U.S. v. Chandler

• Decision Date: 10 October 1997
• Docket Number: No. 96-20727,96-20727
• Citation: 125 F.3d 892
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Lee CHANDLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 892

125 F.3d 892

UNITED STATES of America, Plaintiff-Appellee, v. Michael Lee CHANDLER, Defendant-Appellant.

No. 96-20727.

United States Court of Appeals, Fifth Circuit.

Oct. 10, 1997.

Alice Ann Burns, Paula Camille Offenhauser, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Federal Public Defender, Renata Ann Gowie, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and BENAVIDES and PARKER, Circuit Judges.

BENAVIDES, Circuit Judge:

The defendant, Michael Lee Chandler, appeals the sentence imposed following his guilty plea to one count of possessing cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). For the reasons set forth below, we vacate and remand for resentencing.

I.

On July 21, 1995, Houston Police Officer Steve Frank was patrolling the Irvington Village Apartment Complex, a federally funded public housing complex, located in Houston, Texas, as part of his regular assignment. At approximately 11:30 p.m., Officer Frank observed Chandler, who was sitting on a bicycle, leaning into the window of a Chevy Blazer and speaking to the driver. When Officer Frank saw Chandler, he noticed that Chandler's bicycle had no headlight, which was a violation of a city ordinance. Officer Frank also suspected, based on his experience as a police officer, that Chandler might be dealing in narcotics. Based on these observations, Officer Frank started to approach Chandler.

When Chandler observed Officer Frank approaching him, Chandler turned and fled on his bicycle. A chase ensued. During the chase, Chandler threw a medicine bottle he was carrying into some nearby bushes. Shortly thereafter, Officer Frank caught Chandler, handcuffed him, and placed him in the back of his patrol car. Officer Frank then retrieved the medicine bottle, the contents of which field-tested positive for the presence of cocaine. Laboratory tests later revealed that the medicine bottle contained 13.2 grams of crack cocaine. In addition, during a routine pat-down search of the defendant, Officer Frank discovered that Chandler had $2600 in cash, mostly in small denominations, on his person.

On August 11, 1995, Chandler was charged in a one-count indictment with possession with intent to distribute five or more grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 860. Although the indictment cited 21 U.S.C. § 860, counsel for the government conceded at oral argument that it was never the government's intention to charge the defendant with violating § 860. Instead, counsel stated that the government sought to charge the defendant under § 841(a)(1) and then seek a sentence enhancement under § 860.

On March 11, 1996, Chandler pleaded guilty to violating § 841(a)(1) (possession with intent to distribute a controlled substance). At the rearraignment, the district court advised Chandler of the penalties for violating § 841(a)(1) as those penalties are prescribed in § 841(b)(1)(B)(iii). Specifically, the court advised Chandler that the offense to which he pleaded guilty carried a punishment of five to forty years imprisonment, up to four years of supervised release, and up to a two million dollar fine. At no point during the rearraignment did the court inform the defendant of the penalties associated with violating § 860.

In preparation for sentencing, the court instructed the Probation Officer to prepare a presentence investigation report ("PSR"). The PSR in this case reflected a base offense level of 26 under U.S.S.G. § 2D1.1, but added a two-level increase under U.S.S.G. § 2D1.2 because the offense occurred near a protected location, as defined by 21 U.S.C. § 860. After a three level reduction for acceptance of responsibility, the PSR reflected a total offense level of 25. Based on four criminal history points, the PSR Addendum reflected a criminal history category of III, resulting in an imprisonment range of seventy to eighty-seven months. The PSR also reflected harsher penalties than those discussed at the rearraignment. In particular, the PSR reflected that the statutory punishment range was five to eighty years imprisonment, up to eight years of supervised release, and up to a four million dollar fine.

Chandler filed a written objection to the PSR, in which he objected, inter alia, to the two-level increase under § 2D1.2. According to Chandler, the increase under § 2D1.2 was inappropriate because he had not pleaded guilty to violating 21 U.S.C. § 860. At the sentencing on July 29, 1996, the district court overruled Chandler's objections and sentenced Chandler to eighty-seven months imprisonment, to be followed by an eight-year term of supervised release. In addition, although the district court did not fine Chandler, finding that he lacked the resources to pay such a fine, the district court did impose a fifty dollar special assessment. Finally, the district court ordered that Chandler pay half of his prison earnings, if any, to his daughter's mother for child support.

