United States v. Lowe, CRIMINAL ACTION NO. 3:00-00063 (S.D. W.Va. 11/28/2000)
| Decision Date | 28 November 2000 |
| Docket Number | CRIMINAL ACTION NO. 3:00-00063. |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. NOAH JUNIOR LOWE, Defendant. |
| Court | U.S. District Court — Southern District of West Virginia |
A jury convicted Noah Junior Lowe (hereinafter "Lowe") of the charges contained in a two-count indictment. Count one charged Lowe with conspiracy to knowingly and intentionally distribute marijuana and valium, and count two charged Lowe with attempting to possess with intent to distribute marijuana.1 Lowe stands convicted of 21 U.S.C. § 846 violations. Section 846 provides that: "[a]ny person who attempts or conspires to commit any offense defined in [the Controlled Substances Act] shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." The offenses that were the object of the conspiracy, in count one, and the attempt, in count two, are violations of § 841(a), the penalties for which are found in § 841(b).2
Prior to Lowe's sentencing, the following issue was raised: what statutory maximum penalty applies when a defendant has been convicted of distribution of marijuana based on an indictment that fails to attribute an amount of marijuana to that defendant or to indicate that the distribution was for remuneration? After full consideration of the parties' briefs, this court finds that a defendant convicted of distribution of marijuana, based on an indictment that does not charge either (1) that such distribution involved more than a small amount of marijuana or (2) that such distribution was for remuneration, is subject to the maximum penalty of one year of imprisonment found in 21 U.S.C. § 841 (b)(4).3
Title 21, United States Code, section 841(a) defines eleven controlled substance offenses.4 Section 812 lists hundreds of controlled substances.5 Because each of the offenses defined in § 841 (a) may involve any controlled substance listed in § 812, numerous variations under § 841(a) are possible, and the penalty provisions in § 841(b) must provide guidance for each variation. Section 841(b)(1)(C) is the gateway into the penalty provisions applicable to § 841 (a) offenses involving Schedule I and II controlled substances; however, maximum penalties for these offenses vary based on the existence of certain facts, such as the type and amount of controlled substance involved in the offense, recidivism, and whether bodily injury or death resulted from the offense.
For a number of controlled substance offenses, only one paragraph or subparagraph of § 841(b) applies, and therefore only one penalty range applies to that offense regardless of the amount of drugs involved. However, if the offense involves one of at least twelve different controlled substances, more than one penalty range is possible.6 The penalty range applicable for a particular controlled substance offense typically depends on the drug amount attributable to the defendant.7
Marijuana is classified as a Schedule I controlled substance. See 21 U.S.C. § 812(c) (Schedule I (c)(10)). A defendant convicted of distributing marijuana is subject to one of five different statutory maximum penalties. The maximum penalty appropriate in a particular case depends on the amount of marijuana the defendant distributed and whether the distribution was for remuneration.8 The penalty scheme for distribution of marijuana begins at § 841(b)(4),9 which provides that any person who distributes a small amount of marijuana for no remuneration shall be subject to a statutory maximum penalty of one year imprisonment.
In Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the United States Supreme Court held that "[o]ther than the fact of a prior conviction, 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." Apprendi, 120 S. Ct. at 2362-63. This court and several appellate courts have concluded that Apprendi applies to controlled substance violations under § 841. See United States v. Rebmann, 2000 WL 1209271 (6th Cir. 2000); United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000); United States v. Nordby, 2000 WL 1277211 (9th Cir. 2000); United States v. Henderson, 105 F. Supp. 2d 523, 524 (S.D. W. Va. 2000) (Goodwin, J.). Therefore, "in a prosecution under 21 U.S.C. § 841, or in a prosecution for conspiracy to commit or attempt to commit a violation of that statute, the government must, in order to seek increased statutory penalties, allege the drug amount in the indictment, submit that fact to the jury, and prove the existence of the fact beyond a reasonable doubt." Henderson, 105 F. Supp. 2d at 535.
