U.S.A. v. Brough

Decision Date22 March 2001
Docket NumberNo. 00-2695,00-2695
Citation243 F.3d 1078
Parties(7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Jerome Brough, Defendant-Appellant
CourtU.S. Court of Appeals — Seventh Circuit

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98-CR-222--C.N. Clevert, Judge.

Before Cudahy, Easterbrook, and Rovner, Circuit Judges.

Easterbrook, Circuit Judge.

After a bench trial, Jerome Brough was convicted of conspiring to distribute both heroin and crack cocaine, and he was sentenced to life imprisonment. His main appellate arguments arise from Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)-- oddly, because Apprendi principally concerns the division of responsibility between judge and jury, while Brough agreed that all issues in his case would be resolved by a judge. But Apprendi affects the burden of persuasion as well as the identity of the decisionmaker, so it has potential bearing even when the defendant has waived his entitlement to decision by a jury.

Brough's lead argument is that 21 U.S.C. sec.841 is unconstitutional (and that all conspiracy convictions under 21 U.S.C. sec.846 fail derivatively) because sec.841 does not mention the burden of persuasion (or the allocation of issues between judge and jury) and does not identify sentencing considerations as elements of the offense. Section 841(a), captioned "Unlawful acts", provides:

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally--(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

Then sec.841(b), captioned "Penalties", says that "any person who violates subsection (a) of this section shall be sentenced as follows" and lays out the minimum and maximum penalties for various types and quantities of drugs, with adjustments depending on whether the defendant has prior drug-related convictions and whether the activities caused death or serious injury. Until Apprendi we took Congress at its caption and held that only the elements specified in sec.841(a) need be proved beyond a reasonable doubt to the jury's satisfaction; the penalty provisions in sec.841(b) were to be administered by the sentencing judge under the preponderance standard. See United States v. Edwards, 105 F.3d 1179 (7th Cir. 1979), affirmed, 523 U.S. 511 (1998); United States v. Jackson, 207 F.3d 910 (7th Cir. 2000), remanded, 121 S. Ct. 376 (2000), decision on remand, 236 F.3d 886 (7th Cir. 2001). But United States v. Nance, 236 F.3d 820 (7th Cir. 2000), holds that Apprendi requires a different approach, and that all facts (other than prior convictions) that set the maximum possible punishment under sec.841(b) must be established beyond a reasonable doubt to the satisfaction of the same body that determines culpability under sec.841(a). See also, e.g. United States v. Patterson, No. 97-3159 (7th Cir. Mar. 2, 2001); United States v. Westmoreland, No. 99-1491 (7th Cir. Feb. 15, 2001), and the opinion on remand in Jackson. These constitutional requirements are external to sec.841. It follows, Brough believes, that sec.841 is unconstitutional and cannot support any criminal punishment, for courts are not supposed to rewrite criminal statutes and sec.841 cannot be severed to produce a constitutional rule.

Brough's argument is confused. Apprendi and Nance do not establish that anything in sec.841 is unconstitutional or require its severance. If Congress had specified that only judges may make the findings required by sec.841(b), or that these findings must be made by a preponderance of the evidence, then sec.841 would create a constitutional problem. But the statute does not say who makes the findings or which party bears what burden of persuasion. Instead the law attaches effects to facts, leaving it to the judiciary to sort out who determines the facts, under what burden. It makes no constitutional difference whether a single subsection covers both elements and penalties, whether these are divided across multiple subsections (as sec.841 does), or even whether they are scattered across multiple statutes (see 18 U.S.C. sec.sec. 924(a), 1963). Apprendi holds that the due process clauses of the fifth and fourteenth amendments make the jury the right decisionmaker (unless the defendant elects a bench trial), and the reasonable-doubt standard the proper burden, when a fact raises the maximum lawful punishment. How statutes are drafted, or implemented, to fulfil that requirement is a subject to which the Constitution does not speak.

Once the maximum penalty has been established in a constitutional manner, the judge selects a punishment using the preponderance standard. See Edwards, 523 U.S. at 514-15. Thus we concluded in Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000), that if (for example) the indictment specifies that the drug was cocaine or heroin, then any penalty up to 20 years is lawful even if the jury does not find a particular quantity, because 20 years is the maximum under sec.841(b)(1)(C) for unlawfully distributing any detectable quantity of any Schedule I or II controlled substance. See also, e.g., Westmoreland, at 636. Edwards and Talbott demonstrate, and we now hold, that there is no constitutional defect in the design of sec.841, and that there is no impediment to convictions under the statute as written. Accord, United States v. Candelario, 240 F.3d 1300, 1311 n. 16 (11th Cir.2001). Apprendi strongly affects how sec.841 is implemented; as we concluded in Nance and Westmoreland, a post-Apprendi indictment should specify, and the trier of fact must be instructed to determine, not only the elements of the offense, which appear in sec.841(a), but also the events listed in sec.841(b) on which the prosecutor relies to establish the maximum sentence. But even if the trier of fact does not find any particular drug or quantity, a convicted defendant still faces some penalty--if only the one year for...

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