United States v. Tidwell ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-31-2008
USA v. Tidwell
Precedential or Non-Precedential: Precedential
Docket No. 02-3139
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________________
No. 02-3139
_____________________
UNITED STATES OF AMERICA,
Appellee
v.
TYRONE TIDWELL,
Appellant
____________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. No. 94-cr-00353-1)
District Judge: Hon. Bruce W. Kauffman
____________________
Argued April 24, 2007
BEFORE: McKEE, AMBRO, Circuit Judges,
and ACKERMAN, Senior District Court Judge *
*
The Honorable Harold A. Ackerman, Senior District
Judge for the United States District Court of New Jersey, sitting by
designation.
(Opinion filed March 31, 2008)
JEFFREY M. LINDY, ESQ. (Argued)
MICHAEL DROSSNER, ESQ.
PAUL M. GEORGE, ESQ.
Lindy & Associates, P.C.
1800 J.F.K. Boulevard, Suite 1500
Philadelphia, PA 19103
Attorneys for Appellant
PATRICK L. MEEHAN, ESQ.
United States Attorney
ROBERT A. ZAUZMER, ESQ. (Argued)
Assistant United States Attorney
Chief of Appeals
SETH WEBER, ESQ.
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee
OPINION
2
McKEE, Circuit Judge.
Tyrone Tidwell challenges the mandatory sentence of life
imprisonment that was imposed pursuant to 21 U.S.C. § 848(b),
after he pled guilty to engaging in a “continuing criminal
enterprise,” in violation of 21 U.S.C. § 848(c). For the reasons
that follow, we will affirm.
I. BACKGROUND
On September 7, 1994, a grand jury returned a 23-count
indictment charging Tidwell with, inter alia, one count of
engaging in a continuing criminal enterprise, in violation of 21
U.S.C. § 848. Tidwell initially pled not guilty and proceeded to
trial before a jury. However, during the government’s case-in-
chief, Tidwell informed the court that he wished to change his
plea. Tidwell agreed to plead guilty to “Count 2–Engaging in a
continuing criminal enterprise, in violation of 21 U.S.C. § 848.”
Neither Count 2, nor any other provision of the indictment,
3
specifically charged Tidwell with violating § 848(b) (being a
“Super Kingpin”), or any other subsection of § 848. Nor did the
indictment allege any facts beyond those necessary to establish
a violation of § 848(c), the definitional provision of § 848.
The resulting plea agreement provided that, based on
Tidwell’s agreement to plead guilty to Count 2, the district court
“may impose the . . . statutory maximum sentence [of]
Mandatory Life Imprisonment, a $4,000,000 fine, and a $50
special assessment.” Tidwell also stipulated that his base
offense level would be “based upon the distribution of [more
than] 150 kilograms of cocaine.” Accordingly, during the
ensuing Rule 11 colloquy, the prosecutor informed Tidwell that
his guilty plea to Count 2 subjected him to a mandatory sentence
of life imprisonment. After Tidwell acknowledged that he
understood the potential penalties, the court added: “to the
extent there are mandatory punishments for these offenses, I will
4
have to impose those punishments unless there is some basis . .
. not to do so.” Joint Appendix, at 207. The judge explained
that if the government did not file any motion for a downward
departure, “then there are mandatory sentences, mandatory life
sentences, and I’m not going to have the ability to depart from
that.”1 After again acknowledging that he understood, Tidwell
formally pled guilty to “engaging in a continuing criminal
enterprise, in violation of Title 21, United States Code, Section
848.” The court accepted the plea and sentenced Tidwell to life
imprisonment on Count 2, as mandated by 21 U.S.C. § 848(b),
1
Tidwell’s agreement provided for the possibility that
the government would file a motion for a downward departure
under U.S.S.G. § 5K1.1 (substantial assistance), and a motion
under 18 U.S.C. § 3553(e) (authorizing a sentence below the
otherwise applicable mandatory minimum based upon
cooperation with the government), depending upon the quality
of any subsequent cooperation. However, neither motion was
ever filed because the government was not satisfied with
Tidwell’s cooperation.
5
and concurrent terms of imprisonment on the remaining counts.
As we have noted, the indictment did not specifically
charge Tidwell with violating § 848(b), nor did it allege that
Tidwell had engaged in conduct that would trigger the
application of § 848(b). Rather, the indictment merely alleged
that Tidwell had engaged in a “continuing criminal enterprise,”
as defined in 21 U.S.C. § 848(c). Moreover, during the Rule 11
colloquy Tidwell only agreed that he was pleading guilty to a
continuing criminal enterprise in violation of 21 U.S.C. §
848(c). He did not plead guilty to violating 21U.S.C. § 848(c),
nor did he admit the conduct proscribed by that section.
The relevant provisions of 21 U.S.C. § 848 provide:2
2
As we will explain, the structure of the statutes we discuss
is often very relevant to our inquiry. Accordingly, for convenience,
we will frequently set forth much more of the text of a statute than
would otherwise be appropriate.
6
(a) Penalties; forfeitures. Any person who engages in a
continuing criminal enterprise shall be sentenced to a term of
imprisonment which may not be less than 20 years and which
may be up to life imprisonment ... except that if any person
engages in such activity after one or more prior convictions . .
. under this section have become final, he shall be sentenced to
a term of imprisonment which may not be less than 30 years and
which may be up to life imprisonment . . . .
(b) Life imprisonment for engaging in a continuing criminal
enterprise. Any person who engages in a continuing criminal
enterprise shall be imprisoned for life and fined in accordance
with subsection (a), if--
(1) such person is the principal administrator, organizer,
or leader of the enterprise or is one of several such
principal administrators, organizers, or leaders; and
(2)(A) the violation referred to in subsection (c)(1)
involved at least 300 times the quantity of [the controlled
substance], . . . or any other enterprise in which the
defendant was the principal or one of several principal
administrators, organizers, or leaders, received $10
million dollars in gross receipts during any twelve-month
period of its existence for the manufacture, importation,
or distribution of a substance described in section
401(b)(1)(B) of this Act [21 USCS § 841(b)(1)(B) ].
