United States Court of Appeals
For the First Circuit
No. 02-1953
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN GOODINE, a/k/a DWAYNE GOODINE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Peter E. Rodway, with whom Rodway & Horodyski was on brief,
for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, were on brief, for appellee.
April 9, 2003
TORRUELLA, Circuit Judge. A jury convicted Defendant-
Appellant Brian Goodine1 of conspiracy and possession with intent
to distribute cocaine base ("crack"), in violation of 21 U.S.C. §§
841(a)(1) & 846 (2003). By special verdict form, the jury
indicated that the amount for each count was at least five, but
less than fifty grams of cocaine base. The judge, however,
determined that Goodine was responsible for 309.2 grams of crack,
and sentenced him accordingly.
We are faced with two closely-related issues on appeal.
First, Goodine alleges that the different penalty provisions under
§ 841(b) create separate crimes requiring the government to prove
drug quantity beyond a reasonable doubt. Goodine asserts that he
could only be sentenced pursuant to the jury's determination of
drug quantity, but was erroneously sentenced pursuant to the
judge's determination. Second, the judge imposed a mandatory
minimum sentence based on drug quantity proved by preponderance of
the evidence. Goodine raises an Apprendi challenge because that
mandatory minimum sentence is higher than the sentencing guideline
range to which he was exposed before the judge's finding as to drug
quantity.
1
Goodine was tried with co-defendant Garry Julien, and both
appeals were heard on the same date. Julien's appeal is addressed
in United States v. Julien, No. 02-1765, 2003 U.S. App. LEXIS 1780,
(1st Cir. Feb. 3, 2003).
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We find that drug quantity in § 841(b) is a sentencing
factor, not an element of separate crimes. We also find that no
Apprendi violation occurred here because the sentencing guidelines
are not "statutory maximums" for purposes of Apprendi, and Goodine
was not sentenced to a penalty greater than that authorized by the
jury's finding. Goodine's sentence is therefore affirmed.
I. Introduction
Goodine does not dispute the jury verdict or the findings
by the judge. He raises two legal challenges to his sentence.
Goodine preserved these appeals at sentencing; we therefore apply
de novo review. United States v. Henderson, No. 01-2392, 2003 U.S.
App. LEXIS 2735, at *42 (1st Cir. Feb. 14, 2003); United States v.
Eirby, 262 F.3d 31, 36 (1st Cir. 2001).
II. Drug Quantity as Sentencing Factors
A. Issue
The second subsection of the statute for drug possession
with intent to distribute2 delineates different penalty provisions
based on drug type and other factors.3 See 21 U.S.C. § 841(b).
Three such provisions are relevant here. Defendants responsible
2
Because the conspiracy statute, 21 U.S.C. § 846, adopts the
sentencing scheme of 21 U.S.C. § 841, we need not address it
separately.
3
The statute also considers drug type, whether serious bodily
injury resulted from the crime, and whether the defendant has a
prior felony drug conviction. Our decision is limited to the issue
of drug quantity, and leaves challenges to the other factors for
another day.
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for an unspecified amount of crack are exposed to a maximum
sentence of twenty years under § 841(b)(1)(C), or thirty years if
the defendant has a prior drug offense conviction. Defendants
responsible for five or more grams of crack are exposed to five to
forty years in prison, or ten years to life for defendants with a
prior felony drug offense conviction under § 841(b)(1)(B).
Finally, defendants responsible for at least fifty grams of crack
are sentenced under § 841(b)(1)(A), which carries a possible
penalty of ten years to life, or twenty years to life for
defendants who have a prior conviction for a felony drug offense.
The jury convicted Goodine of possession with intent to
distribute at least five grams (but less than fifty grams) of
crack. Strictly following the jury's conviction, Goodine (who has
a prior conviction for a felony drug offense) would be subject to
a ten-year mandatory minimum sentence under § 841(b)(1)(B).
However, the judge determined that Goodine was responsible for
309.2 grams of crack and sentenced him to the mandatory minimum
sentence under § 841(b)(1)(A) -- twenty years.
