U.S. v. Ashley

• Decision Date: 08 June 1994
• Docket Number: No. 93-1231,93-1231
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sean ASHLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1008

26 F.3d 1008

UNITED STATES of America, Plaintiff-Appellee, v. Sean ASHLEY, Defendant-Appellant.

No. 93-1231.

United States Court of Appeals, Tenth Circuit.

June 8, 1994.

Charlotte J. Mapes, Asst. U.S. Atty. (Henry L. Solano, U.S. Atty., John M. Hutchins, Asst. U.S. Atty., and Daniel J. Cassidy, Asst. U.S. Atty., Dist. of Colo., with her on the brief), Mountain States Drug Task Force, Denver, CO, for plaintiff-appellee.

Clifford J. Barnard, Boulder, CO, for defendant-appellant.

Before BRORBY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and BROWN, Senior District Judge. ^*

McWILLIAMS, Senior Circuit Judge.

This appeal concerns the relationship between 21 U.S.C. Sec. 841(a)(1) (1988) and 21 U.S.C. Sec. 860(a) (Supp. IV 1992). Section 841(a)(1) provides that it shall be unlawful for any person to knowingly and intentionally distribute a controlled substance. Section 860(a) provides that any person who violates section 841(a)(1) by distributing a controlled substance within 1,000 feet of, inter alia, a public school, is subject to twice the maximum punishment authorized by section 841(a)(1). Specifically, section 860(a) reads as follows:

(a) Penalty

Any person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school of a public or private college, junior college, or university, or a playground, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, is (except as provided in subsection (b) of this section) subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. A fine up to twice that authorized by section 841(b) of this title may be imposed in addition to any term of imprisonment authorized by this subsection. Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year. The mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of marihuana.

In a seven-count indictment, Sean Ashley was charged as follows:

1. In count 1 Ashley was charged with knowingly and intentionally distributing on or about June 18, 1992, approximately 12.71 grams of cocaine base, a Schedule II controlled substance, within 1,000 feet of East Denver High School, a public secondary school in violation of 21 U.S.C. Secs. 841(a) and 860;

2. In count 2 Ashley was charged with unlawfully and intentionally distributing on or about June 23, 1992, approximately 25.55 grams of cocaine base, a Schedule II controlled substance, in violation of 21 U.S.C. Sec. 841(a)(1);

3. In count 3 Ashley was charged with unlawfully and intentionally distributing on or about July 3, 1992, approximately 44.79 grams of cocaine base, a Schedule II controlled substance, within 1,000 feet of East High School, in violation of 21 U.S.C. Secs. 841(a)(1) and 860;

4. In count 4 Ashley and one Ramona Jean Cooper were charged with unlawfully and intentionally distributing on or about July 11, 1992, approximately 53.31 grams of cocaine base, a Schedule II controlled substance, within 1,000 feet of East High School, in violation of 21 U.S.C. Secs. 841(a)(1) and 860;

5. In count 5 Ashley was charged with unlawfully and intentionally distributing on or about August 19, 1992, approximately 46.50 grams of cocaine base, a Schedule II controlled substance, within 1,000 feet of East High School, in violation of 21 U.S.C. Secs. 841(a)(1) and 860;

6. In count 6 Ashley was charged with unlawfully and intentionally distributing on or about September 16, 1992, approximately 23.40 grams of cocaine base, a Schedule II controlled substance, within 1,000 feet of East High School, in violation of 21 U.S.C. Secs. 841(a)(1) and 860; and

7. In count 7 Ashley was charged with unlawfully and intentionally distributing on or about December 1, 1992, approximately 411.52 grams of cocaine base, a Schedule II controlled substance, within 1,000 feet of East High School, in violation of 21 U.S.C. Secs. 841(a)(1) and 860.

During the conference on jury instructions, there was colloquy between court and counsel as to whether section 860(a) sets forth a substantive offense independent of section 841(a)(1), or was merely a "sentencing enhancer" for one convicted under section 841(a)(1), and just how the jury should be instructed on the matter. Initially, the court and counsel for Ashley apparently agreed that section 860(a) was only a sentencing enhancer. Counsel for Ashley later changed his mind and then argued, along with counsel for Cooper, a co-defendant with Ashley in one count, that section 860(a) created a substantive offense and that one essential element of that offense was that the sale take place within 1,000 feet of a public school.

