US v. Cernobyl, 00-7033

• Decision Date: 29 June 2001
• Docket Number: No. 00-7033,00-7033
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL J. CERNOBYL, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1215

255 F.3d 1215 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL J. CERNOBYL, Defendant-Appellant.

No. 00-7033

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

June 29, 2001

Appeal from the United States District Court for the Eastern District of Oklahoma. (D.C. No. 99-CR-49-B)

Submitted on the briefs:^*

D. Michael Littlefield, Assistant United States Attorney and Sheldon J. Sperling, United States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.

Donn F. Baker, Tahlequah, Oklahoma, for Defendant-Appellant.

Before SEYMOUR,EBEL and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Michael J. Cernobyl ("Cernobyl") pled guilty to possession of marijuana with intent to distribute in violation of 21 U.S.C. 841(a)(1). The district court calculated his sentence on the basis of marijuana found in his home and car, as well as on the basis of his own admission that he had transported large amounts of marijuana over an extended period of time. Cernobyl appealed. His initial argument to the court centered on his contention that the evidence relied upon by the district court was unreliable. Following the Supreme Court's opinion in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), Cernobyl successfully moved for supplemental briefing on the issue of whether his sentence was unlawful in light of Apprendi. In his supplemental brief, Cernobyl argued that 21 U.S.C. 841 is facially unconstitutional in light of Apprendi, and, in the alternative, that the district court erred in basing his sentence on drug quantities that were not alleged in his indictment and proved beyond a reasonable doubt. We hold that 841 is not facially unconstitutional, but that the district court's sentence constituted plain error in light of Apprendi and we therefore VACATE Cernobyl's sentence and REMAND for resentencing.

I. BACKGROUND

Cernobyl was arrested in January 1999 after Oklahoma State Trooper Mike Smith ("Trooper Smith") stopped a car in which Cernobyl was traveling as a passenger. Trooper Smith detected the odor of unburned marijuana in the vehicle, and then sought and obtained permission to search the car from the driver, Merle Thomason ("Thomason"). Trooper Smith discovered sixty-six pounds of marijuana in the trunk and arrested Thomason, Cernobyl, and another passenger. Cernobyl later admitted to Trooper Smith that the marijuana belonged to him. Cernobyl went on to inform Trooper Smith that he was "unlucky" because he arrested Cernobyl with an unusually small amount of marijuana, and that Cernobyl transported between 100 and 400 pounds of marijuana on a bi-weekly or monthly basis. Although he was only twenty-eight years old at the time of his arrest, Cernobyl told Trooper Smith he had been engaged in drug trafficking for seventeen to twenty years. Cernobyl subsequently told two agents of the United States Drug Enforcement Agency ("DEA") that he earned approximately $11,000 to $15,000 per month in this manner, and that he had been transporting drugs for approximately three years. Cernobyl later recanted these statements, however, telling the probation officer who prepared his pre-sentencing report that he was merely "bragging" to impress Trooper Smith and the DEA agents.

The DEA agents who interviewed Cernobyl obtained a search warrant for his residence to look for additional evidence of illegal drug activity. The search uncovered approximately thirty-eight pounds of marijuana hidden in Cernobyl's garage and $11,000 in cash concealed beneath a bathroom sink.

The Government indicted Cernobyl on two counts of possession of marijuana stemming from the seizures of drugs from his home and from Thomason's vehicle in violation of 21 U.S.C. 841(a)(1). The indictment did not allege any specific amount of marijuana believed to have been in Cernobyl's possession. Cernobyl raised Fourth Amendment objections to the search of his home, and the district court suppressed all of the evidence derived from that search for purposes of trial. Cernobyl then pled guilty to the first count of the indictment charging him with possession with intent to distribute the marijuana found in Thomason's car.

Because of a perceived lack of corroborating evidence to support Cernobyl's admissions of prior drug trafficking, the pre-sentencing report prepared by the U.S. probation officer recommended that Cernobyl be sentenced only on the basis of the sixty-six pounds of marijuana found in Thomason's truck. The Government objected, arguing the district court should consider the suppressed drugs along with Cernobyl's statements to Trooper Smith and the DEA agents as relevant conduct for sentencing under Section 1B1.3(a)(1)(A) of the Federal Sentencing Guidelines. After conducting a sentencing hearing, the district court determined that Cernobyl's guilty plea, together with the government's evidence of relevant conduct, warranted a base sentencing level of thirty-two. Specifically, the court sentenced Cernobyl on the basis of the court's conclusion to a preponderance of the evidence that Cernobyl had possessed 3,701 pounds or 1678.77 kilograms of marijuana, including: (1) the sixty-six pounds found in Thomason's vehicle; (2) thirty-five pounds seized from his residence; and (3) the judge's finding that Cernobyl transported 100 pounds of marijuana per month for a period of three years, which was based on Cernobyl's own boasts to Trooper Smith and the DEA agents.

