U.S. v. Eirby, 00-1945

• Decision Date: 29 August 2001
• Docket Number: No. 00-1945,00-1945
• Citation: 262 F.3d 31
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. KENNETH J. EIRBY, Defendant, Appellant
• Court: U.S. Court of Appeals — First Circuit

Page 31

262 F.3d 31 (1st Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. KENNETH J. EIRBY, Defendant, Appellant.

No. 00-1945

United States Court of Appeals For the First Circuit

Submitted June 15, 2001

Decided August 29, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Edward S. MacColl and Thompson, Bull, Furey, Bass & MacColl, LLC, P.A., on brief for appellant.

Jay P. McCloskey, United States Attorney, and F. Mark Terison, Senior Litigation Counsel, on brief for appellee.

Before Boudin, Chief Judge, Torruella and Selya, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Kenneth J. Eirby complains that the district court impermissibly attributed to him, for sentencing purposes, a quantity of crack cocaine (cocaine base) greater than that described in the indictment and plea agreement. In his view, the resultant sentence and the methodology used to arrive at it intrude upon the prerogative of the grand jury and, in the bargain, offend the principles enunciated in Apprendi v. New Jersey, 530 U.S. 466 (2000). In a more global attack on his sentence, he also asseverates that the federal criminal statutes and sentencing guidelines are unconstitutional to the extent that they afford widely disparate treatment to cocaine in its base and powder forms. Discerning no reversible error, we affirm.

I. Background

The facts are virtually undisputed. In late 1999, law enforcement officers caught the appellant red-handed as he endeavored to peddle cocaine base. A federal grand jury sitting in the District of Maine thereafter returned a two-count indictment against him. The appellant eventually agreed to plead guilty to the first count of the indictment (which charged him with conspiracy to distribute cocaine base) and the government agreed to dismiss the second count (which charged a specific distribution offense). Like the indictment itself, a non-binding plea agreement (the Agreement), entered into between the appellant and the government under the aegis of Fed. R. Crim. P. 11(e)(1)(B), mentioned 21 U.S.C. § 841(b)(1)(B) and described the "penalty which may be imposed upon conviction" as "a term of imprisonment of not less than five years or more than forty years" (the precise parameters limned in section 841(b)(1)(B)).

Based on the presentence investigation report, the district court, over objection, found the appellant responsible for 147 grams of crack cocaine (enough to subject him to a different penalty provision -- that contained in 21 U.S.C. § 841(b)(1)(A)).¹ Because the indictment and the Agreement each referenced section 841(b)(1)(B) rather than section 841(b)(1)(A), the district court recessed the disposition hearing and offered the appellant an opportunity to withdraw his plea.

After considering the court's offer for approximately five weeks, the appellant decided to proceed, but reserved the right to appeal the determination that section 841(b)(1)(A) applied. The parties subsequently stipulated, for sentencing purposes, that the appellant "[was] responsible for at least 50 grams, but less than 150 grams, of cocaine base," and that his base offense level was 32.

When the district court reconvened the disposition hearing, it rejected the appellant's constitutional challenge to the disparity between cocaine base and cocaine powder. Moving from the general to the specific, the court found that the appellant's relevant criminal conduct consisted of distributing 147 grams of crack cocaine (cocaine base). After applying an appropriate three-level reduction for acceptance of responsibility, see USSG §3E1.1, the court arrived at an adjusted offense level of 29. In conjunction with the appellant's criminal history category (II), the adjusted offense level yielded a guideline sentencing range (GSR) of 97-121 months. The court's drug-quantity determination and its invocation of section 841(b)(1)(A) brought into play a mandatory minimum sentence of 120 months (which, coincidentally, was within the GSR). Starting from that baseline, the court departed downward for substantial assistance, USSG §5K1.1, and sentenced the appellant to serve a 66-month incarcerative term. This appeal followed.²

II. Discussion

The appellant's best argument is that the district court usurped the grand jury's province by impermissibly substituting 21 U.S.C. § 841(b)(1)(A) for 21 U.S.C. § 841(b)(1)(B). While this argument obliquely involves Apprendi, he places his next three arguments squarely under the Apprendi umbrella. He asserts that, post-Apprendi, drug quantity no longer can be treated as a sentencing factor, but, rather, must be treated as an element of the offense--and therefore must be charged in the indictment and proven beyond a reasonable doubt; that the lower court's drug-quantity determination, made pursuant to a preponderance-of-the-evidence standard, exposed him to a higher mandatory minimum sentence (and, thus, offended Apprendi); and that Apprendi requires a distinction, not drawn by the court below, between the quantity of drugs "involved" in an offense (for the purpose of ascertaining the applicable statutory mandatory minimum sentence) and the quantity of drugs for which a defendant is "responsible" (for the purpose of determining the applicable GSR). The appellant's last argument assails, on constitutional grounds, what he deems the draconian nature of the criminal penalties that Congress has attached to crack cocaine.