(c) “Continuing criminal enterprise” defined. For purposes of
subsection (a), a person is engaged in a continuing criminal
enterprise if–
7
(1) he violates any provision of this title . . . the
punishment for which is a felony, and
(2) such violation is a part of a continuing series of
violations of this title . . .
(A) which are undertaken by such person in concert with
five or more other persons with respect to whom such
person occupies a position of organizer, a supervisory
position, or any other position of management, and
(B) from which such person obtains substantial income
or resources.
(d) Suspension of sentence and probation prohibited.
***
(e) Death penalty
(1) In addition to the other penalties set forth in this section--
(A) any person engaging in or working in furtherance of a
continuing criminal enterprise, or any person engaging in an
offense punishable under section 841(b)(1)(A) of this title or
section 960(b)(1) of this title who intentionally kills or
counsels, commands, induces, procures, or causes the
intentional killing of an individual and such killing results,
shall be sentenced to any term of imprisonment, which shall
not be less than 20 years, and which may be up to life
imprisonment, or may be sentenced to death; and(B) any
person, during the commission of, in furtherance of, or while
8
attempting to avoid apprehension, prosecution or service of
a prison sentence for, a felony violation of this subchapter or
subchapter II of this chapter who intentionally kills or
counsels, commands, induces, procures, or causes the
intentional killing of any Federal, State, or local law
enforcement officer engaged in, or on account of, the
performance of such officer‘s official duties and such killing
results, shall be sentenced to any term of imprisonment,
which shall not be less than 20 years, and which may be up
to life imprisonment, or may be sentenced to death.
***
21 U.S.C. § 848.
The district court reasoned that § 848(b) sets forth
sentencing factors that govern sentences imposed for
violating the substantive offense defined in § 848(c), rather
than elements of a separate crime. Accordingly, the court
concluded that the government did not have to charge
Tidwell with violating subsection (b), and that the conduct
proscribed therein need only be established by a
preponderance of the evidence.
9
Tidwell’s primary argument on appeal is that the life
sentence that is mandated by § 848(b) could not be
constitutionally imposed because the factual basis was not
charged in the indictment, nor proven beyond a reasonable
doubt. 3
II. DISCUSSION
Congressional intent controls whether § 848(b)
contains elements of a separate offense as Tidwell maintains,
or merely sentencing factors as the district court concluded.
United States v. Jones, 526 U.S. 227 (1999). In order to
discern that intent, we must examine the language and
structure of the statute, its subject matter, context and
legislative history. See, e.g., Almendarez-Torres v. United
3
Most of the other issues Tidwell raises are contingent
upon his claim that § 848(b) contains elements of an offense.
Since we reject that argument, we need not discuss those claims.
10
States, 523 U.S. 224, 228 (1998); Castillo v. United States,
530 U.S. 120, 124 (2000); Harris v. United States, 536 U.S.
545 (2002). Our inquiry is guided by four Supreme Court
decisions wherein the Court discussed the difference
between statutory provisions intended as sentencing factors
and statutory provisions intended as elements of a crime. We
begin our analysis of the legislative intent underlying §
848(b) by discussing each of those decisions.
A. Almendarez-Torres
In Almendarez-Torres v. United States, supra, the
Court held that Congress intended subsection (b)(2) of 8
U.S.C. § 1326 as sentencing factors, rather than elements of
a crime. 8 U.S.C. § 1326 provided, in relevant part:
(a) Subject to subsection (b) of this section,
any alien who-
(1) has been . . . deported . . . , and thereafter
11
(2) enters ..., or is at any time found in, the United
States [without the Attorney General's consent or the
legal equivalent], shall be fined under title 18, or
imprisoned not more than 2 years, or both.
(b) Notwithstanding subsection (a) of this
section, in the case of any alien described in
such subsection-
(1) whose deportation was subsequent to a conviction
for commission of [certain misdemeanors], or a
felony (other than an aggravated felony), such alien
shall be fined under Title 18, imprisoned not more
than 10 years, or both; or
(2) whose deportation was subsequent to a conviction
for commission of an aggravated felony, such alien
shall be fined under such Title, imprisoned not more
than 20 years, or both.
The defendant in Almendarez-Torres pled guilty to
illegally reentering the United States following deportation,
in violation of 8 U.S.C. § 1326. At sentencing, he admitted
that he had been convicted of three aggravated felonies
before being deported. He nevertheless argued that he could
not be sentenced under subsection (b)(2) because his
12
indictment did not charge that he had been convicted of an
aggravated felony before he was deported. The district court
rejected the argument based upon its conclusion that
Congress intended prior aggravated felony convictions to be
an aggravating sentencing factor rather than an element of
the crime. Accordingly, the trial court had held that the prior
convictions did not have to be formally charged or proven
beyond a reasonable doubt. 523 U.S. at 227-228. The
Supreme Court agreed. The Court reasoned that the
structure of the statute, its subject matter (recidivism), its
context and legislative history, all suggested a congressional
intent to enact a sentencing enhancement based upon the
defendant’s prior record.
The Court explained that recidivism is “as typical a
sentencing factor as one could imagine.” Id. at 230. The
13
Court cited several provisions of the United States
Sentencing Guidelines as well as provisions of other federal
statutes that increased severity of sentences based on an
offender’s criminal record. The Court also noted that courts
of appeals and district courts have almost uniformly treated
one’s criminal history as a sentencing factor, rather than as
an element of an offense. Id.
The Court also reasoned that if Congress had intended
subsection (b) to define as elements of a crime, it would not
have provided that those penalties be imposed
“notwithstanding subsection (a).” Similarly, it would not
have been necessary to explain that the maximum sentence
proscribed in subsection (a) was “subject to subsection (b).”
