281 F.

3d 423

UNITED STATES of America, Plaintiff-Appellee,

v.
Anderson BENENHALEY, a/k/a Andy, Defendant-Appellant.
No. 00-4415.

United States Court of Appeals, Fourth Circuit.

Argued November 1, 2001.
Decided February 20, 2002.

ARGUED: Deborah R.J. Shupe, Louthian Law Firm, P.A., Columbia, SC,
for Appellant. Jane Barrett Taylor, Assistant United States Attorney,
Columbia, SC, for Appellee. ON BRIEF: Scott N. Schools, United States
Attorney, Columbia, SC, for Appellee.
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
Affirmed in part and vacated and remanded in part by published per
curiam opinion. Judge LUTTIG wrote a dissenting opinion.
OPINION
PER CURIAM.

Anderson Benenhaley challenges his methamphetamine conspiracy conviction

and his life sentence for that conviction, in light of the Supreme Court's
decision in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000) ("Other 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."). We
affirm the conviction, vacate the sentence, and remand for resentencing.

Benenhaley was indicted for various firearm and controlled substance offenses.
The indictments did not specify drug quantity but simply stated that Benenhaley
distributed, conspired to distribute, or conspired to possess with intent to
distribute an unspecified "quantity" or "quantities" of methamphetamine.
Benenhaley pled guilty to possession of firearms as a convicted felon in

violation of 18 U.S.C.A. 922(g) (West 2000); a jury convicted him of

conspiracy to possess methamphetamine with intent to distribute it and
distribution of methamphetamine, in violation of 21 U.S.C.A. 841 (West
1997) and 846 (West 1999).
3

Attributing 1.9 kilograms of pure methamphetamine to Benenhaley, the district

court assigned him an offense level of 36. U.S. Sentencing Guidelines Manual
2D1.1 (1998). The court then sentenced him to life imprisonment for the
conspiracy count and concurrent shorter sentences on the other counts. The life
sentence exceeded the statutory maximum otherwise applicable under the thencurrent version of Section 841(b)(1)(C). 21 U.S.C.A. 841(b)(1)(C) (West
1997). Benenhaley appeals, challenging both his conviction and sentence.

As the Government concedes, Apprendi and this court's decisions in United

States v. Promise, 255 F.3d 150 (4th Cir.2001) (en banc), and United States v.
Cotton, 261 F.3d 397 (4th Cir.2001), require that we vacate Benenhaley's
sentence and remand for resentencing. See Promise, 255 F.3d at 157, 160
(holding that the failure to charge a specific threshold drug quantity in the
indictment and to submit the quantity to the jury constitutes plain error
affecting a defendant's substantial rights); and Cotton, 261 F.3d at 403-04, 40507 (holding that such an error seriously affects the fairness, integrity, or public
reputation of judicial proceedings, so that this court should exercise its
discretion to recognize the error even if it has not been raised before the district
court).

Benenhaley also contends that the absence of a specific drug quantity in his
indictment requires reversal of his conviction. However, recently when another
defendant, Mario Promise, made the same contention, Promise, 255 F.3d at 160
(noting that "Promise asserts that the error is in his conviction"), the en banc
court expressly rejected the contention. Id. ("[w]e conclude that the error was
not in Promise's conviction"). The en banc court held that an indictment that
charges an unspecified drug quantity suffices to support a conviction under 21
U.S.C. 841, id. at 160 and at 186 (Motz, J., joined by Judges Widener,
Michael, and King concurring in this part of the principal opinion), and
affirmed the conviction despite Promise's direct challenge to it. Id. at 165. See
also United States v. Dinnall, 269 F.3d 418, 423 n. 3 (4th Cir.2001)
(concluding that "the error identified by Promise is not an error ... in the
conviction"). Accordingly Benenhaley's challenge to his conspiracy conviction
fails.

Finally, Benenhaley asks us to direct the district court when resentencing him
not to attribute to him certain methamphetamine seen in his possession, because

a drug-addicted witness's estimate supplied the only evidence of quantity.

