United States Court of Appeals
For the First Circuit
No. 00-1945
UNITED STATES OF AMERICA,
Appellee,
v.
KENNETH J. EIRBY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Edward S. MacColl and Thompson, Bull, Furey, Bass & MacColl,
LLC, P.A., on brief for appellant.
Jay P. McCloskey, United States Attorney, and F. Mark
Terison, Senior Litigation Counsel, on brief for appellee.
August 29, 2001
SELYA, Circuit Judge. Defendant-appellant Kenneth J.
Eirby complains that the district court impermissibly attributed
to him, for sentencing purposes, a quantity of crack cocaine
(cocaine base) greater than that described in the indictment and
plea agreement. In his view, the resultant sentence and the
methodology used to arrive at it intrude upon the prerogative of
the grand jury and, in the bargain, offend the principles
enunciated in Apprendi v. New Jersey, 530 U.S. 466 (2000). In
a more global attack on his sentence, he also asseverates that
the federal criminal statutes and sentencing guidelines are
unconstitutional to the extent that they afford widely disparate
treatment to cocaine in its base and powder forms. Discerning
no reversible error, we affirm.
I.
Background
The facts are virtually undisputed. In late 1999, law
enforcement officers caught the appellant red-handed as he
endeavored to peddle cocaine base. A federal grand jury sitting
in the District of Maine thereafter returned a two-count
indictment against him. The appellant eventually agreed to
plead guilty to the first count of the indictment (which charged
him with conspiracy to distribute cocaine base) and the
government agreed to dismiss the second count (which charged a
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specific distribution offense). Like the indictment itself, a
non-binding plea agreement (the Agreement), entered into between
the appellant and the government under the aegis of Fed. R.
Crim. P. 11(e)(1)(B), mentioned 21 U.S.C. § 841(b)(1)(B) and
described the "penalty which may be imposed upon conviction" as
"a term of imprisonment of not less than five years or more than
forty years" (the precise parameters limned in section
841(b)(1)(B)).
Based on the presentence investigation report, the
district court, over objection, found the appellant responsible
for 147 grams of crack cocaine (enough to subject him to a
different penalty provision — that contained in 21 U.S.C. §
841(b)(1)(A)).1 Because the indictment and the Agreement each
referenced section 841(b)(1)(B) rather than section
841(b)(1)(A), the district court recessed the disposition
1In general, 21 U.S.C. § 841(b)(1) sets out a type-and-
quantity-driven sentencing regime for violations of 21 U.S.C. §
841(a). While section 841(b)(1)(C) prescribes penalties for
violations of section 841(a) when no drug quantities are
specified, sections 841(b)(1)(A) and 841(b)(1)(B) prescribe
differing penalties for violations of section 841(a) depending
upon, inter alia, drug type and drug quantity. Pertinently,
section 841(b)(1)(A) prescribes a minimum sentence of 10 years
and a maximum sentence of life imprisonment for offenses
involving 50 grams or more (but less than 150 grams) of cocaine
base. Section 841(b)(1)(B) prescribes a minimum sentence of 5
and a maximum sentence of 40 years for offenses involving five
grams or more (but less than 50 grams) of cocaine base.
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hearing and offered the appellant an opportunity to withdraw his
plea.
After considering the court's offer for approximately
five weeks, the appellant decided to proceed, but reserved the
right to appeal the determination that section 841(b)(1)(A)
applied. The parties subsequently stipulated, for sentencing
purposes, that the appellant "[was] responsible for at least 50
grams, but less than 150 grams, of cocaine base," and that his
base offense level was 32.
