United States v. Manuel Gonzalez, Also Known As "Luis Enrique Dirocie Bello," 1 Also Known As "Tito," Robinson Jimenez, 420 F.3d 111, 2d Cir. (2005)
United States v. Manuel Gonzalez, Also Known As "Luis Enrique Dirocie Bello," 1 Also Known As "Tito," Robinson Jimenez, 420 F.3d 111, 2d Cir. (2005)
United States v. Manuel Gonzalez, Also Known As "Luis Enrique Dirocie Bello," 1 Also Known As "Tito," Robinson Jimenez, 420 F.3d 111, 2d Cir. (2005)
3d 111
drug conviction.
2
On this appeal, Gonzalez does not raise a direct challenge to his sentence.
Instead, he asserts that the district court erred in denying his pre-sentence
motion to withdraw his guilty plea. Gonzalez argues that Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United
States v. Thomas, 274 F.3d 655 (2d Cir.2001) (en banc), both decided in the
interim between his plea and sentence, obliged the district court to conclude
that his guilty plea was not knowing, voluntary, or sufficient to support the
crime of conviction because (1) he had not admitted the statutory drug quantity,
and (2) he had been misinformed as to his right to have a jury rather than the
court determine that quantity.
The government submits that Gonzalez's plea challenge lacks merit because
quantity is not an element of a 841(b)(1)(A) drug offense when, as in this
case, a defendant receives a mandatory minimum sentence not in excess of the
prescribed maximum for an identical unquantified crime pursuant to 841(b)
(1)(C). Both the structure of 841 and our prior construction of that statute
compel us to reject the government's argument.
The conspiracy at issue in this case involved an attempted drug sale on July 16,
1998. On that date, agents of the Drug Enforcement Administration ("DEA")
recorded a telephone conversation between one of their confidential informants
and Gonzalez in which Gonzalez agreed to sell the informant one kilogram of
crack cocaine for $18,000. At a preliminary meeting, Gonzalez provided the
informant with a sample of the crack to demonstrate its quality. Subsequent
laboratory analysis confirmed the sample to be 0.4 grams of 87% pure cocaine
base. Approximately one half-hour after the sample transfer, Gonzalez and the
informant participated in another recorded telephone conversation and agreed to
consummate their kilogram transaction later that same evening.
Around 8:30 p.m. on July 16, 1998, Gonzalez arrived at the appointed
Manhattan meeting site in a car driven by co-defendant Robinson Jimenez. As
soon as Gonzalez showed the informant a small bag containing what appeared
to be a quantity of crack, the informant gave a pre-arranged signal to DEA
surveillance agents. When the agents moved forward, however, Gonzalez and
Jimenez fled the scene, thereby avoiding both arrest and seizure of the
proffered drugs.
9
The two men were, in fact, arrested on August 11, 1998, at which time Jimenez
made inculpatory oral and written statements acknowledging his own
awareness that the July 16, 1998 deal had been for a kilogram of crack cocaine.
On August 25, 1998, a federal grand jury named Gonzalez and Jimenez in a
single-count indictment charging a conspiracy to distribute and possess with
intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C.
812, 841(a)(1), 841(b)(1)(A), and 846.3
B. Gonzalez's Guilty Plea
10
was to defraud his customer by having him pay for real crack while supplying
him with a counterfeit substance.
11
Prior to beginning the plea allocution, the district court, relying on our
pre-Thomas precedent, asked Gonzalez directly if he understood that, if the
drug quantity issue was resolved against him by the court, he would face "a
minimum of 20 years in jail." Plea Tr. at 12. Gonzalez confirmed that
understanding and indicated that he would "plead guilty [only to] giving a
sample to the informant." Id. at 13.
12
The district court proceeded to place Gonzalez under oath and to engage in a
colloquy to ensure his competency, his awareness of his rights, and the
voluntariness of his actions. In addressing the potential sentence resulting from
a guilty plea, the district court relied on 841(b)(1)(A), advising Gonzalez that
"the maximum penalty, provided for in this statute is life imprisonment," id. at
16; "lifetime supervised release," id. at 17; a "$4 million" fine, and a mandatory
"special assessment of $100," id. at 18. The court reiterated that, under the
government's view of the drug quantity at issue, the court would be required to
impose a mandatory minimum prison term of twenty years, and a mandatory
minimum supervised release term of five years. Gonzalez confirmed his
understanding of these sentencing consequences.
13
In response to questions posed by the court as to the factual basis for his plea,
Gonzalez admitted reaching an agreement with another person to violate the
narcotics laws and, pursuant thereto, delivering a sample of crack cocaine to the
informant. The court accepted the plea and set a schedule for the parties to file
papers on the disputed issue of drug quantity.
