No. 00-_______

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, xxxx

xxxxxxxxxx,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

*BEVERLY G. DYER

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel for Petitioner

625 Indiana Avenue, Suite 550

Washington, D.C. 20004

(202) 208-7500

*Counsel of Record

QUESTIONS PRESENTED

1. Whether, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), drug quantity is an element of 21 U.S.C. § 841.

2. Whether a mandatory minimum sentence imposed under 21 U.S.C. § 841 is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), when the jury did not determine the drug quantity required under § 841(b) to authorize that mandatory minimum sentence, and whether McMillan v. Pennsylvania, 477 U.S. 79 (1986), is distinguishable from this case, or Apprendi requires the reversal of McMillan.

3. Whether error under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), results from the exposure to, instead of the imposition of, a sentence greater than the statutory maximum applicable to the offense of conviction found by the jury.

TABLE OF CONTENTS

QUESTION PRESENTED i

TABLE OF AUTHORITIES iii

OPINION BELOW 1

JURISDICTION 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 2

STATEMENT OF THE CASE 3

REASON FOR GRANTING THE PETITION 8

I. THIS COURT SHOULD REVIEW THIS CASE TO RESOLVE WHETHER, PURSUANT TO APPRENDI V. NEW JERSEY, DRUG QUANTITY IS AN ELEMENT OF 21 U.S.C. § 841 8

II. THIS COURT SHOULD REVIEW THIS CASE TO RESOLVE WHETHER, PURSUANT TO APPRENDI V. NEW JERSEY, A MANDATORY MINIMUM SENTENCE UNDER § 841 IS VALID WITHOUT A JURY FINDING AS TO DRUG QUANTITY, AND WHETHER MCMILLAN V. PENNSYLVANIA IS DISTINGUISHABLE OR SHOULD BE OVERRULED 11

III. THIS COURT SHOULD ALSO REVIEW THIS CASE TO RESOLVE DISAGREEMENT AMONG THE CIRCUITS REGARDING WHETHER IT IS THE EXPOSURE TO, OR THE IMPOSITION OF, A HIGHER SENTENCE BASED ON DRUG QUANTITY UNDER § 841 THAT CONSTITUTES ERROR UNDER APPRENDI V. NEW JERSEY, WHERE THE EXPOSURE TO A HIGHER SENTENCE AFFECTS THE DEFENDANT'S SUBSTANTIAL RIGHTS 18

CONCLUSION 25

TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey, 530 U.S. 466,

120 S. Ct. 2348 (2000) passim

Caldwell v. United States, 2000 WL 1337374 (2000) 8

Carter v. United States, 120 S. Ct. 2159 (2000) 10

Hester v. United States, 121 S. Ct. 336 (2000) 8

Hughes v. United States, 121 S. Ct. 423 (2000) 8

Humphrey v. United States, 121 S. Ct. 478 (2000) 8

Jackson v. United States, 121 S. Ct. 376 (2000) 8

Jones v. United States, 526 U.S. 227 (1999) 5, 10

Jones v. United States, 120 S. Ct. 2739 (2000) 8

McMillan v. Pennsylvania, 477 U.S. 79 (1986) passim

Mullaney v. Wilbur, 421 U.S. 684 (1975) 15

Patterson v. United States, 121 S. Ct. 621 (2000) 8

Smith v. United States, 121 S. Ct. 336 (2000) 8

Twitty v. United States, 121 S. Ct. 559 (2000) 8

United States v. Aguayo-Delgado, 220 F.3d 926

(8th Cir. 2000) 9, 17, 19

United States v. Angle, 230 F.3d 113 (4th Cir. 2000) 9, 19

United States v. Baltas, 2000 WL 1001

(1st Cir. January 2, 2001) 9, 18

United States v. Castillo, 120 S. Ct. 2090 (2000) 5, 10

United States v. Champion, 2000 WL 1800260

(2d Cir. December 8, 2000) 9, 17

TABLE OF AUTHORITIES (Cont'd)

CASES (Cont'd)