When the district court reconvened the disposition
hearing, it rejected the appellant's constitutional challenge to
the disparity between cocaine base and cocaine powder. Moving
from the general to the specific, the court found that the
appellant's relevant criminal conduct consisted of distributing
147 grams of crack cocaine (cocaine base). After applying an
appropriate three-level reduction for acceptance of
responsibility, see USSG §3E1.1, the court arrived at an
adjusted offense level of 29. In conjunction with the
appellant's criminal history category (II), the adjusted offense
level yielded a guideline sentencing range (GSR) of 97-121
months. The court's drug-quantity determination and its
invocation of section 841(b)(1)(A) brought into play a mandatory
minimum sentence of 120 months (which, coincidentally, was
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within the GSR). Starting from that baseline, the court
departed downward for substantial assistance, USSG §5K1.1, and
sentenced the appellant to serve a 66-month incarcerative term.
This appeal followed.2
II.
Discussion
The appellant's best argument is that the district
court usurped the grand jury's province by impermissibly
substituting 21 U.S.C. § 841(b)(1)(A) for 21 U.S.C. §
841(b)(1)(B). While this argument obliquely involves Apprendi,
he places his next three arguments squarely under the Apprendi
umbrella. He asserts that, post-Apprendi, drug quantity no
longer can be treated as a sentencing factor, but, rather, must
be treated as an element of the offense — and therefore must be
charged in the indictment and proven beyond a reasonable doubt;
that the lower court's drug-quantity determination, made
pursuant to a preponderance-of-the-evidence standard, exposed
him to a higher mandatory minimum sentence (and, thus, offended
2
The government attempts to stall this appeal at the
starting gate on the basis that the appellant's guilty plea,
coupled with his decision not to withdraw that plea after the
district court announced its intention to sentence him under 21
U.S.C. § 841(b)(1)(A), constituted a waiver of any rights
arising out of the grand jury's failure to specify the
appropriate drug weight in the indictment. Given our
disposition of the appellant's asseverational array, see text
infra, we need not delve into the question of waiver.
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Apprendi); and that Apprendi requires a distinction, not drawn
by the court below, between the quantity of drugs "involved" in
an offense (for the purpose of ascertaining the applicable
statutory mandatory minimum sentence) and the quantity of drugs
for which a defendant is "responsible" (for the purpose of
determining the applicable GSR). The appellant's last argument
assails, on constitutional grounds, what he deems the draconian
nature of the criminal penalties that Congress has attached to
crack cocaine.
A.
Standards of Review
We pause at the onset to delineate the standard of
review. The appellant squarely challenged the district court's
invocation of section 841(b)(1)(A) and argued below that he
should have been sentenced under section 841(b)(1)(B). Since
that argument presents an abstract legal question, our review is
plenary. United States v. Conley, 156 F.3d 78, 82 (1st Cir.
1998). The same holds true for the appellant's cocaine
base/cocaine powder "disparity" argument. See United States v.
Gifford, 17 F.3d 462, 471-72 (1st Cir. 1994) (holding that
questions involving the constitutionality of statutes engender
plenary review). In contrast, the appellant's three Apprendi-
based claims are raised for the first time on appeal. As such,
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our review of those claims is for plain error. This entails a
quadripartite showing: "(1) that there was error; (2) that it
was plain; (3) that the error affect[ed] substantial rights; and
(4) that the error affected the fairness, integrity, or public
reputation of judicial proceedings." United States v. Gomez,
255 F.3d 31, 42 (1st Cir. 2001).
B.
Necessary Background
Before grappling with the appellant's contentions, we
offer some background. Pre-Apprendi, this court had held that
the drug-quantity delineations contained in 21 U.S.C. §
841(b)(1) were not elements of the corresponding offense, but,
rather, sentencing factors "relevant only for determining the
penalty." United States v. Lindia, 82 F.3d 1154, 1160 (1st Cir.
1996). Under that holding, specific drug quantities did not
have to be charged in the indictment and the drug weights
necessary to implement section 841(b)(1)'s penalty scheme could
be determined by the sentencing judge under a preponderance-of-
the-evidence standard. Id. at 1161. The Court's decision in
Apprendi requires some rethinking of this approach. See United
States v. Robinson, 241 F.3d 115, 123 (1st Cir. 2001)
(explaining that Apprendi "shifted the tectonic plates insofar
as criminal sentencing is concerned").
