U.S. v. Tidwell

• Decision Date: 31 March 2008
• Docket Number: No. 02-3139.,02-3139.
• Citation: 521 F.3d 236
• Parties: UNITED STATES of America, Appellee v. Tyrone TIDWELL, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

521 F.3d 236

UNITED STATES of America, Appellee v. Tyrone TIDWELL, Appellant.

No. 02-3139.

United States Court of Appeals, Third Circuit.

Argued April 24, 2007.

Opinion Filed March 31, 2008.

Jeffrey M. Lindy, Esq. (Argued), Michael Drossner, Esq., Paul M. George, Esq., Lindy & Associates, P.C., Philadelphia, PA, for Appellant.

Patrick L. Meehan, Esq., United States Attorney, Robert A. Zauzmer, Esq. (Argued), Assistant United States Attorney, Chief of Appeals, Seth Weber, Esq., Assistant United States Attorney, Philadelphia, PA, for Appellee.

BEFORE: McKEE, AMBRO, Circuit Judges, and ACKERMAN, Senior District Court Judge.^*

OPINION

McKEE, Circuit Judge.

Tyrone Tidwell challenges the mandatory sentence of life imprisonment that was imposed pursuant to 21 U.S.C. § 848(b), after he pled guilty to engaging in a "continuing criminal enterprise," in violation of 21 U.S.C. § 848(c). For the reasons that follow, we will affirm.

I. BACKGROUND

On September 7, 1994, a grand jury returned a 23-count indictment charging Tidwell with, inter alia, one count of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848. Tidwell initially pled not guilty and proceeded to trial before a jury, However, during the government's case-in-chief, Tidwell informed the court that he wished to change his plea. Tidwell agreed to plead guilty to "Count 2 — Engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848." Neither Count 2, nor any other provision of the indictment, specifically charged Tidwell with violating § 848(b) (being a "Super Kingpin"), or any other subsection of § 848. Nor did the indictment allege any facts beyond those necessary to establish a violation of § 848(c), the definitional provision of § 848.

The resulting plea agreement provided that, based on Tidwell's agreement to plead guilty to Count 2, the district court "may impose the ... statutory maximum sentence [of] Mandatory Life Imprisonment, a $4,000,000 fine, and a $50 special assessment." Tidwell also stipulated that his base offense level would be "based upon the distribution of [more than] 150 kilograms of cocaine." Accordingly, during the ensuing Rule 11 colloquy, the prosecutor informed Tidwell that his guilty plea to Count 2 subjected him to a mandatory sentence of life imprisonment. After Tidwell acknowledged that he understood the potential penalties, the court added: "to the extent there are mandatory punishments for these offenses, I will have to impose those punishments unless there is some basis ... not to do so." Joint Appendix, at 207. The judge explained that if the government did not file any motion for a downward departure, "then there are mandatory sentences, mandatory life sentences, and I'm not going to have the ability to depart from that."¹ After again acknowledging that he understood, Tidwell formally pled guilty to "engaging in a continuing criminal enterprise, in violation of Title 21, United States Code, Section 848." The court accepted the plea and sentenced Tidwell to life imprisonment on Count 2, as mandated by 21 U.S.C. § 848(b), and concurrent terms of imprisonment on the remaining counts.

As we have noted, the indictment did not specifically charge Tidwell with violating § 848(b), nor did it allege that Tidwell had engaged in conduct that would trigger the application of § 848(b). Rather, the indictment merely alleged that Tidwell had engaged in a "continuing criminal enterprise," as defined in 21 U.S.C. § 848(c). Moreover, during the Rule 11 colloquy Tidwell only agreed that he was pleading guilty to a continuing criminal enterprise in violation of 21 U.S.C. § 848(c). He did not plead guilty to violating 21 U.S.C. § 848(c), nor did he admit the conduct proscribed by that section. The relevant provisions of 21 U.S.C. § 848 provide:²

(a) Penalties; forfeitures. Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 20 years and which may be up to life imprisonment ... except that if any person engages in such activity after one or more prior convictions ... under this section have become final, he shall be sentenced to a term of imprisonment which may not be less than 30 years and which may be up to life imprisonment. ...

