USA. v. Buckland

• Decision Date: 18 January 2002
• Docket Number: DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,No. 99-30285,99-30285
• Citation: 277 F.3d 1173
• Parties: (9th Cir. 2002) UNITED STATES OF AMERICA,, v. CALVIN WAYNE BUCKLAND,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1173

277 F.3d 1173 (9th Cir. 2002)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. CALVIN WAYNE BUCKLAND, DEFENDANT-APPELLANT.

No. 99-30285

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted En Banc September 26, 2001

Filed January 18, 2002

NOTE: SEE AMENDED OPINION OF MAY 7, 2002.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Zenon P. Olbertz, Law Office of Zenon Peter Olbertz, Tacoma, Washington, for the defendant-appellant.

J. Douglas Wilson, United States Attorney's Office, San Francisco, California, for the plaintiff-appellee.

Arlen Storm, United States Attorney's Office, Seattle, Washington, for the plaintiff-appellee.

Benjamin L. Coleman, Federal Defenders of San Diego, Inc., San Diego, California, amici curiae in support of the defendant-appellant.

Steven F. Hubachek, Federal Defenders of San Diego, Inc., San Diego, California, amici curiae in support of the defendant-appellant.

Appeal from the United States District Court for the Western District of Washington Jack E. Tanner, District Judge, Presiding D.C. No. CR 94-5073 JET

Before: Mary M. Schroeder, Chief Judge, Procter Hug, Jr., Stephen Reinhardt, Diarmuid F. O'Scannlain, Stephen S. Trott, Thomas G. Nelson, Andrew J. Kleinfeld, A. Wallace Tashima, Ronald M. Gould, Richard A. Paez, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Trott; Partial Concurrence and Partial Dissent by Judge Hug; Dissent by Judge Tashima

OPINION

TROTT, Circuit Judge, with whom SCHROEDER, Chief Judge, O'SCANNLAIN, KLEINFELD, GOULD, and TALLMAN, Circuit Judges, join. Circuit Judge T.G. NELSON joins except for Part IV B:

On June 26, 2000, the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Calvin Buckland asks us to conclude that this holding renders facially unconstitutional 21 U.S.C. §§ 841(b)(1)(A), (B), the laws which provide in certain controlled substance cases for sentences beyond the basic 20-year maximum imposed by §§ 841(b)(1)(C) for default cases where quantity is not a sentence-determining factor. In the alternative, Buckland argues that his individualized sentence examined in the light of Apprendi constituted plain error, and urges that we vacate and remand for resentencing. As have our sister circuits before us,¹ we hold that §§ 841 is not facially unconstitutional; and we conclude that the Apprendi error with respect to Buckland's sentence did not affect his substantial rights. Thus, we affirm his sentence of 27 years.

I.

In 1994, Buckland was indicted on one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§§§ 841(b)(1)(A), 846, three counts of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and three counts of using a firearm during a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c). The government alleged the involvement in the conspiracy of "one thousand (1000) grams or more of a mixture or substance containing a detectable amount of methamphetamine," which, if properly proved, carries a possible life sentence. As was customary, however, the jury was not instructed that it had to determine any particular amount of methamphetamine in order to convict Buckland. The jury convicted Buckland on all seven counts, and the presentence report concluded that his maximum term of imprisonment based on §§§§ 846, 841(b)(1)(A) was life. Using the preponderance of the evidence standard, the district court determined at sentencing that the gross amount of drugs for which Buckland was responsible was almost eight kilograms and sentenced him to 824 months in prison. On appeal, we affirmed the conspiracy and drug convictions, vacated the firearm convictions under Bailey v. United States, 516 U.S. 137 (1995), and remanded for resentencing. United States v. Buckland, No. 95-30147, 1996 U.S. App. LEXIS 28237 (9th Cir. Oct. 28, 1996) (unpublished).

On remand, Buckland attempted to raise a number of sentencing objections, including whether the district court relied on an inaccurate estimate of the drug quantity in establishing his base offense level. Buckland's objections notwithstanding, the district court limited its consideration to a firearm enhancement issue, and resentenced Buckland to 360 months. Buckland again appealed, and we held that the district court erred in failing to consider all of Buckland's sentencing objections. We, again, vacated his sentence and remanded for resentencing. United States v. Buckland, Nos. 97-30204, 97-35687, 1998 U.S. App. LEXIS 20243 (9th Cir. Aug. 14, 1998) (unpublished). On the second remand, the district court considered Buckland's objections and sentenced him to 324 months.