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The core holding of Apprendi is that, apart from the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must both be
charged in the indictment and submitted to a jury for a
determination under the beyond-a-reasonable-doubt standard.
Apprendi, 530 U.S. at 490. Under this holding, a finding of
drug quantity which increases a defendant's sentence beyond the
otherwise applicable statutory maximum must be proved to the
jury beyond a reasonable doubt. United States v. Westmoreland,
240 F.3d 618, 631-32 (7th Cir. 2001). To that extent, then, the
notion that the quantity determinations demanded by section
841(b)(1) are merely sentencing factors is no longer completely
true. See United States v. Duarte, 246 F.3d 56, 61 (1st Cir.
2001); United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir.
2000).
Still, Apprendi does not call for full abrogation of
our prior practice. In particular, the Apprendi doctrine offers
no advantage to a defendant who is sentenced to a term less than
the otherwise applicable statutory maximum. We expounded on
this point in United States v. Caba, 241 F.3d 98 (1st Cir.
2001):
By its own terms, the holding in Apprendi
applies only when the disputed "fact"
enlarges the applicable statutory maximum
and the defendant's sentence exceeds the
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original maximum. For this reason, Apprendi
simply does not apply to guideline findings
(including, inter alia, drug weight
calculations) that increase the defendant's
sentence, but do not elevate the sentence
beyond the lowest applicable statutory
maximum.
Id. at 101 (citations omitted). This means that when a
defendant is sentenced to less than the default statutory
maximum for violating section 841(a) — twenty years in prison,
see 21 U.S.C. § 841(b)(1)(C) — Apprendi is irrelevant. See
United States v. Terry, 240 F.3d 65, 74 (1st Cir. 2001). In
such circumstances, judicial determination of drug quantity
under a preponderance-of-the-evidence standard remains a viable
option. See Caba, 241 F.3d at 101; United States v. Baltas, 236
F.3d 27, 41 (1st Cir. 2001).
C.
The Indictment-Based Argument
Apprendi bears only a glancing relationship to the
appellant's first argument. The count of conviction — the text
of which is annexed as an appendix to this opinion — charged the
appellant with participation in a drug-trafficking conspiracy in
violation of 21 U.S.C. § 846. That statute, as pleaded here,
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looks to 21 U.S.C. § 841(b)(1) as the source of applicable
penalties. Since the appellant actually received a sentence
below the default statutory maximum (i.e., a sentence less than
the 20-year maximum delineated in 21 U.S.C. § 841(b)(1)(C)), the
sentence would withstand Apprendi scrutiny even if the count of
conviction mentioned no drug weight at all. See, e.g., Caba,
241 F.3d at 101; Baltas, 236 F.3d at 41. That being so, it is
surpassingly difficult to see how the inclusion of a wrong drug
weight — a mistaken reference to section 841(b)(1)(B) rather
than section 841(b)(1)(A) — would constitute reversible error
under Apprendi. See United States v. Shepard, 235 F.3d 1295,
1296-97 (11th Cir. 2000) (finding Apprendi violation, but no
prejudice, in similar circumstances, and therefore upholding the
defendant's conviction and sentence).
The appellant, however, has a plausible non-Apprendi-
based argument that gets at the same point. The grand jury
chose to include a specific reference to section 841(b)(1)(B) in
the count of conviction, and the appellant suggests that, given
the grand jury's action, the court's decision to supplant
section 841(b)(1)(B) with section 841(b)(1)(A) both usurped the
grand jury's institutional prerogative and abridged his rights
under the Fifth and Sixth Amendments. This was a structural
error, the appellant says, warranting relief even though "it is
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not certain that [he] would have received a different sentence
if the district court had applied section 841(b)(1)(B)."
Appellant's Brief at 10.
Although cleverly constructed, this argument fails.