14
15
On November 15, 2001, the district court held a sentencing hearing pursuant to
United States v. Fatico, 579 F.2d 707 (2d Cir.1978), to resolve the disputed
issue of drug quantity. To support its contention that the charged conspiracy
involved fifty grams or more of crack cocaine, the government relied, in part,
on the recorded telephone conversations between Gonzalez and the informant
discussing a one-kilogram transaction, agent testimony that Gonzalez had sold
the informant real crack on multiple occasions over the course of a year, and
Jimenez's inculpatory post-arrest statement.
16
To refute this evidence and support his own claim that the charged conspiracy
never intended to distribute more than the 0.4-gram crack sample, Gonzalez
took the stand and testified that, beginning in 1997, he routinely sold crack
buyers a counterfeit, non-controlled substance commonly referred to as
"nacona" (a Spanish contraction for "de nada con nada," meaning "
[s]omething that doesn't contain anything"). Hearing Tr., Nov. 15, 2001, at 10.
Gonzalez stated that he had been arrested several times for crack dealing that,
in fact, involved nacona.4 He insisted that on July 16, 1998, he provided the
DEA informant with a small sample of crack only to induce him to pay for a
kilogram of nacona that would masquerade as genuine crack.
17
18
19
20
Gonzalez subsequently moved to withdraw his guilty plea, arguing that his
allocution did not knowingly or sufficiently support a conviction under 21
U.S.C. 841(b)(1)(A) because he had not admitted the drug quantity necessary
to trigger that statute's enhanced penalty provisions and he had been
misinformed as to his right to have that issue proved beyond a reasonable doubt
to a jury rather than by a preponderance of the evidence to the court. At a
January 23, 2003 status conference, the district court advised the parties that it
was "considering granting the application." Hearing Tr., Jan. 23, 2003, at 2.
The court explained:
21
I am troubled about the allocution, whether I should not have made it more
clear to the defendant his specific offense to which he was pleading. [Defense
counsel], prior to my taking the plea, did make reference to 841(b)(1)(C). . . .
[But] I think I should have probably gone into more detail with the defendant
himself concerning the specific violations and what he was exposing himself to.
22
....
23
24
25
Upon receipt and review of further submissions from the parties, however, the
district court, on April 17, 2003, denied Gonzalez's motion to withdraw his
guilty plea. Rejecting defense counsel's argument that Gonzalez's failure to
allocute to the drug quantity specified in 841(b)(1)(A) precluded application
of that statute's mandatory minimum sentence, the district court stated:
26
I don't think that is the law today, and that being the case, I really find no basis
on which to set aside the plea. And, certainly, this defendant was aware that he
was going to face this 20-year mandatory minimum sentence if I concluded that
he was aware what he was selling in fact was crack and not simply Tylenol. So
despite my original inclination, upon reflection, I don't find a basis on which I
can legitimately say that there is a defect in the plea allocution, and certainly
given the fact that the defendant litigated this all the way through a Fatico
hearing, I don't think that there is any basis to say that it is appropriate,
therefore, to allow him to withdraw his plea . . . . He has clearly admitted that
he is guilty of these offenses, and I see no interest in justice allowing him to
withdraw his plea at this time.
27
28
The district court sentenced Gonzalez on May 30, 2003. Based on its drug
30
Federal Rule of Criminal Procedure 11(d) states that "[a] defendant may
withdraw a plea of guilty . . . (2) after the court accepts the plea, but before it
imposes sentence if . . . (B) the defendant can show a fair and just reason for
requesting the withdrawal."6 "The decision to allow a guilty plea to be
withdrawn is committed to the discretion of the district judge . . . ." United
States v. Torres, 129 F.3d 710, 715 (2d Cir.1997) (describing predecessor rule,
Fed.R.Crim.P. 32(e)); accord United States v. Harrington, 354 F.3d 178, 183
(2d Cir.2004). We review the exercise of that discretion deferentially and will
not reverse unless the denial of a withdrawal motion rests on an error of law, a
clearly erroneous finding of fact, or otherwise "`cannot be located within the
range of permissible decisions.'" Parker v. Time Warner Entm't Co., L.P., 331
F.3d 13, 18 (2d Cir.2003) (quoting Zervos v. Verizon N.Y., Inc., 252 F.3d 163,
169 (2d Cir.2001)) (defining abuse of discretion). We apply the same standard
of review to a district court's finding that a defendant's factual admissions
support conviction on the charge to which he is pleading guilty. See United
States v. Smith, 160 F.3d 117, 122 (2d Cir.1998).
31
For reasons discussed herein, we are obliged to conclude that the denial of
Gonzalez's motion to withdraw his guilty plea rests on a legal error with respect
to the proof necessary to establish the drug quantity element of an aggravated
841 offense.