The district court eventually concluded that section 860(a) was only a sentencing enhancer and instructed the jury that it should disregard all testimony concerning the distance between the place of distribution and East High School. In this regard, the district court instructed the jury as follows:

Now, you will note that there is in the indictment certain language concerning the fact that this location was allegedly within 1,000 feet of a school. And you've heard certain testimony to that effect. I now instruct you that you should not be confused or concerned about the 1,000 feet because it's not going to appear in these instructions. The 1,000 feet within a school language in the indictment bears on a question that is a decision for the Court alone at another point in the proceedings. So don't be confused by anything or any language concerning the allegation that this was with [sic] 1,000 feet of a school.

In line with the foregoing instruction given the jury, the district court went on to instruct the jury as follows:

The statute [here] in question, and there is only one statute that defines the substantive crime, is Section 841(a)(1) of Title 21 of the United States Code. It provides in part as follows. "It shall be unlawful for any person knowingly or intentionally to distribute a controlled substance." Now, there are several elements implicit in that statutory language, and I will define those elements for you.

In order to sustain its burden of proof for the crime of distribution of a controlled substance, as charged in all seven counts of the indictment, the government must prove that on each such occasion for each such charge, that the following elements were satisfied. One, that the defendant whose guilt you have under consideration at a particular time, either Mr. Ashley or Ms. Cooper, knowingly and intentionally distributed a measureable amount of cocaine base, the controlled substance charged in the indictment. Secondly, at the time of the distribution, the defendant in question, Mr. Ashley or Ms. Cooper, depending on who[m] you are looking at [at] the particular time, knew that the substance was cocaine base, a controlled substance.

So there are two elements; one is that the defendant knowingly and intentionally distributed a measurable amount of cocaine base, and two, at the time of such distribution, the defendant knew that the substance distributed was cocaine base, a controlled substance.

The jury acquitted Cooper, but convicted Ashley on all seven counts in the indictment. Ashley was sentenced under the United States Sentencing Guidelines ("U.S.S.G.") to imprisonment for 240 months. Ashley now appeals his convictions and sentence imposed thereon.

Ashley's initial argument is that the district court erred in holding that section 860(a) is only a sentencing enhancer and does not create a substantive offense. The government in this Court agrees with appellant. We also agree. An opinion from this Court filed after the trial in the instant case resolves this question. See United States v. Smith, 13 F.3d 380 (10th Cir.1993). In Smith we spoke as follows:

We agree with those circuits that have concluded that Sec. 860 constitutes an "offense" which has as an element of proof that the distribution occurred within 1,000 feet of a protected place. While some circuits construed Sec. 860 before it was renumbered and amended, these differences do not affect our inquiry. Similarly, Sec. 860(a) includes as protected places playgrounds and various types of schools. Some circuits construed the statute in the school context, yet the analysis of Sec. 860(a) as an offense would also apply to a playground. See United States v. Freyre-Lazaro, 3 F.3d 1496, 1507 (11th Cir.1993) (holding that Sec. 841(a) is a lesser included offense of Sec. 860); United States v. Scott, 987 F.2d 261, 266 (5th Cir.1993) (same); United States v. Thornton, 901 F.2d 738, 741 (9th Cir.1990) (statute "incorporates the sentencing enhancement element into the underlying offense"); United States v. Holland, 810 F.2d 1215, 1218 (D.C.Cir.) (statute "adds an element to the offense of section 841(a)" which must be "proved"), cert. denied, 481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 854 (1987).

Smith, 13 F.3d at 382-83.

In this Court at oral argument, counsel for Ashley argued that Ashley's six convictions for distributing cocaine base within 1,000 feet of East High School should be reversed and the case remanded for a new trial. ¹ In his written brief, counsel's position was basically the same as the government, i.e., the judgment and sentence should be reversed and the case remanded with direction that Ashley be adjudged guilty of violations of section 841(a)(1), a lesser included offense to section 860(a), and resentenced in accord with section 841(a)(1)...