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United States v. Anderson Benenhaley, A/K/A Andy, 281 F.3d 423, 4th Cir. (2002)
United States v. Anderson Benenhaley, A/K/A Andy, 281 F.3d 423, 4th Cir. (2002)
3d 423
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.
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
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
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.
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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.
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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.
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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,
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
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.
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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
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.
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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.
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Notes:
1