Evidence underlying a finding of drug quantity must "possess[] sufficient
indicia of reliability to support its probable accuracy." United States v.
Uwaeme, 975 F.2d 1016, 1021 (4th Cir.1992). The witness in question testified
that he saw Benenhaley with "three or four bags," that he did not see the bags
weighed, that he estimated the bags to weigh "about four pounds, maybe five"
based on a third party's estimate of their financial value, and that Benenhaley
gave him pure methamphetamine out of one of the bags.
7

The district court used the lower estimate of four pounds, or 1.8 kilograms, and
the Government otherwise established 96.65 grams of pure methamphetamine.
We have approved district courts' use of the low end of a witness's estimate,
United States v. Lamarr, 75 F.3d 964, 972-73 (4th Cir.1996), and reliance on
an estimate based on a visual comparison to a candy vial. United States v. Cook,
76 F.3d 596, 604 (4th Cir.1996). Moreover, in this case the low end of the
witness's estimate could almost be halved without any effect on Benenhaley's
offense level. U.S. Sentencing Guidelines Manual 2D1.1(c)(2, 3). Given these
circumstances, we see no error in the district court, on remand, again
considering the testimony in question.

For the foregoing reasons, we affirm Benenhaley's conviction, vacate his

sentence, and remand for resentencing.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

10

LUTTIG, Circuit Judge, dissenting.

11

I separately stated my views regarding the proper interpretation of 21 U.S.C.

841 in United States v. Promise, 255 F.3d 150, 168-86 (4th Cir.2001) (en banc),
and I need not repeat those views today. However, I noted there that, while the
reasoning of the Supreme Court's opinion in Apprendi is arguably quite broad,
the actual holding of that case is considerably narrower. Although the Court's
reasoning could be read to require that any fact that increases a defendant's
sentence, even within the statutory range, must be charged in the indictment
and proven beyond a reasonable doubt to the jury, the narrower holding is only
that the jury must find beyond a reasonable doubt those facts that increase a
sentence beyond the maximum authorized by statute.

12

I explained in Promise my view that the majority of our court had mistakenly
applied the broader reasoning in Apprendi effectively ignoring both
Apprendi's more limited holding and the Supreme Court's own explicit refusal

to overrule McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d
67 (1986) to hold that, "in order to authorize the imposition of a sentence
exceeding the maximum allowable without a jury finding of a specific
threshold drug quantity, such drug quantities must be treated as elements of
aggravated drug trafficking offenses," 255 F.3d at 152. As I noted, the Promise
majority created literally scores of separate offenses within section 841 alone
by so holding.
13

I did not believe at the time that the majority of our court fully understood the
consequences of its misunderstanding of Apprendi, even for section 841. Now,
however, those consequences not only for section 841 but for all criminal
statutes are becoming painfully more apparent.

14

Of paramount importance, the reasoning of Promise leads inexorably to the

conclusion that the actual convictions under section 841, and not merely the
sentences imposed for those convictions, are invalid, whenever merely "a
quantity" of controlled substance is charged in the underlying indictment. This
follows from two conceptually independent, though related, lines of reasoning.

15

First, the reasoning of Promise applies not only to the statutory provisions of
section 841, but also to the sentencing scheme superimposed by the Sentencing
Guidelines. The unavoidable results of this principled application of the
Promise reasoning to the sentencing scheme is that section 841(b)(1)(C) itself
must also be parsed into multiple offenses, and further, that some allegation
regarding drug quantity more specific than merely "a quantity" is now, as a
matter of constitutional law, an element of each such offense. Second, it is
evident, on the reasoning of Promise, that the statutory language of section
841(b)(1)(C), which was never analyzed by the Promise majority, also dictates
that a specific allegation of drug quantity is an element of every section 841
offense.

16

On each of these lines of reasoning, it follows that an indictment that alleges

only "a quantity" of the drug in question does not charge a section 841 offense
at all. In other words, by virtue of the reasoning in Promise, it turns out that
section 841(b)(1)(C) is not, as the Promise majority believed, a catch-all or
lesser-included offense, under which defendants may be sentenced even when
indictments do not specify drug quantity.