Id. at 231-232.
The Court was also influenced by the fact that when
14
Congress added subsection (b)(2) to 8 U.S.C. § 1396, it
changed the title of the statute from “Reentry of deported
aliens” to “Reentry of deported aliens: criminal penalties for
reentry of certain deported aliens.” Id. at 234. (emphasis
added). Furthermore, the legislative history referred
exclusively to creating new penalties rather than creating a
new crime, or criminalizing conduct that had not previously
been a crime. Id.
B. Jones v. United States, 526 U.S. 227 (1999).
The very next term, the Court decided Jones v. United
States. There, the Court held that Congress intended the
subdivisions of 18 U.S.C. § 2119 as three separate offenses,
rather than as three sentencing enhancements. 18 U.S.C. §
2119, provides:
Whoever, possessing a firearm as defined in section 921 of
this title, takes a motor vehicle that has been transported,
15
shipped, or received in interstate or foreign commerce from
the person or presence of another by force and violence or by
intimidation, or attempts to do so, shall-
(1) be fined under this title or imprisoned not more than 15
years, or both,
(2) if serious bodily injury . . . results, be fined under this
title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for
any number of years up to life, or both. The indictment in
Jones did not specify any of the statute’s subsections, nor did
it allege serious bodily injury. Similarly, the jury did not
make any finding that the carjacking involved serious bodily
injury. Jones, 526 U.S. at 231. Nevertheless, the trial court
imposed a twenty five year sentence after finding, by a
preponderance of the evidence, that serious bodily injury
was involved. Id. The Supreme Court reversed. The Court
held that Congress intended a carjacking involving serious
bodily injury to be one of three separately defined carjacking
16
offenses of escalating severity.
The Court was persuaded that “serious bodily injury”
was a separate offense because “carjacking is a type of
robbery, and serious bodily injury [had] traditionally been
treated by Congress, and by the state legislatures, as defining
an element of the offense of aggravated robbery.” Id. at 235.
Congress drafted the legislation against that historical
background. Id. Moreover, inflicting serious bodily injury
or death raised the statutory maximum by ten years in
subsection (2), and to life imprisonment in subsection (3),
thereby exposing offenders to significantly steeper penalties
than the conduct proscribed in § 2119(1). Allowing such
dramatic increases in punishment without charging the
underlying conduct in an indictment and requiring proof
beyond a reasonable doubt raised serious constitutional
17
questions.
C. Castillo v. United States, 530 U.S. 120 (2000).
The Supreme Court next addressed the distinction
between sentencing enhancements and elements in Castillo
v. United States. There, the Court held that Congress
intended 18 U.S.C. § 924(c)(1) (relating to the use of a
machine gun) to be an element of a crime. The defendants
in Castillo were convicted of violating 18 U.S.C. § 924, but
the indictment did not specify the type of weapon used. At
sentencing, the judge found they had used machine guns and
hand grenades, and sentenced defendants to the mandatory
thirty-year term of imprisonment set forth in 18 U.S.C. §
924(c)(1).
18 U.S.C. § 924 is entitled “Penalties,” and the
relevant portion of the statute provides as follows:
18
(a)(1) Except as otherwise provided in this
subsection, subsection (b), (c), or (f) of this
section, . . .
whoever -
(A) knowingly makes any false statement or representation
with respect to the information required by this chapter to be
kept in the records of a person licensed under this chapter .
. . [or]
***
(D) willfully violates any other provision of this chapter,
shall be fined under this title, imprisoned not more than five
years, or both.
(a)(2) Whoever knowingly violates subsection (a)(6), (d),
(g), (h), (i), (j), or (o) of section 922 shall be fined as
provided in this title, imprisoned not more than 10 years, or
both.
***
(b) Whoever, with intent to commit therewith an offense
punishable by imprisonment for a term exceeding one year,
or with knowledge or reasonable cause to believe that an
offense punishable by imprisonment for a term exceeding
one year is to be committed therewith, ships, transports, or
receives a firearm . . . in interstate or foreign commerce shall
be fined under this title, or imprisoned not more than ten
years, or both.
19
(c)(1) Whoever, during and in relation to any crime of
violence . . . uses or carries a firearm, shall, in addition to the
punishment provided for such crime of violence ,. . . be
sentenced to imprisonment for five years, and if the firearm
is a short-barreled rifle, . . ., or semiautomatic assault
weapon, to imprisonment for ten years, and if the firearm is
a machine gun, . . . to imprisonment for thirty years. In the
case of his second or subsequent conviction under this
subsection, such person shall be sentenced to imprisonment
for twenty years, and if the firearm is a machine gun, . . . to
life imprisonment without release.
***
(c)(3) [defines “crime of violence” for purposes of this
subsection]
***
(e)(1) In the case of a person who violates section 922(g) of
this title and has three previous convictions . . . for a violent
felony, . . . such person shall be fined not more than $25,000
and imprisoned not less than fifteen years, and,
notwithstanding any other provision of law
***
(o) A person who conspires to commit an offense under
subsection (c) shall be imprisoned for not more than twenty
years, fined under this title, or both; and if the firearm is a
machine gun or destructive device, or is equipped with a
firearm silencer or muffler, shall be imprisoned for any term
of years or life.
The Court focused on the structure of the statute
20
because neither the text nor legislative history was helpful.
The title (“Penalties”) suggested that Congress intended to
define penalties for engaging in the conduct proscribed in
the first sentence. However, the statute’s structure was more
indicative of an intent to treat possession of a machine gun
as a separate offense. The “basic job of the first sentence is
the definition of crimes and the role of the remaining three
[sentences] is the description of factors that pertain only to
sentencing.” Id. at 125. Recidivism has historically been
regarded as a sentencing factor, as explained in Almendarez-
Torres. Sentencing factors typically involved offender
characteristics or the manner in which a crime was
committed. Id. at 126. The type of firearm employed was
not related to either of those traditional sentencing factors.