United States v. Doggett, 230 F.3d 160 (5th Cir. 2000) 9

United States v. Garcia-Guizar, 2000 WL 1781656

(9th Cir. December 6, 2000) 17, 19

United States v. Gerrow, 232 F.3d 831 (11th Cir. 2000) 19

United States v. Hishaw, 2000 WL 1862788

(10th Cir. December 20, 2000) 9, 19

United States v. Keith, 230 F.3d 784 (5th Cir. 2000) 17

United States v. Kelly, 974 F.2d 22 (5th Cir. 1992) 22

United States v. Meshack, 225 F.3d 556 (5th Cir. 2000) 8, 19

United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000) 9

United States v. Page, 131 F.3d 1173 (6th Cir. 1997) 22

United States v. Page, 232 F.3d 536 (6th Cir. 2000) 9

United States v. Rebmann, 226 F.3d 521 (6th Cir. 2000) 9

United States v. Rogers, 228 F.3d 1318 (11th Cir. 2000) 9

United States v. Shorty, 159 F.3d 312 (7th Cir. 1998) 22

United States v. Smith, 223 F.3d 554 (7th Cir. 2000) 17, 19, 24

United States v. xxxxxxxx, 194 F.3d 100

(D.C. Cir. 2000) 1, 4, 5, 23

United States v. xxxxxxxx, 2000 WL 1864351

(3d Cir. December 21, 2000) 9, 19

STATUTES AND RULES

18 U.S.C. § 3559(a) 14

18 U.S.C. § 3583 14, 22

21 U.S.C. § 841 passim

TABLE OF AUTHORITIES (Cont'd)

STATUTES AND RULES (Cont'd)

42 Pa. Const. Stat. § 9701 13

42 Pa. Const. Stat. § 9712 13

S. Rep. 98-225, 98^th Cong. 1^st Sess. (1984)

reprinted in 1984 U.S.C.C.A.N. 3182, 3437 10

U.S.S.G. § 5B1.1 14

U.S.S.G. § 5D1.2 14, 22

Fed. R. Crim. P. 52 20

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, xxxx

xxxxxxxxxxxxxxx,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

The petitioner, Kevin C. xxxxxxxx, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case.

OPINION BELOW

The decision of the United States Court of Appeals is reported at United States v. xxxxxxxx, 194 F.3d 100 (D.C. Cir. 2000), and is reproduced in the Appendix to this Petition ("Pet. App.") at pages A1-10. The unpublished orders and judgment denying Mr. xxxxxxxx' petition for rehearing en banc are reproduced in the Appendix at pages A11-14.

JURISDICTION

The judgment of the court of appeals was entered on October 26, 1999. A timely petition for rehearing was denied on October 13, 2000. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides in relevant part:

No person shall be held to answer for a capital, or otherwise infamous crime . . . nor shall any person . . . be deprived of life, liberty, or property . . . without due process of law . . .

The Sixth Amendment to the United States Constitution provides in relevant part:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . and to be informed of the nature and cause of the accusation . . .

The following statutory provisions and Sentencing Guidelines are reproduced in petitioner's appendix:

18 U.S.C. § 3559(a) A15

18 U.S.C. § 3583(b) &(e)(3) A16

21 U.S.C. § 841 A17

U.S.S.G. § 5B1.1 A25

U.S.S.G. § 5D1.2 A26

STATEMENT OF THE CASE

On March 14, 1997, police officers executed a search warrant at apartment xxx, xxxx Valley Avenue, S.E., Washington D.C. After recovering marijuana, ammunition, zip-lock bags and other items and arresting two persons, the officers signed the return on the warrant and left the premises. Shortly thereafter, several of the officers returned to the same apartment and knocked on the door. A voice inside said "who is it?," a police officer answered "Ray," and someone opened the door. The officers were not in uniform but had weapons in their hands, including a shotgun, a Glock, and a service weapon. They saw several people including Mr. xxxxxxxx inside the apartment. According to the officers, Mr. xxxxxxxx moved quickly towards a rear bedroom in the apartment, clenching his fist and holding his arm to his side. Without identifying themselves as police officers, the officers ran into the apartment in pursuit of Mr. xxxxxxxx.

The officers testified that they found Mr. xxxxxxxx in a rear bedroom where he had his hand in a bag, described as a duffle or laundry bag. At no time did they see any item in his hand. While one officer secured Mr. xxxxxxxx against a wall, the other dumped the contents of the bag onto the floor. In addition to laundry and shoes, the bag contained two plastic bags containing a white rock-like substance, one of which was approximately the size of a baseball. (Suppression/Trial Transcript 31, 61, 266, 295, 307, 336; see also Preliminary Hearing Transcript 6).

