United States Court of Appeals For the First Circuit

No. 02-1953

UNITED STATES OF AMERICA,

Appellee,

v.

BRIAN GOODINE, a/k/a DWAYNE GOODINE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Lynch, Circuit Judges.

Peter E. Rodway, with whom Rodway & Horodyski was on brief, for appellant. F. Mark Terison, Senior Litigation Counsel, with whom Paula D. Silsby, United States Attorney, were on brief, for appellee.

April 9, 2003 TORRUELLA, Circuit Judge. A jury convicted Defendant-

Appellant Brian Goodine1 of conspiracy and possession with intent

to distribute cocaine base ("crack"), in violation of

(a)(1) & 846 (2003). By special verdict form, the jury

indicated that the amount for each count was at least five, but

less than fifty grams of cocaine base. The judge, however,

determined that Goodine was responsible for 309.2 grams of crack,

and sentenced him accordingly.

We are faced with two closely-related issues on appeal.

First, Goodine alleges that the different penalty provisions under

§ 841(b) create separate crimes requiring the government to prove

drug quantity beyond a reasonable doubt. Goodine asserts that he

could only be sentenced pursuant to the jury's determination of

drug quantity, but was erroneously sentenced pursuant to the

judge's determination. Second, the judge imposed a mandatory

minimum sentence based on drug quantity proved by preponderance of

the evidence. Goodine raises an Apprendi challenge because that

mandatory minimum sentence is higher than the sentencing guideline

range to which he was exposed before the judge's finding as to drug

quantity.

1 Goodine was tried with co-defendant Garry Julien, and both appeals were heard on the same date. Julien's appeal is addressed in United States v. Julien, No. 02-1765,

, (1st Cir. Feb. 3, 2003).

-2- We find that drug quantity in § 841(b) is a sentencing

factor, not an element of separate crimes. We also find that no

Apprendi violation occurred here because the sentencing guidelines

are not "statutory maximums" for purposes of Apprendi, and Goodine

was not sentenced to a penalty greater than that authorized by the

jury's finding. Goodine's sentence is therefore affirmed.

I. Introduction

Goodine does not dispute the jury verdict or the findings

by the judge. He raises two legal challenges to his sentence.

Goodine preserved these appeals at sentencing; we therefore apply

de novo review. United States v. Henderson, No. 01-2392,

(1st Cir. Feb. 14, 2003); United States v.

Eirby,

(1st Cir. 2001).

II. Drug Quantity as Sentencing Factors

A. Issue

The second subsection of the statute for drug possession

with intent to distribute2 delineates different penalty provisions

based on drug type and other factors.3 See

(b).

Three such provisions are relevant here. Defendants responsible

2 Because the conspiracy statute,

, adopts the sentencing scheme of

, we need not address it separately. 3 The statute also considers drug type, whether serious bodily injury resulted from the crime, and whether the defendant has a prior felony drug conviction. Our decision is limited to the issue of drug quantity, and leaves challenges to the other factors for another day.

-3- for an unspecified amount of crack are exposed to a maximum

sentence of twenty years under § 841(b)(1)(C), or thirty years if

the defendant has a prior drug offense conviction. Defendants

responsible for five or more grams of crack are exposed to five to

forty years in prison, or ten years to life for defendants with a

prior felony drug offense conviction under § 841(b)(1)(B).

Finally, defendants responsible for at least fifty grams of crack

are sentenced under § 841(b)(1)(A), which carries a possible

penalty of ten years to life, or twenty years to life for

defendants who have a prior conviction for a felony drug offense.

The jury convicted Goodine of possession with intent to

distribute at least five grams (but less than fifty grams) of

crack. Strictly following the jury's conviction, Goodine (who has

a prior conviction for a felony drug offense) would be subject to

a ten-year mandatory minimum sentence under § 841(b)(1)(B).

However, the judge determined that Goodine was responsible for

309.2 grams of crack and sentenced him to the mandatory minimum

sentence under § 841(b)(1)(A) -- twenty years.

Goodine asserts that § 841(b)(1)(A), (B), and (C) are

different crimes with drug quantity as the differing element, and

that because the government only proved beyond a reasonable doubt

that he was responsible for five grams, he could only be sentenced

to a ten-year mandatory minimum sentence under § 841(b)(1)(B).

-4- Goodine challenges the legal decision of the district court to

sentence him under § 841(b)(1)(A) instead of § 841(b)(1)(B).