Goodine asserts that § 841(b)(1)(A), (B), and (C) are
different crimes with drug quantity as the differing element, and
that because the government only proved beyond a reasonable doubt
that he was responsible for five grams, he could only be sentenced
to a ten-year mandatory minimum sentence under § 841(b)(1)(B).
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Goodine challenges the legal decision of the district court to
sentence him under § 841(b)(1)(A) instead of § 841(b)(1)(B).
The government must prove every element of a crime beyond
a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970).
However, mere sentencing factors do not require such proof.
Patterson v. N.Y., 432 U.S. 197, 207 (1977) (holding that the State
need not "prove beyond a reasonable doubt every fact, the existence
or nonexistence of which it is willing to recognize as . . .
affecting . . . the severity of the punishment"). While the
legislature is generally free to identify elements and sentencing
factors, there are constitutional limits to this power. McMillan
v. Pennsylvania, 477 U.S. 79, 86 (1986). We must determine whether
drug quantity is an element of offenses under § 841 that must be
proved beyond a reasonable doubt, or merely a sentencing factor
that may be determined by the judge by a preponderance of the
evidence.
B. Relevant Cases
The distinction between "elements" and "sentencing
factors" can be elusive, see Apprendi, 530 U.S. at 494, and we
admit that we have been wrong on similar questions before. See
United States v. Rivera-Gómez, 67 F.3d 993, 996 (1st Cir. 1995)
(holding that the federal carjacking statute identified only one
crime; later rejected by the Supreme Court in Jones v. United
States, 526 U.S. 227, 229 (1999)). This question is complicated by
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the Supreme Court's recent sentencing decisions. Before Apprendi,
we held that drug-quantity delineations contained in § 841(b)(1)
were sentencing factors that could be determined by a preponderance
of the evidence. See United States v. Lindia, 82 F.3d 1154, 1160-
61 (1st Cir. 1996). However, we have noted that the Supreme
Court's decision in Apprendi "requires some rethinking of this
approach." United States v. Eirby, 262 F.3d 31, 36 (1st Cir.
2001).
There is a split among our sister circuits who have
considered this issue post-Apprendi. Compare United States v.
Wade, No. 01-5210, 2003 U.S. App. LEXIS 2374, at *18 (6th Cir.
Feb. 11, 2003) (holding that drug quantity under § 841 need not be
proved beyond a reasonable doubt) and United States v. Smith, 308
F.3d 726, 740 (7th Cir. 2002) (same), with United States v.
Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000) ("If the government
seeks enhanced penalties under 21 U.S.C. § 841(b)(1)(A) or (B), the
[drug] quantity must be stated in the indictment and submitted to
a jury for a finding of proof beyond a reasonable doubt."),
followed in United States v. Turner, No. 01-11589, 2003 U.S. App.
LEXIS 1270, at *10-11 (5th Cir. Jan. 27, 2003) and United States v.
Buckland, 289 F.3d 558, 568 (9th Cir. 2002) (en banc).
This case presents us with a post-Apprendi opportunity to
determine congressional intent regarding the drug quantity language
of § 841. Cf. United States v. Terry, 240 F.3d 65, 74 n.9 (1st
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Cir. 2001) (not reaching the issue). We are assisted in this task
by the Supreme Court's determination of congressional intent behind
similar statutes. Five cases shape our analysis.
First, in McMillan v. Pennsylvania, 477 U.S. 79 (1986),
the Supreme Court found that a five year mandatory minimum sentence
for visible possession of a firearm during certain enumerated
felonies was a sentencing factor that could be determined at
sentencing. Id. at 84. The felonies had maximum sentences of ten
or twenty years, and the Court found that the "statute [gave] no
impression of having been tailored to permit the visible possession
finding to be a tail which wags the dog of the substantive
offense." Id. at 88. The Court found that the instrumentality
used in commission of a crime was a factor "that has always been
considered by sentencing courts to bear on punishment" and
therefore was not an element of the crime. Id. at 89. Although
this was the first time the Supreme Court identified "sentencing
factors" as distinct from "elements" of a crime, McMillan has
subsequently been reaffirmed in light of recent sentencing
decisions. Harris v. United States, 122 S. Ct. 2406, 2420 (2002).