Id. Rather, the kind of weapon used in committing a crime
had traditionally been accorded significance beyond
21
sentencing.
The Court concluded that several factors established
that Congress intended to regard possession of a machine
gun as an element of the crime rather than a sentencing
factor. The structure of the statute “strongly suggest[ed] that
the . . . first sentence [defines] crimes and the role of the
remaining three is the description of factors (such as
recidivism) that ordinarily pertain only to sentencing.” Id. at
125. Second, courts have not “traditionally used firearm
types . . . as sentencing factors, . . .” Id. Third, asking a jury
to determine if the defendant “used or carried a machine gun
would rarely complicate a trial or risk unfairness.” Id.
Moreover, a contrary rule would risk creating “a conflict
between the judge and the jury.” Id. at 128. Fourth, to the
extent the legislative history was helpful, it seemed to
22
describe “offense conduct.” Id. at 30. “Fifth and finally, the
length and severity of ” the mandatory minimum sentence
“weigh[ed] in favor of treating such offense-related words as
referring to elements.” Id. at 131.
Moreover, given the extent that Congress increased
punishment, the Court “assume[d] a preference for
traditional jury determination.” Id. The force of all these
considerations resulted in a “stronger ‘separate crime’ case
than either Jones or Almendarez-Torres - cases in which [the
Court was] closely divided as to Congress’ likely intent.” Id.4
4
Just three weeks after deciding Castillo, the Court
decided Apprendi v. New Jersey, 530 U.S. 466 (2005). There,
the Court held that “‘other than . . . a prior conviction, any
fact that increases the penalty for a crime beyond the
prescribed statutory maximum, whether the statute calls it an
element or a sentencing factor, ‘must be submitted to a jury,
and proved beyond a reasonable doubt.’” Harris v. United
States, 536 U.S. at 551 (quoting Apprendi, 530 U.S. at 490).
23
D. Harris v.United States, 536 U.S. 545 (2002).
In Harris v.United States, the Court had to revisit
congressional intent underlying 21 U.S.C. § 924. Harris was
convicted of having “an unconcealed semiautomatic pistol
at his side” during an illegal sale of narcotics in violation of
21 U.S.C. § 924(c)(1)(A). The relevant statutory text
provides:
Any person who, during and in relation to any crime of
violence or drug trafficking crime ... uses or carries a
firearm, or who, in furtherance of any such crime, possesses
a firearm, shall, in addition to the punishment provided for
such crime of violence or drug trafficking crime-
(I) be sentenced to a term of imprisonment of not less than
5 years;
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.
21 U.S.C. §924.
Harris was charged only with violating “the statute’s
24
principal paragraph.” At the sentencing hearing, the court
relied upon a recommendation in the presentence report to
sentence Harris to 7 years in prison because the trial court
concluded, based upon a preponderance of the evidence,
that Harris had brandished a firearm during the drug sale.
Harris appealed, arguing that “brandishing” a firearm was an
element requiring formal charge in the indictment and proof
beyond a reasonable doubt. The Court of Appeals affirmed,
and the Supreme Court granted certiorari.
The Supreme Court first looked at the structure of the
statute. The Court explained that
[section] 924(c)(1)(A) begins with a lengthy principal
paragraph listing the elements of a complete crime- the basic
federal offense of using or carrying a gun during and in
relation to a violent crime or drug offense. Toward the end
of the paragraph is the word “shall,” which often divides
offense-defining provisions from those that specify
sentences. And following “shall” are the separate
subsections, which explain how defendants are to be
25
sentenced.
Id. at 552 (some internal quotation marks omitted).
The Court concluded that § 924(c)(1)(A) followed
that formula: “Subsection (i) sets a catchall minimum and
certainly adds no further element. Subsections (ii) and (iii),
in turn, increase the minimum penalty if certain facts are
present, and those subsections do not repeat the elements
from the principal paragraph.” Id. at 552-53. Based on that
structure, the Court “presume[d] that [the] principal
paragraph defines a single crime and [the statute’s]
subsections identify sentencing factors.” Id. at 533.
However, the Court did not rest its holding on that
presumption. Rather, the Court explained that even though
the structure and “look . . . suggested that the numbered
subsections are only sentencing provisions, the text might
provide compelling evidence to the contrary, [as] illustrated
26
by the . . . decision in Jones. . .”. Id. (internal quotation
marks omitted). As discussed above, the statute there “had
a similar structure,” yet the Court concluded that Congress
intended to “set[] out the elements of numerous offenses.”
Id. Accordingly, the Court focused on the text of §
924(c)(1)(A).
That text reinforced the Court’s conclusion that the
subsections were intended as sentencing factors rather than
separate offenses. There is no tradition of treating
brandishing a weapon as a separate offense. Jones, 536 U.S.
at 553 (citing United States Sentencing Commission,
Guidelines M anual §§ 2A2.2(b)(2), 2B3.1(b)(2),
2B3.2(b)(3)(A), 2E2.1(b)(1), 2L1.1(b)(4)). Rather, courts
have traditionally regarded such conduct as a sentencing
factor.
27
Moreover, the disputed provision “alters only the
minimum, the judge may impose a sentence well in excess
of seven years, whether or not the defendant brandished the
firearm.” Id. This was therefore “consistent with traditional
understandings about how sentencing factors operate; the
required findings constrain, rather than extend, the
sentencing judge’s discretion.” Harris, 536 U.S. at 554
(emphasis added).
There was nothing to suggest that Congress intended
to alter past practices in enacting § 924(c)(1)(A) by
converting a factor that had historically been relevant only to
punishment into an element of a crime.
III. Tidwell’s sentence under 21 U.S.C. § 848(b).
With this background as our compass, we turn to the
28
statute involved here.5 As we noted at the outset, we
examine the structure, format and text to determine if
Congress intended § 848(b) as a sentencing enhancement or
as elements of a crime. To the extent that we find the statute
ambiguous, we also examine the legislative history. Our
review of the district court’s ruling is plenary. See Gibbs v.