The government must prove every element of a crime beyond

a reasonable doubt. See In re Winship,

(1970).

However, mere sentencing factors do not require such proof.

Patterson v. N.Y.,

(1977) (holding that the State

need not "prove beyond a reasonable doubt every fact, the existence

or nonexistence of which it is willing to recognize as . . .

affecting . . . the severity of the punishment"). While the

legislature is generally free to identify elements and sentencing

factors, there are constitutional limits to this power. McMillan

v. Pennsylvania,

(1986). We must determine whether

drug quantity is an element of offenses under § 841 that must be

proved beyond a reasonable doubt, or merely a sentencing factor

that may be determined by the judge by a preponderance of the

evidence.

B. Relevant Cases

The distinction between "elements" and "sentencing

factors" can be elusive, see Apprendi, 530 U.S. at 494, and we

admit that we have been wrong on similar questions before. See

United States v. Rivera-Gómez,

(1st Cir. 1995)

(holding that the federal carjacking statute identified only one

crime; later rejected by the Supreme Court in Jones v. United

States,

(1999)). This question is complicated by

-5- the Supreme Court's recent sentencing decisions. Before Apprendi,

we held that drug-quantity delineations contained in § 841(b)(1)

were sentencing factors that could be determined by a preponderance

of the evidence. See United States v. Lindia,

, 1160-

61 (1st Cir. 1996). However, we have noted that the Supreme

Court's decision in Apprendi "requires some rethinking of this

approach." United States v. Eirby,

(1st Cir.

2001).

There is a split among our sister circuits who have

considered this issue post-Apprendi. Compare United States v.

Wade, No. 01-5210,

(6th Cir.

Feb. 11, 2003) (holding that drug quantity under § 841 need not be

proved beyond a reasonable doubt) and United States v. Smith,

(7th Cir. 2002) (same), with United States v.

Doggett,

(5th Cir. 2000) ("If the government

seeks enhanced penalties under

(b)(1)(A) or (B), the

[drug] quantity must be stated in the indictment and submitted to

a jury for a finding of proof beyond a reasonable doubt."),

followed in United States v. Turner, No. 01-11589,

, at *10-11 (5th Cir. Jan. 27, 2003) and United States v.

Buckland,

(9th Cir. 2002) (en banc).

This case presents us with a post-Apprendi opportunity to

determine congressional intent regarding the drug quantity language

of § 841. Cf. United States v. Terry,

, 74 n.9 (1st

-6- Cir. 2001) (not reaching the issue). We are assisted in this task

by the Supreme Court's determination of congressional intent behind

similar statutes. Five cases shape our analysis.

First, in McMillan v. Pennsylvania,

(1986),

the Supreme Court found that a five year mandatory minimum sentence

for visible possession of a firearm during certain enumerated

felonies was a sentencing factor that could be determined at

sentencing.

. The felonies had maximum sentences of ten

or twenty years, and the Court found that the "statute [gave] no

impression of having been tailored to permit the visible possession

finding to be a tail which wags the dog of the substantive

offense."

. The Court found that the instrumentality

used in commission of a crime was a factor "that has always been

considered by sentencing courts to bear on punishment" and

therefore was not an element of the crime.

. Although

this was the first time the Supreme Court identified "sentencing

factors" as distinct from "elements" of a crime, McMillan has

subsequently been reaffirmed in light of recent sentencing

decisions. Harris v. United States,

(2002).

In the second case, Almendarez-Torres v. United States,

(1998), the Court considered

(b)(2),

which predicated an increase in penalty on a prior conviction of

aggravated felony. The Court held that prior conviction is a

sentencing factor rather than an element establishing a separate

-7- offense.

. In reaching this conclusion, the Court

engaged in a detailed analysis of the statute's language,

structure, legislative history, caption and placement,

at 230-

35, as well as functional factors such as potential unfairness, the

magnitude of the increase, and whether prior conviction is

traditionally treated as a sentencing factor or an element of the

offense,

.

In the third case, Jones v. United States,

(1999), the Court construed the federal carjacking statute,

(1994 ed. & Supp. V). At the time, the statute set

three different maximum sentences: fifteen years for a carjacking,

twenty-five years if serious bodily injury resulted, and life

imprisonment if death resulted.

. The question was

whether the statute "defined three distinct offenses or a single

crime with a choice of three maximum penalties, two of them

dependent on sentencing factors exempt from the requirements of

charge and jury verdict."

