U.S. v. Silvers, 95-3089

• Decision Date: 29 May 1996
• Docket Number: No. 95-3089,95-3089
• Citation: 84 F.3d 1317
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul SILVERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1317

84 F.3d 1317

UNITED STATES of America, Plaintiff-Appellee, v. Paul SILVERS, Defendant-Appellant.

No. 95-3089.

United States Court of Appeals, Tenth Circuit.

May 29, 1996.

Rehearing Denied July 5, 1996.

Robert S. Streepy (Randall K. Rathbun, United States Attorney, and Gregory G. Hough, Assistant United States Attorney, Topeka, Kansas, with him on the brief), Assistant United States Attorney, Kansas City, Kansas, for Plaintiff-Appellee.

Thomas M. Dawson, Leavenworth, Kansas, for Defendant-Appellant.

Before BRORBY, BARRETT and MURPHY, Circuit Judges.

BRORBY, Circuit Judge.

Defendant Paul Silvers pled guilty to one count of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a). He now appeals his sentence. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and affirm.

I

A grand jury returned a two-count indictment against Mr. Silvers and four other individuals in September 1991. The district court later dismissed Count 1 of the indictment, alleging Mr. Silvers and his codefendants conspired to possess marijuana with intent to distribute (21 U.S.C. §§ 841(a) & 846), on double jeopardy grounds, United States v. Mintz, 804 F.Supp. 229 (D.Kan.1992), and we affirmed the dismissal. United States v. Mintz, 16 F.3d 1101 (10th Cir.), cert. denied, --- U.S. ---- & ----, 114 S.Ct. 2723 & 2760, 129 L.Ed.2d 847 & 875 (1994). After we issued our mandate, Mr. Silvers pled guilty to Count 2 of the indictment, which alleged he and his codefendants "knowingly and intentionally possess[ed] with the intent to distribute or dispense more than 1000 marijuana plants ... in violation of Title 21, United States Code, Section 841(a)(1); with reference to Title 21, United States Code, Sections 812 and 841(b)(1)(A)." In the plea agreement, the government agreed to allow Mr. Silvers "to present evidence at his sentencing regarding the number of marijuana plants that he possessed with intent to distribute," and Mr. Silvers "acknowledge[d] and underst[ood] that the Government takes the position that defendant possessed, with the intent to distribute, over 1000 marijuana plants, and will advocate this position at his sentencing." In the section of the preprinted petition to enter a plea of guilty in which the defendant is to indicate whether the government has made any promises or concessions, Mr. Silvers wrote, "possessed amount of marijuana is left open until sentencing." Similarly, in the section in which the defendant is to state the terms of his plea agreement, Mr. Silvers wrote, "plea to possession & will be allowed to argue about amount of marijuana in defendant's possession." Finally, defense counsel averred that he had informed Mr. Silvers that the guilty plea "left open marijuana amount for trial."

At the change of plea hearing, defense counsel stated he

just want[ed] to make sure the Court knew and that my client also knows, the issue of the amount of the marijuana in his possession is left open specifically for sentencing, and the government contends he had a thousand plants and he contends he had substantially less than that, and that issue is reserved, to my understanding, to the sentencing.

The government conceded defense counsel was correct, and that the matter was "spelled out in the written plea agreement." Later during the change of plea hearing, the government outlined the penalties for the offense to which Mr. Silvers was pleading guilty and explained the penalties would differ depending on the amount of marijuana attributable to him. The district court also stated the sentence would depend on "the finding of the court as to the quantity of marijuana." The government then summarized the evidence against Mr. Silvers, which, according to the government, included evidence sufficient to prove beyond a reasonable doubt that Mr. Silvers possessed with intent to distribute "a thousand or more marijuana plants." The district court asked defense counsel whether he believed the evidence was sufficient to prove Mr. Silvers' guilt beyond a reasonable doubt, "keeping in mind the difference of opinion on the quantity of marijuana." Defense counsel responded, "[y]es, reserving the fact of the amount of possession of Mr. Silvers." After an interruption, defense counsel continued:

Reserving the amount of pounds, which we believe to be somewhere between 150 and potentially 400 pounds, we would agree with the government's assertions that there was possession of marijuana here, and the other issue is the amount of marijuana that was destroyed while in the possession of the government.

At the close of the hearing, the district court accepted Mr. Silvers' guilty plea.