A. Standards of Review

We pause at the onset to delineate the standard of review. The appellant squarely challenged the district court's invocation of section 841(b)(1)(A) and argued below that he should have been sentenced under section 841(b)(1)(B). Since that argument presents an abstract legal question, our review is plenary. United States v. Conley, 156 F.3d 78, 82 (1st Cir. 1998). The same holds true for the appellant's cocaine base/cocaine powder "disparity" argument. See United States v. Gifford, 17 F.3d 462, 471-72 (1st Cir. 1994) (holding that questions involving the constitutionality of statutes engender plenary review). In contrast, the appellant's three Apprendi-based claims are raised for the first time on appeal. As such, our review of those claims is for plain error. This entails a quadripartite showing: "(1) that there was error; (2) that it was plain; (3) that the error affect[ed] substantial rights; and (4) that the error affected the fairness, integrity, or public reputation of judicial proceedings." United States v. Gomez, 255 F.3d 31, 42 (1st Cir. 2001).

B. Necessary Background

Before grappling with the appellant's contentions, we offer some background. Pre-Apprendi, this court had held that the drug-quantity delineations contained in 21 U.S.C. § 841(b)(1) were not elements of the corresponding offense, but, rather, sentencing factors "relevant only for determining the penalty." United States v. Lindia, 82 F.3d 1154, 1160 (1st Cir. 1996). Under that holding, specific drug quantities did not have to be charged in the indictment and the drug weights necessary to implement section 841(b)(1)'s penalty scheme could be determined by the sentencing judge under a preponderance-of-the-evidence standard. Id. at 1161. The Court's decision in Apprendi requires some rethinking of this approach. See United States v. Robinson, 241 F.3d 115, 123 (1st Cir. 2001) (explaining that Apprendi "shifted the tectonic plates insofar as criminal sentencing is concerned").

The core holding of Apprendi is that, apart from the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must both be charged in the indictment and submitted to a jury for a determination under the beyond-a-reasonable-doubt standard. Apprendi, 530 U.S. at 490. Under this holding, a finding of drug quantity which increases a defendant's sentence beyond the otherwise applicable statutory maximum must be proved to the jury beyond a reasonable doubt. United States v. Westmoreland, 240 F.3d 618, 631-32 (7th Cir. 2001). To that extent, then, the notion that the quantity determinations demanded by section 841(b)(1) are merely sentencing factors is no longer completely true. See United States v. Duarte, 246 F.3d 56, 61 (1st Cir. 2001); United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000).

Still, Apprendi does not call for full abrogation of our prior practice. In particular, the Apprendi doctrine offers no advantage to a defendant who is sentenced to a term less than the otherwise applicable statutory maximum. We expounded on this point in United States v. Caba, 241 F.3d 98 (1st Cir. 2001):

By its own terms, the holding in Apprendi applies only when the disputed "fact" enlarges the applicable statutory maximum and the defendant's sentence exceeds the original maximum. For this reason, Apprendi simply does not apply to guideline findings (including, inter alia, drug weight calculations) that increase the defendant's sentence, but do not elevate the sentence beyond the lowest applicable statutory maximum.

Id. at 101 (citations omitted). This means that when a defendant is sentenced to less than the default statutory maximum for violating section 841(a) -- twenty years in prison, see 21 U.S.C. § 841(b)(1)(C) -- Apprendi is irrelevant. See United States v. Terry, 240 F.3d 65, 74 (1st Cir. 2001). In such circumstances, judicial determination of drug quantity under a preponderance-of-the-evidence standard remains a viable option. See Caba, 241 F.3d at 101; United States v. Baltas, 236 F.3d 27, 41 (1st Cir. 2001).

C. The Indictment-Based Argument

Apprendi bears only a glancing relationship to the appellant's first argument. The count of conviction -- the text of which is annexed as an appendix to this opinion -- charged the appellant with participation in a drug-trafficking conspiracy in violation of 21 U.S.C. § 846. Th...