U.S. v. Madkour

• Citation: 930 F.2d 234
• Decision Date: 11 April 1991
• Docket Number: D,No. 575,575
• Parties: UNITED STATES of America, Appellee, v. Michael P. MADKOUR, Defendant-Appellant. ocket 90-1397.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 234

930 F.2d 234

UNITED STATES of America, Appellee, v. Michael P. MADKOUR, Defendant-Appellant.

No. 575, Docket 90-1397.

United States Court of Appeals, Second Circuit.

Argued Dec. 20, 1990.

Decided April 11, 1991.

Charles A. Caruso, Burlington, Vt., Asst. U.S. Atty. (George J. Terwilliger, III, U.S. Atty., David V. Kirby, Chief, Criminal Div., William B. Darrow, Asst. U.S. Atty., of counsel), for appellee.

William B. Gray, Burlington, Vt. (Sheehey Brue Gray & Furlong, Donald J. Rendall, Jr., of counsel), for defendant-appellant.

Before TIMBERS, MESKILL and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Michael P. Madkour appeals his sentence following his guilty plea to knowingly and intentionally manufacturing and possessing with intent to manufacture marijuana in violation of 21 U.S.C. Sec. 841(a)(1). Madkour was sentenced for possessing in excess of 100 marijuana plants, an amount that triggers a five-year minimum sentence under the section's penalty provision, Sec. 841(b)(1)(B)(vii). This statutory minimum is one of a number of minimum sentences imposed by congress as part of the Comprehensive Drug Abuse Prevention and Control Act. Had this statutory minimum not existed, Madkour's sentence under the sentencing guidelines would have been between 15 and 21 months. Thus, it is not surprising that there was great contention over the actual number of plants for which Madkour was responsible. In fact, it was the only disputed issue before the district court.

Madkour argues principally that his mandatory minimum sentence cannot be imposed without a jury finding as to the amount of the drugs. He also argues that the district court failed to insulate suppressed evidence from its sentencing determination, and that the court's finding as to the number of plants was clearly erroneous. For the reasons below, we reject these arguments and affirm the judgment of conviction.

BACKGROUND

In June of 1989 an employee of the United States Forest Service discovered bags of Promix, a type of potting soil commonly used to grow marijuana, in Green Mountain Forest, a national forest located near Lincoln, Vermont. The employee notified the local sheriff's office, which, upon investigation of the area, discovered approximately 84 marijuana plants. The sheriff's office contacted agents from the Drug Enforcement Administration, and together the two offices investigated more extensively. They first found 28 additional plants, and then discovered a second site that contained 26 plants.

The agents placed the area under surveillance, and on July 8th, they arrested defendant Michael P. Madkour after they observed him at the first site, dispersing plants into a wooded area nearby. Madkour was charged in two counts with manufacturing and possessing with intent to manufacture marijuana (count one), and with possessing with intent to distribute marijuana (count two). Both counts alleged that he did so by "growing over 100 marijuana plants on National Forest Service Land near Lincoln, Vermont."

Prior to trial, Madkour moved to suppress statements he had made to the agents immediately following his arrest. After a hearing, the district court suppressed some of his statements, but rejected Madkour's argument that all of his statements should be suppressed.

Madkour then moved for a pretrial ruling that the number of marijuana plants be submitted to the jury as one of the elements of each offense. Under the applicable sentencing provision, 21 U.S.C. Sec. 841(b)(1)(B)(vii), a finding that the defendant possessed in excess of 100 plants would require imposition of a mandatory minimum sentence of five years. Madkour argued that quantity was part of the substantive offense under Sec. 841, and furthermore, since the quantity was the only disputed issue in the case and a finding that there were in excess of 100 marijuana plants would more than double his sentence, the issue must be submitted to a jury for determination. The district court denied Madkour's motion, concluding that the number of plants "is not an element of Faced with this ruling, Madkour pled guilty, but during his allocution refused to admit that the two counts with which he was charged involved 100 or more plants. Since the district judge had already determined that the number of plants was not an element of the offense, but rather was a matter to be considered by the court as part of the sentencing proceeding, he accepted Madkour's plea.

the offense * * * [rather] the amount goes to the penalty."

