U.S. v. Henderson

• Decision Date: 19 July 2000
• Docket Number: No. Crim.A. 2:99-00214-01.,Crim.A. 2:99-00214-01.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES of America, Plaintiff, v. Mark Earl HENDERSON, Defendant.

105 F.Supp.2d 523

UNITED STATES of America, Plaintiff, v. Mark Earl HENDERSON, Defendant.

No. Crim.A. 2:99-00214-01.

United States District Court, S.D. West Virginia, Charleston Division.

July 19, 2000.

Monica K. Schwartz, Assistant United States Attorney, Charleston, WV, for plaintiff.

Matthew A. Victor, Charleston, WV, for defendant.

MEMORANDUM OPINION AND ORDER

GOODWIN, District Judge.

A federal jury convicted Mark Henderson of four counts, including counts of conspiring and attempting to commit drug offenses proscribed by 21 U.S.C. § 841. As has been the typical practice in federal drug prosecutions, the indictment did not charge, nor did the jury find, an amount of drugs attributable to Henderson. This court concludes that a recent Supreme Court opinion, Apprendi v. New Jersey, ___ U.S. ___, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), mandates that in cases in which the government seeks increased penalties, the amount of drugs involved in a violation of section 841 is an element of the offense that must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Because the authority to determine that element now rests in the hands of the jury, this court could not sentence Henderson pursuant to an increased statutory penalty range. The United States Sentencing Guidelines, however, required the court to sentence Henderson to a term of at least 35 years imprisonment.

I.

Mark Henderson was convicted by a jury of his peers on March 30, 2000 of four separate counts. Counts one and three charged violations of 21 U.S.C. § 846, the penalties for which are provided in 21 U.S.C. § 841.¹ Specifically, count one charged Henderson with conspiring to manufacture and distribute methamphetamine and to distribute marijuana in violation of 21 U.S.C. § 846, and count three charged aiding and abetting the attempted possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. Count two charged Henderson with aiding and abetting money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 2. Count four, originally identified as count five in the second superseding indictment, charged Henderson with the possession, use, and carrying of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1) and 2. A basic overview of 21 U.S.C. § 841 will be useful in understanding the specific findings the court made at Henderson's sentencing and the legal issues presented by his sentencing.

Based on the large number of narcotics cases that crowd the federal criminal system, court interpretations of 21 U.S.C. § 841 have played a significant role in revamping traditional notions of criminal offense elements and sentencing factors. See Kyle O'Dowd, Grid & Bear It, The Champion, Mar. 2000, at 43 (noting that drug law violators constituted sixty percent of the federal prison population by the end of 1998). That statute, the primary one upon which federal drug prosecutions are based, proscribes various physical acts in one section and provides graduated penalties in the following section. Section 841(a)(1), entitled "Unlawful Acts," states that "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." Section 841(b), entitled "Penalties," provides different penalties depending on the establishment of certain facts, including recidivism, whether serious bodily injury or death results from the violation, and the type and amount of drugs involved in the offense.

The determination of the penalties for a violation of section 841 involving schedule I or II controlled substances begins with a consideration of section 841(b)(1)(C), which states that:

[i]n the case of a controlled substance in schedule I or II ... except as provided in subparagraphs (A), (B), and (D), such person shall be sentenced to a term of imprisonment of not more than 20 years.

21 U.S.C. § 841(b)(1)(C). The language "except as provided in subparagraphs (A), (B), and (D)," illustrates that section 841(b)(1)(C) provides a maximum sentence of twenty years for a schedule I or II controlled substance offense;² it is the starting point within which the judge must statutorily sentence a defendant found guilty of a section 841 violation.

The larger the amount of drugs, the more heavily Congress punishes the defendant. Thus, 21 U.S.C. § 841(b)(1)(B) provides that a person who commits a section 841(a) offense involving

(vii) 100 kilograms or more of a mixture or substance containing a detectable amount of marijuana, or 100 or more marijuana plants regardless of weight; or (viii) 5 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers; ... shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years.

21 U.S.C. § 841(b)(1)(B). If the offense involves more than 1,000 kilograms of marijuana (or more than 1,000 marijuana plants) or more than fifty grams of methamphetamine (or 500 grams of a mixture containing methamphetamine), section 841(b)(1)(A) increases the statutory imprisonment range even further to one with a minimum mandatory sentence of ten years and a maximum of life imprisonment.