32
33
34
35
36
37
(1) a mandatory ten-year minimum to lifetime maximum for any offense in the
prescribed quantity;
38
39
(3) a mandatory life sentence if the drugs cause death or serious bodily injury
and the defendant has a prior final felony drug conviction; and
40
(4) a mandatory life sentence without release if a defendant has two prior final
felony drug convictions.
41
42
44
45
(4) a mandatory life sentence if the drugs cause death or serious bodily injury
and the defendant has a prior final felony drug conviction.
46
47
48
(2) a zero minimum to thirty-year maximum if the defendant has a prior final
felony drug conviction;
49
50
(4) a mandatory life sentence if the drugs cause death or serious bodily injury
and the defendant has a prior final felony drug conviction.
51
As this brief review demonstrates, the statute is structured so that each lettered
subsection operates independently of the others, without any need for crossreferencing. Within each subsection, the statute provides for each maximum
sentence to be linked to a corresponding minimum (except where only a
lifetime sentence is mandated). The independent operation of each sentencing
range within each subsection is confirmed by the fact that, even when Congress
identified circumstances warranting identical sentencing ranges regardless of
drug quantity for example, the twenty-to-life range when drug use causes
death or serious bodily injury, or the mandatory life sentence when a prior felon
traffics in drugs causing such injury it repeated those penalties in each
subsection rather than create a generally applicable provision.
52
quantity increases his sentencing range to twenty years to life. See id. 841(b)
(1)(A). Nothing in the structure of the statute suggests that these corresponding
minimums and maximums, or any of the others prescribed in the statute, can be
delinked to permit mixing and matching across subsections to create hybrid
sentencing ranges not specified by Congress. As the Ninth Circuit has
observed, the government cannot "manipulat[e]" the sentencing scheme
established by Congress in 841 to "create[] a link where there is not one"
between the minimum of one subsection and the maximum of another. United
States v. Velasco-Heredia, 319 F.3d 1080, 1086 (9th Cir.2003) (rejecting
argument that 841 mandatory minimum could apply without proof beyond a
reasonable doubt of the statutory drug quantity). Much less does the statutory
structure of 841 suggest Congress's intent to cast drug quantity in a dual role:
performing as a sentencing factor for purposes of determining the applicable
minimum sentence but as an element for purposes of determining the applicable
maximum. Judge Becker made a similar point in his thoughtful concurring
opinion in United States v. Vazquez, 271 F.3d 93, 113 (3d Cir.2001) (en banc)
(Becker, J., concurring): "It strains credulity ... to assert that Congress intended
for [drug] type and quantity to be treated as sentencing factors in some cases
and as elements in others. I know of no statute written in such a manner, nor am
I aware of any statutes construed this way."7 Cf. United States v. Promise, 255
F.3d 150, 185 (4th Cir.2001) (en banc) (Luttig, J., concurring in judgment)
("Either facts that affect the sentence a defendant receives are elements or they
are not; they are not elements for some purposes and not for others.").8
53
With this understanding of the structure of the statute at issue, we consider this
court's decision, after Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,
147 L.Ed.2d 435, to reconstrue the drug quantity provisions of 841 as
elements of an aggravated drug offense.
54
55
At the time Gonzalez pleaded guilty to the charged conspiracy, this circuit, like
every other to consider the question, had concluded that drug quantity was "a
sentencing factor to be determined [by a preponderance of the evidence] by the
district judge, not an element of the offense to be proved by the prosecutor
beyond a reasonable doubt and found by the jury." United States v. Thomas,
274 F.3d at 662 (citing United States v. Thomas, 204 F.3d 381, 384 (2d
Cir.2000) (collecting cases from other circuits)); see also United States v.
Boonphakdee, 40 F.3d 538, 542-43 (2d Cir.1994); United States v. Monk, 15
F.3d 25, 27 (2d Cir.1994); United States v. Campuzano, 905 F.2d 677, 679 (2d
Cir.1990). In so holding, we drew no distinction between drug quantities that
57
[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. With that exception, ... "[i]t is
unconstitutional for a legislature to remove from the jury the assessment of
facts that increase the prescribed range of penalties to which a criminal
defendant is exposed. It is equally clear that such facts must be established by
proof beyond a reasonable doubt."
58
530 U.S. at 490, 120 S.Ct. 2348 (quoting Jones v. United States, 526 U.S. 227,
252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (Stevens, J., concurring)). The
Court instructed that the relevant inquiry in determining whether a fact
specified in the penalty provision of a criminal statute is an element of the
crime that needs to be proved to a jury or a sentencing factor to be determined
by the court is "one not of form, but of effect." Id. at 494, 120 S.Ct. 2348. If the
fact "supports a specific sentence within the range authorized" by the jury
verdict, then it can constitutionally be treated as a sentencing factor. Id. at 494,
120 S.Ct. 2348 n.19 (emphasis in original). On the other hand, if the fact would
"expose the defendant to a greater punishment than that authorized by the jury's
guilty verdict," then it must be deemed an element and submitted to the jury. Id.
at 494, 120 S.Ct.2348.