In contrast to the arresting officers' testimony that Mr. xxxxxxxx was arrested with two bags of drugs, a police investigator testified that he received and placed in a heat-sealed envelope for drug testing between eleven and sixteen separate bags of drugs comprising three groups, including (1) five zip-lock bags containing a total of 0.49 grams of cocaine base with a purity of 74%, which may have been tied together or loose; (2) nine clear plastic bags or pieces of bags containing a total of 22 grams of cocaine base with a purity of 66%, which were loose, not tied together or contained within another plastic bag; and (3) two clear plastic bags or pieces of bags containing a total of 44 grams of cocaine base with a purity of 64%, which may have both been contained inside a plastic bag. (Trial Transcript 355-369).

Mr. xxxxxxxx argued at trial that drug quantity is an element of the offense to be decided by the jury. The district court rejected that argument and instructed the jury that it must find possession with intent to distribute a detectable amount of cocaine base. See xxxxxxxx, 194 F.3d at 102. Mr. xxxxxxxx was sentenced to ten years imprisonment and five years supervised release, pursuant to 21 U.S.C. § 841(b)(1)(A), based on the determination that he possessed with intent to distribute 66 grams of cocaine base. ⁽¹⁾

Citing Jones v. United States, 526 U.S. 227 (1999), Mr. xxxxxxxx argued on appeal that drug quantity is an element of the offense that must be decided by the jury beyond a reasonable doubt. The D.C. Circuit upheld its earlier cases stating that drug quantity is a sentencing factor of § 841. xxxxxxxx, 194 F.3d at 105-07. Mr. xxxxxxxx petitioned for rehearing en banc and moved to hold the petition in abeyance pending this Court's resolution of United States v. Castillo, 120 S. Ct. 2090 (2000), and Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). The court granted the motion for a stay and, after Castillo and Apprendi were decided, ordered supplemental briefing.

In his petition for rehearing and supplement to that petition, Mr. xxxxxxxx argued pursuant to Apprendi, Castillo, and Jones, that federal courts had incorrectly interpreted drug quantity to be a sentencing factor of § 841, or that, if it was a sentencing factor, § 841 was unconstitutional as written. He also argued that McMillan v. Pennsylvania, 477 U.S. 79 (1986), did not apply to mandatory minimum sentences under § 841 for several reasons, including the fact that McMillan involved a sentencing statute that created no new offense, whereas § 841(b) creates multiple offenses. Thus, he argued that the district court erred in sentencing him pursuant to § 841(b)(1)(A) for 50 grams or more of cocaine base, when the court was limited to the sentence available under § 841(b)(1)(C) for a detectable amount of cocaine base, a lesser included offense. Finally, Mr. xxxxxxxx argued that his exposure to a higher maximum sentence under § 841(b)(1)(A) was not harmless because he was sentenced to five years of supervised release instead of three years of supervised release, he was convicted of an offense constituting a class A felony instead of a class C felony, and the district court misunderstood the jury's finding and the applicable statutory sentence.

With respect to Apprendi, the government argued:

The Court's decision in Apprendi has both forward-looking and retrospective dimensions. The prosecutor who hopes to achieve an enhanced sentence authorized by § 841(b) will change the way she presents the case. "[I]f the government wishes to seek penalties in excess of those applicable by virtue of the elements of the offense alone, then the government must charge the facts giving rise to the increased sentence in the indictment, and must prove those facts to the jury beyond a reasonable doubt." United States v. Aguayo-Delgado, [220 F.3d 926, 933] (8^th Cir. 2000). In retrospect, however, the failure to obtain a jury determination of drug quantity will not constitute error unless an enhanced sentence actually has been imposed.

Second Supplemental Brief for Appellee (August 16, 2000) at 13-14 (footnotes omitted). In addition, the government argued:

[T]he holding of Apprendi does not suggest that drug quantity is always an element of the offense. Rather, only if an enhanced sentence is to be imposed must the threshold quantity triggering that sentence be treated as "the functional equivalent" of an element.

Second Supplemental Brief for Appellee at 17 (citing Apprendi, 1020 S. Ct. at 2365 n.19).