In the penalty scheme for distribution of marijuana offenses, the maximum penalty applicable to a defendant increases as the drug amount attributable to such defendant increases. A distribution of marijuana conviction implies that the defendant has been convicted of distributing some amount of marijuana greater than zero. However, without additional findings of fact, a sentencing court cannot surpass the drug amount ceiling set by § 841(b)(4) and subject a defendant to the increased maximum penalty found in § 841(b)(1)(D). The statutory maximum penalty is limited to the statutory maximum penalty authorized by the jury's verdict — the statutory maximum penalty applicable by virtue of the elements of the offense alone. See United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000).
Section 841(b)(1)(D) states that a person convicted of a violation of § 841(a) involving less than 50 kilograms of marijuana, except as provided in paragraph (4) and (5) of § 841(b), shall be sentenced to a term of imprisonment of not more than 5 years. Therefore, § 841(b)(1)(D) applies only if § 841(b)(4) does not apply.10 If a jury convicting a defendant of distribution of marijuana does not make specific findings regarding the amount of marijuana involved or whether such distribution was for remuneration, then the hurdles of § 841(b)(4) have not been overcome, and the sentencing court must apply the statutory maximum provided for in § 841(b)(4). If a jury finds that the defendant distributed marijuana for remuneration or that the distribution involved more than a small amount of marijuana, § 841(b)(1)(D), with a statutory maximum penalty of five years imprisonment, applies.
Determining whether § 841(b)(4) or § 841(b)(1)(D) applies also affects whether the defendant is convicted of a misdemeanor or a felony. As the Fourth Circuit stated in United States v. Wilson, 284 F.2d 407, 408 (4th Cir. 1960), "[a] fact which distinguishes a violation punishable by imprisonment for not more than one year from a violation punishable by imprisonment for ten years cannot be permitted to rest upon conjecture or surmise." When a defendant is charged with a controlled substance offense, the indictment charges the offense as a violation of § 841 (a). The penalty for this offense is not listed in § 841(a); the penalty is listed in § 841(b). Thus, the corresponding penalty section is not charged in the indictment. Prior to Apprendi, courts throughout the country had concluded that § 841(a) described the elements of the offense and § 841(b) articulated factors to be considered by the judge when determining the appropriate sentencing range.11 Therefore, prior to Apprendi, a defendant charged with distribution of marijuana could be subject to a misdemeanor or felony charge.
The government argues that § 841(b)(1)(C) is the "base line section for drug offenses," §§ 841(b)(1)(A) and (B) are aggravating factors, which must be alleged in an indictment in light of Apprendi, and §§ 841(b)(1)(D) and (b) (4) are mitigating factors, found by the court. Pl. Resp. Def's Mem. Statutory Max. 2. Under the government's interpretation of the penalty scheme for distribution of marijuana in light of Apprendi, the government proves beyond a reasonable doubt that the defendant knowingly and intentionally distributed marijuana, and then the burden falls on the defendant to convince the judge of "mitigating factors" — that the amount distributed was less than 50 kilograms or that the amount distributed was small and did not involve remuneration. According to the government's argument, a defendant would know whether he faced a felony or misdemeanor conviction only after a judge determined whether the amount attributable to the defendant was "small" or whether marijuana was distributed for remuneration. Further, only after a judge determined that the amount attributable to the defendant was less than 50 kilograms would the defendant know whether he faced a maximum penalty of five years or twenty years.
In United States v. Damerville, 27 F.3d 254 (7th Cir. 1994), the court noted that:
[a]lthough Congress specified penalties for the distribution of certain amounts of marijuana, it refrained from identifying the amount that allows for the most lenient penalty, that as provided in § 844. "Small amount" is not defined in the statute, nor is it addressed in the legislative history of the Controlled Substances Act. Id. at 258-59.12 Neither the statute nor the legislative history define "small amount." What is a "small amount" is a quintessential question of fact. Therefore, the court FINDS that the question of whether the amount of marijuana involved was "small" is appropriate for the jury.13
The language of § 841(b) clearly indicates that § 841(b)(4) is the first rung of the penalty ladder for the offense of distribution of marijuana. In addition, legislative history indicates that marijuana is not only uniquely provided for within the...
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