59
60
61
62
This court has recognized the addition of a drug quantity element to a 841(a)
offense to result in a different criminal charge from the same offense pleaded
without regard to quantity. See United States v. Gaskin, 364 F.3d 438, 452-56
(2d Cir.2004) (holding with reference to aggravated drug charges that
"pleadings that add elements to the government's burden of proof beyond those
required for the lesser included charges ... do more than gild the original
charges. They replace them with different charges....") (citations omitted), cert.
denied, ___ U.S. ___, 125 S.Ct. 1878, 161 L.Ed.2d 751 (2005); see also United
States v. Thomas, 274 F.3d at 669-71 (noting that "lack of congruence" between
unquantified drug offense proved and quantified drug offense on which
defendant was sentenced might properly be analogized to a constructive
amendment error). Accordingly, it has ruled that a defendant cannot be
convicted on an aggravated offense unless the statutory drug quantity is proved
to a jury or admitted by the defendant, see United States v. McLean, 287 F.3d at
134 (holding that where defendant "admits only the non-quantity elements" of a
drug offense "and disputes quantity," a district court may accept a guilty plea
"only on the lesser-included offense of the 841 crime involving an
unspecified drug quantity" (emphasis in original)); United States v. Yu, 285
F.3d at 197 (holding it "error" to permit a defendant "to plead guilty to
quantity-specific charges while refusing to allocute to quantity"); see also
United States v. Doe, 297 F.3d 76, 90, 93 (2d Cir.2002) (holding that plea
allocution that did not settle issue of drug quantity required that defendant be
64
65
The government does not dispute that Apprendi requires drug quantity to
operate as an element in some cases involving aggravated 841 offenses.
Instead, it submits that Harris v. United States, 536 U.S. 545 (2002), United
States v. Luciano, 311 F.3d 146 (2d Cir. 2002), and United States v. King, 345
F.3d 149 (2d Cir.2003) (per curiam), establish that quantity is not an element
when it triggers a 841(b)(1)(A) mandatory minimum sentence (in this case,
twenty years) that is not above the 841(b)(a)(C) maximum that would apply
to an identical unquantified drug offense (in this case, thirty years). Apparently,
the same argument supported by the same cases prompted the district court to
reconsider its initial inclination to grant Gonzalez's motion to withdraw his
guilty plea. This was unfortunate because these cases do not alter the fact that
Thomas construed drug quantity as an element needing to be pleaded and
proved beyond a reasonable doubt in every prosecution seeking conviction on
an aggravated 841 offense. See United States v. Thomas, 274 F.3d at 663 ("
[B]ecause the quantity of drugs involved in a crime may raise a defendant's
sentence above the statutory maximum established in 21 U.S.C. 841(b)(1)(C),
quantity is an element of the offense charged under 21 U.S.C. 841."
(emphasis added)). Thus, because Gonzalez did not admit the drug quantity
element of an aggravated 841 offense, his guilty plea was insufficient to
support conviction on a 841(b)(1)(A) charge. Further, to the extent the cases
cited by the government support imposition of mandatory minimum sentences
on a preponderance of the evidence, we conclude, for reasons stated herein, that
they do not control resolution of this appeal.
66
67
67
68
The logic of the distinction drawn in Harris between facts that raise only
mandatory minimums and those that raise statutory maximums is not easily
grasped. See Harris v. United States, 536 U.S. at 569-70, 122 S.Ct. 2406
(Breyer, J., concurring in part and concurring in judgment) (noting inability to
"distinguish Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), from this case in terms of logic," and expressing
disagreement "with the plurality's opinion insofar as it finds such a
distinction"); see also id. at 579, 122 S.Ct. 2406 (Thomas, J., dissenting, joined
by Stevens, Souter, and Ginsburg, JJ.) ("Whether one raises the floor or raises
the ceiling it is impossible to dispute that the defendant is exposed to greater
punishment than is otherwise prescribed."). No matter. This case does not fit
within the Harris paradigm.
69
As our earlier discussion of 841 demonstrates, see supra at Part II.B.1.a, that
statute, unlike 18 U.S.C. 924(c)(1)(A), does not use a fact (drug quantity)
simply to identify increasing minimum sentences within a penalty scheme with
a fixed maximum. Instead, when drug quantity raises a mandatory minimum
sentence under 841, it simultaneously raises a corresponding maximum,
thereby increasing a defendant's authorized sentencing range above what it
would have been if he had been convicted of an identical unquantified drug
crime.12 The Apprendi rule is, and after Harris remains, that "[i]t is
unconstitutional for a legislature to remove from the jury the assessment of
71
The government submits that our decisions in United States v. Luciano, 311
F.3d 146, and United States v. King, 345 F.3d 149, nevertheless, support the
conclusion that drug quantity operates as a sentencing factor with respect to the
mandatory minimum terms prescribed in 841(b)(1)(A) or -(b)(1)(B) because
those minimums never exceed otherwise applicable 841(b)(1)(C) maximums.