The D.C. Circuit denied Mr. xxxxxxxx' petition for rehearing, stating:

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), does not require this court to rehear his case, as appellant's sentence does not exceed the statutory maximum for the offense for which he was convicted. See United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8^th Cir. 2000) ("The rule of Apprendi only applies where the non-jury factual determination increases the maximum sentence beyond the statutory range authorized by the jury's verdict."); United States v. Corrado, [227 F.3d 528, 542 (6^th Cir. 2000)] ("Because the district court did not sentence either defendant to a term of more than [the statutory maximum for the offense charged to the jury], Apprendi is not triggered . . . ."); United States v. Hernandez-Guardado, [228 F.3d 1017, 1027 (9^th Cir. 2000)]; ("Because [a penalty enhancement under the Federal Sentencing Guidelines] did not expose the defendant to a greater punishment than that authorized by the jury's guilty verdict, [defendant's] case does not implicate the rule in Apprendi.") (internal quotation marks and citation omitted); cf. Talbott v. Indiana, [226 F.3d 866, 869 (7^th Cir. 2000)] ("When a drug dealer is sentenced to less than 20 years' imprisonment [under 21 U.S.C. § 841] . . . Apprendi is irrelevant . . . .") (dicta).

(Pet. App. 12).

REASONS FOR GRANTING THE PETITION

1. THIS COURT SHOULD REVIEW THIS CASE TO RESOLVE WHETHER, PURSUANT TO APPRENDI V. NEW JERSEY, DRUG QUANTITY IS AN ELEMENT OF 21 U.S.C. § 841
2. 
   
   

In Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), this Court held that facts that increase the sentence for a particular criminal offense are elements of the crime that must be decided by the jury beyond a reasonable doubt. ⁽²⁾ Following Apprendi, this Court granted certiorari, vacated, and remanded several cases involving Apprendi's application to drug quantity under 21 U.S.C. § 841 and related drug statutes. ⁽³⁾ The government has conceded that Apprendi applies to § 841, see, e.g., United States v. Meshack, 225 F.3d 556, 575 (5^th Cir. 2000), and the federal circuits that have reached that question agree. Based on Apprendi, most circuits have held either that drug quantity is an element of § 841 or that drug quantity requires a jury finding beyond a reasonable doubt, overturning prior precedent to the contrary. See, e.g., United States v. Angle, 230 F.3d 113, 124 (4^th Cir. 2000); United States v. Doggett, 230 F.3d 160, 164 (5^th Cir. 2000); United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8^th Cir. 2000); United States v. Nordby, 225 F.3d 1053, 1059 (9^th Cir. 2000); United States v. Hishaw, 2000 WL 1862788, *9 (10^th Cir. December 20, 2000); United States v. Rogers, 228 F.3d 1318, 1327-28 (11^th Cir. 2000); see also United States v. Rebmann, 226 F.3d 521, 524-25 (6^th Cir. 2000) ("if death . . . results" provision is element of § 841(b)); United States v. Baltas, 2001 WL 1001, *13-14 (1^st Cir. January 2, 2001) (reviewing Apprendi-based claims regarding drug quantity under § 841); United States v. Champion, 2000 WL 1800260 (2d Cir. December 8, 2000) (same); United States v. xxxxxxxx, 2000 WL 1864351, *2-5 (3d Cir. December 21, 2000) (same); United States v. Page, 232 F.3d 536, 543-44 (6^th Cir. 2000) (same). No circuit has held that Apprendi does not apply to § 841.

This Court should hold that drug quantity is an element of § 841. The government argued in this case that drug quantity can be treated as an element of the crime under § 841 in some circumstances but not others, or as the "functional equivalent" of an element. However, this Court has never endorsed treating a fact as an element conditionally, or accorded a particular fact some of the constitutional rights associated with an element but not others. Similarly, this Court has never authorized treating a fact as an element prospectively, before and during trial, but treating it as something less than an element retrospectively, on direct appeal or collateral review, as advocated by the government here. Therefore, the government's argument should be rejected by this Court.

Mr. xxxxxxxx contends that either federal courts incorrectly interpreted drug quantity to be a sentencing factor of § 841 and that Congress never intended that result, ⁽⁴⁾ or, if federal courts correctly interpreted § 841(b) to state sentencing factors, then § 841 is unconstitutional as written and must be overturned.

1. THIS COURT SHOULD REVIEW THIS CASE TO RESOLVE WHETHER, PURSUANT TO APPRENDI V. NEW JERSEY, A MANDATORY MINIMUM SENTENCE UNDER § 841 IS VALID WITHOUT A JURY FINDING AS TO DRUG QUANTITY, AND WHETHER MCMILLAN V. PENNSYLVANIA IS DISTINGUISHABLE OR SHOULD BE OVERRULED
2. 
   
