dissenting.
As noted by the court, the defendant entered a plea of guilty to count four of the superseding indictment, but reserved the right to challenge the 21 U.S.C. § 860 element of the count. Count four charged that from January 1998 through January 1999, defendant and Robert (her spouse) were engaged in a criminal conspiracy in violation of 21 U.S.C. § 846, the object of which was the distribution of 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841, and that this violation (of section 841) of the federal drug laws occurred within 1000 feet of Fredericksburg Elementary and High School, in violation of 21 U.S.C. § 860.
In simplified language, the indictment alleged a conspiracy (section 846) the object of which was to distribute drugs (section 841) within 1000 feet of a school (section 860). Apparently, the government was concerned that its evidence would not support a jury finding by proof beyond a reasonable doubt that defendant was guilty of distribution of drugs, given that the distributor was actually her spouse. This somewhat unusual “triple whammy” form of indictment, attempting to bootstrap the defendant into a location crime (section 860) that is one step removed from the predicate offense of conspiracy (section 846), was pursued, as pointed out by defendant, because the government could not directly charge her under the statute with a violation of section 860.
“[Section] 860 requires the separate and distinct element of possession with intent to distribute within 1000 feet of a school. Thus, in order to obtain a conviction under § 860, possession with intent to distribute within 1000 feet of a school must be charged and proven by the government beyond a reasonable doubt.” United States v. Gonzalez-Rodriguez, 239 F.3d 948, 953 (8th Cir.2001). Under the plain language of the statute, a section 860 violation may not be the object of a section 846 conspiracy, contrary to the government’s charges in this case. One must actually violate section 841(a)(1) or section 856 within 1000 feet of a school, or other form of public property enumerated in the statute in order to be charged and sentenced under section 860.
Even though section 846 applies to “[a]ny person who attempts or conspires to commit any offense defined in this sub-chapter,” this language does not subsume section 860. The definition of section 860 explicitly extends only to violations of sections 841(a)(1) or 856, which must be charged and proven. Here, the government dismissed the remaining count of the superseding indictment charging the defendant with intent to distribute a controlled substance, seemingly because the evidence would not support such a charge. A fortiori, the defendant may not be sentenced as though she distributed a controlled substance. However, the district court sentenced the defendant as though she were so charged and convicted. I find no lawful basis for this approach. Drug crime sentences are onerous enough under a proper use of the sentencing guidelines. We should not allow the government to use creative pleading to obtain measures of punishment beyond the guideline’s scope.
Accordingly, I dissent.