When the time came for sentencing, on defendant's motion the district court held an evidentiary hearing to determine the number of marijuana plants involved in the offenses. The government claimed that there were 131 plants, while Madkour asserted that only 65 to 70 plants were involved. Ultimately, the district court found, by a preponderance of the evidence, that 131 marijuana plants were involved. Given that fact, the district judge had no alternative but to sentence Madkour to the statutory minimum of five years, although he did so with great reluctance. Referring to the mandatory sentence requirement, he wrote:

This type of statute [Sec. 841(b)(1)(B)(vii) ] does not render justice. This type of statute denies the judges of this court, and of all courts, the right to bring their conscience, experience, discretion, and sense of what is just into the sentencing procedure, and it, in effect, makes a judge a computer, automatically imposing sentences without regard to what is right and just. It violates the rights of the judiciary and of the defendants, and jeopardizes the judicial system. In effect, what it does is it gives not only Congress, but also the prosecutor, the right to do the sentencing, which I believe is unconstitutional. Unfortunately, the higher courts have ruled it to be constitutional. * * * This case graphically illustrates the failure of the justice system. * * * But for the mandatory sentence, I would have sentenced defendant to the [guideline] minimum of 15 months.

Madkour appeals.

DISCUSSION

1. Appealability.

As a preliminary matter, we address the government's contention that because Madkour pled guilty, he has waived his right to appeal all questions involving the quantity of drugs. In support of its position, the government points to our recent decision in United States v. Contractor, 926 F.2d 128 (2d Cir.1991). In Contractor, the defendant pled guilty to the charge of conspiring to import heroin. Prior to the plea, the district court had indicated that it would not allow the defendant to introduce at trial evidence that he was "authorized" by the Drug Enforcement Administration to engage in the criminal activity with which he was charged. Id. at 133. We held that by pleading guilty to the substantive crime, the defendant had waived his right to appeal the district court's preclusion of the "authorization" defense. Id.

The government would have us apply the same rule in the present case. However, there are two significant differences. First, the issue that Madkour now raises concerns his sentence, and not, as in Contractor, a defense to the crime itself. Second, Madkour, unlike the defendant in Contractor, distinctly preserved the issue he now raises on appeal by informing the court, prior to sentencing, that he intended to appeal the issue. As even a cursory glance at our docket reveals, sentencing disputes under the guidelines may be appealed, see 18 U.S.C. 3742(a) & (b), as long as the defendant "first present[s] * * * [his argument] to the district court for determination." United States v. Irabor, 894 F.2d 554, 555 (2d Cir.1990). The same rule applies to claims of improper application of mandatory minimum sentences, for such sentences are applied under, not outside of, the sentencing guidelines. See U.S.S.G. Sec. 5G1.1(b) ("Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.") (emphasis added). Cf. U.S.S.G. Sec. 5G1.1(a)

(incorporating statutory maximum sentences as guidelines sentences); see also United States v. Larotonda, 927 F.2d 697, 698 (2d Cir.1991) (per curiam) ("The Guidelines provide that if there is a discrepancy between the Guidelines range and a minimum prison term provided by statute, the statutory provision controls").

2. Standard of Proof.

Madkour contends that the district court cannot impose a mandatory minimum sentence under Sec. 841(b) without a jury finding, beyond a reasonable doubt, that the crime involved a quantity of drugs in excess of the amount required by the statute. He has abandoned his claim that the quantity of drugs is an element of the offense, acknowledging that the circuit rejected this argument in United States v. Campuzano, 905 F.2d 677 (2d Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 363, 112 L.Ed.2d 326 (1990), which was decided by us just one day before Madkour was sentenced in the district court. But Madkour does maintain that Campuzano left open the question of whether a quantity issue under Sec. 841 requires a jury trial, and he further argues that language in United States v. Pforzheimer, 826 F.2d 200 (2d Cir.1987), suggests that in a case involving Sec. 841, quantity should be determined by the jury. We reject this argument.

In Campuzano, we explicitly addressed the relationship between quantity of drugs and the substantive offense under Sec. 841. Following "a clear majority of circuits" we held that, even in the face of a specific allegation of quantity in the indictment, "quantity is not an element of the crimes proscribed by Section[ ] 841(a) * * *." Campuzano, 905 F.2d at 679 (citations omitted). We stated that "[w]hen an indictment does allege that a particular quantity is involved, the effect is only to put the defendant on notice that the enhanced penalty provisions of Section 841(b) may apply." Id.

In short, quantity relates solely to...