5
We have not fully considered this issue until now. We
summarily affirmed the district court’s conclusion that §
848(b) is a sentencing enhancement in in United States v.
Dumas, 1992 WL 210156 (E. D. Pa. Aug. 20, 1992). See 5
F.3d 1491 (3d Cir. 1993). We declined to reach the issue in
United States v. Riddick, 195 F.3d 505, 507 n.1 (3d Cir. 1998)
(affirming defendant’s sentence on other grounds).
Two other Courts of Appeals have briefly considered
the issue and reached opposite conclusions to each other. See
United States v. Kramer, 955 F.2d 479, 484 n.4 (7th Cir.
1992), and United States v. Torres, 901 F.2d 205, 229 (2d Cir.
1990).
The only other Court of Appeals that has engaged in
substantive analysis of § 848(b) reached the same conclusion
we reach here. See United States v. Hardin, 209 F.3d 652 (7th
Cir. 2000), cert. denied, 531 U.S. 1153 (2001). The Court in
Hardin relied heavily on Jones.
29
Cross, 160 F.3d 962, 964 (3d Cir. 1998).
A. Titles, Text and Structure.
Section 848(a) is titled “Penalties, forfeitures.”
Section 848(b) is titled “Life imprisonment for engaging in
a continuing criminal enterprise;” and § 848(c) is titled,
“‘Continuing criminal enterprise’ defined.” This suggests
that Congress intended to define the crime of CCE in §
848(c), that it set out the applicable penalties for that crime
in subsection (a), and that it intended to mandate an
enhancement when a defendant commits the offense of CCE
in the manner set forth in subsection (b). That conclusion is
tenuous because a statute’s title and heading are not always
dispositive of congressional intent. See Castillo, 530 U.S. at
125 (“In this case, however, the section’s title cannot help,
for Congress already has determined that at least some
30
portion of § 924 including § 924(c) itself, creates . . . not
penalty enhancements, but entirely new crimes.”)
Nevertheless, our conclusion with respect to the headings is
bolstered by our analysis of the text and structure of the
statute.
It is, however, clear from the text of the statute that if
the government can prove beyond a reasonable doubt that a
defendant has engaged in the conduct set forth in subsection
(c), it has established a continuing criminal enterprise
violation. Subsection (a) sets forth the penalty for that crime
as follows: “[a]ny person who engages in a continuing
criminal enterprise shall be sentenced to a term of
imprisonment which may not be less than 20 years and
which may be up to life imprisonment, . . . except that if any
person engages in such activity after one or more prior
31
convictions . . . under this section have become final, he
shall be sentenced to a term of imprisonment which may not
be less than 30 years and which may be up to life
imprisonment[.]” 21 U.S.C. § 848(a). Thus, Congress relied
upon the traditional sentencing factor of recidivism to limit
a sentencing court’s discretion and require an enhanced
mandatory minimum sentence based upon a prior conviction.
However, prior record is not the only factor Congress used
to limit the sentencing court’s discretion. Congress also
restricted sentencing discretion by requiring a sentence of
life imprisonment depending on the level of involvement in,
and the size of the CCE, as specified in subsection (b). Thus,
a judge must impose a sentence of life imprisonment if a
defendant does not merely engage in a continuing criminal
enterprise but is its “ . . . organizer . . . or leader,” and the
quantity of illegal drugs involved or gross receipts received
32
exceeds a defined threshold. 21 U.S.C. § 848(b).
We realize that the structure of § 848 is unique
because the substantive offense is set forth in the middle of
the statute, § 848(c), rather than at the beginning. The
sentencing factor the Supreme Court has found most
persuasive in establishing congressional intent - recidivism -
is contained in the first paragraph, subsection (a), even
though the conduct that subjects a defendant to that
enhancement is defined two paragraphs later.
Significantly, except for the death penalty provision
in subsection 848(e), none of the provisions concerning
sentencing stands alone.6 Rather, they each depend on the
6
For convenience, we once again set forth the relevant
text of § 848(e):
(e) Death penalty
33
criminal conduct defined in subsection (c). See United
States v. Thunder Hawk, 127 F.3d 705, 708 (8th Cir. 1997)
(a sentencing enhancement “cannot stand alone; it is
conditioned upon conviction for the underlying offense”
(1) In addition to the other penalties set forth in
this section--
(A) any person engaging in or working in
furtherance of a continuing criminal enterprise,
or any person engaging in an offense punishable
under section 841(b)(1)(A) of this title or
section 960(b)(1) of this title who intentionally
kills . . .[,] shall be sentenced to any term of
imprisonment, which shall not be less than 20
years, and which may be up to life
imprisonment, or may be sentenced to death;
and
(B) any person, during the commission of . . . a
felony violation of this subchapter or subchapter
II of this chapter who intentionally kills . . .[,]
shall be sentenced to any term of imprisonment,
which shall not be less than 20 years, and which
may be up to life imprisonment, or may be
sentenced to death.
34
citing cases).
Moreover, our interpretation of the text is reinforced
by the fact that Congress and the courts have traditionally
viewed the size of a criminal enterprise, and a defendant’s
role within it, as sentencing factors. See Harris, 536 U.S. at
553 (“tradition and past practice . . . were perhaps the most
important guideposts . . . in Jones”); see also McMillan v
Pennsylvania, 477 U.S. 79, 90 (1986) (the factor had not
“historically been treated in the Anglo-American tradition as
requiring proof beyond a reasonable doubt.”) The size and
scope of the defendant’s criminal enterprise are nothing
more than the manner in which [the] basic crime was carried
out. . .”. See Castillo, 530 U.S. at 126 (“Traditional
sentencing factors often involve either characteristics of the
offender, such as recidivism, or special features of the
35
manner in which a basic crime was carried out (e.g., that the
defendant abused a position of trust or brandished a gun.)”).