In general, an indictment is sufficient if it specifies the
elements of the offense charged, fairly apprises the defendant
of the charge against which he must defend, and allows him to
contest it without fear of double jeopardy. Hamling v. United
States, 418 U.S. 87, 117 (1974); United States v. Yefsky, 994
F.2d 885, 893 (1st Cir. 1993). In an indictment for conspiring
to commit an offense, however, the conspiracy is the gist of the
crime, and it is therefore unnecessary to allege all the
elements essential to the commission of the offense which is the
object of the conspiracy. Wong Tai v. United States, 273 U.S.
77, 81 (1927); Yefsky, 994 F.2d at 893. The specification of a
penalty provision for the underlying offense was, therefore, not
essential to the validity of the conspiracy count.
This leads to two conclusions. First, because the
court's use of section 841(b)(1)(A) rather than section
841(b)(1)(B) left the substance of the charge unaffected, the
switch did not usurp the prerogative of the grand jury. See
United States v. Kegler, 724 F.2d 190, 194 (D.C. Cir. 1983).
Second, since the mistaken reference to section 841(b)(1)(B) was
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obviously intended to give the appellant notice of the potential
punishment that awaited him, the switch to section 841(b)(1)(A)
did not constitute reversible error unless it deprived the
appellant of notice or otherwise misled him to his detriment.
Cf. United States v. Burnett, 582 F.2d 436, 438 (8th Cir. 1976)
(stating that "[p]rejudice to the defendant must be present
before an amendment [to an indictment] is held impermissible").
The latter conclusion is reinforced by Federal Rule of
Criminal Procedure 7(c)(1), which requires that an indictment be
"a plain, concise and definite written statement of the
essential facts constituting the offense charged." (emphasis
supplied). Pertinently, the rule goes on to state that whereas
an indictment "shall state for each count the official or
customary citation of the statute . . . which the defendant is
alleged therein to have violated," nonetheless, "[e]rror in the
citation or its omission shall not be ground for dismissal of
the indictment . . . or for reversal of a conviction if the
error or omission did not mislead the defendant to his
prejudice." Fed. R. Crim. P. 7(c)(1). The question, then, is
whether the mistaken reference to section 841(b)(1)(B)
prejudiced the appellant.
The answer to this question plainly is in the negative.
When the district court determined that section 841(b)(1)(B) was
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not the appropriate penalty provision for this case, the court
promptly advised the appellant of that fact and offered him an
opportunity to withdraw his guilty plea. After deliberation and
consultation with counsel, the appellant declined. His decision
to go forward was fully informed; he knew at that point that the
court planned to employ the penalty provision of section
841(b)(1)(A). Because the court gave the appellant what
amounted to amended notice, the indictment's mistaken reference
to section 841(b)(1)(B) did not mislead him.3
D.
The Remaining Apprendi Arguments
The appellant's remaining Apprendi arguments need not
detain us. His assertion that Apprendi required the district
court to apply section 841(b)(1)(B) in this case founders
because that statute provides for sentences of up to 40 years,
and the district court actually sentenced the appellant to serve
66 months — a figure well below the statute's maximum. Indeed,
the sentence imposed is considerably less than the default
3The repetition of the mistake in the Agreement does not
profit the appellant's cause. The most that can be said is that
the court failed to honor the parties' agreement as to what
penalty provision was appropriate — and the essence of a non-
binding plea agreement is that the judge may override the
parties' agreements. See, e.g., United States v. Teeter, ___
F.3d ___, ___ (1st Cir. 2001) [No. 00-2332, slip op. at 26].
This is especially true of stipulations as to the matters of
law. See id. at ___ [slip op. at 27].
