi-based argument that drug quantity is element); Garrott v. United States, 238 F.3d 903, 905-06 (7th Cir. 2001) (same).

Petitioner has a strong argument that the legal basis for his claim was not "reasonably available" to counsel at the time of his trial and direct appeal. Murray v. Carrier, 477 U.S. 478, 488 (1986); Reed v. Ross, 468 U.S. 1, 16 (1984). At that time, the federal courts were unanimous in interpreting 841(b) to state sentencing factors, not elements of the crime. See United States v. Williams, 194 F.3d 100, 105 (D.C. Cir. 1999) (upholding prior D.C. Circuit precedent that drug quantity is sentencing factor of 841 after Jones); United States v. Barnes, 890 F.2d 545, 551 n.6 (1st Cir. 1989); United States v. Camuzano, 905 F.2d 667, 679 (2d Cir. 1990); United States v. Gibbs, 813 F.2d 596, 599-601 (3d Cir. 1987); United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989); United States v. Royal, 972 F.2d 643, 650 (5th Cir. 1992); United States v. Moreno, 899 F.2d 465, 472-73 (6th Cir. 1990); United States v. Schuster, 948 F.2d 313, 315 (7th Cir. 1991); United States v. Wood, 834 F.2d 1382, 1388-89 (8th Cir. 1987); United States v. Sotelo-Rivera, 931 F.2d 1317, 1319 (9th Cir. 1991); United States v. Silvers, 84 F.3d 1317, 1320 (10th Cir. 1996); United States v. Cross, 916 F.2d 622, 623 (11th Cir. 1990). In light of this unanimous body of law, before Apprendi and Jones, the argument that the Supreme Court's constitutional jurisprudence supported a different result was so novel it could not reasonably have been anticipated by counsel. See Reed v. Ross, 468 U.S. at 14 ("the failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the [cause] requirement is met"); id. at 17 (when Supreme Court decision with retroactive application "'overtur[ns] a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved,'" then "[b]y definition . . . there will almost certainly have been no reasonable basis" for an attorney to have argued the claim previously).

This case is very different from the situation in Bousley v. United States, 523 U.S. 614 (1998). That case involved a legal claim arising under 18 U.S.C. 924(c), which, at the time the claim was decided, was "the source of much perplexity in the courts." Bailey v. United States, 516 U.S. 137, 142 (1995). The Court granted certiorari in Bailey because "[t]he Circuits are in conflict both in the standards they have articulated [ ] and in the results they have reached . . . ." Id. (citations omitted). In contrast, there was no circuit split regarding the correct interpretation of 841 prior to Apprendi. Petitioner also has a strong argument that cause is established because defendant's claim would have been futile. The Court in Bousley stated that "'futility cannot constitute cause if it means simply that a claim was "unacceptable to that particular court at that particular time."'" 523 U.S. at 622-23 (citing Engle v. Isaac, 456 U.S. 107, 139 n.35 (1982) (citing Myers v. Washington, 646 F.2d 355, 364 (9th Cir. 1981) (Poole, J., dissenting))). However, like the Court's decision in Bousley, the Court's decision in Isaac is distinguishable from this case because there, the Court was primarily concerned with the principles underlying Wainright v. Sykes, 433 U.S. 72, 87-89 (1977) and "sandbagging", explaining that "[if] a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim." Isaac, 456 U.S. at 130; see also Myers, 646 F.2d at 364 (Poole, J., dissenting) (expressing concerns about sandbagging and Sykes). These concerns are completely absent in this case.

3. Petitioner was equally prejudiced by the enhanced sentences that he received on Counts Two and 36. As to Count Two, as a result of the court's preponderance findings at sentencing that petitioner had committed an offense for which a life sentence was possible (i.e., specific amounts of specific drugs), his sentence was elevated from 20 years to life imprisonment



As to Count 36, as a result of the court's preponderance finding that petitioner was responsible for employing juveniles to distribute a specific amount of a mixture containing PCP, his sentence was elevated from 10 years to life imprisonment.

4. The government's argument that petitioner has not been prejudiced since, prior to trial, the government filed an Information As To Prior Drug Conviction, pursuant to 21 U.S.C. 851 (Government's Opposition at 10) also fails. Although the Supreme Court decided in Almendarez-Torres v. United States, 523 U.S. 224 (1998), that findings relating to recidivism may be determined by a judge, the vitality of that decision is questionable given the reasoning of Apprendi, in which the majority conceded that "it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested . . . ." 530 U.S. at --, 2362 (footnote omitted).

Even assuming, arguendo, that petitioner's sentence could be enhanced beyond the statutory maximum based on the judge's preponderance finding that petitioner had a prior felony drug conviction, the notice could not properly be used to that effect here. The information filed in petitioner's case gave notice that "the defendant is subject to the enhanced penalties provided in Title 21, United States Code, Section 841(b)(1)(A)." See Attachment to Government's Opposition. That section provides for enhanced penalties (enhancing 10-life to 20-life) where the defendant has been convicted of specific quantities of specific controlled substances under that subsection. Such an enhanced sentence would require, therefore, a beyond a reasonable doubt finding that the offense involved a specific quantity of a specific controlled substance proscribed by that subsection. Those findings were absent here.

Moreover, even if the 851 notice could be enforced here, it would apply only to the offenses for which notice was given -- offenses proscribed by 841(b)(1)(A). The allegation that petitioner conspired to distribute and possess with the intent to distribute 100 grams of heroin or a detectable amount of marijuana are found in 841(b)(1)(C) and (b)(1)(D), respectively, but not (b)(1)(A). Since petitioner must be sentenced based on the least-punished object of the multi-object conspiracy, the judge lacked jurisdiction to enhance petitioner's sentence under those subsections where no notice was provided. See Harris v. United States, 149 F.3d 1304, 1308-09 (11th Cir. 1998) (district court lacks jurisdiction to enhance sentence "unless the government strictly complies with the procedural requirements of 851(a)").