The argument is unconvincing on several levels. 13
72
at 151-52 (noting jury's finding that offense involved five grams or more of
crack, see 21 U.S.C. 841(b)(1)(B)). The issue on appeal in King was whether
Apprendi required the jury further to find that the defendant knew that the
offense involved the statutory drug quantity, an argument at odds with our past
precedent holding that the only knowledge required to prove an aggravated drug
charge was that established in 841(a). See id. at 151-53 (and cases cited
therein).
73
74
found by a jury." ___ U.S. ___, 125 S.Ct. 1254, 1262, 161 L.Ed.2d 205 (2005)
(plurality opinion of Souter, J., joined by Stevens, Scalia, and Ginsburg, JJ.)
(emphasis added).
75
Thus, we cannot conclude, as the government urges, that Apprendi and its
progeny apply only to prosecutions that actually result in sentences exceeding
otherwise applicable maximums. Nor can we conclude, after Apprendi and our
own decision in Thomas, that district courts are nevertheless required to treat
drug quantity only as a sentencing factor for purposes of imposing 841(b)(1)
(A) and -(b)(1)(B) mandatory minimums. The Apprendi rule applies to the
resolution of any fact that would substitute an increased sentencing range for
the one otherwise applicable to the case. Because mandatory minimums operate
in tandem with increased maximums in 841(b)(1)(A) and -(b)(1)(B) to create
sentencing ranges that "raise the limit of the possible federal sentence,"
Shepard v. United States, 125 S.Ct. at 1262, 125 S.Ct. 1254, drug quantity must
be deemed an element for all purposes relevant to the application of these
increased ranges.
76
The Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005), further supports this conclusion. Although
Booker reiterates Apprendi's rule by reference to the particular sentence
imposed "Any fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the defendant or proved
to a jury beyond a reasonable doubt," id. at 756 (emphasis added) its ruling
is not narrowly tailored to such cases but, instead, reaches every application of
the federal Sentencing Guidelines. The Court explained that the Guidelines
were suspect under Apprendi because they were "mandatory and impose[d]
binding requirements on all sentencing judges" to sentence within prescribed
ranges. Id. at 749-50. To remedy the problem, the Supreme Court did not
deconstruct the Guidelines' sentencing ranges, converting only the maximums
to advisory provisions, while permitting the minimums to operate as mandatory
sentencing factors. Instead, recognizing that Congress had structured the
Guidelines as a unified system, the Court construed the whole as advisory to
ensure against Apprendi error in particular cases.16
77
So in Thomas, this court did not avoid Apprendi error in the application of
increased sentences pursuant to 841(b)(1)(A) and -(b)(1)(B) by construing
quantity as an element only when a court sentences a defendant to a sentence
higher than the maximum prescribed by the jury verdict or plea allocution; it
construed drug quantity as an element in all prosecutions on aggravated
charges. See United States v. Thomas, 274 F.3d at 663; see also United States v.
Vazquez, 271 F.3d at 108 (Becker, J., concurring) (concluding that "drug type
and quantity are always elements of an offense under 841, and therefore must
always be submitted to the jury for proof beyond a reasonable doubt" (emphasis
in original)).
78
To the extent that United States v. King, 345 F.3d at 152, appears to have read
Thomas more narrowly, we reiterate that this discussion was dicta and, in any
event, relied on Thomas's conclusion that it was unnecessary to treat drug
quantity as an element in determining the (then-mandatory) Guidelines range
applicable to a case, see United States v. Thomas, 274 F.3d at 663-64. We need
not here consider the aptness of an analogy between the Guidelines and 841
mandatory minimums because Booker no longer permits us to view a statutory
mandate and an advisory guideline in the same light.
79
We recognize that some courts have been willing to cast drug quantity in a
flexible role with respect to aggravated 841 prosecutions, with its identity as a
sentencing factor or an element revealed only at sentencing. See United States
v. Goodine, 326 F.3d 26, 31-32 (1st Cir.2003); United States v. Copeland, 321
F.3d 582, 603 (6th Cir.2003); United States v. Solis, 299 F.3d 420, 454 (5th
Cir.2002).17 But on this point, we are more inclined toward the views of the
Fourth, Ninth, and District of Columbia Circuits, see United States v. VelascoHeredia, 319 F.3d at 1085-87 (remanding for resentencing where court relied
on judicial findings to impose mandatory minimum five-year sentence under
841(b)(1)(B) that was not in excess of maximum for unquantified offense);
United States v. Graham, 317 F.3d 262, 275 (D.C.Cir.2003) (remanding for
resentencing where jury verdict did not support imposition of five-year
mandatory minimum term of supervised release pursuant to 841(b)(1)(A),
although same term could have been imposed under 841(b)(1)(C) in court's
discretion); see also United States v. Martinez, 277 F.3d 517, 530, 532-34 (4th
Cir.2002) (concluding that court erred in telling a defendant who was pleading
guilty that he faced a mandatory minimum sentence of ten years and a
maximum of life when he, in fact, faced no mandatory minimum sentence and a
maximum of twenty years, although error did not affect substantial rights), as
well as those expressed by Judge Becker in United States v. Vazquez, 271 F.3d
at 108 (Becker, J., concurring) (reviewing structure and history of 841 and
specifically rejecting argument that drug type and quantity should be treated as
"element-like factors only when they increase the prescribed statutory
maximum penalty").