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statutory maximum of 20 years found in section 841(b)(1)(C)
(which applies to detectable, but otherwise unquantified,
amounts of cocaine base). Thus, no Apprendi violation inheres.4
The appellant attempts to parry this thrust by means
of his third argument: he contends that the sentencing court's
drug-quantity determination exposed him to an increased
mandatory minimum sentence and an increased potential maximum
sentence. We recently rejected a comparable set of contentions
in Robinson, where the defendant had been convicted of one count
of possessing cocaine base with intent to distribute in
violation of 21 U.S.C. § 841(a)(1) and one count of conspiracy
to possess cocaine base with intent to distribute in violation
of 21 U.S.C. § 846. Despite the fact that no specific drug
quantity was charged in the indictment (and, consequently, the
jury had made no finding anent quantity), the trial court
determined by a preponderance of the evidence that 35.33 grams
of cocaine base was the relevant drug weight for sentencing
purposes. Robinson, 241 F.3d at 117. On appeal, the defendant
claimed, inter alia, that this determination violated Apprendi
by triggering a higher minimum mandatory sentence and by
4
To the extent, if at all, that the court's pre-departure
base — 120 months — may be germane here, that figure too is well
below the default statutory maximum contained in 21 U.S.C. §
841(b)(1)(C). It is even further removed from the maximum
penalty permissible under 21 U.S.C. § 841(b)(1)(B).
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exposing her to a significantly higher maximum sentence. Id. at
119.
We rejected the first half of this claim, noting that
the Apprendi Court, 530 U.S. at 487 n.13, had taken pains to
preserve the authority of McMillan v. Pennsylvania, 477 U.S. 79,
81-84 (1986) (upholding a state statute that required a
mandatory minimum sentence based solely on a judge's
preponderance-of-the-evidence findings). Robinson, 241 F.3d at
122. We explained that "since McMillan clearly allows a fact
that triggers a mandatory minimum sentence to be found by a
judge using a preponderance-of-the-evidence standard as long as
the mandatory minimum does not exceed the otherwise applicable
statutory maximum, it forecloses [any argument that such
mandatory minimums violate Apprendi]." Id.
We also rebuffed the second half of the defendant's
claim. In ruling that mere exposure to a higher potential
sentence does not violate Apprendi, we made it pellucid that the
Apprendi doctrine was concerned with actual sentences as opposed
to potential sentences. See id. at 121 (explaining that
"theoretical exposure to a higher sentence, unaccompanied by the
imposition of a sentence that in fact exceeds the otherwise-
applicable statutory maximum, is of no consequence").
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Although the appellant labels his fourth argument as
Apprendi-based and we have accepted his taxonomy, we are at a
loss to fathom how Apprendi figures into it — and the Apprendi
link is not developed in the appellant's brief. The argument
derives from the district court's imposition of a sentence based
on a drug quantity for which the appellant admitted he was
"responsible." Refined to bare essence, the appellant asserts
that a drug-quantity stipulation made for the purpose of
determining a defendant's base offense level (BOL) is not
competent proof of the amount of drugs "involved" in the offense
of conviction for the purpose of fixing the applicable mandatory
minimum under 21 U.S.C. § 841(b).
This argument runs contrary to circuit precedent: we
generally have allowed a single drug-quantity calculation to
serve as the basis for determining both the BOL and the level of
penalty to be imposed. See Lindia, 82 F.3d at 1160 (citing USSG
§2D1.1 cmt. (n.12)); United States v. Muniz, 49 F.3d 36, 39-40
(1st Cir. 1995) (similar); United States v. Pion, 25 F.3d 18, 25
n.12 (1st Cir. 1994) (similar).5 Apprendi has no discernible
5
Use of the same drug-quantity calculation for determining
both a mandatory minimum sentence and the defendant's BOL has
been approved without discussion in a long list of cases. E.g.,
Robinson, 241 F.3d at 117-18; United States v. Alicea-Cardoza,
132 F.3d 1, 6 (1st Cir. 1997); United States v. Miranda-
Santiago, 96 F.3d 517, 520, 525 (1st Cir. 1996); United States
v. Tavano, 12 F.3d 301, 307 (1st Cir. 1993).
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bearing on the validity of this line of cases, and we are bound
to follow them. See United States v. Wogan, 938 F.2d 1446, 1449
(1st Cir. 1991) (discussing duty of newly-constituted panel in
a multi-panel circuit to adhere to rulings of prior panels,
absent special circumstances).
