U.S. v. Thomas

• Decision Date: 26 January 2004
• Docket Number: No. 02-10409.,02-10409.
• Citation: 355 F.3d 1191
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

355 F.3d 1191

UNITED STATES of America, Plaintiff-Appellee, v. Charles THOMAS, Defendant-Appellant.

No. 02-10409.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 8, 2003.

Filed January 26, 2004.

Daniel P. Blank, Assistant Federal Public Defender, San Francisco, CA, for the defendant-appellant.

Michael Wang, Assistant United States Attorney, San Francisco, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California, Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CR 01-0482 PJH.

Before HUG, B. FLETCHER, and TASHIMA, Circuit Judges.

TASHIMA, Circuit Judge:

Charles Thomas appeals his 120-month sentence following his guilty plea conviction for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). Thomas was sentenced to the statutory minimum sentence provided by 21 U.S.C. § 841(b)(1)(A) because his indictment charged that he possessed with the intent to distribute "more than 50 grams of cocaine base." He argues on appeal that, although he pleaded guilty, he never admitted to that quantity of drugs, and in fact repeatedly sought to preserve his right to contest that fact. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we vacate and remand for resentencing.

BACKGROUND

On October 29, 2001, San Francisco police officers stopped a car in which Charles Thomas was a passenger. When the car pulled over, Thomas got out of the vehicle and started to flee. As officers pursued Thomas on foot, he stumbled and dropped a clear plastic bag. The bag contained three plastic bags, each of which contained what appeared to be a rock of crack cocaine. A police laboratory report indicated that Thomas had 77.86 grams of cocaine base in his possession.

Thomas was indicted on one count of violating 21 U.S.C. § 841(a)(1). The indictment alleged that Thomas possessed with intent to distribute more than 50 grams of cocaine base. On February 26, 2002, Thomas filed a motion with the district court for an advisement on the elements of the charge, pursuant to the version of Federal Rule of Criminal Procedure 11(c) then in effect. In the motion, Thomas stated that he wished to plead guilty to the sole charge of the indictment, but he was not prepared to admit to possessing any particular quantity of cocaine base. Thomas interpreted this Court's recently decided en banc decision in United States v. Buckland, 289 F.3d 558 (9th Cir.), cert. denied, 535 U.S. 1105, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002), as holding that drug type and quantity are not elements of the charged offense, but rather are penalty provisions with heightened due process requirements. Thomas argued that he should therefore be able to plead guilty without admitting the drug type and quantity allegations, which the government would then need to prove beyond a reasonable doubt to a jury at sentencing.

The government opposed Thomas' motion for an advisement. The government argued that neither drug type nor drug quantity is an element of a charge under 21 U.S.C. § 841. Rather, the government acknowledged that drug type and quantity are sentencing factors that must be proved beyond a reasonable doubt. Nevertheless, the government argued, Thomas must plead guilty to all facts to which he would be entitled to a jury determination, whether they be labeled elements or sentencing factors. The government also argued that a defendant cannot enter an open plea to a charge that differs from the one returned by the grand jury, and here the indictment specifically alleged that Thomas possessed more than 50 grams of cocaine base.

The district court granted Thomas' motion in part, advising him that type and quantity of drugs are not elements of the offense but rather are material facts or sentencing factors. The district court judge also denied the motion in part, ruling that she would not allow Thomas to plead guilty unless he admitted all of the allegations in the indictment, including type and quantity allegations. The district court judge admitted that Thomas' motion raised novel questions to which she did not have answers. In her view, however, because Buckland requires that drug type and quantity be pleaded and proved to a jury, a defendant cannot enter a guilty plea without admitting those facts. Thomas requested that the district court set the matter for a jury trial.

Thomas then moved for reconsideration. In the same motion, he informed the district court that he no longer wished to proceed to trial and intended to plead guilty. He explained that he was changing his plea because the government had indicated that it might seek to invoke the sentencing enhancement provisions of 21 U.S.C. § 851 if he proceeded to trial.