.

The Supreme Court began with the language and structure

of the statute, noting that the statute appeared to identify one

offense with several penalty provisions.

. The Court

called this first glance an unreliable guide to congressional

intentions because the statute identified steeply higher penalties

conditioned on further facts "that seem quite as important as the

elements in the principal paragraph."

. The penalty

-8- range increased by at least two-thirds (from fifteen years to

twenty-five years), and to as much as life imprisonment, based on

a finding that substantial bodily injury or death resulted.

The Court found the legislative history "unimpressive"

because it supported either intent -- of serious bodily injury

meant as a sentencing factor or as an element of the crime.

.

The Jones Court reasoned that carjacking is a type of

robbery, and "serious bodily injury has traditionally been treated,

both by Congress and by the state legislatures, as defining an

element of the offense of aggravated robbery."

.

Finding serious bodily injury to be an element corresponded to

maintaining the jury's role as more than a mere low-level

gatekeeper: if serious bodily injury was merely a sentencing

factor, "in some cases, a jury finding of fact necessary for a

maximum 15-year sentence would merely open the door to a judicial

finding sufficient for life imprisonment."

.

Finally, the Jones Court noted that if a statute is

equally susceptible of two interpretations, one of which raises

"grave and doubtful constitutional questions" that the other does

not, a court should interpret the statute so as to avoid the

constitutional question.

. By holding serious bodily

injury to be an element of a crime requiring proof beyond a

reasonable doubt, the Court avoided a constitutional question.

-9- In the fourth case to resolve a similar issue, Castillo

v. United States,

(2000), the Supreme Court considered

a statute prohibiting the use or carrying of a firearm in relation

to a crime of violence. The Court found that the provision

increasing the penalty from a minimum of five years to a minimum of

thirty years when the weapon was a machinegun required that the

type of weapon used be proved beyond a reasonable doubt.

. The Court noted that the first sentence of the statute, which

included the type of firearm used, identified the elements of the

crime, while the second sentence described "factors (such as

recidivism) that ordinarily pertain only to sentencing."

. The Court further found that firearm type is not a

traditional sentencing factor.

. "Traditional

sentencing factors often involve either characteristics of the

offender, such as recidivism, or special features of the manner in

which a basic crime was carried out (e.g., that the defendant

abused a position of trust or brandished a gun)."

The Court

then found that asking a jury to resolve what type of weapon was

used would not complicate a trial or risk unfairness.

.

The Court noted that the legislative history could have supported

either view, but that the length and severity of the provision

suggest that the language relating to different firearm types

referred to elements of separate crimes.

.

-10- The final case offering guidance is Harris v. United

States,

(2002). There, the Supreme Court held that

the statute for commission of a drug trafficking offense while

using or carrying a firearm defines a single crime, and that

whether the firearm was "brandished" or "discharged" is merely a

sentencing factor to be determined by the judge.

. The

Court found that the statute's structure suggested definition of

one crime only, as the first paragraph listed the elements of a

complete crime and the second paragraph described how defendants

were to be punished. See

(interpreting

(c)(1)(A)). The Court then considered "tradition and past

congressional practice" and found that brandishing and discharging

a firearm had not been treated as elements in other statutes,

rather, they were classic sentencing factors.

.

Further, nothing in the "text or history of the statute" rebutted

the presumption drawn from the statute's structure -- that the

statute identifies only one offense.

.

The Harris Court distinguished Jones, where the

carjacking statute authorized "steeply higher penalties" based on

whether injury or death resulted from the crime.

at 2412

(quoting Jones,

). In the statute at issue in

Harris, the consequence of a judicial determination that a firearm

had been brandished or discharged was simply an increase in the

mandatory minimum sentence. Id. at 2412-13. The Court found that

-11- the "incremental changes in the minimum -- from 5 years, to 7, to

10 -- are precisely what one would expect to see in provisions

meant to identify matters for the sentencing judge's

consideration." Id. at 2413.

