Ninth Circuit Strikes Down Sentencing Statute

By Wayne C. Fricke

     In a case that will surely go to the en banc panel of the Ninth Circuit Court of Appeals and even possibly to the United States Supreme Court, a three-judge panel of the Ninth Circuit has held that 21 U.S.C. § 841(b)(1)(a) and (b) is unconstitutional.  The Court ruled the statute unconstitutional on its face because it allows penalties for quantities of drugs to be increased without submitting the issue to the jury to be proven beyond a reasonable doubt.  United States v. Buckland, ___ F.3d ___, No. 99-30285, 2001 WL 893440 (9^th Cir. August 9, 2001).  In finding the statute unconstitutional the court relied upon the wording in Apprendi v. New Jersey, 530 U.S. 466 (2000). 

   In Apprendi, the United States Supreme Court held that the increase in the statutory maximum penalty, without requiring the jury to make the quantity determination, violated the defendant’s constitutional rights to due process.  The Court reached this conclusion because it “removed from the jury the assessment of facts and increased the prescribed range of penalties to which a criminal defendant is exposed.”  Id. at 490.  At the time of Apprendi, Justice O’Connor had indicated that the majority opinion “reasonably and strongly suggests” that the Federal Determinate Sentencing Scheme that was ultimately addressed in Buckland would be unconstitutional.  And, in fact, the Ninth Circuit has just so stated in Buckland.  Moreover, a separate panel has followed Buckland in United States v. Hitchcock, ___ F.3d ___, 2001 WL 951273 (9^th Cir. August 23, 2001).

     Particular penalty provisions in §841(b)(1)(a) and (b)(1)(b) depend on the quantity of each drug involved, whereas §841(b)(1)(c) provides a 20-year maximum sentence for an indeterminate amount of drugs.  Consequently, the court noted that the statute differentiated between elements of the offense and the prescribed penalties.  The only difference between the Apprendi case (a hate crime case) and Buckland was that the statute at issue in New Jersey required the court to find by a preponderance of the evidence that the crime was based on hate, whereas there was no such requirement under §841.  However, the court noted that this difference was insufficient because the intent of the statute was to make quantity of drugs a sentencing factor, not an element of the offense, which was why the court ruled in Apprendi the way it did. 

   The Buckland decision is at odds with the Seventh Circuit’s holding in United States v. Brough, 243 F.3d 1078 (7^th Cir. 2001) which found that §841 was constitutional.  However, the court distinguished Brough because a prior Ninth Circuit case, United States v. Nordby, was antagonistic towards the reasoning in Brough and because subsequent United States Supreme Court decisions focused on the legislative intent, which Brough ignored.

     Thus, those of us who have earlier cases where a person has been penalized on the quantity of drugs because of the unconstitutional sentencing provision, should seek to reopen those sentencing hearings.  (The government has filed a petition for rehearing at this time.)