   

In Apprendi, this Court endorsed the statement that "'[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.'" Apprendi, 120 S. Ct. at 2363 (citing Jones, 526 U.S. at 252-53 (opinion of Stevens, J.)). Throughout its majority opinion, the Court's reasoning supports applying its holding to mandatory minimum sentences as well as maximum sentences. Consistent with Apprendi and federal court application of that decision to § 841, therefore, this Court should reject the imposition of a mandatory minimum sentence under § 841 if the jury did not find beyond a reasonable doubt that the offense involved the drug quantity required to impose that mandatory minimum.

Section 841 is a substantive criminal statute creating both misdemeanors and felonies and authorizing sentences ranging from a fine or probation to mandatory life imprisonment without release -- the widest possible range of sentences short of the death penalty. It authorizes increases in the maximum sentence from one year imprisonment to mandatory life imprisonment without release. In addition, it authorizes increases to the applicable maximum and minimum sentences simultaneously, in lock-step fashion. Accordingly, if drug quantity, type, and other facts relevant to sentencing are elements of § 841, then that statute creates overlapping hierarchies of aggravated offenses.

A sentencing court has no authority to pick and choose from sentence ranges authorized by different criminal offenses. Instead, the court is bound by the sentence range that applies to the specific offense for which the defendant was convicted. Specifically, a court has no authority to apply the sentencing provisions authorized for a greater offense -- such as a mandatory minimum -- in sentencing a defendant to a lesser included offense. If the offense of conviction establishes no mandatory minimum sentence, then it is error for the court to impose one.

In McMillan v. Pennsylvania, 477 U.S. 79 (1986), this Court upheld a Pennsylvania sentencing statute that required a five-year mandatory minimum term of imprisonment for numerous underlying felonies if the offense involved visible possession of a firearm. In Apprendi, there was no reason to resolve questions presented by McMillan, which were "reserve[d] for another day." Apprendi, 120 S. Ct. 2361 n.13; see also id. at 2379 (Thomas, J., concurring) (discussing McMillan); but see id. at 2385 (O'Connor, J., dissenting) ("it is incumbent on the Court . . . to admit that it is overruling McMillan . . .").

This Court need not address the continuing validity of McMillan to reject mandatory minimum sentences based on drug quantity under § 841. The Pennsylvania sentencing statute reviewed in McMillan is distinguishable from § 841 for several critical reasons. That statute was independent of the underlying criminal offenses it modified and created no separate or aggravated offense. See McMillan, 477 U.S. at 82-83 & 87-88. ⁽⁵⁾ In addition, that statute did not increase the maximum sentence authorized for the underlying offense. See, e.g. McMillan, 477 U.S. at 83 ("Section 9712, which comes into play only after the defendant has been convicted of an enumerated felony, neither provides for an increase in the maximum sentence for such felony nor authorizes a separate sentence . . . ."). In deciding McMillan and distinguishing that case in Apprendi, this Court emphasized these points, stating that the sentencing statute at issue in McMillan "'neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty.'" Apprendi, 120 S. Ct. at 2361 (citing McMillan, 477 U.S. at 87-88). Section 841, in contrast, does both.

The statute reviewed in McMillan is comparable in that sense to the federal Sentencing Guidelines. See, e.g., Apprendi, 120 S. Ct. at 2378 (Thomas, J., concurring) ("[E]stablishing what punishment is available by law and setting a specific punishment within the bounds that the law has prescribed are two different things."). In contrast, as explained above, § 841 is a substantive criminal statute that creates multiple overlapping greater and lesser included offenses and increases the applicable maximum sentence dramatically.

Furthermore, separate subsections of § 841 establish different classes of offenses. For example, § 841(b)(1)(A) establishes a class A felony, § 841(b)(1)(C) establishes a class C felony, and § 841(b)(3) establishes a class A misdemeanor. See 18 U.S.C. § 3559(a) (classifying criminal offenses by maximum term of imprisonment). ⁽⁶⁾ In Apprendi, reviewing a New Jersey statutory scheme, the Court explained:

[T]he effect of New Jersey's sentencing "enhancement" here is unquestionably to turn a second-degree offense into a first degree offense, under the State's own criminal code. The law thus runs directly into our warning in [Mullaney v. Wilbur, 421 U.S. 684 (1975)] that [In re Winship, 397 U.S. 358 (1970)] is concerned as much with the category of substantive offense as "with the degree of criminal culpability" assessed. 421 U.S. at 698 [ ]. This concern flows not only from the historical pedigree of the jury and burden rights, but also from the powerful interests those rights serve. The degree of criminal culpability the legislature chooses to associate with particular, factually distinct conduct has significant implications both for a defendant's very liberty, and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment.