Thus, it is not likely that a court would impose the same
sentence on a defendant who is a leader of a drug conspiracy
as on a defendant who is only involved in small “retail”
street-level drug sales. Similarly, a sentencing court would
not likely give an organizer of a conspiracy involving a few
hundred dollars worth of contraband the same sentence as
the organizer of a conspiracy involving tens of millions of
dollars worth of contraband. With the exception of the death
sentence authorized in § 848 (e), the demarcated penalties
contained in § 848 have no more constitutional significance
than that. Congress “simply took one factor that has always
been considered . . . to bear on punishment. . . and dictated
the precise weight” it must receive. McMillan, 477 U.S. at
89-90.
36
The application and role of such sentencing
considerations is readily apparent in the sentencing
guidelines. U.S.S.G. § 3B1.1 increases the applicable
sentencing range based on the number of participants
involved and whether the defendant is an “organizer, leader,
manager, or supervisor,” of the criminal activity. U.S.S.G.
§ 3B1.2 decreases the range when a defendant’s role is
“minimal” or “minor.” See United States v. Bierley, 922 F.2d
1061, 1065 (3d Cir. 1990). Similarly, the guidelines provide
for increasingly severe sentences as the quantity of drugs
increases. See U.S.S.G. § 2D1.1(c). The Guidelines also
generally provide for increasing sentences based upon
economic gain to the defendant and/or foreseeable economic
loss to the victim. See U.S.S.G. § 2B1.1(b).
Moreover, a defendant’s role in a criminal enterprise
37
and the amount of money involved were relevant sentencing
factors long before Congress adopted the Guidelines. As the
court noted in United States v. Schultz, 14 F.3d 1093, 1099
(6th Cir. 1994), the “[r]ole in the offense is a traditional
determination, made in every sentencing, which long
antedates the Guidelines.” Similarly, drug quantity has
historically been regarded as a sentencing factor, subject
only to the recent qualification of Apprendi.7
Tidwell suggests that because courts have held that
the death penalty provision contained in § 848(e) is a
separate offense, we must similarly regard §848(b).
However, that argument is belied by the very text of § 848.
7
“Other than the fact of a prior conviction, any fact that
increases the penalty of a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt ” Blakely, 542 U.S. at 301 (quoting
Apprendi, 530 U.S. at 490).
38
As the court explained in United States v. NJB, 104 F.3d
630, 633 (4th Cir. 1997), “[t]he language, structure and
legislative history of § 848(e)(1) establish that it is a separate
offense, not merely a penalty provision.” Thus, “[s]everal
other subsections of § 848 refer to § 848(e) as a separate
offense.” Id. 21 U.S.C. § 848(i) refers to “an offense under
subsection (e) of this section.” Section 848(n) lists factors to
be considered in imposing a sentence for “an offense under
subsection (e).” Section 848(j) refers to proving aggravating
and mitigating factors “‘when a defendant is found guilty of
. . . an offense under subsection (e) of this section.” See NJB,
104 F.3d at 633.” The fact that the statute internally refers
to § 848(e) as an “offense” clearly establishes Congress’
intent to create a separate crime in § 848(e). In addition, we
must never forget that “death is different in kind from any
other punishment imposed under our system of criminal
39
justice.” Gregg v. Georgia, 428 U.S. 153, 188 (1976)
(emphasis added). Given the qualitative difference between
a sentence of death and a sentence of life imprisonment, as
well as the text and structure of the statute, we are satisfied
that Congress intended subsection 848(b) as a sentencing
enhancement rather than elements of a separate offense.
B. Legislative History
Furthermore, even assuming arguendo that the text,
structure and titles are ambiguous, we would reach the same
conclusion based on the legislative history of § 848(b).
When Congress added § (b) to the Anti-Drug Abuse Act of
1986, P.L. 99-570, Title I, § 1253, 100 Stat. 3207, it was
described as “providing tough new penalties for drug
dealers, not as creating new crimes.” United States v.
Hardin, 209 F.3d 652, 658 (7th Cir. 2000), cert. denied, 531
40
U.S. 1153 (2001). The debate surrounding subsection (b)
centered on creating stiffer penalties for drug crimes. See,
e.g., 132 Cong. Rec. S26711 (1986) (statement of Sen.
Durenberger) (“This legislation is predominantly a crime
bill: interdiction; stiff penalties; new authority for law
enforcement.”) (emphasis added); 132 Cong. Rec. S26834
(1986) (“[t]he bill strengthens the penalties for major drug
traffickers”) (statement of Sen. Nunn) (emphasis added); 132
Cong. Rec. S26728 (1986) (“[T]he measure establishes
tougher penalties for individuals convicted of drug-related
crimes.”) (statement of Sen. Bingaman) (emphasis added);
132 Cong. Rec. S26746 (1986) (statement of Sen. Mattingly)
(“The bill which we have before us does enhance this
nation’s law enforcement capabilities. It provides for
stricter penalties for those who engage in the illegal drug
trade.”) (emphasis added); 132 Cong. Rec. 31417 (1986)
41
(statement of Sen. Byrd (“it contains significantly enhanced
penalties for drug crimes. It requires minimum mandatory
sentences, with no parole, no probation. And it provides for
life sentences for major criminals-the drug ‘king pins’”)
(emphasis added).
C. Tidwell’s Attempt to Distinguish Precedent
Tidwell disagrees with our interpretation of the cases
we have discussed. He claims that an important, if not
dispositive consideration in Jones supports his view that §
848(b) is a separate offense. There, the Court did observe
that where a provision appears to be a sentencing
enhancement, but nevertheless provides for significantly
steeper penalties based upon the presence of certain factors,
the extent of the increase in punishment can alone suggest a
congressional intent to create a separate crime. See Jones,
42
526 U.S. 227, 233 (1999).
Accordingly, the Court in Jones explained that
[it is] at best questionable whether the
specification of facts sufficient to increase a
penalty range by two-thirds, let alone from 15
years to life, was meant to carry none of the
procedural safeguards that elements of an
offense bring with them for a defendant’s
benefit. The “look” of the statute, then, is not
a reliable guide to congressional intentions . .