In the second case, Almendarez-Torres v. United States,
523 U.S. 224 (1998), the Court considered 8 U.S.C. § 1326(b)(2),
which predicated an increase in penalty on a prior conviction of
aggravated felony. The Court held that prior conviction is a
sentencing factor rather than an element establishing a separate
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offense. Id. at 226-27. In reaching this conclusion, the Court
engaged in a detailed analysis of the statute's language,
structure, legislative history, caption and placement, id. at 230-
35, as well as functional factors such as potential unfairness, the
magnitude of the increase, and whether prior conviction is
traditionally treated as a sentencing factor or an element of the
offense, id. at 234-36.
In the third case, Jones v. United States, 526 U.S. 227
(1999), the Court construed the federal carjacking statute, 18
U.S.C. § 2119 (1994 ed. & Supp. V). At the time, the statute set
three different maximum sentences: fifteen years for a carjacking,
twenty-five years if serious bodily injury resulted, and life
imprisonment if death resulted. Id. at 230. The question was
whether the statute "defined three distinct offenses or a single
crime with a choice of three maximum penalties, two of them
dependent on sentencing factors exempt from the requirements of
charge and jury verdict." Id. at 229.
The Supreme Court began with the language and structure
of the statute, noting that the statute appeared to identify one
offense with several penalty provisions. Id. at 232. The Court
called this first glance an unreliable guide to congressional
intentions because the statute identified steeply higher penalties
conditioned on further facts "that seem quite as important as the
elements in the principal paragraph." Id. at 233. The penalty
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range increased by at least two-thirds (from fifteen years to
twenty-five years), and to as much as life imprisonment, based on
a finding that substantial bodily injury or death resulted. Id.
The Court found the legislative history "unimpressive"
because it supported either intent -- of serious bodily injury
meant as a sentencing factor or as an element of the crime. Id. at
237-39.
The Jones Court reasoned that carjacking is a type of
robbery, and "serious bodily injury has traditionally been treated,
both by Congress and by the state legislatures, as defining an
element of the offense of aggravated robbery." Id. at 235.
Finding serious bodily injury to be an element corresponded to
maintaining the jury's role as more than a mere low-level
gatekeeper: if serious bodily injury was merely a sentencing
factor, "in some cases, a jury finding of fact necessary for a
maximum 15-year sentence would merely open the door to a judicial
finding sufficient for life imprisonment." Id. at 244.
Finally, the Jones Court noted that if a statute is
equally susceptible of two interpretations, one of which raises
"grave and doubtful constitutional questions" that the other does
not, a court should interpret the statute so as to avoid the
constitutional question. Id. at 239. By holding serious bodily
injury to be an element of a crime requiring proof beyond a
reasonable doubt, the Court avoided a constitutional question. Id.
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In the fourth case to resolve a similar issue, Castillo
v. United States, 530 U.S. 120 (2000), the Supreme Court considered
a statute prohibiting the use or carrying of a firearm in relation
to a crime of violence. The Court found that the provision
increasing the penalty from a minimum of five years to a minimum of
thirty years when the weapon was a machinegun required that the
type of weapon used be proved beyond a reasonable doubt. Id. at
131. The Court noted that the first sentence of the statute, which
included the type of firearm used, identified the elements of the
crime, while the second sentence described "factors (such as
recidivism) that ordinarily pertain only to sentencing." Id. at
125. The Court further found that firearm type is not a
traditional sentencing factor. Id. at 126. "Traditional
sentencing factors often involve either characteristics of the
offender, such as recidivism, or special features of the manner in
which a basic crime was carried out (e.g., that the defendant
abused a position of trust or brandished a gun)." Id. The Court
then found that asking a jury to resolve what type of weapon was
used would not complicate a trial or risk unfairness. Id. at 127.
The Court noted that the legislative history could have supported
either view, but that the length and severity of the provision
suggest that the language relating to different firearm types
referred to elements of separate crimes. Id. at 130-31.