17

With respect to the first argument, the reasoning marshaled in Promise that
showed that section 841 actually comprises numerous different substantive
offenses likewise shows, when the Sentencing Guidelines are brought into play,

that section 841(b)(1)(C) itself comprises multiple separate offenses. The

analysis is this. In order to justify its fragmentation of section 841, Promise
explained that "a fact finding increases a defendant's sentence beyond the
statutory maximum whenever it exposes him to a `penalty exceeding the
maximum [the defendant] would receive if punished according to the facts
reflected in the jury verdict alone.'" Promise, 255 F.3d at 167 n. 6 (quoting
Apprendi, 530 U.S. at 483, 120 S.Ct. 2348). Promise, therefore, wholly without
regard to the language of section 841, defined "statutory maximum" as the
maximum penalty that could be imposed based exclusively on the facts found
by the jury.1 On this understanding of Apprendi, Promise concluded that,
where specific threshold drug quantities were not both indicted and proven to
the jury beyond a reasonable doubt, a defendant could only be sentenced under
section 841(b)(1)(C), to a maximum prison term of 20 years.
18

The Promise majority further believed that "Apprendi dictates that in order to
authorize the imposition of a sentence exceeding the maximum allowable
without a jury finding of a specific threshold drug quantity, the specific
threshold quantity must be treated as an element of an aggravated drug
trafficking offense." 255 F.3d at 156.

19

Thereby did our court in Promise dice section 841 into countless different
substantive offenses.

20

But under the Sentencing Guidelines, U.S.S.G. 2D1.1, the so-called threshold
quantity under section 841(b)(1)(C) is not 5 grams, as under section 841(b)(1)
(B), but, rather, 2.5 grams. The Guidelines assign an offense level of 12 to a
defendant found to possess less than 2.5 grams of methamphetamine. Assuming
away criminal history, which does not substantively alter the analysis, such a
defendant is exposed to a sentence of at most 16 months, not 20 years. In order
to impose a sentence greater than 16 months, a finding that the defendant is
responsible for 2.5 grams or more must be made, raising the defendant's
offense level to 14. The reasoning of Promise requires that this element of a
quantity of 2.5 grams or more be indicted and found by the jury beyond a
reasonable doubt. That is, focusing on methamphetamine for example,
Promise's reasoning requires the separation of section 841(b)(1)(C) into two
distinct offenses one, the manufacture or distribution of 2.5 grams or more
of controlled substance; the other, the manufacture or distribution of less than
2.5 grams just as that reasoning required that section 841 be separated into
its multiple offenses.

21

Accordingly, Promise, without any additional analysis whatever, requires that

Benenhaley be sentenced to no more than 16 months imprisonment. To

authorize a sentence of twenty years, as the majority does, is, per our own
decision in Promise, to deprive Benenhaley of his constitutional right to trial by
jury.
22

But, in my view, even this minimum sentence cannot stand, because drug
quantity information is an element of each of these new, Promise-created
section 841(b)(1)(C) offenses, not simply the more culpable of the two. This
follows from an analysis of the text of the statute, and, in this case, the
Guidelines. See, e.g., Staples v. United States, 511 U.S. 600, 604, 114 S.Ct.
1793, 128 L.Ed.2d 608 (1994) (noting that the determination of the elements of
an offense is a matter of statutory construction). A violation of the "aggravated"
section 841(b)(1)(C) offense (to borrow Promise's terminology) requires the
defendant to be responsible for 2.5 grams or more of methamphetamine. See
U.S.S.G. 2D1.1. This is the threshold drug quantity that, under Promise, must
be treated as an element.

23

A violation of the un-"aggravated" section 841(b)(1)(C) offense, however,

requires that the defendant be responsible for less than 2.5 grams; defendants
responsible for at least 2.5 grams have committed the separate aggravated
section 841(b)(1)(C) offense, but not the lower offense. This follows from the
fact that the Guidelines require a quantity less than 2.5 grams in order for the
lesser sentence to be applicable. Drug quantity information, then, is an element
of both section 841(b)(1)(C) offenses, not merely the aggravated offense,
because such information goes to the very definition of the offenses. Of course,
this means that drug quantity information is an element of all
methamphetamine-related section 841 offenses.