In this appeal, Buckland originally advanced several contentions: (1) the district court's findings on the type and quantity of methamphetamine were erroneous; (2) the district court erred in failing to decrease his sentence for acceptance of responsibility; and (3) his trial counsel rendered ineffective assistance. In his supplemental briefs, Buckland argues that Apprendi renders 21 U.S.C. §§ 841(b) facially unconstitutional and his sentence invalid.

The government forthrightly acknowledges with the benefit of hindsight that the district court erred twice, first, by failing to submit the drug quantity determination to the jury for a finding beyond a reasonable doubt and, then, by imposing a unitary sentence -27 years -in excess of§§ 841(b)(1)(C)'s 20-year maximum for any unspecified amount of methamphetamine. The government disagrees, however, that Apprendi makes §§ 841 unconstitutional, contending also that these sentencing errors were not prejudicial and, thus, do not require us to vacate and remand.

II. STANDARD OF REVIEW

Buckland's case comes before us on direct review, thus entitling him to the benefit of Apprendi's new rule. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987); United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000). We review only for plain error, however, because Buckland did not object to the district court's use of the preponderance of the evidence standard in determining the amount of methamphetamine. Fed. R. Crim. P. 52(b); Johnson v. United States , 520 U.S. 461, 466 (1997). Under the plain error standard, Buckland must establish an error, that was plain, and that affected his substantial rights. See Johnson, 520 U.S. at 467. If Buckland makes this showing, we may exercise our discretion to correct the error only if we conclude that it " `seriously affects the fairness, integrity, or public reputation of judicial proceedings.' " Id. (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

III. DISCUSSION

Buckland contends that §§ 841 is facially unconstitutional. Congress, he argues, intended without formally saying so that drug quantity be determined by a judge by a preponderance of the evidence, rather than by a jury beyond a reasonable doubt. It follows, he submits, that because such an approach to sentencing has been rendered unconstitutional by Apprendi, see Nordby, 225 F.3d at 1059, those parts of the statute under which he was sentenced must fail. In support of his argument, Buckland correctly points out that before Apprendi virtually everyone routinely treated drug quantity under §§ 841 as a "sentencing factor" that need not be found beyond a reasonable doubt by a properly instructed jury. Indeed, every circuit which considered the question including our own, so held.²

The government maintains that this pre-Apprendi view reflects Congress's intent in enacting the federal drug statutes. The government urges us, however, to "sever" Congress's alleged intent from the statute and to fill the resulting void with the new procedure mandated by Apprendi. Although we hold that §§ 841 is not unconstitutional in this respect, we respectfully suggest that the government's severance"solution" is as errant as Buckland's attack. To explain, we resort to basic principles of statutory construction.

The Supreme Court instructs us that "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." Hooper v. California, 155 U.S. 648, 657 (1895); see also Miller v. French, 530 U.S. 327, 336 (2000) (counseling courts to avoid "constitutionally doubtful constructions"). Thus, "if an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is `fairly possible,' we are obligated to construe the statute to avoid such problems." INS v. St. Cyr, 121 S. Ct. 2271, 2279 (2001) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). This obligation does not give us the unfettered prerogative to rewrite a statute in order to save it or to "ignore the legislative will" behind it. Miller, 530 U.S. at 341. Rather, "[w]here Congress has made its intent clear, we must give effect to that intent." Id. at 336 (quoting Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 215 (1962)).

" `[T]he starting point for interpreting a statute is the language of the statute itself.' " Hallstrom v. Tillamook County, 493 U.S. 20, 25 (1989) (quoting Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). "If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive." Reeves v. Ernst & Young, 507 U.S. 170, 177 (1993) (citations and internal quotation marks omitted). Where the language is not dispositive, we look to the congressional intent "revealed in the history and purposes of the statutory scheme." Adams Fruit Co. v. Barrett, 494 U.S. 638, 642 (1990). With this guidance in mind, we look first and foremost to the...