To be sure, there may be instances in which we might
consider requiring separate drug-quantity determinations. In
United States v. Winston, 37 F.3d 235 (6th Cir. 1994), for
example, the court was concerned with whether it could aggregate
multiple drug counts when considering whether 21 U.S.C. §
841(b)(1)(A) demanded the imposition of a mandatory minimum
sentence. To cope with this peculiar problem, the court
required disaggregation (and, hence, separate determinations).
Id. at 241 n.10. But Winston — the only case cited by the
appellant on this point — is clearly inapposite here: the
appellant was convicted and sentenced on only a single count,
and this case presents no comparable question of aggregation.
Another possible exception to the general rule might
arise where the sentencing guidelines and the statute that fixes
a mandatory minimum sentence provide differing mandates. For
example, the method of determining the amount of lysergic acid
diethylamide (LSD) necessary to trigger a mandatory minimum
sentence differs from the method specified by the guidelines for
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determining a defendant's BOL. See Neal v. United States, 516
U.S. 284, 295-96 (1996); United States v. Boot, 25 F.3d 52, 53-
54 (1st Cir. 1994); cf. United States v. Scalia, 993 F.2d 984,
988 (1st Cir. 1993) (explaining divergent treatment of marijuana
due to a distinction between the use of the number of plants to
determine the statutory mandatory minimum and the use of the
total weight of the plants to determine the BOL). Once again,
the appellant's case does not involve such discrepant standards.
We have said enough on this score. We adhere to our
general rule that, absent special circumstances, drug-quantity
determinations can be used interchangeably for both statutory
penalty and guideline sentencing purposes. As the appellant has
failed to bring his case within any recognized exception to this
rule, we reject his claim that the lower court erred in
eschewing an entirely separate drug-quantity determination for
the purpose of identifying the applicable statutory penalty
provision.
E.
The Equal Protection Claim
This leaves the appellant's constitutional challenge.
The statutes criminalizing drug trafficking and the ancillary
sentencing guidelines admittedly attach much harsher penalties
to the distribution of cocaine base than to the distribution of
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like quantities of powdered cocaine. Compare, e.g., 21 U.S.C.
841(b)(1)(A)(ii) (setting penalties for trafficking in five
kilograms or more of cocaine powder), with, e.g., id.
841(b)(1)(A)(iii) (setting the same level of penalties for
trafficking in 50 grams or more of cocaine base). The appellant
asseverates that this tiered treatment has an impermissible
disparate impact on African-Americans, thereby violating the
Equal Protection Clause.
We addressed this precise issue in United States v.
Singleterry, 29 F.3d 733 (1st Cir. 1994), in which we rejected
the claim of unconstitutional treatment because we found
"insufficient evidence that the distinction drawn between
cocaine base and cocaine was motivated by any racial animus or
discriminatory intent on the part of either Congress or the
Sentencing Commission." Id. at 741 (internal citations and
quotation marks omitted). The appellant has offered us nothing
new, and we are thus bound to follow our earlier ruling. See
Wogan, 938 F.2d at 1449 (discussing "law of the circuit"
doctrine). Consequently, although we recognize the severity of
the penalty paradigm vis-à-vis crack cocaine, we must uphold it.
III.
Conclusion
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We need go no further. As the appellant has failed to
show reversible error, we have no reason to disturb his
sentence.
Affirmed.
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APPENDIX
INDICTMENT — COUNT ONE
The Grand Jury charges that:
* * *
From in or about December 1997 until on or about
December 9, 1999, in the District of Maine, defendant
KENNETH J. EIRBY
willfully, knowingly, and intentionally combined, conspired,
confederated and agreed with others to commit offenses against
the United States, that is, to unlawfully, knowingly, and
intentionally distribute and possess with intent to distribute
five grams or more of substances containing cocaine base, a
Schedule II controlled substance listed in Title 21, United
States Code, Section 812, in violation of Title 21, United
States Code, Sections 841(a)(1) and 841(b)(1)(B);
All in violation of Title 21, United States Code,
Section 846.
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