80
Indeed, justice would hardly be well served by a rule that delayed the
identification of one or more elements of a crime until sentencing. Prosecutors,
who must draft indictments and develop evidence to meet their burden of proof;
defendants and their counsel, who must decide whether to challenge the
sufficiency of the government's case or pursue plea negotiations; and trial
judges, who must rule on the relevancy and sufficiency of evidence, prepare
jury instructions, and ensure the factual bases for guilty pleas, all need to know
long before sentencing which facts must be proved to a jury and which ones can
be reserved for resolution by the sentencing judge. Thomas reconstrued 841
to provide a clear answer to this question in light of concerns raised by
Apprendi, and we repeat the court's response today: drug quantity is an element
that must always be pleaded and proved to a jury or admitted by a defendant to
support conviction or sentence on an aggravated offense under 841(b)(1)(A)
or -(b)(1)(B). If a defendant is convicted only on a lesser unquantified drug
charge, he must be sentenced pursuant to 841(b)(1)(C), which generally
provides no mandatory minimum sentence.
81
In sum, while the district court in its discretion could have sentenced Gonzalez
to a twenty-year term of incarceration pursuant to 841(b)(1)(C), unless a jury
found or Gonzalez admitted the charged statutory drug quantity, the court was
not required to sentence him to that term pursuant to 841(b)(1)(A), nor was its
departure discretion curbed by that mandatory minimum.
82
83
84
minimum and maximum sentences in his case, see id. at 184 ("[U]nder
Apprendi, the actual sentence range on the two counts to which [defendant]
pled guilty was zero-to-thirty years' imprisonment."), this court ruled that the
defendant's plea violated Fed.R.Crim.P. 11(b)(1)(H) (requiring court to "inform
the defendant of, and determine that the defendant understands ... any
maximum possible penalty, including imprisonment"), and 11(b)(1)(I) (stating
same requirement with respect to "any mandatory minimum penalty"), and that
the error could not be deemed harmless, see id. at 184-86. The court explained
that the erroneous information about the applicable mandatory minimum was
particularly troublesome because "a mandatory minimum sentence represents
such a strong inducement to plea" that misinformation as to the applicability of
such a minimum "is presumptively significant in the defendant's decisionmaking." Id. at 185-86. Because of that misinformation and because the record
revealed "sufficient confusion" as to whether the defendant admitted or sought
to challenge the quantity of drugs involved in the charged conspiracy, the court
found that the Rule 11 error was not harmless and remanded with instructions
to allow the defendant to withdraw his plea. Id. at 186 (internal quotation marks
omitted).
85
86
Not surprisingly given that Gonzalez's guilty plea pre-dated Apprendi and
Thomas, the district court did not inform him of his right to have the pleaded
statutory drug quantity proved to a jury. Instead, the court advised Gonzalez
that its own preponderance finding as to that drug quantity was all that was
necessary to impose sentence pursuant to 841(b)(1)(A)'s twenty-year
mandatory minimum and its possible lifetime maximum. For reasons already
discussed, we conclude that, after Thomas, this was an incorrect statement of
the law. Thus, in this case, no less than in Harrington, the Rule 11 violation
deprived defendant of information that was significant to his decision-making
as to whether to plead guilty. Nor is there any indication that the presumptively
significant information regarding the operation of a mandatory minimum
sentence was in fact insignificant in the particular circumstances of this case.