Offense conduct is the amount of drugs establishing the statutory penalty range. See generally U.S.S.G. § 1B1.2(a). Next, judges find a drug amount called relevant conduct, which includes the offense conduct and all other drug amounts that were "part of the same course of conduct or common scheme or plan as the offense of conviction." Id. § 1B1.3(a)(2). Judges take the amount of relevant conduct, apply it to the drug quantity table set out in the federal sentencing guidelines, and find the corresponding sentencing guideline range within which they are generally required to sentence the defendant. See id. § 2D1.1(c). Judges must sentence the defendant within the statutory penalty range established by the offense conduct even if the sentencing guideline range falls below or exceeds the statutory penalty range. See id. § 5G1.1.

Every United States court of appeals has concluded that the judge, not the jury, determines the amount of drugs involved in the offense. See, e.g., United States v. McHugh, 769 F.2d 860, 867 (1st Cir.1985); United States v. Campuzano, 905 F.2d 677, 679 (2d Cir.1990); United States v. Gibbs, 813 F.2d 596, 599 (3d Cir.1987); United States v. Powell, 886 F.2d 81, 85 (4th Cir.1989); United States v. Morgan, 835 F.2d 79, 81 (5th Cir.1987); United States v. Moreno, 899 F.2d 465, 472 (6th Cir.1990); United States v. Acevedo, 891 F.2d 607, 611 (7th Cir.1989); United States v. Wood, 834 F.2d 1382, 1388 (8th Cir. 1987); United States v. Sotelo-Rivera, 931 F.2d 1317, 1319 (9th Cir.1991); United States v. Jenkins, 866 F.2d 331, 334 (10th Cir.1989); United States v. Cross, 916 F.2d 622, 623 (11th Cir.1990) (per curiam); United States v. Patrick, 959 F.2d 991, 995 (D.C.Cir.1992); see also United States v. Foye, 68 F.Supp.2d 730, 734 (S.D.W.Va. 1999) (Goodwin, J.), aff'd, 210 F.3d 362 (4th Cir.2000) (unpublished), petition for cert. filed, June 19, 2000 (No. 99-10143). These decisions are uniform in finding that the physical act comprising the drug transaction and the defendant's knowledge of the substance as being illegal are the only elements of a section 841 offense. In contrast, the amount of drugs involved in the offense has been viewed simply as a sentencing factor. Despite the extreme differences in the available statutory penalties, from maximum penalties of twenty years, forty years, and life imprisonment and minimum terms of no incarceration, five years, and ten years, defendants are placed in the "extraordinary position of having facts which may be central to the amount of punishment they will receive decided by a judge ... rather than by a jury." See Mark D. Knoll & Richard D. Singer, Searching for the `Tail of the Dog': Finding `Elements' of Crimes in the Wake of McMillan v. Pennsylvania, 22 Seattle U.L.Rev. 1057, 1094 (1999). In addition to the serious implications for a defendant's Sixth Amendment right to a jury trial, the judge's determination of drug amounts is based on a mere preponderance of the evidence rather than the more discerning beyond a reasonable doubt standard.³

While the decisions have been uniform, this procedure, which requires judges rather than juries to find drug amounts, has not gone without criticism. See, e.g., id. at 1091-1100; United States v. Rigsby, 943 F.2d 631, 639-43 (6th Cir.1991) (criticizing but following circuit precedent); United States v. Gibbs, 813 F.2d 596, 604 (3d Cir.1987) (Aldisert, J., dissenting). This is because the federal scheme, as interpreted prior to Apprendi, requires prosecutors to prove to a jury beyond a reasonable doubt that the defendant engaged in a drug transaction with knowledge of the illegality, but then takes this fact-finding role away from the jury and relaxes the standard by which the prosecutors may prove facts that dramatically increase the statutory incarceration period. As the Supreme Court noted, "[i]t is ... no trivial question to ask whether recognizing an unlimited legislative power to authorize determinations setting ultimate sentencing limits without a jury would invite erosion of the jury's function to a point against which a line must necessarily be drawn." Jones v. United States, 526 U.S. 227, 244, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Under well-settled precedent prior to Apprendi, however, that line was drawn in a way that severely restricted a defendant's due process clause and Sixth Amendment rights, and shrank the significance of the jury.

II.

The indictment in this matter did not charge, nor did the jury find, any amount...