Mr. Silvers' presentence report attributed 1,000 marijuana plants to him for sentencing purposes, thereby triggering the mandatory minimum sentence prescribed in 21 U.S.C. § 841(b)(1)(A)(vii), which includes imprisonment for not less that ten years nor more than life. Using the version of the guidelines in effect at the time of sentencing, see U.S.S.G. § 1B1.11(a); United States v. Owens, 70 F.3d 1118, 1130 (10th Cir.1995), the presentence report assigned Mr. Silvers a base offense level of 32, the level for offenses involving "[a]t least 1,000 KG but less than 3,000 KG of Marihuana." U.S.S.G. § 2D1.1(c)(4). In converting the 1,000 marijuana plants into 1,000 kilograms of marijuana, the presentence report relied on a footnote to the Drug Quantity Table, U.S.S.G. § 2D1.1(c), which provides:

In the case of an offense involving marihuana plants, if the offense involved (A) 50 or more marihuana plants, treat each plant as equivalent to 1 KG of marihuana; (B) fewer than 50 marihuana plants, treat each plant as equivalent to 100 G of marihuana. Provided, however, that if the actual weight of the marijuana is greater, use the actual weight of the marihuana.

(Emphasis in the original). With a three-point downward adjustment for acceptance of responsibility, U.S.S.G. § 3E1.1(a, b), Mr Silvers' total offense level was 29, yielding a sentencing range of 97-121 months in criminal history category II. U.S.S.G. Chapter 5, Part A. However, because of the ten-year statutory mandatory minimum sentence, 21 U.S.C. § 841(b)(1)(A)(vii), Mr. Silvers' effective guideline sentencing range was 120-121 months. U.S.S.G. § 5G1.1(c)(2).

Now represented by a different attorney, Mr. Silvers objected to the presentence report on the ground that "use of any quantity of plants in this case to establish the Guideline would be legally incorrect, [because] the equivalency provisions of the United States Sentencing Guidelines with respect to marijuana can only apply to live marijuana plants actually found." Mr. Silvers also contended "there is no evidence to support 1,000 plants." At the sentencing hearing, the district court rejected Mr. Silvers' first contention, stating "you've made an amenable argument ... to convert this sentencing into a proceeding on pounds rather than on number of plants of marijuana. However, the Court is of the opinion that ... [Mr. Silvers] should be sentenced on the basis of plants." As for the second objection, the district court found that "the presentence investigation report correctly uses 1,000 or more marijuana plants to calculate the defendant's guideline range." At the close of the hearing, the district court sentenced Mr. Silvers to 120 months imprisonment, the statutory mandatory minimum in light of the finding at least 1,000 marijuana plants were attributable to him for sentencing purposes. 21 U.S.C. § 841(b)(1)(A)(vii). This appeal followed.

II

Before we address Mr. Silvers' challenge to his sentence, we will attempt to eliminate the apparent confusion surrounding the nature of his guilty plea. As noted above, Mr. Silvers pled guilty to Count 2 of the indictment, which alleged he and his codefendants "knowingly and intentionally possess[ed] with the intent to distribute or dispense more than 1000 marijuana plants ... in violation of Title 21, United States Code, Section 841(a)(1); with reference to Title 21, United States Code, Sections 812 and 841(b)(1)(A)." The only substantive charge in Count 2 was that Mr. Silvers possessed marijuana with the intent to distribute in violation of 21 U.S.C. § 841(a). The other statutes cited are not substantive offenses: 21 U.S.C. § 812 is the schedule of controlled substances, and 21 U.S.C. § 841(b)(1)(A) prescribes certain mandatory minimum penalties for violations of 21 U.S.C. § 841(a). Our cases make clear not only that the mandatory minima prescribed in 21 U.S.C. § 841(b)(1)(A) are not substantive offenses in themselves, but further that "[t]he quantity of the marijuana possessed by [the] defendant is not an element of the substantive offense as defined in 21 U.S.C. § 841(a)." United States v. Cox, 934 F.2d 1114, 1121 (10th Cir.1991); see also United States v. Underwood, 982 F.2d 426, 429-30 (10th Cir.1992) (because drug quantity is not an element of 21 U.S.C. § 841(a), defendant is not entitled to have the issue decided by a jury), cert. denied, 509 U.S. 925, 113 S.Ct. 3043, 125 L.Ed.2d 729 (1993). We have also held it is unnecessary for the government to allege drug quantity in the indictment, and that even when the government does so, the quantity alleged "does not dictate the mandatory minimum that the court is required to impose" under 21 U.S.C. § 841(b). United States v. Reyes, 40 F.3d 1148, 1151 (10th Cir.1994); see also Underwood, 982 F.2d at 429 (district court may rely on drug quantities not alleged in the indictment in calculating base offense level under U.S.S.G. § 2D1.1(c)). Because drug quantity is not an element of the offense, "the government [is] not bound to prove the quantity [of drugs] seized beyond a reasonable doubt," Cox, 934 F.2d at 1121, in order to obtain a conviction under 21 U.S.C. § 841(a); rather, the government is required only to prove the quantity of drugs attributable to the defendant by a preponderance of the evidence at sentencing in...