The record plainly demonstrates that the only fact Gonzalez wished to contest
with respect to the charged conspiracy was drug quantity precisely because of
its potential impact on any term of incarceration, both in terms of the statutory
minimum and the Sentencing Guidelines. If the 841(b)(1)(A) drug quantity
was an issue to be resolved by the judge, as Gonzalez was mistakenly informed,
there was no reason for him to proceed to trial; better to plead guilty and
concentrate his efforts on disputing quantity at a Fatico hearing. But if
Gonzalez had understood that the issue was one that the government would
have to prove to a jury at trial, it is doubtful that he would have waived that
right. Seegenerally Plea Tr. at 12-13 (defense counsel notes that, because
defendant acknowledged conspiring to distribute a sample of crack and because
the disputed issue of a larger quantity would be resolved by the court, there was
no purpose in proceeding to trial; defendant's "only option" was to plead guilty
and concentrate his efforts on the Fatico hearing). Indeed, once the matter had
been put to a hearing, the district court found that the evidence supported a
finding of drug quantity sufficient to trigger 841(b)(1)(A) by a preponderance
but not necessarily by a reasonable doubt, demonstrating that Gonzalez's
reluctance to plead to any such amount was strategically sound. Thus, after
Apprendi/Thomas, the district court could not conclude that Gonzalez
knowingly and voluntarily pleaded guilty to an aggravated drug offense under
841(b)(1)(A) based on misinformation that a judicial finding as to drug
quantity, rather than jury verdict or plea, would mandate imposition of that
statute's minimum twenty-year sentence. Accordingly, the motion to withdraw
the guilty plea should have been granted. See United States v. Harrington, 354
F.3d at 186.
2. The Rule 11(b)(3) Defect
87
88
unquantified drug conspiracy, see United States v. Thomas, 274 F.3d at 669-71;
see also United States v. Gaskin, 364 F.3d at 452-56, and that Gonzalez's
failure to admit indeed, his explicit challenge to the statutorily prescribed
quantity meant that his plea did not provide the court with an adequate factual
basis to enter judgment against him on the charged crime, see United States v.
McLean, 287 F.3d at 133-34; United States v. Yu, 285 F.3d at 197-98; see also
United States v. DeJesus-Abad, 263 F.3d 5, 9 (2d Cir.2001) (per curiam)
(noting that court must assure itself that conduct admitted by defendant is "an
offense under the statutory provision under which he is pleading guilty"
(internal quotation marks omitted)). Accordingly, this defect provided a further
meritorious ground for granting Gonzalez's motion to withdraw his guilty plea
to a conspiracy defined by reference to 841(b)(1)(A).
III. Conclusion
To summarize, we conclude:
89
(1) The drug quantities specified in 21 U.S.C. 841 are elements that must be
pleaded and proved to a jury or admitted by a defendant to support any
conviction on an aggravated drug offense, not simply those resulting in
sentences that exceed the maximum otherwise applicable for an identical
unquantified drug crime.
90
(2) The sentencing ranges prescribed in 841 for aggravated drug offenses may
not be deconstructed so that quantity operates as an element for purposes of
determining an applicable maximum but as a sentencing factor for purposes of
determining an applicable minimum. Thus, where a drug quantity specified in
841(b)(1)(A) or -(b)(1)(B) is neither proved to a jury nor admitted by a
defendant, a district court is not required to impose the minimum sentence
mandated by those sections even if it may impose that same sentence pursuant
to 841(b)(1)(C).
91
(3) Because the defendant in this case was misinformed as to his right to have
the charged statutory drug quantity proved to a jury and because he did not
admit quantity at his plea allocution, his guilty plea to an aggravated 841(b)
(1)(A) offense was not knowing, voluntary, or sufficient to support the
judgment of conviction. The circumstances of this case do not show that
Gonzalez would have pleaded guilty to the offense had he been properly
advised; thus, the error was not harmless. Further, because the government was
unwilling to accept defendant's plea to an unquantified drug offense in
satisfaction of the charge, the defendant should have been allowed to withdraw
Notes:
1
At a hearing before the district court, the defendant testified that his real name
is "Luis Enrique Dirocie Bello." Because the judgment is entered only in the
name "Manuel Gonzalez," however, and because the parties continue to refer to
the defendant by that name in their submissions to this court, we do likewise in
this opinion. Nevertheless, we have directed the Clerk of the Court to amend
the caption of this case to indicate that Gonzalez is also known by the name
Dirocie Bello
In this opinion, we use the term "aggravated drug offense" to refer to crimes
defined by reference to the lettered subsections of 841(b)(1) that provide for
enhanced penalties for drug trafficking in specified quantitiesSee 21 U.S.C.
841(b)(1)(A)-(D). In Part II.B.1.a of this opinion, infra, we discuss in some
detail how three subsections of 841(b)(1) operate to proscribe crack
trafficking generally without regard to quantity, see id. 841(b)(1)(C), as well
as to identify aggravated offenses for trafficking in specific quantities of crack,
see id. 841(b)(1)(A)-(B).