..
Id. However, Tidwell’s argument is wholly unpersuasive
because, even absent § 848(b), § 848(a) would still allow for
a life sentence to be imposed on any defendant convicted of
a CCE. Thus, unlike the sentencing scheme in Jones, a
sentencing judge’s imposition of a mandatory life sentence
under subsection (b) neither alters the maximum penalty, nor
steeply increases a defendant’s exposure. Rather, “it makes
the existing maximum sentence [equal to the] minimum
43
sentence . . . for a defendant who played an aggravated role
in the CCE.” Hardin, 209 F.3d at 657.8 The life sentence it
mandates was already an available sentencing option based
upon conviction for violating § 848(c). Thus, the concern
that a defendant is denied “process safeguards” where the
available sentence sharply exceeds the punishments
otherwise available is not a persuasive consideration here.
See Jones, 526 U.S. at 233.
Tidwell also relies on Blakely v. Washington, 542
U.S. 296 (2004). There, the Supreme Court held that a judge
can not impose a sentence on a criminal defendant that is
greater than the maximum sentence authorized by the facts
8
Since we do not believe that § 848(b) is ambiguous,
we reject Tidwell’s attempt to rely on the principle of
constitutional doubt. See United States ex rel. Attorney
General v. Delaware & Hudson Co., 213 U.S. 366, 408
(1909).
44
reflected in the jury verdict or defendant’s guilty plea. See
Blakely, 542 U.S. at 303. The 90-month sentence that was
imposed in Blakely could not have been imposed based
solely on the facts Blakely admitted. Rather, the sentence
rested upon the judicial finding at sentencing that Blakely
acted “with deliberate cruelty.” Blakely, 542 U.S. at 298.
Here, no such additional fact finding is required because a
life sentence was already authorized by Tidwell’s plea to §
848 (c).9 Absent consideration of the additional factors in §
848(b), Tidwell could certainly have hoped for something
less than a sentence of life imprisonment, but he had no right
to anything less. It is a defendant’s right to a lesser sentence
9
It is now well established in this circuit that facts that
only enhance sentences within the range allowed by the jury’s
verdict (or guilty plea) need not be charged in an indictment
or proven beyond a reasonable doubt. See, United States v.
Grier, 449 F.3d 558 (3d Cir. 2006) (en banc).
45
absent additional fact finding that makes all the difference
under the Sixth Amendment. Blakely, 542 U.S. at 309.
Tidwell concedes that proof of the additional
subsection (b) facts did not increase his maximum sentence.
Appellant’s Br. at 63. However, he claims that Congress
cannot constitutionally require a mandatory minimum
sentence that is equal to the maximum sentence, without
affording the defendant the Sixth Amendment’s procedural
protections. This is particularly true, argues Tidwell, when
that mandatory minimum is life imprisonment. Id. at 64.
Tidwell’s argument is foreclosed by the Supreme
Court’s decision in McMillan v. Pennsylvania. In McMillan,
defendants challenged the constitutionality of sentences
imposed pursuant to Pennsylvania’s Mandatory Minimum
Sentencing Act, 18 Pa. C.S.A. § 9712(a). That statute
46
required a mandatory minimum prison sentence of five years
for anyone committing certain offenses “if the person visibly
possessed a firearm during the commission of the offense, . . .”.
477 U.S. at 82. The defendants argued that visible possession
of a firearm was an element of the offense and therefore had
to be charged in the indictment and proven to a jury beyond
a reasonable doubt. The Supreme Court disagreed. The
Court held that the Act merely limited the sentencing court’s
discretion by requiring a penalty within the range already
available. No additional findings were required. The
legislature “simply took one factor that has always been
considered by sentencing courts to bear on punishment . . .
and dictated the precise weight to be given that factor.” Id.
at 89-90. Here, as in McMillan, the additional fact finding
“operates solely to limit the sentencing court's discretion in
selecting a penalty within the range already available to it
47
without the special finding . . .”. Id. at 88.
Tidwell claims that McMillan, as well as Harris, are
distinguishable because § 848(b) denied the sentencing court
any opportunity to impose a sentence within a prescribed
range. By contrast, in both Harris and McMillan, imposition
of the mandatory minimum “required the judge to impose a
‘specific sentence within the range authorized by the judge’s
finding that the defendant [was] guilty.’” Harris, 536 U.S. at
564 (quoting Apprendi, 530 U.S. at 494 n.19). As we have
just noted, although Tidwell may have expected that the
district court would have discretion to impose a lesser
sentence, that expectation does not rise to the level of a
constitutional guarantee.10
10
According to Tidwell, pleading guilty to § 848(c)
makes no sense if it subjects him to a life sentence pursuant to
§ 848(b) because he would have had nothing to lose by
“rolling the dice” and going to trial. The argument ignores
48
Tidwell also claims that, where the minimum and
maximum sentences are identical, the already difficult task
of distinguishing Apprendi from McMillan and Harris
becomes even more tenuous. However, it is not for us to
reconsider McMillan and Harris, or resolve any tension that
may exist between that line of cases, Apprendi and its
progeny. See Agostini v. Felton, 521 U.S. 203, 237 (1997)
("[i]f a precedent of [the Supreme Court] has direct
application in a case, yet appears to rest on reasons rejected
in some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to this Court
the prerogative of overruling its own decisions." ).11
the fact that the court may have been able to impose a lesser
sentence based on his “substantial assistance.”