C. Application

Applying these cases to the drug statute at issue here,

we begin with the language and structure of the statute. Section

841(a) lays out an offense that stands on its own, stating that "it

shall be unlawful for any person knowingly or intentionally . . .

to . . . possess with intent to distribute or dispense[] a

counterfeit substance." See

(a).4 The next

4 The relevant provisions of the statute read:

(a) Unlawful acts. Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally -- (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute or dispense, or possess with intent to distribute or dispense, a counterfeit substance. (b) Penalties. . . . [A]ny person who violates subsection (a) of this section shall be sentenced as follows: (1)(A) In the case of a violation of subsection (a) of this section involving . . . (iii) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base . . . such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life . . . . (B) In the case of a violation of subsection (a) of this section involving . . . (iii) 5 grams or more of a mixture or substance described in clause (ii) which contains cocaine base . . . such person shall be sentenced to a term of imprisonment which may not be less

-12- subsection is entitled "Penalties" and sets sentencing ranges for

violations of 841(a) based on drug quantity, drug type, prior

conviction, and whether or not serious bodily injury resulted from

the use of the counterfeit substance. See

(b). A

straightforward reading suggests that part (a) identifies a crime

and part (b) outlines different penalties for that crime. We have

never directly answered this question, but we have previously

stated that a switch from 841(b)(1)(B) to 841(b)(1)(A) does not

affect the "substance" of the charge, Eirby,

, and

have referred to subsection (b) as designating "different

sentencing regimes based on drug quantity" (and other factors).

United States v. Robinson,

(1st Cir. 2001).

At the time § 841 was passed, Congress referred to the

"sentencing procedures" as giving "maximum flexibility to judges,"

suggesting that Congress viewed the penalty provisions as

sentencing factors. H.R. Conf. Rep. 91-1444 (1970), reprinted in

1970 U.S.C.C.A.N. 4566, 4576. The legislative history on this

point is scarce, and others have found it unhelpful. See United

States v. McAllister,

(4th Cir. 2001).

than 5 years and not more than 40 years . . . . (C) In the case of a controlled substance in schedule I or II, . . . such person shall be sentenced to a term of imprisonment of not more than 20 years . . . .

(a)-(b).

-13- In addition to the statutory text and legislative

history, we find here other considerations which have heavily

influenced the Supreme Court in finding that certain facts are

sentencing factors rather than elements establishing an offense.

First, drug quantity is a classic sentencing factor. See 18

U.S.C.S. Appx. § 2D1.1(c) (2003) (determining Sentencing Guideline

base offense level based on drug type and quantity). Like many

sentencing factors, it goes to the "nature and circumstances of the

offense." See Castillo,

(quoting

(a)(1)). Permitting the judge to make a determination as to drug

quantity is not permitting the tail of sentencing to wag the dog of

the substantive offense. See McMillan,

. The

government must prove beyond a reasonable doubt all the elements of

§ 841(a); in this case the jury found that Goodine knowingly or

intentionally possessed with intent to distribute a counterfeit

substance (cocaine base). This determination exposed Goodine to

sentencing under § 841(b), ranging from five years to life

imprisonment. The judicial finding relating to drug quantity

simply guides the judge for sentencing purposes within this range.

This is a typical sentencing scheme.

Second, due to Apprendi limitations discussed in Part III

below, a jury's determination will cap the maximum sentence a judge

can impose, regardless of drug quantity determination. Our holding

that drug quantity is not an element of § 841 means that a judge's

-14- determination of drug quantity can influence the mandatory minimum

sentence imposed, and such incremental changes in the minimum are

typical sentencing provisions determined by the judge. Harris,

. The Jones Court's concern that a jury would merely

be a low-level gatekeeper is unfounded because the jury

determination in fact sets the maximum punishment.

Third, drug quantity goes to how the offense is

conducted, rather than the result of the crime. As such, it is

more analogous to the statutes in which the Supreme Court

identified sentencing factors. Drug quantity is "not necessary to

the determination of whether [defendant's] conduct was 'criminal'

or 'innocent.'" United States v. Collazo-Aponte,

(1st Cir. 2002). It therefore is more like a sentencing factor

than an element. Finally, we note a practical result of our

ruling. Were all facts contained in § 841(b) to be treated as

elements, the statute would define as many as 350 different

offenses. See United States v. Promise,

(4th

Cir. 2001) (en banc) (Luttig, J., concurring). Such an

interpretation causes difficulty we think Congress did not intend.

We therefore find that drug quantity for purposes of § 841 is a

sentencing factor that may be determined by a preponderance of the

evidence.