24

To be sure, Promise was concerned with statutory maximums (though certainly

not in the traditional sense), but the administrative nature of the Guidelines
changes nothing. The Guidelines have the force of law. And there is no
constitutional difference between the gradations of offenses that exist within
section 841(b)(1)(C) by operation of the Guidelines and the gradations of
offenses the Promise majority created within section 841 as a whole. The Sixth
Amendment is no less offended by a judicially-imposed sentence in excess of
that authorized by Guidelines (based upon a judicial finding of quantity), than
by a sentence in excess of that authorized by statute (based upon the same
judicial finding of quantity). The defendant has been equally deprived of his
right to a trial by jury in both circumstances.

25

The second argument that shows that the section 841 conviction, not just the
sentence, must be reversed when quantity is not charged in the indictment rests
on Promise's conclusion that sections 841(b)(1)(A), (B), (C), and (D) set forth

separate substantive crimes,2 the elements of each of which are to be found in

the text of the statute. See, e.g., Staples, 511 U.S. at 604, 114 S.Ct. 1793.
Section 841(b)(1)(C) provides, in relevant part, that "[i]n the case of a
controlled substance in schedule I or II, ..., except as provided in
subparagraphs (A), (B), and (D), such person shall be sentenced to a term of
imprisonment of not more than 20 years." (Emphasis added). In order to
ascertain whether section 841(b)(1)(C) has been violated, it must be determined
(again, using methamphetamine as an example) that the quantity in question is
less than 5 grams i.e., that subsection (B) has not been violated. (Of course,
the defendant must also be responsible for less than the section 841(b)(1)(A)
threshold quantity of 50 grams, but if he is responsible for less than the section
841(b)(1)(B) quantity of 5 grams, then he necessarily is responsible for less
than 50 grams.) It follows from the text of section 841(b)(1)(C) that the fact
that the quantity at issue is less than 5 grams is an element of the section 841(b)
(1)(C) offense; this fact is part of the definition of the offense. For drugs
mentioned in sections 841(b)(1)(A) and (B) (excluding marijuana, which
presents a slightly more complicated problem) then, to state a violation of
section 841(b)(1)(C), the indictment must allege that the defendant is
responsible for some positive quantity less than the section 841(b)(1)(B)
threshold quantity for that drug.
26

I will be the first to admit that the fact that the manufactured or distributed
quantity does not exceed the threshold amounts applicable under sections
841(b)(1)(A), (B), or (D) (or that a defendant possessed with intent to distribute
less than a certain quantity) bears little resemblance to a traditional element.
But this oddity is a necessary consequence of interpreting section 841(b)'s
sentencing factors to be not that at all, but instead to be substantive offenses.
Unfortunately, Promise actually did, and now requires, exactly that. As our
court, and our sister circuits, are only now beginning to appreciate, although
section 841(b) functions well as a sentencing scheme (albeit one displaced by
the Guidelines), it functions dismally as a list of substantive offenses.

27

Where, as in the present case, the indictment alleges only "a quantity" of
methamphetamine, it is impossible to evaluate whether the section 841(b)(1)(C)
exception applies or not: "A quantity" could just as easily refer to 50 grams or
more or to some quantity between 5 and 50 grams (triggering an aggravated
section 841(b)(1)(A) or (B) offense, respectively) as it could refer to one gram
(falling squarely within section 841(b)(1)(C)). It follows, therefore, that
Benenhaley's indictment does not allege the violation of any federal law and
that his conviction based upon that indictment is unconstitutional. See, e.g.,
Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960)
("The Bain case [Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887)],

which has never been disapproved, stands for the rule that a court cannot
permit a defendant to be tried on charges that are not made in the indictment
against him."). An indictment that could just as easily be read to charge any one
of at least three separate and distinct offenses cannot be considered
constitutionally adequate because it does not serve to inform the defendant of
the "nature and cause of the accusation," as required by the Sixth Amendment.
See, e.g., Russell v. United States, 369 U.S. 749, 762, 82 S.Ct. 1038, 8 L.Ed.2d
240 (1962). Nor, for that matter, could it even serve to protect the defendant
from being twice tried for the same offense. Needless to say, it does not follow
from the fact that under law (post Promise) the defendant could not be
sentenced to more than 20 years, that the defendant was, as a factual and legal
matter, charged with an offense that carried a penalty of at most 20 years. That
is, that Promise is now on the books does not, and cannot, remedy the
inadequacy in such an indictment.
28