At a change of plea hearing, before accepting the change of plea, the district court denied Thomas' motion for reconsideration. The district court based its decision in part on United States v. Benson, 579 F.2d 508 (9th Cir.1978), which it read as holding that a guilty plea conclusively establishes all material facts in the indictment. The district court informed Thomas of the charges in the indictment, including the allegation that he possessed more than 50 grams of cocaine base. The government then made a factual proffer, including that the bag Thomas dropped contained more than 50 grams of crack cocaine. The government also described the elements of the offense:

[Prosecutor]: The elements of the offense are that the defendant knowingly and intentionally with the intent to distribute or dispense a controlled Schedule II controlled substance, and that is more than fifty grams of cocaine base — and I realize that [Thomas' counsel] — there's a distinction that he draws between elements of the offense and what's charged in the indictment. The actual elements under 841(a)(1) are that the defendant knowingly and intentionally possessed with the intent to distribute a Schedule II controlled substance.

* * *

We have further alleged in the indictment material facts which are sentencing factors under Apprendi, but those would include that the substance was more than fifty grams of cocaine.

After advising Thomas of the consequences of a guilty plea, the district court asked Thomas if he "disagree[d] with the proffer made by [the prosecutor] as to what happened as to the facts of the case?" Thomas replied "Yes." He went on to explain that "[w]hat she [the prosecutor] said is right. But so far as me knowing, I didn't have no ability what was in there. I knew — I assumed it was something, but as far as how much it weighed or anything I knew nothing about it." The district court accepted the plea and adjudged Thomas guilty of the offense.

Thomas then requested an evidentiary hearing to determine the applicable quantity of cocaine base found in his possession. Thomas questioned whether the drug quantity listed in the Presentence Investigation Report ("PSR") was the net weight or the gross weight and requested an opportunity to cross-examine the police criminalist who had prepared the laboratory report. He also reasserted his right to have drug quantity determined by a jury beyond a reasonable doubt. At the sentencing hearing, the district court denied Thomas' requests on the ground that he had already pleaded guilty to the allegation in the indictment that he possessed more than 50 grams of cocaine base. The court sentenced Thomas to 120 months' imprisonment and five years' supervised release.

STANDARD OF REVIEW

A district court's construction or interpretation of a statute is reviewed de novo. United States v. Cabaccang, 332 F.3d 622, 624-25 (9th Cir.2003) (en banc). A district court's compliance with Federal Rule of Criminal Procedure 32 is also reviewed de novo. United States v. Carter, 219 F.3d 863, 866 (9th Cir.2000).

ANALYSIS

I. Thomas Did Not Admit the Drug Quantity Allegation in the Indictment

A. Drug Quantity Is Not an Element Under 21 U.S.C. § 841

Once again, we are called upon to address the penalty provisions of 21 U.S.C. § 841(b). The basic question we must decide is whether the requirement of due process that drug quantity be pleaded in the indictment, submitted to a jury, and proved beyond a reasonable doubt transforms drug quantity into an element of the offense that a defendant necessarily admits when pleading guilty.

In Buckland, we considered whether the penalty provisions of § 841(b) were facially unconstitutional in light of the Supreme Court's holding that "`any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" Buckland, 289 F.3d at 562 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Although both the statutory text and the uniform practice among the circuits suggested that the provisions of § 841(b) were sentencing factors which a judge would decide by a preponderance of the evidence, we upheld the constitutionality of the statute. Id. at 572. We did so "by treating drug quantity and type, which fix the maximum sentence for a conviction, as we would any other material fact in a criminal prosecution: it must be charged in the indictment, submitted to the jury, subject to the rules of evidence, and proved beyond a reasonable doubt." Id. at 568.

Buckland is not altogether clear about whether the penalty provisions of § 841(b) are elements of an aggravated offense or are sentencing factors with heightened due process requirements. In fact, we rejected the distinction altogether, stating that "[t]he days of semantical hair splitting between `elements of the offense' and `sentencing factors' are over" and overruling case law to the contrary. Id. at 566 (citation omitted). Yet, if material facts such as drug quantity function as elements by increasing the maximum penalty a defendant may receive, are they elements of an aggravated offense or are t...