120 S. Ct. at 2365. These considerations are equally applicable to drug quantity under § 841. Section 841, therefore, is more comparable to the New Jersey statutory scheme reviewed in Apprendi than the Pennsylvania sentencing statute reviewed in McMillan. Section 841 authorizes a much wider range of sentences than the New Jersey statute reviewed in Apprendi. See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 700 (1975) ("These interests are implicated to a greater degree in this case than they were in Winship itself," noting that "respondent here faces a differential in sentencing ranging from a nominal fine to a mandatory life sentence."). In addition, § 841 increases both minimum and maximum sentences simultaneously. See Apprendi at 2379 (Thomas, J., concurring) (in many early cases, "the aggravating fact raised the whole range -- both the top and bottom."). Accordingly, this Court should apply Apprendi, not McMillan, here.

Alternatively, this Court's reasoning in Apprendi supports overruling McMillan. See Apprendi, 120 S. Ct. at 2363 ("'[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed'") (citation omitted); id. at 2358 (judge's broad discretion in sentencing . . . [is] bound by the range of sentencing options prescribed by the legislature") (citations omitted); id. at 2359 n.10 (historically, "facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition 'elements' of a separate legal offense"); id. at 2365 ("the relevant inquiry is . . . does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?"); id. at 2362 n.15 ("'the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted'") (citation omitted). Consistent with Apprendi, this Court should reexamine McMillan.

In this case, the jury was instructed to consider only whether Mr. xxxxxxxx possessed with intent to distribute a detectable quantity of cocaine base. The applicable sentence range was zero to 20 years imprisonment under § 841(b)(1)(C), not 10 years to life imprisonment under § 841(b)(1)(A). None of the provisions of § 841(b)(1)(A) apply to this case, since Mr. xxxxxxxx was not convicted of the greater offense stated in that subsection. Thus, the ten-year mandatory minimum prison term and the five-year mandatory minimum term of supervised release required by § 841(b)(1)(A) were not available to the judge at sentencing. The district court's error not only subjected Mr. xxxxxxxx to a longer prison term for this offense than required, it resulted in his conviction for a class A felony and the imposition of a five-year term of supervised release.

The D.C. Circuit rejected this argument without addressing it, finding that because Mr. xxxxxxxx's sentence was less than the statutory maximum of 20 years of imprisonment, there was no error under Apprendi. The Fifth and Eighth Circuits have found that Apprendi is not implicated by mandatory minimum sentences. See United States v. Keith, 230 F.3d 784, 787 (5^th Cir. 2000); United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8^th Cir. 2000). The Seventh Circuit has rejected the application of Apprendi to mandatory minimum sentences under 21 U.S.C. § 848. United States v. Smith, 223 F.3d 554, 565-66 (7^th Cir. 2000) ("it is our best guess" that Supreme Court would not decide Apprendi applies to mandatory minimum of life imprisonment under § 848(b)). In cases where the error was harmless, the Ninth and Second Circuits declined to reach the question of whether Apprendi applies to mandatory minimum sentences. See United States v. Garcia-Guizar, 2000 WL 1781656, *4 (9^th Cir. December 6, 2000) (assuming for purpose of decision that Apprendi applies to mandatory minimums but finding harmless error); United States v. Champion, 2000 WL 1800260 (2d Cir. December 8, 2000) (open question in circuit whether Apprendi applies to mandatory minimums under § 841, but harmless because defendant stipulated to drug quantity at trial). The federal courts are inundated with claims based on Apprendi and that litigation will almost certainly continue until this Court provides a definitive answer to the mandatory minimum question left open in Apprendi.

Therefore, this Court should accept this case for review. The questions presented are limited in scope but arise in a substantial majority of federal drug prosecutions under one of the most important and widely-prosecuted federal criminal statutes. Pursuant to Apprendi and notwithstanding McMillan, this Court should hold that a sentencing court may not apply a mandatory minimum sentence based on drug quantity under § 841 unless the quantity authorizing that mandatory minimum sentence was determined by a jury beyond a reasonable doubt.