In summary, the reasoning of Promise leads inescapably to the conclusion that,

at least for the drugs explicitly mentioned in sections 841(b)(1)(A) and (B),
some definite statement regarding drug quantity is an element of all such
section 841 offenses, not merely the so-called "aggravated" offenses. Under
Promise, at least the appropriate drug quantity ranges (sufficient to establish
what offense the indictment alleges) must always be charged in the indictment
and proven to the jury beyond a reasonable doubt. It is not, as the Seventh
Circuit recently put it, that drug "quantity is not an `element' of the 841
offense in the strong sense" whatever that means. See United States v.
Bjorkman, 270 F.3d 482, 492 (7th Cir.2001) (emphasis added). It is that drug
quantity information is an element of these offenses in the only sense currently
known to the law, and therefore must be charged in the indictment and proven
before the jury beyond a reasonable doubt.

29

Despite our unexplained and unsupported statements to the contrary in Promise,

United States v. Dinnall, 269 F.3d 418 (4th Cir.2001), and here, the error in
indictment I have identified above taints the conviction and not merely the
sentence. Under the reasoning of Promise, it bears repeating, Benenhaley's
indictment failed to charge any crime under federal law. Although one court has
held on the authority of the Supreme Court's decisions in Johnson v. United
States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), and Neder v.
United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), that such an
omission of a critical element from an indictment does not invalidate the
conviction, see Bjorkman, 270 F.3d at 490 (holding that "a conviction may be
affirmed on plain-error analysis if the charge omits an element and the
defendants do not object before or at trial"), no court that actually analyzed
those cases could fail to recognize that at issue in both were omissions from

jury instructions, not omissions from indictments. And, of course, no court that
did understand this difference between Johnson and Neder, on the one hand,
and cases like today's and that before us in United States v. Cotton, 261 F.3d
397 (4th Cir.2001), on the other, would hold much less by bare citation
that Johnson and Neder directly control disposition of cases like the latter,
wherein elements of offense are entirely omitted from the indictment (as
opposed to from the jury instruction). For, while these precedents obviously
would have little if any relevance in the course of addressing whether the
omission of an element from an indictment is subject to plain error review, it
would be judicial treachery to "elect to ignore" the difference between the
omissions from jury instructions at issue in Johnson and Neder and the
omissions from indictments at issue here and in Cotton, in the course of
holding, on the authority of Johnson and Neder, that the omission of an
element from an indictment is subject to plain error review.
30

Because the present indictment omits an essential element of the offense

charged (and the elements alleged do not otherwise constitute an offense),
Benenhaley's conviction for violation of section 841 simply cannot stand. This
is a result that our court, like every other Court of Appeals that has misapplied
Apprendi to section 841, is at pains to avoid. But it is a result that is now
analytically and constitutionally required by our holding (however mistaken) in
Promise.

Notes:
1

This definition of "statutory maximum" stands in stark contrast to the definition

at least implicitly accepted by this court inUnited States v. Kinter, 235 F.3d
192, 199-200 (4th Cir.2000) (approving of the government's argument that in
order to find the "`prescribed statutory maximum' as contemplated in Apprendi,
one need only look to the language of the statute criminalizing the offense, and
no further") (emphasis added). Based on this understanding, the court went on
to reject the argument that the Guidelines provide the statutory maximum for
Apprendi purposes.

Of course, thePromise opinion carefully avoids stating that these sections

actually define separate substantive offenses. Instead, it claims merely that
"specific threshold quantity must be treated as an element of an aggravated
drug trafficking offense." 255 F.3d at 156 (emphasis added). But these facts,
according to Promise, must be indicted and proven to a jury beyond a
reasonable doubt. In other words, they are elements. And because "aggravated
drug trafficking offenses" have elements not needed for other section 841

offenses, they are, in fact and in law, separate offenses.