U.S. v. Kirksey

• Decision Date: 04 December 2001
• Docket Number: No. 00-CR-80654.,00-CR-80654.
• Citation: 174 F.Supp.2d 611
• Parties: UNITED STATES of America, Plaintiff, v. Anthony KIRKSEY, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

174 F.Supp.2d 611

UNITED STATES of America, Plaintiff, v. Anthony KIRKSEY, Defendant.

No. 00-CR-80654.

United States District Court, E.D. Michigan, Southern Division.

December 4, 2001.

Bruce C. Judge, AUSA, Eric M. Straus, AUSA, Detroit, MI, for plaintiff.

S. Allen Early, III, Detroit, MI, for defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT

ROSEN, District Judge.

I. INTRODUCTION

Defendant Anthony Kirksey is charged in a one-count indictment with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). On September 14, 2001, Kirksey filed a Motion to Dismiss Indictment contending (a) that 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B) (the penalty provisions of the statute) are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (b) that the indictment is defective because it does not specify a penalty provision under § 841(b). Having reviewed and considered Defendant's Motion and Brief, the Government's Response and the oral arguments of counsel, the Court is now prepared to rule on this matter. For the reasons discussed below, Defendant's Motion to Dismiss Indictment will be denied.

II. FACTUAL BACKGROUND

Anthony Kirksey is charged in a one-count indictment with possession with intent to distribute in excess of 500 grams of cocaine. This charge arises out of a search-incident-to-an-arrest of an automobile in which Defendant was a passenger on October 5, 1999. Kirksey was arrested on that date while inside the car on charges of violation of supervised release. Approximately 2 kilograms of cocaine were found by the arresting officers in a duffel bag inside the vehicle.

Kirksey was previously convicted and sentenced for felony drug offenses. See United States v. Anthony Kirksey, et al., E.D. Mich. No. 89-80621. Specifically, Kirksey was convicted of possession with intent to distribute cocaine; use/carrying a firearm during a crime of violence; and felon-in-possession of a firearm, and was sentenced to 97 months imprisonment. He was serving his supervised release on this prior offense when he was apprehended by the U.S. Marshals on October 5, 1999 for violating his supervised release. (He had committed a state crime and subsequently failed to report to his federal probation officer.)

On September 13, 2000, the Grand Jury returned a one-count indictment against Defendant Kirksey charging him with violation of 21 U.S.C. § 841(a)(1) as follows:

On or about October 5, 1999, at Warren, Michigan, in the Eastern District of Michigan, the Defendant, ANTHONY KIRKSEY, having been previously convicted on May 2, 1990 of a felony drug offense, to wit: possession with intent to distribute cocaine, did knowingly and intentionally possess with intent to distribute in excess of five hundred (500) grams of a substance and mixture containing a detectable amount of Cocaine, a Schedule II controlled substance, [i]n violation of Title 21, United States Code, Section 841(a)(1).

On October 16, 2001, the Government filed an "Information for Enhanced Statutory Penalties Pursuant to 21 U.S.C. § 851," giving notice to Defendant Kirksey that, based upon his 1990 conviction, the United States intends to invoke the enhanced statutory penalties of 21 U.S.C. § 841(b)(1)(B)(ii).

Relying solely upon a Ninth Circuit decision, United States v. Buckland, 259 F.3d 1157 (9th Cir.2001), Defendant filed the instant motion arguing argues that 21 U.S.C. § 841(b) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He further argues that the indictment must be dismissed because there is no reference in it to § 841(b) or the specific quantity of drugs with which he is being charged and, therefore, his Sixth Amendment right to "be informed of the nature and cause of the accusation" has been violated.

III. DISCUSSION

A. SECTIONS 841(b)(1)(A) and (b)(1)(B) ARE NOT UNCONSTITUTIONAL

18 U.S.C. § 841 provides in pertinent part, as follows:

(a) Unlawful acts

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....