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The final case offering guidance is Harris v. United
States, 122 S. Ct. 2406 (2002). There, the Supreme Court held that
the statute for commission of a drug trafficking offense while
using or carrying a firearm defines a single crime, and that
whether the firearm was "brandished" or "discharged" is merely a
sentencing factor to be determined by the judge. Id. at 2414. The
Court found that the statute's structure suggested definition of
one crime only, as the first paragraph listed the elements of a
complete crime and the second paragraph described how defendants
were to be punished. See id. at 2411-12 (interpreting 18 U.S.C.
§ 924(c)(1)(A)). The Court then considered "tradition and past
congressional practice" and found that brandishing and discharging
a firearm had not been treated as elements in other statutes,
rather, they were classic sentencing factors. Id. at 2412.
Further, nothing in the "text or history of the statute" rebutted
the presumption drawn from the statute's structure -- that the
statute identifies only one offense. Id. at 2413.
The Harris Court distinguished Jones, where the
carjacking statute authorized "steeply higher penalties" based on
whether injury or death resulted from the crime. Id. at 2412
(quoting Jones, 526 U.S. at 233). In the statute at issue in
Harris, the consequence of a judicial determination that a firearm
had been brandished or discharged was simply an increase in the
mandatory minimum sentence. Id. at 2412-13. The Court found that
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the "incremental changes in the minimum -- from 5 years, to 7, to
10 -- are precisely what one would expect to see in provisions
meant to identify matters for the sentencing judge's
consideration." Id. at 2413.
C. Application
Applying these cases to the drug statute at issue here,
we begin with the language and structure of the statute. Section
841(a) lays out an offense that stands on its own, stating that "it
shall be unlawful for any person knowingly or intentionally . . .
to . . . possess with intent to distribute or dispense[] a
counterfeit substance." See 21 U.S.C. § 841(a).4 The next
4
The relevant provisions of the statute read:
(a) Unlawful acts. Except as authorized by this title,
it shall be unlawful for any person knowingly or
intentionally --
(1) to manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a
controlled substance; or
(2) to create, distribute or dispense, or possess with
intent to distribute or dispense, a counterfeit
substance.
(b) Penalties. . . . [A]ny person who violates
subsection (a) of this section shall be sentenced as
follows:
(1)(A) In the case of a violation of subsection (a) of
this section involving . . . (iii) 50 grams or more of a
mixture or substance described in clause (ii) which
contains cocaine base . . . such person shall be
sentenced to a term of imprisonment which may not be less
than 10 years or more than life . . . .
(B) In the case of a violation of subsection (a) of
this section involving . . . (iii) 5 grams or more of a
mixture or substance described in clause (ii) which
contains cocaine base . . . such person shall be
sentenced to a term of imprisonment which may not be less
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subsection is entitled "Penalties" and sets sentencing ranges for
violations of 841(a) based on drug quantity, drug type, prior
conviction, and whether or not serious bodily injury resulted from
the use of the counterfeit substance. See 21 U.S.C. § 841(b). A
straightforward reading suggests that part (a) identifies a crime
and part (b) outlines different penalties for that crime. We have
never directly answered this question, but we have previously
stated that a switch from 841(b)(1)(B) to 841(b)(1)(A) does not
affect the "substance" of the charge, Eirby, 262 F.3d at 38, and
have referred to subsection (b) as designating "different
sentencing regimes based on drug quantity" (and other factors).
United States v. Robinson, 241 F.3d 115, 118 (1st Cir. 2001).
At the time § 841 was passed, Congress referred to the
"sentencing procedures" as giving "maximum flexibility to judges,"
suggesting that Congress viewed the penalty provisions as
sentencing factors. H.R. Conf. Rep. 91-1444 (1970), reprinted in
1970 U.S.C.C.A.N. 4566, 4576. The legislative history on this
point is scarce, and others have found it unhelpful. See United
States v. McAllister, 272 F.3d 228, 231 (4th Cir. 2001).
than 5 years and not more than 40 years . . . .