II.

Chandler raises four issues on appeal. First, Chandler argues that the district court improperly increased his sentence on the basis of 21 U.S.C. § 860 and U.S.S.G. § 2D1.2. According to Chandler, § 860 is a substantive offense and its enhanced penalties, including application of U.S.S.G. § 2D1.2, apply only when a person is convicted of violating § 860. Second, Chandler argues that, because § 860 is a substantive offense, the indictment was fundamentally defective because it failed to allege the essential elements of § 860. Third, Chandler argues that, because § 860 is a substantive offense, the district court failed to comply with Rule 11 of the Federal Rules of Criminal Procedure by not informing him of the penalties associated with violating § 860. Finally, defendant argues that the district court lacked authority to order the defendant to make child support payments as a criminal sanction.

A.

1.

The threshold issue in this case is whether 21 U.S.C. § 860 is a substantive offense or merely a penalty enhancer of 21 U.S.C. § 841(a)(1). "The legal characterization of 21 U.S.C. § 860 and its relation to § 841 are questions of law to be decided de novo." United States v. Smith, 13 F.3d 380, 382 (10th Cir.1993); see United States v. Courtney, 979 F.2d 45, 48 (5th Cir.1992).

The government, relying on a number of cases from this circuit which refer to 21 U.S.C. § 860 as a sentence enhancer, see, e.g., United States v. Smith, 13 F.3d 860 (5th Cir.1994); United States v. Echevaria, 995 F.2d 562 (5th Cir.1993); United States v. Wake, 948 F.2d 1422 (5th Cir.1991), argues that Chandler's conviction was properly increased under § 860. Although we recognize that each of those cases refers to § 860 or 21 U.S.C. § 845a (now recodified as § 860) as a sentence enhancer, not one of those cases directly addressed the issue of whether § 860 was a substantive offense or merely a sentence enhancer of § 841(a)(1).

For example, in Smith, the defendants were convicted of three drug offenses in connection with the sale of crack cocaine to an undercover police officer. On appeal, the defendants argued that the district court miscalculated the quantity of crack cocaine to be considered in their sentencing. Agreeing with one of the defendants, the court reversed and remanded for resentencing. At the end of the opinion, the court noted that the drug offense for which the defendants were convicted occurred within 1000 feet of a school. According to the court, this brought into play the federal sentencing enhancement statute of 21 U.S.C. § 860. Although the court raised the possibility that an enhanced sentence was appropriate, the court specifically noted that the issue was not raised by the government and was not before the court. Smith, 13 F.3d at 868.

Likewise, in Echevaria, the defendant pleaded guilty to possession of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Echevaria, 995 F.2d at 562. At the sentencing hearing, the district court found that Echevaria's offense occurred within 1000 feet of a "protected area" and enhanced the defendant's sentence under U.S.S.G. § 2D1.2. On appeal, Echevaria challenged only whether a private kindergarten is a protected location within the meaning of § 860. Echevaria, 995 F.2d at 563. Thus, whether § 860 was a substantive offense or merely a sentence enhancer of § 841(a)(1) was not before the court.

Finally, in Wake, the defendant was specifically charged with and convicted of, inter alia, possessing with intent to distribute a controlled substance within 1000 feet of a school. 948 F.2d at 1425. On appeal, the defendant did not contest the jury's finding that he possessed cocaine within 1000 feet of a school or that he intended to distribute it somewhere. Instead, he argued that the schoolyard statute did not apply unless the jury found that he intended to distribute the controlled substance within 1000 feet of the protected area. Thus, the question of whether § 845a was a sentence enhancer or a substantive offense was neither before the court nor necessary to the resolution of the issue before it.

Contrary to the government's assertions, therefore, this court has not held that § 860 is a sentence enhancer of § 841 rather than a substantive offense. ¹ Accordingly, we now address the issue.

In determining whether a statute constitutes a sentence enhancer or a substantive offense, we look to the intent of Congress. See Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985). As always, we begin with the plain language of the statute. See United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). Section 860 provides, in relevant part:

(a) Penalty

Any person who violates section 841(a)(1) or ...