U.S. v. Goodine

• Decision Date: 09 April 2003
• Docket Number: No. 02-1953.,02-1953.
• Citation: 326 F.3d 26
• Parties: UNITED STATES of America, Appellee, v. Brian GOODINE, a/k/a Dwayne Goodine, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 26

326 F.3d 26

UNITED STATES of America, Appellee, v. Brian GOODINE, a/k/a Dwayne Goodine, Defendant, Appellant.

No. 02-1953.

United States Court of Appeals, First Circuit.

Heard January 10, 2003.

Decided April 9, 2003.

Rehearing and Suggestion for Rehearing En Banc Denied May 19, 2003.

Peter E. Rodway, with whom Rodway & Horodyski was on brief, for appellant.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D. Silsby, United States Attorney, were on brief, for appellee.

Before BOUDIN, Chief Judge, TORRUELLA and LYNCH, Circuit Judges.

TORRUELLA, Circuit Judge.

A jury convicted Defendant-Appellant Brian Goodine¹ of conspiracy and possession with intent to distribute cocaine base ("crack"), in violation of 21 U.S.C. §§ 841(a)(1) & 846 (2003). By special verdict form, the jury indicated that the amount for each count was at least five, but less than fifty grams of cocaine base. The judge, however, determined that Goodine was responsible for 309.2 grams of crack, and sentenced him accordingly.

We are faced with two closely-related issues on appeal. First, Goodine alleges that the different penalty provisions under § 841(b) create separate crimes requiring the government to prove drug quantity beyond a reasonable doubt. Goodine asserts that he could only be sentenced pursuant to the jury's determination of drug quantity, but was erroneously sentenced pursuant to the judge's determination. Second, the judge imposed a mandatory minimum sentence based on drug quantity proved by preponderance of the evidence. Goodine raises an Apprendi challenge because that mandatory minimum sentence is higher than the sentencing guideline range to which he was exposed before the judge's finding as to drug quantity.

We find that drug quantity in § 841(b) is a sentencing factor, not an element of separate crimes. We also find that no Apprendi violation occurred here because the sentencing guidelines are not "statutory maximums" for purposes of Apprendi, and Goodine was not sentenced to a penalty greater than that authorized by the jury's finding. Goodine's sentence is therefore affirmed.

I. Introduction

Goodine does not dispute the jury verdict or the findings by the judge. He raises two legal challenges to his sentence. Goodine preserved these appeals at sentencing; we therefore apply de novo review. United States v. Henderson, 320 F.3d 92, 110 (1st Cir.2003); United States v. Eirby, 262 F.3d 31, 36 (1st Cir.2001).

II. Drug Quantity as Sentencing Factors

A. Issue

The second subsection of the statute for drug possession with intent to distribute² delineates different penalty provisions based on drug quantity and other factors.³ See 21 U.S.C. § 841(b). Three such provisions are relevant here. Defendants responsible for an unspecified amount of crack are exposed to a maximum sentence of twenty years under § 841(b)(1)(C), or thirty years if the defendant has a prior drug offense conviction. Defendants responsible for five or more grams of crack are exposed to five to forty years in prison, or ten years to life for defendants with a prior felony drug offense conviction under § 841(b)(1)(B). Finally, defendants responsible for at least fifty grams of crack are sentenced under § 841(b)(1)(A), which carries a possible penalty of ten years to life, or twenty years to life for defendants who have a prior conviction for a felony drug offense.

The jury convicted Goodine of possession with intent to distribute at least five grams (but less than fifty grams) of crack. Strictly following the jury's conviction, Goodine (who has a prior conviction for a felony drug offense) would be subject to a ten-year mandatory minimum sentence under § 841(b)(1)(B). However, the judge determined that Goodine was responsible for 309.2 grams of crack and sentenced him to the mandatory minimum sentence under § 841(b)(1)(A) — twenty years.

Goodine asserts that § 841(b)(1)(A), (B), and (C) are different crimes with drug quantity as the differing element, and that because the government only proved beyond a reasonable doubt that he was responsible for five grams, he could only be sentenced to a ten-year mandatory minimum sentence under § 841(b)(1)(B). Goodine challenges the legal decision of the district court to sentence him under § 841(b)(1)(A) instead of § 841(b)(1)(B).