The parties do not dispute the district court's Guidelines calculation, nor has the
government cross-appealed its departure decision
Rule 11 has been revised twice since Gonzalez entered his plea. The revisions
did not effect any substantive change relevant here to provisions governing
entering a plea. The revisions added provisions governing withdrawing a plea,
formerly located at Rule 32, but this change took effect before Gonzalez moved
to withdraw his plea. For ease of reference, we refer to Rule 11 as currently
formulated
InVazquez, the Third Circuit held that it was plain error to sentence a defendant
to more than the 841(b)(1)(C) twenty-year maximum when the jury had
made no finding as to drug quantity. See United States v. Vazquez, 271 F.3d at
99-100. Nevertheless, it concluded that the error did not affect defendant's
substantial rights because the jury would undoubtedly have found the statutory
drug quantity specified in 841(b)(1)(B) proved beyond a reasonable doubt.
See id. at 100.
InThomas itself, because the defendant had not objected in the district court to
being sentenced on the basis of a drug quantity that was not pleaded or proved
to the jury, the court reviewed his Apprendi challenge for plain error, a
standard of review that affords relief only if the defendant can demonstrate that
the error affected substantial rights, as well as the fairness and public reputation
of the judicial proceedings. See United States v. Thomas, 274 F.3d at 666-67.
Because Gonzalez's Apprendi/Thomas challenge was preserved in the district
court, we need not here consider whether he satisfies these plain error
requirements.
10
11
The statute prescribes afive-year mandatory minimum sentence for any use or
possession of a firearm in furtherance of a violent or drug crime, see 18 U.S.C.
924(c)(1)(A)(i); a seven-year minimum if the firearm is "brandished," id.
924(c)(1)(A)(ii); and a ten-year mandatory minimum if the firearm is
"discharged," id. 924(c)(1)(A)(iii). It identifies no explicit statutory
maximum, implying a possible lifetime maximum, see United States v.
Woodruff, 296 F.3d 1041, 1050 (11th Cir.2002), although, as Justice Thomas
notes in his Harris dissent, "virtually every ... sentence imposed for a 924(c)
(1)(A) violation is tied directly to the applicable mandatory minimum," Harris
v. United States, 536 U.S. at 578, n. 4, 122 S.Ct. 2406 (Thomas, J., dissenting,
joined by Stevens, Souter, and Ginsburg, JJ.).
12
There is one exception: a change in crack quantity from five grams or more to
fifty grams or more will increase a prior felon's sentencing range from a prison
term of ten years to life to a term of twenty years to life,compare 21 U.S.C.
841(b)(1)(B) with id. 841(b)(1)(A), an increase in only the minimum. Both
specified quantities, however, increase a prior felon's sentencing range above
the zero-to-thirty year term provided in 841(b)(1)(C) for unquantified crack
offenses. We consider the exception insignificant to our analysis because it is
unlikely that Congress intended drug quantity to operate as an element of an
aggravated 841 offense in all cases except when felons found guilty beyond a
reasonable doubt of a -(b)(1)(B) quantity are sentenced to a 841(b)(1)(A)
mandatory minimum. See generally United States v. Vazquez, 271 F.3d at 114
14
15
AsLuciano pointed out, the Harris plurality noted that "`Apprendi said that any
fact extending the defendant's sentence beyond the maximum authorized by the
jury's verdict would have been considered ... the domain of the jury by those
who framed the Bill of Rights.'" United States v. Luciano, 311 F.3d at 152
(quoting Harris v. United States, 536 U.S. at 557, 122 S.Ct. 2406 (plurality
opinion of Kennedy, J.)) (emphasis and omission in Luciano). Nevertheless,
that plurality went on to use the broader language quoted in the text of this
opinion indicating that the Apprendi principle also reaches facts that "set[] the
outer limits of a sentence." Harris v. United States, 536 U.S. at 567, 122 S.Ct.
2406 (plurality opinion of Kennedy, J.).
16
It appears that the Court recognized that not every Guidelines application
implicatedApprendi concerns. See United States v. Booker, 125 S.Ct. at 753
(noting "many situations" in which a district court might find a Guidelines
enhancement warranted, "yet still sentence the defendant within the range
authorized by the jury"). The Court's remedy, however, does not contemplate
continued mandatory operation of the Guidelines in such circumstances. Rather,
by severing and excising 18 U.S.C. 3553(b)(1) and 3742(e), the Court
makes every application of the Guidelines advisory. Thus, while our court will
not find a plain Booker error unless the sentence imposed on a defendant under
a mandatory Guidelines scheme differs materially from the sentence that would
have been imposed under advisory Guidelines, see United States v. Crosby, 397
F.3d 103, 118 (2d Cir.2005), when presented with a preserved Apprendi
challenge to the Guidelines, we have ordered resentencing without such a
comparative analysis of the sentence imposed, see United States v. Fagans, 406
F.3d 138, 140-41 (2d Cir.2005).
17
It appears that the Eighth and Tenth Circuits have also reached this conclusion
in unpublished ordersSee United States v. Sherman, 63 Fed.Appx. 279, 280 (8th
Cir.2003) (per curiam) (dicta); United States v. Ramirez, 43 Fed.Appx. 358,
362-63 (10th Cir.2002).
18