(b) Life imprisonment for engaging in a continuing criminal enterprise. Any person who engages in a continuing criminal enterprise shall be imprisoned for life and fined in accordance with subsection (a), if —

(1) such person is the principal administrator, organizer, or leader of the enterprise or is one of several such principal administrators, organizers, or leaders; and

(2)(A) the violation referred to in subsection (c)(1) involved at least 300 times the quantity of [the controlled substance], ... or any other enterprise in which the defendant was the principal or one of several principal administrators, organizers, or leaders, received $10 million dollars in gross receipts during any twelve-month period of its existence for the manufacture, importation, or distribution of a substance described in section 401(b)(1)(B) of this Act [21 USCA § 841(b)(1)(B)].

(c) "Continuing criminal enterprise" defined. For purposes of subsection (a), a person is engaged in a continuing criminal enterprise if —

(1) he violates any provision of this title ... the punishment for which is a felony, and

(2) such violation is a part of a continuing series of violations of this title

. . .

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources.

(d) Suspension of sentence and probation prohibited.

* * *

(e) Death penalty

(1) In addition to the other penalties set forth in this section —

(A) any person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841(b)(1)(A) of this title or section 960(b)(1) of this title who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death; and(B) any person, during the commission of, in furtherance of, or while attempting to avoid apprehension, prosecution or service of a prison sentence for, a felony violation of this subchapter or subchapter II of this chapter who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of any Federal, State, or local law enforcement officer engaged in, or on account of, the performance of such officer's official duties and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death.

* * *

21 U.S.C. § 848.

The district court reasoned that § 848(b) sets forth sentencing factors that govern sentences imposed for violating the substantive offense defined in § 848(c), rather than elements of a separate crime. Accordingly, the court concluded that the government did not have to charge Tidwell with violating subsection (b), and that the conduct proscribed therein need only be established by a preponderance of the evidence.

Tidwell's primary argument on appeal is that the life sentence that is mandated by § 848(b) could not be constitutionally imposed because the factual basis was not charged in the indictment, nor proven beyond a reasonable doubt.³

II. DISCUSSION

Congressional intent controls whether § 848(b) contains elements of a separate offense as Tidwell maintains, or merely sentencing factors as the district court concluded. Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In order to discern that intent, we must examine the language and structure of the statute, its subject matter, context and legislative history. See, e.g., Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); Castillo v. United States, 530 U.S. 120, 124, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000); Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). Our inquiry is guided by four Supreme Court decisions wherein the Court discussed the difference between statutory provisions intended as sentencing factors and statutory provisions intended as elements of a crime. We begin our analysis of the legislative intent underlying § 848(b) by discussing each of those decisions.

A. Almendarez-Torres

In Almendarez-Torres v. United States, supra, the Court held that Congress intended subsection (b)(2) of 8 U.S.C. § 1326 as sentencing factors, rather than elements of a crime. 8 U.S.C. § 1326 provided, in relevant part:

(a) Subject to subsection (b) of this section, any alien who —

(1) has been ... deported ..., and thereafter

(2) enters ..., or is at any time found in, the United States [without the Attorney General's consent or the legal equivalent], shall be fined under title 18, or imprisoned not more than 2 years, or both.

(b) Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection —

(1) whose deportation was subsequent to a conviction for commission of [certain misdemeanors], or a felony (other than an aggravated felony), such alien shall be fined under Title 18, imprisoned not more than 10 years, or both; or

(2) whose deportation was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such Title, imprisoned not more than 20 years, or both.

The defendant in Almendarez-Torres pled guilty to illegally reentering the United States following deportation, in violation of 8 U.S.C. §...