Cernobyl filed timely notice of appeal. In his opening brief, Cernobyl argued that the district court should not have based his sentence on his own allegedly unreliable admissions to police or on the drugs that were seized from his home in violation of the Fourth Amendment. A short time before Cernobyl filed his brief, the Supreme Court decided Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), and we ordered supplemental briefing to determine whether his sentence was unlawful in light of that decision. Cernobyl now argues that Apprendi rendered 21 U.S.C. 841 facially unconstitutional, and, in the alternative, that the district court erred in sentencing him for possessing 3,701 pounds of marijuana without a jury's conclusion that the evidence proved that he possessed this amount beyond a reasonable doubt.

II. STANDARD OF REVIEW

Because the Supreme Court's opinion in Apprendi was not issued until after Cernobyl filed notice of appeal, he did not raise either of these challenges before the district court. We therefore review these issues for plain error. See United States v. Hishaw, 235 F.3d 565, 574 (10th Cir. 2000). As such, "[r]eversal is only warranted if there is: (1) an error; (2) that is plain or obvious; (3) affects substantial rights; and [4] 'seriously affect[s] the fairness, integrity[,] or public reputation of judicial proceedings.'" Id. (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

III. DISCUSSION

A. Constitutionality of 21 U.S.C. 841

Cernobyl first argues that Apprendi rendered 21 U.S.C. 841 facially unconstitutional. In Apprendi, the 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." 120 S.Ct. at 2362-63. Congress structured 841 in two parts, with 841(a) defining the prohibited behavior, and 841(b) setting forth a range of penalties based on the quantities of drugs involved in the offense. Federal courts have historically construed the provisions of 841(a) as the substantive elements of the offense, and the provisions of 841(b) as sentencing factors which could be submitted to a district court for a finding to a preponderance of the evidence. See United States v. Jones, 235 F.3d 1231, 1234 (10th Cir. 2000). In light of Apprendi, however, we recently concluded that "the quantity of drugs involved in a violation of 841 is an essential element of the offense if that fact exposes the defendant to a heightened maximum sentence under 841(b)(1)(A) or (B)." Jones, 235 F.3d at 1236. Thus, in order to increase a defendant's sentence for a conviction pursuant to 841, drug quantities must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. See id.; United States v. Heckard, 238 F.3d 1222, 1234-35 (10th Cir. 2001); United States v. Keeling, 235 F.3d 533, 538 (10th Cir. 2000); Hishaw, 235 F.3d at 575.

Cernobyl nevertheless argues that, to be consistent with our pre-Apprendi case law and the plain language of 841, we must preserve the historical procedural dichotomy between 841(a) and 841(b), find that 841(b) violates Apprendi, and therefore hold that the statute as a whole is facially unconstitutional. We note that the Fourth, Fifth, and Eleventh Circuits have considered this question and concluded that 841 remains constitutionally viable, albeit with relatively little substantive analysis of the question. See United States v. Candelario, 240 F.3d 1300, 1311 n.16 (11th Cir. 2001), cert. denied U.S., 121 S.Ct. 2535, L.Ed.2d (2001); United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000) ("We see nothing in the Supreme Court decision in Apprendi which would permit us to conclude that 21 U.S.C. 841(a) and (b) . . . are unconstitutional on their face."), cert. denied, 121 S.Ct. 2015 (2001); United States v. Strachan, Nos. 99-4119, 99-4426, 2001 WL 208470, at *5 n.* (4th Cir. Mar. 2, 2001) (unpublished). We now join these courts in holding that 841 remains constitutionally enforceable notwithstanding Apprendi.

At the heart of Cernobyl's argument is an assumption that we are bound by our pre-Apprendi holdings that drug quantity determinations under 841(b)(1) are to be submitted to a judge for finding by a preponderance of the evidence. Whatever force those cases may have had in the past, we are now bound by the Supreme Court's interpretation of the Due Process Clause in Apprendi itself. Apprendi compels us to submit to a jury questions...