1. THIS COURT SHOULD ALSO REVIEW THIS CASE TO RESOLVE DISAGREEMENT AMONG THE CIRCUITS REGARDING WHETHER IT IS THE EXPOSURE TO, OR THE IMPOSITION OF, A HIGHER SENTENCE BASED ON DRUG QUANTITY UNDER § 841 THAT CONSTITUTES ERROR UNDER APPRENDI V. NEW JERSEY, WHERE THE EXPOSURE TO A HIGHER SENTENCE AFFECTS THE DEFENDANT'S SUBSTANTIAL RIGHTS
2. 
   
   

In its decision in Apprendi, there was no reason for this Court to decide whether the constitutional error identified in that case results from the imposition of a higher sentence, or the exposure to a higher sentence, requiring reversal if such exposure affects the defendant's substantial rights. In this case, the D.C. Circuit ruled that no error occurs under Apprendi unless the sentence actually imposed exceeds the statutory maximum established by § 841 for the offense of conviction. The majority of other federal circuits have reached the same result. See, e.g., United States v. Baltas, 2000 WL 1001, *13-14 (1^st Cir. January 2, 2001); United States v. xxxxxxxx, 2000 WL 1864351, *5 (3d Cir. December 21, 2000); United States v. Angle, 230 F.3d 113, 123-24 (4^th Cir. 2000); United States v. Meshack, 225 F.3d 556, 576 (5^th Cir. 2000); United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8^th Cir. 2000); United States v. Hishaw, 2000 WL 1862788, *12 (10^th Cir. 2000); United States v. Gerrow, 232 F.3d 831, 834 (11^th Cir. 2000); see also United States v. Smith, 223 F.3d 554, 565 (7^th Cir. 2000) (reviewing § 848(b) and noting: "This is a difficult inquiry.").

The Ninth Circuit, in contrast, reviewing a district court's finding of drug quantity at sentencing, stated: "[W]e [ ] conclude that the district court erred . . . . [T]he judge's finding . . . increased the statutory maximum penalty to which Garcia was exposed from twenty years to life, in violation of the constitutional rule recognized by Apprendi. . . . [Garcia's] sentence cannot stand unless the district court's constitutional Apprendi error was harmless beyond a reasonable doubt. . . ." United States v. Garcia-Guizar, 2000 WL 1781656, *3 (9^th Cir. December 6, 2000). The court found the district court's imposition of a 168-month sentence to be harmless error. Id. at *4. Accordingly, there is a split in the circuits on this question and this Court should accept this case for review.

There is no valid basis for distinguishing between the imposition of a sentence greater than the maximum and the exposure to such a sentence, where such exposure affects a defendant's substantial rights. A district court's failure to submit an element of the offense to the jury is error regardless of the sentence ultimately imposed. Similarly, a district court errs if it imposes sentence pursuant to an aggravated offense for which the defendant was not convicted no matter what that sentence is. Although the length of the sentence imposed might render the error harmless, it is nevertheless an error that must be evaluated under Fed. R. Crim. P. 52.

Many of this Court's statements in Apprendi support a finding that it is the exposure to, not the imposition of, a higher sentence that constitutes error. See, e.g., Apprendi, 120 S. Ct. at 2359 (noting "the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone."); id. at 2359 n.10 ("facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition 'elements' of a separate legal offense"); id. at 2359 ("If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened"); id. at 2365 ("the relevant inquiry is one not of form, but of effect-does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?"); id. at 2365 ("it can hardly be said that the potential doubling of one's sentence-from 10 years to 20-has no more than a nominal effect"); see also McMillan, 477 U.S. at 88 (petitioners' argument that visible possession of firearm is element of offense "would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment").

Other statements suggest that the Court was concerned about the imposition of a higher sentence. See Apprendi, 120 S. Ct.at 2354 ("The constitutional question . . . is whether the 12-year sentence imposed on count 18 was permissible, given that it was above the 10-year maximum for the offense charged in that count."); id. at 2358 n.9 ("Nothing in [xxxxxxxx v. New York, 337 U.S. 241 (1949)] implies that a judge may impose a more severe sentence than the maximum authorized by the facts found by the jury."); id. at 2361 n.13 ("We limit [McMillan's] holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury's verdict."). In addition to resolving the circuit split on this question, therefore, this Court should review this issue to clarify its statements in Apprendi.