(C) In the case of a controlled substance in schedule
I or II, . . . such person shall be sentenced to a term
of imprisonment of not more than 20 years . . . .
21 U.S.C. § 841(a)-(b).
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In addition to the statutory text and legislative
history, we find here other considerations which have heavily
influenced the Supreme Court in finding that certain facts are
sentencing factors rather than elements establishing an offense.
First, drug quantity is a classic sentencing factor. See 18
U.S.C.S. Appx. § 2D1.1(c) (2003) (determining Sentencing Guideline
base offense level based on drug type and quantity). Like many
sentencing factors, it goes to the "nature and circumstances of the
offense." See Castillo, 530 U.S. at 126 (quoting 18 U.S.C. § 3553
(a)(1)). Permitting the judge to make a determination as to drug
quantity is not permitting the tail of sentencing to wag the dog of
the substantive offense. See McMillan, 477 U.S. at 88. The
government must prove beyond a reasonable doubt all the elements of
§ 841(a); in this case the jury found that Goodine knowingly or
intentionally possessed with intent to distribute a counterfeit
substance (cocaine base). This determination exposed Goodine to
sentencing under § 841(b), ranging from five years to life
imprisonment. The judicial finding relating to drug quantity
simply guides the judge for sentencing purposes within this range.
This is a typical sentencing scheme.
Second, due to Apprendi limitations discussed in Part III
below, a jury's determination will cap the maximum sentence a judge
can impose, regardless of drug quantity determination. Our holding
that drug quantity is not an element of § 841 means that a judge's
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determination of drug quantity can influence the mandatory minimum
sentence imposed, and such incremental changes in the minimum are
typical sentencing provisions determined by the judge. Harris, 122
S. Ct. at 2413. The Jones Court's concern that a jury would merely
be a low-level gatekeeper is unfounded because the jury
determination in fact sets the maximum punishment.
Third, drug quantity goes to how the offense is
conducted, rather than the result of the crime. As such, it is
more analogous to the statutes in which the Supreme Court
identified sentencing factors. Drug quantity is "not necessary to
the determination of whether [defendant's] conduct was 'criminal'
or 'innocent.'" United States v. Collazo-Aponte, 281 F.3d 320, 326
(1st Cir. 2002). It therefore is more like a sentencing factor
than an element. Finally, we note a practical result of our
ruling. Were all facts contained in § 841(b) to be treated as
elements, the statute would define as many as 350 different
offenses. See United States v. Promise, 255 F.3d 150, 175 (4th
Cir. 2001) (en banc) (Luttig, J., concurring). Such an
interpretation causes difficulty we think Congress did not intend.
We therefore find that drug quantity for purposes of § 841 is a
sentencing factor that may be determined by a preponderance of the
evidence.
III. Application of Apprendi to the Sentencing Guidelines
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With a judicial finding of 309.2 grams of cocaine base,
Goodine was exposed to 168-210 months imprisonment under the
Sentencing Guidelines. However, because § 841(b)(1)(A) carries a
mandatory minimum sentence of twenty years imprisonment for
defendants who have a prior conviction for a felony drug offense
and are guilty of possessing with intent to distribute fifty or
more grams of cocaine base, the judge sentenced Goodine to twenty
years in prison. Goodine raises an Apprendi argument because this
mandatory minimum sentence exceeded the high end of his Sentencing
Guideline range.
The landmark case of Apprendi v. New Jersey, 530 U.S.
466, 490 (2000), held that "[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." Apprendi's limitation on
punishment beyond the statutory maximum applies regardless of
whether the fact is considered an "element" or a "sentencing
factor." Harris, 122 S. Ct. at 2410. A sentencing court may use
the preponderance of the evidence standard to find facts that
require the imposition of a specified minimum sentence, so long as
that sentence does not exceed the maximum sentence provided by the
relevant statute. Id. at 2419 (plurality opinion); id. at 2421
(Breyer, J., concurring).