11
See Harris, 536 U.S. at 569 (Breyer, J., concurring)
(“I cannot easily distinguish Apprendi . . . from this case in
terms of logic.”); United States v. Grier, 475 F.3d 556, 575
49
D. Stipulation to Drug Quantity.
Finally, Tidwell claims that the stipulation of drug
quantity in the plea agreement only extended to calculating
his base offense level, and that it was error to rely on it to
enhance his sentence pursuant to § 848(b). Tidwell believes
that this is the only logical interpretation of the stipulation
because the drug quantity would otherwise have required a
life sentence and the guideline range would have become
irrelevant. The argument again ignores the possibility of
motions under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1.
See App. at 16. Had these motions been filed, the sentencing
judge would have had discretion and the quantity of drugs
(3d Cir. 2007) (Ambro, J., concurring) (“To create a
sentencing process that fully carries through on the promise of
Apprendi and Blakely, I believe the Supreme Court would
have to overrule at least, McMillan [citation omitted] and
Harris [citation omitted]”).
50
would have become relevant to calculating the correct
advisory sentencing range under 18 U.S.C. § 3553(a). See
United States v. Gunter, 462 F.3d 237 (3d Cir. 2006).
We are also not persuaded to the contrary by
Tidwell’s reliance on United States v. Thomas, 389 F.3d 424
(3d Cir. 2004). There, because we merely discussed the
various meanings of an “admission” under Blakely, Thomas
is not as helpful as Tidwell claims. As we have explained,
Tidwell’s sentence does not exceed the statutory maximum.
Cf. United States v. Munoz, 233 F.3d 410, 414 (6th Cir.
2000).
Accordingly, we hold that Congress intended § 848(b)
as a sentencing enhancement, not as a separate crime. That
does not, however, end our inquiry. Tidwell’s claim that he
did not know that he was pleading guilty to an offense that
51
carried a mandatory life sentence requires us to determine if
his plea comports with the requirements of due process. See
Brady v. United States, 397 U.S. 742, 748 (1970) (A plea of
guilty is constitutionally valid only to the extent it is
“voluntary and “intelligent”.)
E. The Voluntariness of Tidwell’s Plea.
In order for a guilty plea to comply with the
requirements of the Due Process Clause of the Fifth
Amendment, it must be knowing, voluntary and intelligent.
Bousely v. United States, 523 U.S. 614, 618-19 (1998). To
that end, Fed. R. Crim. P. 11 provides that: “[b]efore
accepting a plea of guilty . . . the court must address the
defendant personally in open court and inform the defendant
of, and determine that the defendant understands [,] . . . the
maximum possible penalty provided by law . . .”. Fed. R.
52
Crim. P. 11(c). Tidwell claims that his plea violated both the
Due Process Clause and Rule 11 because he was not advised
that he was pleading guilty to an offense that had a
mandatory penalty of life imprisonment. Appellants’s Br. at
35-42.12
Tidwell argues that the District Court erred by failing
to advise him that admitting involvement with 150 kilograms
of cocaine triggered a mandatory life sentence absent
motions under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.
Tidwell’s argument rests in large part upon the fact that the
judge told him the following during the colloquy:
If you don’t like the sentence that I give you,
you can appeal that. But very often I have
12
Tidwell’s argument “bleeds into” the more central
question before us which we have discussed above: whether
the mandatory sentencing provision in Section 848(b) is a
sentencing enhancement or a separate offense.
53
discretion in these matters, and if you appeal
the sentence, you may or may not be
successful. But that’s the only thing you’re
going to be able to appeal after today.
App. 195-96. Although this statement standing alone is
misleading, any confusion was dispelled by the judge’s other
admonitions to Tidwell. Throughout the colloquy, Tidwell
was advised that his guilty plea exposed him to a mandatory
sentence of life imprisonment, and he acknowledged that he
understood.
The prosecutor explained: “Mr. Tidwell is pleading to
engaging in a continuing criminal enterprise. The maximum
sentence . . . is a mandatory life imprisonment . . . ”. App. at
185. Tidwell acknowledged that he understood. The judge
then explained: “to the extent there are mandatory
punishments for these offenses, I will have to impose those
punishments unless there is some basis on which I would . .
54
. be able not to do so.” Id. at 207. The judge also clearly
explained that there was no guarantee that the government
would file any motion to allow the court to reduce Tidwell’s
sentence.
I am assuming that the motion, you’re hoping the
Government will make with respect to assistance
would be a way in which I could go below the
mandatory life term and the mandatory 20-year term.
But there’s no assurance here that, number one, what
you do for the Government is going to be deemed by
them to be substantial. Number two, that they’re
going to file a motion. Number three, that I’m going
to grant the motion. And, number four, there’s no
telling how I’m going to view the situation in terms
of any departure I might make.
Id. at 207. Finally, the judge warned: “[I]f there is not a
departure here, then there are mandatory sentences,
mandatory life sentences, and I’m not going to have the
ability to depart from that.” Id. at 209 (emphasis added).
Tidwell nevertheless pled guilty to “engaging in a
55
continuing criminal enterprise, in violation of Title 21,
United States Code, Section 848,” and stipulated that the
drug quantity exceeded 150 kilograms. App. at 216.
Tidwell now complains that the plea agreement did not
specifically inform him that the stipulated drug quantity
would subject him to the mandatory life sentence in §
848(b). Tidwell overlooks the fact that, when he pled guilty,
the judge did advise him that a mandatory life sentence
would apply unless the government filed motions that would
authorize some sentencing discretion. The court could only
advise Tidwell of his maximum exposure, and the court did
that. See Powell, 269 F.3d at 183 (discussing United States
v. Mustafa, 238 F.3d 485 (3d Cir. 2001)).
Thus, Tidwell was informed that his guilty plea
subjected him to a mandatory sentence that would have to be
56
imposed unless the government moved for a reduction based
on Tidwell’s subsequent cooperation. The cooperation was
not forthcoming, but that does not alter the fact that
Tidwell’s plea was knowing, voluntary and intelligent.
IV. Conclusion
For all of the foregoing reasons, we will affirm the
judgment of sentence.
57