III. Application of Apprendi to the Sentencing Guidelines

-15- With a judicial finding of 309.2 grams of cocaine base,

Goodine was exposed to 168-210 months imprisonment under the

Sentencing Guidelines. However, because § 841(b)(1)(A) carries a

mandatory minimum sentence of twenty years imprisonment for

defendants who have a prior conviction for a felony drug offense

and are guilty of possessing with intent to distribute fifty or

more grams of cocaine base, the judge sentenced Goodine to twenty

years in prison. Goodine raises an Apprendi argument because this

mandatory minimum sentence exceeded the high end of his Sentencing

Guideline range.

The landmark case of Apprendi v. New Jersey,

(2000), 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's limitation on

punishment beyond the statutory maximum applies regardless of

whether the fact is considered an "element" or a "sentencing

factor." Harris,

. A sentencing court may use

the preponderance of the evidence standard to find facts that

require the imposition of a specified minimum sentence, so long as

that sentence does not exceed the maximum sentence provided by the

relevant statute.

(plurality opinion);

(Breyer, J., concurring).

-16- We have held that Apprendi's holding "applies only when

the disputed 'fact' enlarges the applicable statutory maximum and

the defendant's sentence exceeds the original maximum." United

States v. Caba,

(1st Cir. 2001); United States v.

Robinson,

(1st Cir. 2001) ("[T]heoretical

exposure to a higher sentence, unaccompanied by the imposition of

a sentence that in fact exceeds the otherwise-applicable statutory

maximum, is of no consequence."). If the disputed fact (here, drug

quantity) influences the sentence, but the resulting sentence is

still below the default statutory maximum, there is no Apprendi

violation. Robinson,

; United States v. Houle,

(1st Cir. 2001). This is so even if the judge imposes

a mandatory minimum sentence. Robinson,

.

Section 841(b) delineates several different default

statutory maximums based on drug quantity (and other factors not

relevant here, such as drug type and whether or not seriously

bodily injury resulted): 20 years if no drug quantity is specified,

40 years for five or more grams of cocaine base, and life for fifty

or more grams of cocaine base.

(b)(1)(A)-(C); See

also United States v. Martínez-Medina,

(1st

Cir.), cert. denied,

(2002) (identifying default

statutory maximum under § 841(b)(1)(A) as life); Robinson,

(identifying default statutory maximum as twenty years under

§ 841(b)(1)(C), where no quantity had been determined beyond a

-17- reasonable doubt); United States v. Baltas,

(1st

Cir. 2001) (same); Smith,

(finding a default

statutory maximum of 20 years for more than fifty kilograms of

marijuana under § 841(b)(1)(C)).

In this case, the jury found Goodine guilty of conspiracy

and possession with intent to distribute at least five grams of

cocaine base. The default statutory maximum was therefore 40

years. Because he was sentenced to less than that-- 20 years --

there was no Apprendi violation.

Goodine argues that the "prescribed statutory maximum" in

his case is the top of the Sentencing Guideline range (210 months)

and that his sentence of 240 months violates the rule in Apprendi

because it is based on a drug quantity determined by a

preponderance of the evidence only. We disagree.

If we adopted Goodine's argument, we would essentially

abolish the guidelines because the jury would be required to make

findings as to all facts that may be relevant to sentencing ranges

and potential adjustments. Nothing in Apprendi or subsequent cases

calls into question the validity of the Sentencing Guidelines, and

"[w]e do not believe that the Court would have set in motion such

a sea change in the law of sentencing without explicitly addressing

the issue." Robinson,

.

The guideline calculations are not restricted by

Apprendi's rule. See United States v. Knox,

(7th

-18- Cir. 2002); United States v. Norris,

(2d Cir.

2002). The guidelines themselves state that 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." 18 U.S.C.S. Appx.

§ 5G1.1 (2002). Nothing further is needed to impose a mandatory

minimum sentence in excess of the guideline range, as the guideline

range yields to the statutory minimum sentence. Here, the

statutorily required minimum sentence of twenty years became the

guideline sentence. Therefore, Goodine's sentence did not offend

Apprendi.

IV. Conclusion

Goodine's sentence is affirmed.

"Concurrence follows"

-19- LYNCH, Circuit Judge, concurring. I concur in the

affirmance of the sentence. As to Goodine's argument that drug

quantity under

(b) is an element of a crime and not

a sentencing factor, I think the argument is foreclosed by United

States v. Robinson,

(1st Cir. 2001), United

States v. Eirby,

(1st Cir. 2001), and United

States v. Lindia,

(1st Cir. 1996). The claim

that there is a violation of the rule of Apprendi v. New Jersey,

(2000), is foreclosed by Harris v. United States,

(2002).

-20-