* * * * * *

(b) Penalties

Except as otherwise provided in section 859, 760, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows:

* * * * * *

(1)(B) In the case of a violation of subsection (a) of this section involving —

* * * * * *

(ii) 500 grams or more of a mixture or substance containing a detectable amount of —

* * * * * *

(II) cocaine, its salts, optical or geometric isomers, and salts of isomers;

* * * * * *

such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be not less than 20 years and not more than life .... If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment.... Any sentence imposed under this subparagraph shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years in addition to such term of imprisonment and shall, if there was such a prior conviction, include a term of supervised release of at least 8 years....

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000), the Supreme Court held that a fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be submitted to the jury and proven beyond a reasonable doubt. 120 S.Ct. at 2362-63. Applying Apprendi in United States v. Buckland, 259 F.3d 1157 (9th Cir.2001), a divided panel of the Ninth Circuit recently held that Section 841 is facially unconstitutional because it concluded that Sections 841(b)(1)(A) and (B) "permit the judge to find a fact, the quantity of drugs, under a preponderance of the evidence standard, that increases the maximum penalty to which a defendant is exposed." 259 F.3d at 1163. It is solely in reliance upon Buckland that Defendant Kirksey argued for a finding of Section 841's unconstitutionality here.

However, on September 14, 2001, the Ninth Circuit ordered an en banc rehearing of Buckland, thereby vacating the panel decision. ("The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.") See United States v. Buckland, 265 F.3d 1085 (9th Cir.2001).

Furthermore, every other court of appeals —including the Sixth Circuit — that has considered post-Apprendi challenges to the constitutionality of Section 841 has concluded that the statute, as currently drafted with its more serious penalties for more serious drug offenses in §§ 841(b)(1)(A) and (b)(1)(B), is not unconstitutional. See United States v. Martinez, 253 F.3d 251, 256 n. 6 (6th Cir.2001) (summarily rejecting claim that Section 841 is unconstitutional in light of Apprendi). See also, United States v. McAllister, 272 F.3d 228 (4th Cir.2001); United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 2015, 149 L.Ed.2d 1015 (2001); United States v. Brough, 243 F.3d 1078, 1079-1080 (7th Cir.2001); United States v. Cernobyl, 255 F.3d 1215 (10th Cir.2001); United States v. Candelario, 240 F.3d 1300, 1310 n. 16 (11th Cir.2001), cert. denied, ___ U.S. ___, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001).

As the Seventh Circuit found in Brough, supra, Apprendi's constitutional requirements that "all facts (other than prior convictions) that set the maximum possible punishment under § 841(b) must be established beyond a reasonable doubt to the satisfaction of the same body that determines culpability under § 841(a)... are external to § 841(b)." 243 F.3d at 1079. Because Section 841 "does not say who makes the findings or which party bears which burden of persuasion[,]... there is no impediment to convictions under the statute as written." Id. at 1079-80. See also, United States v. Cernobyl, supra, "Section 841(b) itself is silent on the question of what procedures courts are to use in implementing its provisions, and therefore, the rule in Apprendi in no way conflicts with the explicit terms of the statute."

The Supreme Court has long adhered to the maxim that "constitutionally doubtful constructions should be avoided where `fairly possible.'" Miller v. French, 530 U.S. 327, 336, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (quoting Communications Workers v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988)). As the Seventh Circuit observed in Brough, "If Congress had specified that only judges may make the findings required by § 841(b), or that these findings must be made by a preponderance of the evidence, then § 841 would create a constitutional problem." 243 F.3d at 1079. However Section 841(b) is silent as to who makes the findings of fact or which standard of proof is to be used in making such findings. Therefore, the statute can be constitutionally implemented in accordance with Apprendi with the proper burden of proof (reasonable doubt) used to establish all facts that set the maximum possible penalty under § 841(b) and the right decisionmaker (the jury) deciding the question. Thus, there is no constitutional impediment to the statute as written. In sum, since nothing in the statute requires that the judge, rather than the jury, determine the quantity of drugs or that the drug quantity be proven by a preponderance of the evidence, rather than beyond a...