Metropolitan News-Enterprise


Tuesday, January 22, 2002


Page 3


En Banc Ninth Circuit Panel Upholds Federal Drug Sentencing Laws


By KENNETH OFGANG, Staff Writer/Appellate Courts


Federal defendants sentenced under laws allowing a judge, rather than a jury, to determine the quantity of drugs involved in a trafficking offense and enhance the sentence accordingly are not automatically entitled to have those enhancements thrown out, the Ninth U.S. Circuit Court of Appeals ruled Friday.

In an 8-3 decision, a limited en banc court overturned a divided panel’s ruling that 21 U.S.C. § 841(b)(1)(A) and (B) are facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000).

Apprendi held that where the law allows a court to impose a sentence in excess of what would otherwise be the statutory maximum, based upon specific facts other than prior convictions, those facts must be proven beyond a reasonable doubt and the defendant afforded trial by jury.

Federal drug defendants are now entitled, under Apprendi, to have a jury determine—under the reasonable-doubt standard—what quantities were involved, Judge Stephen Trott wrote for the en banc court. But a defendant who received an enhanced sentence prior to Apprendi must show prejudice in order to have the increased term thrown out, the judge concluded.

The ruling brings the Ninth Circuit into “felicitous harmony” with all of the other circuits that have ruled on the issue, Trott noted.

Friday’s ruling reinstates Calvin Wayne Buckland’s 27-year term for three counts of possession of methamphetamine with intent to distribute and conspiracy to commit that crime. His convictions on three counts of using a firearm during a drug trafficking crime were thrown out in a prior appeal. 

The 1994 indictment charged that the drug crimes involved more than 1,000 grams of mixtures containing methamphetamine, which under the challenged statutes would permit the judge to impose a life sentence,  rather than the 20-year maximum which applied absent the quantity allegation. The threshold amount under the laws is now 500 grams.

After Buckland was convicted, U.S. District Judge Jack Tanner of the District of Washington found that the crimes involved eight kilograms of mixtures containing methamphetamine and sentenced him to more than 68 years in prison. After the firearms convictions were thrown out, he was resentenced to 30 years, but the district judge was ordered to reconsider the sentence after a second appeal challenged his application of the federal guidelines.

On his third appeal, the three-judge panel held that the enhancement statutes violated Apprendi and that Buckland had to be resentenced to no more than 20 years. The panel, with Judge A. Wallace Tashima writing for the majority, held that any statute that permits a sentence exceeding that allowed on the basis of the jury’s verdict—except for enhancements based on prior convictions—is unconstitutional on its face.

But Trott said the panel was wrong.

The procedure for imposing the increased penalty was unconstitutional as applied to Buckland, the judge said. But the error was harmless, Trott said, because it is indisputable that the defendant actually possessed more than the threshold amount, and because the judge could have imposed the 27-year aggregate sentence without regard to the enhancement statutes by “stacking” consecutive terms of less than 20 years each.

Trott distinguished Apprendi, in which the high court invalidated a state law allowing doubling of the maximum sentence if the court found, by preponderance of the evidence at a post-trial hearing, that the offense was a hate crime. Congress, Trott insisted, did not anticipate Apprendi and did not specify whether a judge or a jury should decide drug-quantity allegations.

Court rulings holding that drug quantity is for judicial determination must now give way under Apprendi, the appellate jurist explained, but that doesn’t render the statutes invalid.

Trott’s opinion was joined in full by Chief Judge Mary M. Schroeder and Judges  Diarmuid F. O’Scannlain, Andrew J. Kleinfeld, Ronald M. Gould and Richard C. Tallman.

Judge Procter Hug Jr., who took senior status after the case was argued, concurred in the decision but wrote separately, in part to argue that the “stacking” justification for the sentence was unnecessary and “of questionable soundness”—a view in which he was joined by Judges Stephen Reinhardt and Thomas G. Nelson.

Hug emphasized that under Apprendi, quantity allegations must be treated as elements of the crime, rather than as “sentencing factors,”—a view not necessarily shared by all circuits.

Tashima, dissenting, was joined by Reinhardt and Judge Richard Paez in arguing that Congress plainly intended that judges, rather than juries, determine quantity and that the statutes were accordingly unconstitutional.

The case is United States v. Buckland, 99-30285.


Copyright 2002, Metropolitan News Company