Here, it makes a difference whether the error is the imposition of, or the exposure to, a sentence greater than that available for the offense of conviction. Mr. xxxxxxxx was harmed by his exposure to a higher maximum sentence in at least three significant ways. First, had he been sentenced correctly under § 841(b)(1)(C) instead of § 841(b)(1)(A), Mr. xxxxxxxx would have received a three-year term of supervised release instead of a five-year term of supervised release. See § 841(b)(1)(C) (authorizing supervised release term of "at least three years"); U.S.S.G. § 5D1.2(a)(2) (Guidelines range of supervised release for a class C felony is two to three years); 18 U.S.C. § 3583(b)(2) ("except as otherwise provided," supervised release term for class C felony is "not more than three years"). ⁽⁷⁾ The trial court sentenced Mr. xxxxxxxx to five years of supervised release pursuant to § 841(b)(1)(A), an offense Mr. xxxxxxxx was not convicted of. No grounds for an upward departure were mentioned in the presentence report or by the government at sentencing. Absent such grounds and pursuant to § 5D1.2(a)(2) and § 3583(b)(2), the district court was required to impose no more than three years of supervised release under § 841(b)(1)(C).

Second, Mr. xxxxxxxx was convicted of an offense categorized as a class A felony when the jury found him guilty of elements that establish only an offense categorized as a class C felony. As a result of that classification, Mr. xxxxxxxx is subject to greater stigma, Apprendi, 120 S. Ct. at 2365, a higher offense severity rating by the Bureau of Prisons, and a higher sentence in the event his supervised release is ever revoked. See 18 U.S.C. § 3583(e)(3) (limiting sentence upon revocation of supervised release for class C felony to 2 years in prison).

Third, Mr. xxxxxxxx very likely received a higher prison sentence as a result of the district court's misunderstanding of the applicable statutory sentence range. In its panel decision in this case, the D.C. Circuit recognized that "[i]f xxxxxxxx turns out to be correct [that drug quantity is an element of § 841], the jury's finding that he possessed a 'detectable' amount might very well have influenced the district court's quantity determination under the Guidelines, possibly resulting in a shorter sentence." xxxxxxxx, 194 F.3d at 103. Similarly, rejecting an argument that the petitioner could have received the same total sentence based on three offenses to which he pleaded guilty, this Court explained in Apprendi that "[t]he [trial judge's] finding is legally significant because it increased -- indeed, it doubled -- the maximum range within which the judge could exercise his discretion, converting what otherwise was a maximum 10-year sentence on that count into a minimum sentence." 120 S. Ct. at 2354. Justice Thomas noted in his concurring opinion that "it is likely that the change in range available to the judge affects his choice of sentence," 120 S. Ct. at 2379, citing Hobbs v. State, 44 Tex. 353, 355 (1875), where the court reversed a three-year sentence imposed by the jury because "even though the jury had sentenced Hobbs within the range (2 to 5 years) that was permissible under the lesser crime that the indictment had charged, the court thought it 'impossible to say . . . that the erroneous charge of the court may not have had some weight in leading the jury' to impose the sentence that it did." 120 S. Ct. at 2375; see also Smith, 223 F.3d at 565-66 ("We agree entirely with Justice Thomas's observation that the predicted sentence would often be lower, if the judge knew she could select a sentence below life. Indeed, we have often remanded cases for resentencing if a district court makes an error in calculating either offense level or criminal history under the Sentencing Guidelines . . . .").

In this case, the district court's error significantly increased the range in which it could exercise its discretion, applying a sentence range from ten years to life imprisonment and five years of supervised release instead of a range from zero to twenty years imprisonment and three years of supervised release. For all of these reasons, the court would likely have imposed a lower sentence had it understood that the Constitution required that Mr. xxxxxxxx be exposed to a significantly lower sentence.

CONCLUSION

For the reasons stated above, petitioner respectfully requests that this Court grant his petition for a writ of certiorari.

Respectfully submitted,

A.J. KRAMER,

FEDERAL PUBLIC DEFENDER

*BEVERLY G. DYER

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel for Petitioner

625 Indiana Avenue, N.W. Suite 500

Washington, D.C. 20004

(202) 208-7500 *Counsel of Record