U.S. v. Olness, 93-1360

Decision Date18 November 1993
Docket NumberNo. 93-1360,93-1360
Citation9 F.3d 716
PartiesUNITED STATES of America, Appellee, v. Marilyn Mae OLNESS, also known Marilyn Mae Nix, also known as Marilyn Mae Thornell, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Glenn P. Bruder, Minneapolis, MN, argued, for appellant.

Andrew Stephen Dunne, Minneapolis, MN, argued (Francis X. Hermann and Andrew Dunne, on the brief), for appellee.

Before JOHN R. GIBSON, MAGILL, and LOKEN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Marilyn Mae Olness appeals her conviction of conspiracy to possess with intent to distribute and to distribute cocaine base in violation of 21 U.S.C. Sec. 846 and 841(b)(1)(B) (1990) entered on a guilty plea. The only issue on appeal is the propriety of the imposition of a ten year mandatory minimum sentence under 21 U.S.C. Sec. 841(b)(1)(A)(iii). Olness argues that the indictment did not allege the specific amount of cocaine base involved in the conspiracy, and accordingly that the mandatory minimum sentence should not have been imposed. We affirm the judgment of the district court 1.

Olness was charged in a seven-count indictment and pleaded guilty to Count I, conspiracy to possess with intent to distribute and to distribute cocaine base. Counts II through VII, containing individual transactions of distributing cocaine base, were dismissed, but she executed a written plea agreement acknowledging that a total of 63 grams of cocaine base were involved in Counts II through VII of the indictment which resulted in a base offense level of 32 under the applicable sentencing guideline. She and the government disagreed with respect to the applicability of the mandatory minimum ten year term of imprisonment. 2 Count I of the indictment did not allege any particular quantity involved in the conspiracy, and Olness argues that the district court was thus precluded from applying the mandatory minimum sentence. Rejecting her argument, the district court imposed the ten year mandatory minimum sentence.

On appeal, Olness argues that the district court's imposition of the mandatory sentence was in error. She relies specifically on the dissenting opinion of Judge Bright in United States v. Wood, 834 F.2d 1382, 1390 (8th Cir.1987), as well as opinions from other circuits: United States v. Alvarez, 735 F.2d 461, 467-68 (11th Cir.1984); United States v. Crockett, 812 F.2d 626, 629 (10th Cir.1987). Her argument is that these cases require that the indictment contain the quantity involved in order to support the imposition of the mandatory minimum sentence.

The shortcoming of Olness' argument is demonstrated by the opinion of this court in Wood, 834 F.2d at 1382, 1388-90, holding that quantity is not an element of the offense, but rather a sentencing factor that need not be charged in order to impose a mandatory minimum sentence. We are bound to follow the decision of another panel, which becomes the law of the circuit. Only the court en banc may overrule an earlier decision and adopt a differing rule of law. Even if we were free to depart from the rule in Wood, we would not do so because we are fully satisfied that Wood was correctly decided.

Judge Bright's dissent in Wood, upon which Olness relies, placed great emphasis on Alvarez, 735 F.2d at 461, in which the Eleventh Circuit held that because the quantity of drugs was an element of the offense, an enhanced sentence could not be imposed unless the indictment stated the quantity. In Wood, the court's opinion and the dissent focused on the relative strengths and weaknesses of Alvarez. We need not reiterate this discussion because in United States v. Perez, 960 F.2d 1569, 1574 (11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1421, 122 L.Ed.2d 790 (1993), the Eleventh Circuit expressly stated that Alvarez was no longer to be followed in that circuit. The court in Perez recognized that Alvarez was decided prior to both McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), in which the Supreme Court held that the prosecution need only prove beyond a reasonable doubt the elements of an offense, and United...

To continue reading

Request your trial
15 cases
  • U.S. v. Coy
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • April 27, 1994
    ... ... See Perez, 960 F.2d at 1574; United States v. Olness, 9 F.3d 716, 717 (8th Cir.1993) (citing Perez for the proposition that Alvarez is no longer ... ...
  • U.S. v. Clark
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 26, 2001
    ... ... 1998); United States v. Silvers, 84 F.3d 1317 (10th Cir. 1996); United States v. Olness, 9 F.3d 716 (8th Cir. 1993). The Government has conceded and I find that Apprendi announced a new ... at 499 ...                 Because this conclusion puts us at odds with three of our sister circuits, I pause to consider whether their analysis reveals some ... ...
  • Thurairajah v. City of Fort Smith
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • July 2, 2021
    ... ... 7 While Trooper Cross urges us not to follow Piper because it was "wrongly decided and not consistent with Farrar ," ... Olness , 9 F.3d 716, 717 (8th Cir. 1993). 8 Thurairajah initially offered to the settle the case for ... ...
  • U.S. v. Patterson
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 23, 2005
    ... ... See Foster, 344 F.3d at 802; United States v. Olness, 9 F.3d 716, 717 (8th Cir.1993), cert. denied, 510 U.S. 1205, 114 S.Ct. 1326, 127 L.Ed.2d 674 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT