Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit

3-31-2008

USA v. Tidwell Precedential or Non-Precedential: Precedential

Docket No. 02-3139

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________________

No. 02-3139 _____________________

UNITED STATES OF AMERICA,

Appellee

v.

TYRONE TIDWELL,

Appellant ____________________

Appeal from the United States District Court for the Eastern District of Pennsylvania (D. C. No. 94-cr-00353-1) District Judge: Hon. Bruce W. Kauffman ____________________ Argued April 24, 2007 BEFORE: McKEE, AMBRO, Circuit Judges, and ACKERMAN, Senior District Court Judge *

* The Honorable Harold A. Ackerman, Senior District Judge for the United States District Court of New Jersey, sitting by designation. (Opinion filed March 31, 2008)

JEFFREY M. LINDY, ESQ. (Argued) MICHAEL DROSSNER, ESQ. PAUL M. GEORGE, ESQ. Lindy & Associates, P.C. 1800 J.F.K. Boulevard, Suite 1500 Philadelphia, PA 19103 Attorneys 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 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 Attorneys for Appellee

OPINION

2 McKEE, Circuit Judge.

Tyrone Tidwell challenges the mandatory sentence of life

imprisonment that was imposed pursuant to

(b),

after he pled guilty to engaging in a “continuing criminal

enterprise,” in violation of

(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

. 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

.”

Neither Count 2, nor any other provision of the indictment,

3 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

4 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

.” The court accepted the plea and sentenced Tidwell to life

imprisonment on Count 2, as mandated by

(b),

1 Tidwell’s agreement provided for the possibility that the government would file a motion for a downward departure under U.S.S.G. § 5K1.1 (substantial assistance), and a motion under

(e) (authorizing a sentence below the otherwise applicable mandatory minimum based upon cooperation with the government), depending upon the quality of any subsequent cooperation. However, neither motion was ever filed because the government was not satisfied with Tidwell’s cooperation.

5 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

(c). Moreover, during the Rule 11

colloquy Tidwell only agreed that he was pleading guilty to a

continuing criminal enterprise in violation of

(c). He did not plead guilty to violating 21U.S.C. § 848(c),

nor did he admit the conduct proscribed by that section.

The relevant provisions of

provide:2

2 As we will explain, the structure of the statutes we discuss is often very relevant to our inquiry. Accordingly, for convenience, we will frequently set forth much more of the text of a statute than would otherwise be appropriate.

6 (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 USCS § 841(b)(1)(B) ].

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

7 (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

8 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.

***

.

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.

9 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.

United States v. Jones,

(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

3 Most of the other issues Tidwell raises are contingent upon his claim that § 848(b) contains elements of an offense. Since we reject that argument, we need not discuss those claims.

10 States,

(1998); Castillo v. United States,

(2000); Harris v. United States,

(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

as sentencing factors, rather than elements of

a crime.

provided, in relevant part:

(a) Subject to subsection (b) of this section, any alien who- (1) has been . . . deported . . . , and thereafter

11 (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

. At sentencing, he admitted

that he had been convicted of three aggravated felonies

before being deported. He nevertheless argued that he could

not be sentenced under subsection (b)(2) because his

12 indictment did not charge that he had been convicted of an

aggravated felony before he was deported. The district court

rejected the argument based upon its conclusion that

Congress intended prior aggravated felony convictions to be

an aggravating sentencing factor rather than an element of

the crime. Accordingly, the trial court had held that the prior

convictions did not have to be formally charged or proven

beyond a reasonable doubt.

. The

Supreme Court agreed. The Court reasoned that the

structure of the statute, its subject matter (recidivism), its

context and legislative history, all suggested a congressional

intent to enact a sentencing enhancement based upon the

defendant’s prior record.

The Court explained that recidivism is “as typical a

sentencing factor as one could imagine.”

. The

13 Court cited several provisions of the United States

Sentencing Guidelines as well as provisions of other federal

statutes that increased severity of sentences based on an

offender’s criminal record. The Court also noted that courts

of appeals and district courts have almost uniformly treated

one’s criminal history as a sentencing factor, rather than as

an element of an offense.

The Court also reasoned that if Congress had intended

subsection (b) to define as elements of a crime, it would not

have provided that those penalties be imposed

“notwithstanding subsection (a).” Similarly, it would not

have been necessary to explain that the maximum sentence

proscribed in subsection (a) was “subject to subsection (b).”

.

The Court was also influenced by the fact that when

14 Congress added subsection (b)(2) to

, it

changed the title of the statute from “Reentry of deported

aliens” to “Reentry of deported aliens: criminal penalties for

reentry of certain deported aliens.”

. (emphasis

added). Furthermore, the legislative history referred

exclusively to creating new penalties rather than creating a

new crime, or criminalizing conduct that had not previously

been a crime.

B. Jones v. United States,

(1999).

The very next term, the Court decided Jones v. United

States. There, the Court held that Congress intended the

subdivisions of

as three separate offenses,

rather than as three sentencing enhancements.

, provides:

Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported,

15 shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall-

(1) be fined under this title or imprisoned not more than 15 years, or both, (2) if serious bodily injury . . . results, be fined under this title or imprisoned not more than 25 years, or both, and (3) if death results, be fined under this title or imprisoned for any number of years up to life, or both. The indictment in

Jones did not specify any of the statute’s subsections, nor did

it allege serious bodily injury. Similarly, the jury did not

make any finding that the carjacking involved serious bodily

injury. Jones,

. Nevertheless, the trial court

imposed a twenty five year sentence after finding, by a

preponderance of the evidence, that serious bodily injury

was involved.

The Supreme Court reversed. The Court

held that Congress intended a carjacking involving serious

bodily injury to be one of three separately defined carjacking

16 offenses of escalating severity.

The Court was persuaded that “serious bodily injury”

was a separate offense because “carjacking is a type of

robbery, and serious bodily injury [had] traditionally been

treated by Congress, and by the state legislatures, as defining

an element of the offense of aggravated robbery.”

.

Congress drafted the legislation against that historical

background.

Moreover, inflicting serious bodily injury

or death raised the statutory maximum by ten years in

subsection (2), and to life imprisonment in subsection (3),

thereby exposing offenders to significantly steeper penalties

than the conduct proscribed in § 2119(1). Allowing such

dramatic increases in punishment without charging the

underlying conduct in an indictment and requiring proof

beyond a reasonable doubt raised serious constitutional

17 questions.

C. Castillo v. United States,

(2000).

The Supreme Court next addressed the distinction

between sentencing enhancements and elements in Castillo

v. United States. There, the Court held that Congress

intended

(c)(1) (relating to the use of a

machine gun) to be an element of a crime. The defendants

in Castillo were convicted of violating

, but

the indictment did not specify the type of weapon used. At

sentencing, the judge found they had used machine guns and

hand grenades, and sentenced defendants to the mandatory

thirty-year term of imprisonment set forth in

(c)(1).

is entitled “Penalties,” and the

relevant portion of the statute provides as follows:

18 (a)(1) Except as otherwise provided in this subsection, subsection (b), (c), or (f) of this section, . . . whoever - (A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter . . . [or] *** (D) willfully violates any other provision of this chapter, shall be fined under this title, imprisoned not more than five years, or both. (a)(2) Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.

***

(b) Whoever, with intent to commit therewith an offense punishable by imprisonment for a term exceeding one year, or with knowledge or reasonable cause to believe that an offense punishable by imprisonment for a term exceeding one year is to be committed therewith, ships, transports, or receives a firearm . . . in interstate or foreign commerce shall be fined under this title, or imprisoned not more than ten years, or both.

19 (c)(1) Whoever, during and in relation to any crime of violence . . . uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ,. . . be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle, . . ., or semiautomatic assault weapon, to imprisonment for ten years, and if the firearm is a machine gun, . . . to imprisonment for thirty years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years, and if the firearm is a machine gun, . . . to life imprisonment without release. *** (c)(3) [defines “crime of violence” for purposes of this subsection] *** (e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony, . . . such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law *** (o) A person who conspires to commit an offense under subsection (c) shall be imprisoned for not more than twenty years, fined under this title, or both; and if the firearm is a machine gun or destructive device, or is equipped with a firearm silencer or muffler, shall be imprisoned for any term of years or life. The Court focused on the structure of the statute

20 because neither the text nor legislative history was helpful.

The title (“Penalties”) suggested that Congress intended to

define penalties for engaging in the conduct proscribed in

the first sentence. However, the statute’s structure was more

indicative of an intent to treat possession of a machine gun

as a separate offense. The “basic job of the first sentence is

the definition of crimes and the role of the remaining three

[sentences] is the description of factors that pertain only to

sentencing.”

. Recidivism has historically been

regarded as a sentencing factor, as explained in Almendarez-

Torres. Sentencing factors typically involved offender

characteristics or the manner in which a crime was

committed.

. The type of firearm employed was

not related to either of those traditional sentencing factors.

Rather, the kind of weapon used in committing a crime

had traditionally been accorded significance beyond

21 sentencing.

The Court concluded that several factors established

that Congress intended to regard possession of a machine

gun as an element of the crime rather than a sentencing

factor. The structure of the statute “strongly suggest[ed] that

the . . . first sentence [defines] crimes and the role of the

remaining three is the description of factors (such as

recidivism) that ordinarily pertain only to sentencing.”

. Second, courts have not “traditionally used firearm

types . . . as sentencing factors, . . .”

Third, asking a jury

to determine if the defendant “used or carried a machine gun

would rarely complicate a trial or risk unfairness.”

Moreover, a contrary rule would risk creating “a conflict

between the judge and the jury.”

. Fourth, to the

extent the legislative history was helpful, it seemed to

22 describe “offense conduct.”

. “Fifth and finally, the

length and severity of ” the mandatory minimum sentence

“weigh[ed] in favor of treating such offense-related words as

referring to elements.”

.

Moreover, given the extent that Congress increased

punishment, the Court “assume[d] a preference for

traditional jury determination.”

The force of all these

considerations resulted in a “stronger ‘separate crime’ case

than either Jones or Almendarez-Torres - cases in which [the

Court was] closely divided as to Congress’ likely intent.” Id.4

4 Just three weeks after deciding Castillo, the Court decided Apprendi v. New Jersey,

(2005). There, the Court held that “‘other than . . . a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum, whether the statute calls it an element or a sentencing factor, ‘must be submitted to a jury, and proved beyond a reasonable doubt.’” Harris v. United States,

(quoting Apprendi,

).

23 D. Harris v.United States,

(2002).

In Harris v.United States, the Court had to revisit

congressional intent underlying

. Harris was

convicted of having “an unconcealed semiautomatic pistol

at his side” during an illegal sale of narcotics in violation of

(c)(1)(A). The relevant statutory text

provides:

Any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime- (I) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

.

Harris was charged only with violating “the statute’s

24 principal paragraph.” At the sentencing hearing, the court

relied upon a recommendation in the presentence report to

sentence Harris to 7 years in prison because the trial court

concluded, based upon a preponderance of the evidence,

that Harris had brandished a firearm during the drug sale.

Harris appealed, arguing that “brandishing” a firearm was an

element requiring formal charge in the indictment and proof

beyond a reasonable doubt. The Court of Appeals affirmed,

and the Supreme Court granted certiorari.

The Supreme Court first looked at the structure of the

statute. The Court explained that

[section] 924(c)(1)(A) begins with a lengthy principal paragraph listing the elements of a complete crime- the basic federal offense of using or carrying a gun during and in relation to a violent crime or drug offense. Toward the end of the paragraph is the word “shall,” which often divides offense-defining provisions from those that specify sentences. And following “shall” are the separate subsections, which explain how defendants are to be

25 sentenced.

(some internal quotation marks omitted).

The Court concluded that § 924(c)(1)(A) followed

that formula: “Subsection (i) sets a catchall minimum and

certainly adds no further element. Subsections (ii) and (iii),

in turn, increase the minimum penalty if certain facts are

present, and those subsections do not repeat the elements

from the principal paragraph.” Id. at 552-53. Based on that

structure, the Court “presume[d] that [the] principal

paragraph defines a single crime and [the statute’s]

subsections identify sentencing factors.” Id. at 533.

However, the Court did not rest its holding on that

presumption. Rather, the Court explained that even though

the structure and “look . . . suggested that the numbered

subsections are only sentencing provisions, the text might

provide compelling evidence to the contrary, [as] illustrated

26 by the . . . decision in Jones. . .”. Id. (internal quotation

marks omitted). As discussed above, the statute there “had

a similar structure,” yet the Court concluded that Congress

intended to “set[] out the elements of numerous offenses.”

Id. Accordingly, the Court focused on the text of §

924(c)(1)(A).

That text reinforced the Court’s conclusion that the

subsections were intended as sentencing factors rather than

separate offenses. There is no tradition of treating

brandishing a weapon as a separate offense. Jones,

(citing United States Sentencing Commission,

Guidelines M anual §§ 2A2.2(b)(2), 2B3.1(b)(2),

2B3.2(b)(3)(A), 2E2.1(b)(1), 2L1.1(b)(4)). Rather, courts

have traditionally regarded such conduct as a sentencing

factor.

27 Moreover, the disputed provision “alters only the

minimum, the judge may impose a sentence well in excess

of seven years, whether or not the defendant brandished the

firearm.” Id. This was therefore “consistent with traditional

understandings about how sentencing factors operate; the

required findings constrain, rather than extend, the

sentencing judge’s discretion.” Harris,

(emphasis added).

There was nothing to suggest that Congress intended

to alter past practices in enacting § 924(c)(1)(A) by

converting a factor that had historically been relevant only to

punishment into an element of a crime.

III. Tidwell’s sentence under

(b).

With this background as our compass, we turn to the

28 statute involved here.5 As we noted at the outset, we

examine the structure, format and text to determine if

Congress intended § 848(b) as a sentencing enhancement or

as elements of a crime. To the extent that we find the statute

ambiguous, we also examine the legislative history. Our

review of the district court’s ruling is plenary. See Gibbs v.

5 We have not fully considered this issue until now. We summarily affirmed the district court’s conclusion that § 848(b) is a sentencing enhancement in in United States v. Dumas,

(E. D. Pa. Aug. 20, 1992). See

(3d Cir. 1993). We declined to reach the issue in United States v. Riddick,

, 507 n.1 (3d Cir. 1998) (affirming defendant’s sentence on other grounds). Two other Courts of Appeals have briefly considered the issue and reached opposite conclusions to each other. See United States v. Kramer,

, 484 n.4 (7th Cir. 1992), and United States v. Torres,

(2d Cir. 1990). The only other Court of Appeals that has engaged in substantive analysis of § 848(b) reached the same conclusion we reach here. See United States v. Hardin,

(7th Cir. 2000), cert. denied,

(2001). The Court in Hardin relied heavily on Jones.

29 Cross,

(3d Cir. 1998).

A. Titles, Text and Structure.

Section 848(a) is titled “Penalties, forfeitures.”

Section 848(b) is titled “Life imprisonment for engaging in

a continuing criminal enterprise;” and § 848(c) is titled,

“‘Continuing criminal enterprise’ defined.” This suggests

that Congress intended to define the crime of CCE in §

848(c), that it set out the applicable penalties for that crime

in subsection (a), and that it intended to mandate an

enhancement when a defendant commits the offense of CCE

in the manner set forth in subsection (b). That conclusion is

tenuous because a statute’s title and heading are not always

dispositive of congressional intent. See Castillo,

(“In this case, however, the section’s title cannot help,

for Congress already has determined that at least some

30 portion of § 924 including § 924(c) itself, creates . . . not

penalty enhancements, but entirely new crimes.”)

Nevertheless, our conclusion with respect to the headings is

bolstered by our analysis of the text and structure of the

statute.

It is, however, clear from the text of the statute that if

the government can prove beyond a reasonable doubt that a

defendant has engaged in the conduct set forth in subsection

(c), it has established a continuing criminal enterprise

violation. Subsection (a) sets forth the penalty for that crime

as follows: “[a]ny 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

31 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[.]”

(a). Thus, Congress relied

upon the traditional sentencing factor of recidivism to limit

a sentencing court’s discretion and require an enhanced

mandatory minimum sentence based upon a prior conviction.

However, prior record is not the only factor Congress used

to limit the sentencing court’s discretion. Congress also

restricted sentencing discretion by requiring a sentence of

life imprisonment depending on the level of involvement in,

and the size of the CCE, as specified in subsection (b). Thus,

a judge must impose a sentence of life imprisonment if a

defendant does not merely engage in a continuing criminal

enterprise but is its “ . . . organizer . . . or leader,” and the

quantity of illegal drugs involved or gross receipts received

32 exceeds a defined threshold.

(b).

We realize that the structure of § 848 is unique

because the substantive offense is set forth in the middle of

the statute, § 848(c), rather than at the beginning. The

sentencing factor the Supreme Court has found most

persuasive in establishing congressional intent - recidivism -

is contained in the first paragraph, subsection (a), even

though the conduct that subjects a defendant to that

enhancement is defined two paragraphs later.

Significantly, except for the death penalty provision

in subsection 848(e), none of the provisions concerning

sentencing stands alone.6 Rather, they each depend on the

6 For convenience, we once again set forth the relevant text of § 848(e):

(e) Death penalty

33 criminal conduct defined in subsection (c). See United

States v. Thunder Hawk,

(8th Cir. 1997)

(a sentencing enhancement “cannot stand alone; it is

conditioned upon conviction for the underlying offense”

(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 . . .[,] 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 . . . a felony violation of this subchapter or subchapter II of this chapter who intentionally kills . . .[,] 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.

34 citing cases).

Moreover, our interpretation of the text is reinforced

by the fact that Congress and the courts have traditionally

viewed the size of a criminal enterprise, and a defendant’s

role within it, as sentencing factors. See Harris,

(“tradition and past practice . . . were perhaps the most

important guideposts . . . in Jones”); see also McMillan v

Pennsylvania,

(1986) (the factor had not

“historically been treated in the Anglo-American tradition as

requiring proof beyond a reasonable doubt.”) The size and

scope of the defendant’s criminal enterprise are nothing

more than the manner in which [the] basic crime was carried

out. . .”. See Castillo,

(“Traditional

sentencing factors often involve either characteristics of the

offender, such as recidivism, or special features of the

35 manner in which a basic crime was carried out (e.g., that the

defendant abused a position of trust or brandished a gun.)”).

Thus, it is not likely that a court would impose the same

sentence on a defendant who is a leader of a drug conspiracy

as on a defendant who is only involved in small “retail”

street-level drug sales. Similarly, a sentencing court would

not likely give an organizer of a conspiracy involving a few

hundred dollars worth of contraband the same sentence as

the organizer of a conspiracy involving tens of millions of

dollars worth of contraband. With the exception of the death

sentence authorized in § 848 (e), the demarcated penalties

contained in § 848 have no more constitutional significance

than that. Congress “simply took one factor that has always

been considered . . . to bear on punishment. . . and dictated

the precise weight” it must receive. McMillan,

.

36 The application and role of such sentencing

considerations is readily apparent in the sentencing

guidelines. U.S.S.G. § 3B1.1 increases the applicable

sentencing range based on the number of participants

involved and whether the defendant is an “organizer, leader,

manager, or supervisor,” of the criminal activity. U.S.S.G.

§ 3B1.2 decreases the range when a defendant’s role is

“minimal” or “minor.” See United States v. Bierley,

(3d Cir. 1990). Similarly, the guidelines provide

for increasingly severe sentences as the quantity of drugs

increases. See U.S.S.G. § 2D1.1(c). The Guidelines also

generally provide for increasing sentences based upon

economic gain to the defendant and/or foreseeable economic

loss to the victim. See U.S.S.G. § 2B1.1(b).

Moreover, a defendant’s role in a criminal enterprise

37 and the amount of money involved were relevant sentencing

factors long before Congress adopted the Guidelines. As the

court noted in United States v. Schultz,

(6th Cir. 1994), the “[r]ole in the offense is a traditional

determination, made in every sentencing, which long

antedates the Guidelines.” Similarly, drug quantity has

historically been regarded as a sentencing factor, subject

only to the recent qualification of Apprendi.7

Tidwell suggests that because courts have held that

the death penalty provision contained in § 848(e) is a

separate offense, we must similarly regard §848(b).

However, that argument is belied by the very text of § 848.

7 “Other than the fact of a prior conviction, any fact that increases the penalty of a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt ” Blakely, 542 U.S. at 301 (quoting Apprendi,

).

38 As the court explained in United States v. NJB,

(4th Cir. 1997), “[t]he language, structure and

legislative history of § 848(e)(1) establish that it is a separate

offense, not merely a penalty provision.” Thus, “[s]everal

other subsections of § 848 refer to § 848(e) as a separate

offense.” Id.

(i) refers to “an offense under

subsection (e) of this section.” Section 848(n) lists factors to

be considered in imposing a sentence for “an offense under

subsection (e).” Section 848(j) refers to proving aggravating

and mitigating factors “‘when a defendant is found guilty of

. . . an offense under subsection (e) of this section.” See NJB,

.” The fact that the statute internally refers

to § 848(e) as an “offense” clearly establishes Congress’

intent to create a separate crime in § 848(e). In addition, we

must never forget that “death is different in kind from any

other punishment imposed under our system of criminal

39 justice.” Gregg v. Georgia,

(1976)

(emphasis added). Given the qualitative difference between

a sentence of death and a sentence of life imprisonment, as

well as the text and structure of the statute, we are satisfied

that Congress intended subsection 848(b) as a sentencing

enhancement rather than elements of a separate offense.

B. Legislative History

Furthermore, even assuming arguendo that the text,

structure and titles are ambiguous, we would reach the same

conclusion based on the legislative history of § 848(b).

When Congress added § (b) to the Anti-Drug Abuse Act of

1986, P.L. 99-570, Title I, § 1253,

, it was

described as “providing tough new penalties for drug

dealers, not as creating new crimes.” United States v.

Hardin,

(7th Cir. 2000), cert. denied, 531

(2001). The debate surrounding subsection (b)

centered on creating stiffer penalties for drug crimes. See,

e.g., 132 Cong. Rec. S26711 (1986) (statement of Sen.

Durenberger) (“This legislation is predominantly a crime

bill: interdiction; stiff penalties; new authority for law

enforcement.”) (emphasis added); 132 Cong. Rec. S26834

(1986) (“[t]he bill strengthens the penalties for major drug

traffickers”) (statement of Sen. Nunn) (emphasis added); 132

Cong. Rec. S26728 (1986) (“[T]he measure establishes

tougher penalties for individuals convicted of drug-related

crimes.”) (statement of Sen. Bingaman) (emphasis added);

132 Cong. Rec. S26746 (1986) (statement of Sen. Mattingly)

(“The bill which we have before us does enhance this

nation’s law enforcement capabilities. It provides for

stricter penalties for those who engage in the illegal drug

trade.”) (emphasis added); 132 Cong. Rec. 31417 (1986)

41 (statement of Sen. Byrd (“it contains significantly enhanced

penalties for drug crimes. It requires minimum mandatory

sentences, with no parole, no probation. And it provides for

life sentences for major criminals-the drug ‘king pins’”)

(emphasis added).

C. Tidwell’s Attempt to Distinguish Precedent

Tidwell disagrees with our interpretation of the cases

we have discussed. He claims that an important, if not

dispositive consideration in Jones supports his view that §

848(b) is a separate offense. There, the Court did observe

that where a provision appears to be a sentencing

enhancement, but nevertheless provides for significantly

steeper penalties based upon the presence of certain factors,

the extent of the increase in punishment can alone suggest a

congressional intent to create a separate crime. See Jones,

42

(1999).

Accordingly, the Court in Jones explained that

[it is] at best questionable whether the specification of facts sufficient to increase a penalty range by two-thirds, let alone from 15 years to life, was meant to carry none of the procedural safeguards that elements of an offense bring with them for a defendant’s benefit. The “look” of the statute, then, is not a reliable guide to congressional intentions . . ..

However, Tidwell’s argument is wholly unpersuasive

because, even absent § 848(b), § 848(a) would still allow for

a life sentence to be imposed on any defendant convicted of

a CCE. Thus, unlike the sentencing scheme in Jones, a

sentencing judge’s imposition of a mandatory life sentence

under subsection (b) neither alters the maximum penalty, nor

steeply increases a defendant’s exposure. Rather, “it makes

the existing maximum sentence [equal to the] minimum

43 sentence . . . for a defendant who played an aggravated role

in the CCE.” Hardin,

.8 The life sentence it

mandates was already an available sentencing option based

upon conviction for violating § 848(c). Thus, the concern

that a defendant is denied “process safeguards” where the

available sentence sharply exceeds the punishments

otherwise available is not a persuasive consideration here.

See Jones,

.

Tidwell also relies on Blakely v. Washington,

(2004). There, the Supreme Court held that a judge

can not impose a sentence on a criminal defendant that is

greater than the maximum sentence authorized by the facts

8 Since we do not believe that § 848(b) is ambiguous, we reject Tidwell’s attempt to rely on the principle of constitutional doubt. See United States ex rel. Attorney General v. Delaware & Hudson Co.,

(1909).

44 reflected in the jury verdict or defendant’s guilty plea. See

Blakely,

. The 90-month sentence that was

imposed in Blakely could not have been imposed based

solely on the facts Blakely admitted. Rather, the sentence

rested upon the judicial finding at sentencing that Blakely

acted “with deliberate cruelty.” Blakely,

.

Here, no such additional fact finding is required because a

life sentence was already authorized by Tidwell’s plea to §

848 (c).9 Absent consideration of the additional factors in §

848(b), Tidwell could certainly have hoped for something

less than a sentence of life imprisonment, but he had no right

to anything less. It is a defendant’s right to a lesser sentence

9 It is now well established in this circuit that facts that only enhance sentences within the range allowed by the jury’s verdict (or guilty plea) need not be charged in an indictment or proven beyond a reasonable doubt. See, United States v. Grier,

(3d Cir. 2006) (en banc).

45 absent additional fact finding that makes all the difference

under the Sixth Amendment. Blakely,

.

Tidwell concedes that proof of the additional

subsection (b) facts did not increase his maximum sentence.

Appellant’s Br. at 63. However, he claims that Congress

cannot constitutionally require a mandatory minimum

sentence that is equal to the maximum sentence, without

affording the defendant the Sixth Amendment’s procedural

protections. This is particularly true, argues Tidwell, when

that mandatory minimum is life imprisonment. Id. at 64.

Tidwell’s argument is foreclosed by the Supreme

Court’s decision in McMillan v. Pennsylvania. In McMillan,

defendants challenged the constitutionality of sentences

imposed pursuant to Pennsylvania’s Mandatory Minimum

Sentencing Act, 18 Pa. C.S.A. § 9712(a). That statute

46 required a mandatory minimum prison sentence of five years

for anyone committing certain offenses “if the person visibly

possessed a firearm during the commission of the offense, . . .”.

. The defendants argued that visible possession

of a firearm was an element of the offense and therefore had

to be charged in the indictment and proven to a jury beyond

a reasonable doubt. The Supreme Court disagreed. The

Court held that the Act merely limited the sentencing court’s

discretion by requiring a penalty within the range already

available. No additional findings were required. The

legislature “simply took one factor that has always been

considered by sentencing courts to bear on punishment . . .

and dictated the precise weight to be given that factor.”

. Here, as in McMillan, the additional fact finding

“operates solely to limit the sentencing court's discretion in

selecting a penalty within the range already available to it

47 without the special finding . . .”.

.

Tidwell claims that McMillan, as well as Harris, are

distinguishable because § 848(b) denied the sentencing court

any opportunity to impose a sentence within a prescribed

range. By contrast, in both Harris and McMillan, imposition

of the mandatory minimum “required the judge to impose a

‘specific sentence within the range authorized by the judge’s

finding that the defendant [was] guilty.’” Harris,

(quoting Apprendi,

n.19). As we have

just noted, although Tidwell may have expected that the

district court would have discretion to impose a lesser

sentence, that expectation does not rise to the level of a

constitutional guarantee.10

10 According to Tidwell, pleading guilty to § 848(c) makes no sense if it subjects him to a life sentence pursuant to § 848(b) because he would have had nothing to lose by “rolling the dice” and going to trial. The argument ignores

48 Tidwell also claims that, where the minimum and

maximum sentences are identical, the already difficult task

of distinguishing Apprendi from McMillan and Harris

becomes even more tenuous. However, it is not for us to

reconsider McMillan and Harris, or resolve any tension that

may exist between that line of cases, Apprendi and its

progeny. See Agostini v. Felton,

(1997)

("[i]f a precedent of [the Supreme Court] has direct

application in a case, yet appears to rest on reasons rejected

in some other line of decisions, the Court of Appeals should

follow the case which directly controls, leaving to this Court

the prerogative of overruling its own decisions." ).11

the fact that the court may have been able to impose a lesser sentence based on his “substantial assistance.” 11 See Harris,

(Breyer, J., concurring) (“I cannot easily distinguish Apprendi . . . from this case in terms of logic.”); United States v. Grier,

, 575

49 D. Stipulation to Drug Quantity.

Finally, Tidwell claims that the stipulation of drug

quantity in the plea agreement only extended to calculating

his base offense level, and that it was error to rely on it to

enhance his sentence pursuant to § 848(b). Tidwell believes

that this is the only logical interpretation of the stipulation

because the drug quantity would otherwise have required a

life sentence and the guideline range would have become

irrelevant. The argument again ignores the possibility of

motions under

(e) and U.S.S.G. § 5K1.1.

See App. at 16. Had these motions been filed, the sentencing

judge would have had discretion and the quantity of drugs

(3d Cir. 2007) (Ambro, J., concurring) (“To create a sentencing process that fully carries through on the promise of Apprendi and Blakely, I believe the Supreme Court would have to overrule at least, McMillan [citation omitted] and Harris [citation omitted]”).

50 would have become relevant to calculating the correct

advisory sentencing range under

(a). See

United States v. Gunter,

(3d Cir. 2006).

We are also not persuaded to the contrary by

Tidwell’s reliance on United States v. Thomas,

(3d Cir. 2004). There, because we merely discussed the

various meanings of an “admission” under Blakely, Thomas

is not as helpful as Tidwell claims. As we have explained,

Tidwell’s sentence does not exceed the statutory maximum.

Cf. United States v. Munoz,

(6th Cir.

2000).

Accordingly, we hold that Congress intended § 848(b)

as a sentencing enhancement, not as a separate crime. That

does not, however, end our inquiry. Tidwell’s claim that he

did not know that he was pleading guilty to an offense that

51 carried a mandatory life sentence requires us to determine if

his plea comports with the requirements of due process. See

Brady v. United States,

(1970) (A plea of

guilty is constitutionally valid only to the extent it is

“voluntary and “intelligent”.)

E. The Voluntariness of Tidwell’s Plea.

In order for a guilty plea to comply with the

requirements of the Due Process Clause of the Fifth

Amendment, it must be knowing, voluntary and intelligent.

Bousely v. United States,

(1998). To

that end, Fed. R. Crim. P. 11 provides that: “[b]efore

accepting a plea of guilty . . . the court must address the

defendant personally in open court and inform the defendant

of, and determine that the defendant understands [,] . . . the

maximum possible penalty provided by law . . .”. Fed. R.

52 Crim. P. 11(c). Tidwell claims that his plea violated both the

Due Process Clause and Rule 11 because he was not advised

that he was pleading guilty to an offense that had a

mandatory penalty of life imprisonment. Appellants’s Br. at

35-42.12

Tidwell argues that the District Court erred by failing

to advise him that admitting involvement with 150 kilograms

of cocaine triggered a mandatory life sentence absent

motions under

(e) and U.S.S.G. § 5K1.

Tidwell’s argument rests in large part upon the fact that the

judge told him the following during the colloquy:

If you don’t like the sentence that I give you, you can appeal that. But very often I have

12 Tidwell’s argument “bleeds into” the more central question before us which we have discussed above: whether the mandatory sentencing provision in Section 848(b) is a sentencing enhancement or a separate offense.

53 discretion in these matters, and if you appeal the sentence, you may or may not be successful. But that’s the only thing you’re going to be able to appeal after today.

App. 195-96. Although this statement standing alone is

misleading, any confusion was dispelled by the judge’s other

admonitions to Tidwell. Throughout the colloquy, Tidwell

was advised that his guilty plea exposed him to a mandatory

sentence of life imprisonment, and he acknowledged that he

understood.

The prosecutor explained: “Mr. Tidwell is pleading to

engaging in a continuing criminal enterprise. The maximum

sentence . . . is a mandatory life imprisonment . . . ”. App. at

185. Tidwell acknowledged that he understood. The judge

then explained: “to the extent there are mandatory

punishments for these offenses, I will have to impose those

punishments unless there is some basis on which I would . .

54 . be able not to do so.” Id. at 207. The judge also clearly

explained that there was no guarantee that the government

would file any motion to allow the court to reduce Tidwell’s

sentence.

I am assuming that the motion, you’re hoping the Government will make with respect to assistance would be a way in which I could go below the mandatory life term and the mandatory 20-year term. But there’s no assurance here that, number one, what you do for the Government is going to be deemed by them to be substantial. Number two, that they’re going to file a motion. Number three, that I’m going to grant the motion. And, number four, there’s no telling how I’m going to view the situation in terms of any departure I might make.

Id. at 207. Finally, the judge warned: “[I]f there is not a

departure here, then there are mandatory sentences,

mandatory life sentences, and I’m not going to have the

ability to depart from that.” Id. at 209 (emphasis added).

Tidwell nevertheless pled guilty to “engaging in a

55 continuing criminal enterprise, in violation of Title

,” and stipulated that the

drug quantity exceeded 150 kilograms. App. at 216.

Tidwell now complains that the plea agreement did not

specifically inform him that the stipulated drug quantity

would subject him to the mandatory life sentence in §

848(b). Tidwell overlooks the fact that, when he pled guilty,

the judge did advise him that a mandatory life sentence

would apply unless the government filed motions that would

authorize some sentencing discretion. The court could only

advise Tidwell of his maximum exposure, and the court did

that. See Powell, 269 F.3d at 183 (discussing United States

v. Mustafa,

(3d Cir. 2001)).

Thus, Tidwell was informed that his guilty plea

subjected him to a mandatory sentence that would have to be

56 imposed unless the government moved for a reduction based

on Tidwell’s subsequent cooperation. The cooperation was

not forthcoming, but that does not alter the fact that

Tidwell’s plea was knowing, voluntary and intelligent.

IV. Conclusion

For all of the foregoing reasons, we will affirm the

judgment of sentence.

57