The government must prove every element of a crime beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). However, mere sentencing factors do not require such proof. Patterson v. N.Y., 432 U.S. 197, 207, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (holding that the State need not "prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as ... affecting... the severity of the punishment"). While the legislature is generally free to identify elements and sentencing factors, there are constitutional limits to this power. McMillan v. Pennsylvania, 477 U.S. 79, 86, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). We must determine whether drug quantity is an element of offenses under § 841 that must be proved beyond a reasonable doubt, or merely a sentencing factor that may be determined by the judge by a preponderance of the evidence.

B. Relevant Cases

The distinction between "elements" and "sentencing factors" can be elusive, see Apprendi, 530 U.S. at 494, 120 S.Ct. 2348, and we admit that we have been wrong on similar questions before. See United States v. Rivera-Gómez, 67 F.3d 993, 996 (1st Cir.1995) (holding that the federal carjacking statute identified only one crime; later rejected by the Supreme Court in Jones v. United States, 526 U.S. 227, 229, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)). This question is complicated by the Supreme Court's recent sentencing decisions. Before Apprendi, we held that drug-quantity delineations contained in § 841(b)(1) were sentencing factors that could be determined by a preponderance of the evidence. See United States v. Lindia, 82 F.3d 1154, 1160-61 (1st Cir.1996). However, we have noted that the Supreme Court's decision in Apprendi "requires some rethinking of this approach." United States v. Eirby, 262 F.3d 31, 36 (1st Cir.2001).

There is a split among our sister circuits who have considered this issue post-Apprendi. Compare United States v. Wade, 318 F.3d 698, 705 (6th Cir.2003) (holding that drug quantity under § 841 need not be proved beyond a reasonable doubt) and United States v. Smith, 308 F.3d 726, 740 (7th Cir.2002) (same), with United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir.2000) ("If the government seeks enhanced penalties under 21 U.S.C. § 841(b)(1)(A) or (B), the [drug] quantity must be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable doubt."), followed in United States v. Turner, 319 F.3d 716, 721-22 (5th Cir.2003) and United States v. Buckland, 289 F.3d 558, 568 (9th Cir.2002) (en banc).

This case presents us with a post-Apprendi opportunity to determine congressional intent regarding the drug quantity language of § 841. Cf. United States v. Terry, 240 F.3d 65, 74 n. 9 (1st Cir.2001) (not reaching the issue). We are assisted in this task by the Supreme Court's determination of congressional intent behind similar statutes. Five cases shape our analysis.

First, in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the Supreme Court found that a five year mandatory minimum sentence for visible possession of a firearm during certain enumerated felonies was a sentencing factor that could be determined at sentencing. Id. at 84, 106 S.Ct. 2411. The felonies had maximum sentences of ten or twenty years, and the Court found that the "statute [gave] no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense." Id. at 88, 106 S.Ct. 2411. The Court found that the instrumentality used in commission of a crime was a factor "that has always been considered by sentencing courts to bear on punishment" and therefore was not an element of the crime. Id. at 89, 106 S.Ct. 2411. Although this was the first time the Supreme Court identified "sentencing factors" as distinct from "elements" of a crime, McMillan has subsequently been reaffirmed in light of recent sentencing decisions. Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 2420, 153 L.Ed.2d 524 (2002).

In the second case, Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Court considered 8 U.S.C. § 1326(b)(2), which predicated an increase in penalty on a prior conviction of aggravated felony. The Court held that prior conviction is a sentencing factor rather than an element establishing a separate offense. Id. at 226-27, 118 S.Ct. 1219. In reaching this conclusion, the Court engaged in a detailed analysis of the statute's language, structure, legislative history, caption and placement, id. at 230-35, 118 S.Ct. 1219, as well as functional factors such as potential unfairness, the magnitude of the increase, and whether prior conviction is traditionally treated as a sentencing factor or an element of the offense, id. at 234-36, 118 S.Ct. 1219.

In the third case, Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Court construed the federal carjacking statute, 18 U.S.C. § 2119 (1994 ed. & Supp. V). At the time, the statute set three different maximum sentences: fifteen years for a carjacking, twenty-five years if serious bodily injury resulted, and life imprisonment if death resulted. Id. at 230, 119 S.Ct. 1215. The question was whether the statute "defined three distinct offenses or a single crime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from the requirements of charge and jury verdict." Id. at 229, 119 S.Ct. 1215.

The Supreme Court began with the language and structure of the statute, noting that the statute...