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We have held that Apprendi's holding "applies only when
the disputed 'fact' enlarges the applicable statutory maximum and
the defendant's sentence exceeds the original maximum." United
States v. Caba, 241 F.3d 98, 101 (1st Cir. 2001); United States v.
Robinson, 241 F.3d 115, 119 (1st Cir. 2001) ("[T]heoretical
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."). If the disputed fact (here, drug
quantity) influences the sentence, but the resulting sentence is
still below the default statutory maximum, there is no Apprendi
violation. Robinson, 241 F.3d at 119; United States v. Houle, 237
F.3d 71, 80 (1st Cir. 2001). This is so even if the judge imposes
a mandatory minimum sentence. Robinson, 241 F.3d at 122.
Section 841(b) delineates several different default
statutory maximums based on drug quantity (and other factors not
relevant here, such as drug type and whether or not seriously
bodily injury resulted): 20 years if no drug quantity is specified,
40 years for five or more grams of cocaine base, and life for fifty
or more grams of cocaine base. 21 U.S.C. § 841(b)(1)(A)-(C); See
also United States v. Martínez-Medina, 279 F.3d 105, 121 (1st
Cir.), cert. denied, 123 S. Ct. 311 (2002) (identifying default
statutory maximum under § 841(b)(1)(A) as life); Robinson, 241 F.3d
at 119 (identifying default statutory maximum as twenty years under
§ 841(b)(1)(C), where no quantity had been determined beyond a
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reasonable doubt); United States v. Baltas, 236 F.3d 27, 41 (1st
Cir. 2001) (same); Smith, 308 F.3d at 741 (finding a default
statutory maximum of 20 years for more than fifty kilograms of
marijuana under § 841(b)(1)(C)).
In this case, the jury found Goodine guilty of conspiracy
and possession with intent to distribute at least five grams of
cocaine base. The default statutory maximum was therefore 40
years. Because he was sentenced to less than that-- 20 years --
there was no Apprendi violation.
Goodine argues that the "prescribed statutory maximum" in
his case is the top of the Sentencing Guideline range (210 months)
and that his sentence of 240 months violates the rule in Apprendi
because it is based on a drug quantity determined by a
preponderance of the evidence only. We disagree.
If we adopted Goodine's argument, we would essentially
abolish the guidelines because the jury would be required to make
findings as to all facts that may be relevant to sentencing ranges
and potential adjustments. Nothing in Apprendi or subsequent cases
calls into question the validity of the Sentencing Guidelines, and
"[w]e do not believe that the Court would have set in motion such
a sea change in the law of sentencing without explicitly addressing
the issue." Robinson, 241 F.3d at 121.
The guideline calculations are not restricted by
Apprendi's rule. See United States v. Knox, 301 F.3d 616, 620 (7th
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Cir. 2002); United States v. Norris, 281 F.3d 357, 361 (2d Cir.
2002). The guidelines themselves state that where a "statutorily
required minimum sentence is greater than the maximum of the
applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence." 18 U.S.C.S. Appx.
§ 5G1.1 (2002). Nothing further is needed to impose a mandatory
minimum sentence in excess of the guideline range, as the guideline
range yields to the statutory minimum sentence. Here, the
statutorily required minimum sentence of twenty years became the
guideline sentence. Therefore, Goodine's sentence did not offend
Apprendi.
IV. Conclusion
Goodine's sentence is affirmed.
"Concurrence follows"
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LYNCH, Circuit Judge, concurring. I concur in the
affirmance of the sentence. As to Goodine's argument that drug
quantity under 21 U.S.C. § 841(b) is an element of a crime and not
a sentencing factor, I think the argument is foreclosed by United
States v. Robinson, 241 F.3d 115, 118 (1st Cir. 2001), United
States v. Eirby, 262 F.3d 31, 35-38 (1st Cir. 2001), and United
States v. Lindia, 82 F.3d 1154, 1160-61 (1st Cir. 1996). The claim
that there is a violation of the rule of Apprendi v. New Jersey,
530 U.S. 466, 490 (2000), is foreclosed by Harris v. United States,
536 U.S. 545 (2002).
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