United States v. Eirby

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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