Source: cases/21usc841/f3d-235-565-us-v-hishaw.case
Case source: https://www.neochart.com/catalog/cases/f3d/volume_235/0565_01/index.html
We agree with the reasoning of these decisions and conclude that, under § 841(b)(1), the quantity of drugs is a fact that may “increase[ ] the penalty for a crime beyond the prescribed statutory maximum” and therefore “must be submitted to a jury, and proved beyond a reasonable doubt.”
In light of the indictment’s ambiguous allegation as to the quantity of cocaine base involved, and because of Apprendi, we conclude that the failure to require specific findings regarding the quantity of cocaine constitutes a “plain or obvious” error.
Because the government’s evidence established possession of only 44.6 grams, Mr. Hishaw’s “accept[ance] [of] responsibility” for the cocaine base alleged in count eight, cannot be viewed as an admission that he possessed more than that amount.
In our view, as long as the defendant’s sentence falls within the maximum established by statute, Apprendi does not foreclose consideration of drug quantities beyond the offense of conviction.
Thus, Mr. Hishaw’s 360 month sentence on his § 841 conviction falls within that statutory maximum.
Accordingly, we conclude that in light of his admission that he possessed cocaine base and the fact that his sentence fell within the statutory maximum sentence for the drug quantity proved by the government at trial, Mr. Hishaw was not prejudiced by the failure to submit the question of drug quantity to the jury.
casedsl 1 case /f3d/235/0565-01 name United States v. Hishaw cite 235 F.3d 565 (2000) court United States Court of Appeals for the Tenth Circuit date 2000-12-20 url catalog/cases/f3d/volume_235/0565_01/index.html source ir/caselaw/f3d_235.jsonl sha1=5710e83b0a9346953a5396536859ca39788675be chars=44556 law 21usc841 (a)(1),(b)(1)(A),(b)(1)(B) role applied posture criminal; jury conviction on one count of possession of crack with intent to distribute (hung on six other drug counts); defendant appeals suppression ruling, Apprendi drug-quantity error (plain-error review) and relevant-conduct sentencing result claimant-won element quantity : not-satisfied [no-evidence] variant threshold-not-found-by-jury/lab-weight-below-charged-tier count count eight, (b)(1)(A) 50-gram cocaine-base tier fact @32715..32960 [supports] | In this case, count eight of the indictment alleges that, on July 10, 1998, Mi. Hishaw “did knowingly and intentionally possess with intent to distribute approximately tivo (2) ounces of cocaine base (crack), a Schedule II controlled substance.” fact @35844..36041 [cuts-against] | The total weight of the substances identified by the chemist was thus 44.6 grams — less than the fifty-gram amount required to trigger the ten-years-to-life sentencing provisions of § 841(b)(1)(A). fact @36374..36458 [supports] | Mr. Hishaw responded, “Yes.... That’s mine.... I accept my responsibility for that.” rule @32397..32683 | We agree with the reasoning of these decisions and conclude that, under § 841(b)(1), the quantity of drugs is a fact that may “increase[ ] the penalty for a crime beyond the prescribed statutory maximum” and therefore “must be submitted to a jury, and proved beyond a reasonable doubt.” held @33719..33970 | In light of the indictment’s ambiguous allegation as to the quantity of cocaine base involved, and because of Apprendi, we conclude that the failure to require specific findings regarding the quantity of cocaine constitutes a “plain or obvious” error. held @36825..37068 | Because the government’s evidence established possession of only 44.6 grams, Mr. Hishaw’s “accept[ance] [of] responsibility” for the cocaine base alleged in count eight, cannot be viewed as an admission that he possessed more than that amount. gloss Post-Apprendi, quantity is treated as an element for the aggravated tiers. "Approximately two ounces" (56.7 g) in the indictment plus a general admission of guilt did not establish >50 g when the chemist weighed 44.6 g; no jury finding on quantity. element quantity : satisfied [conceded] variant lower-tier-supported/sentence-within-proved-quantity-maximum count count eight, (b)(1)(B) 5-gram cocaine-base tier fact @35605..35843 [supports] | According to the chemist, each of the seven baggies contained a caked substance that tested positive for cocaine base and that weighed the following amounts: 5.5 grams, 6.4 grams, 6.5 grams, 6.5 grams, 6.5 grams, 6.5 grams, and 6.7 grams. rule @39370..39562 | In our view, as long as the defendant’s sentence falls within the maximum established by statute, Apprendi does not foreclose consideration of drug quantities beyond the offense of conviction. held @37317..37415 | Thus, Mr. Hishaw’s 360 month sentence on his § 841 conviction falls within that statutory maximum. held @41993..42308 | Accordingly, we conclude that in light of his admission that he possessed cocaine base and the fact that his sentence fell within the statutory maximum sentence for the drug quantity proved by the government at trial, Mr. Hishaw was not prejudiced by the failure to submit the question of drug quantity to the jury. gloss The Apprendi error is harmless under plain-error prong three: the 360-month sentence is within the 5-40 year range for the 44.6 g actually proved; judge-found relevant conduct (1857 g, from hung counts) may set the guideline sentence inside that range. No jury actually found >5 g; the court relies on uncontested trial evidence plus the admission. element possession : satisfied [conceded] variant actual/drugs-concealed-on-person fact @3980..4203 [supports] | Sergeant Alvarado felt two hard objects in Mr. Hish-aw’s crotch and asked him for permission to retrieve them. Mr. Hishaw agreed, and Sergeant Alvarado discovered what he believed to be several large rocks of crack cocaine. fact @7145..7218 [supports] | He further admitted that he had possessed crack cocaine on July 10, 1998. gloss Admitted at trial and not contested on appeal; no rule or held sentence exists in the opinion. element substance : satisfied [conceded] variant identity/lab-test-plus-defendant-admission fact @4204..4408 [supports] | The government offered expert testimony at trial indicating that the suspected substance had tested positive for cocaine base. In trial testimony, Mr. Hishaw admitted that the substance was crack cocaine. element intent-to-distribute : not-reached gloss Found by the jury on count eight but not challenged on appeal; the hand-to-hand contacts outside the apartment are discussed only for Fourth Amendment reasonable suspicion. element knowledge : not-reached misfit Quantity is decided twice at different tiers of the same count ((b)(1)(A) fails, (b)(1)(B) suffices) ; `count` now carries the tier, but the operative holding is "plain error but no prejudice", and satisfied/not-satisfied cannot express a harmless-error disposition. misfit No basis value fits "never submitted to the jury; the appellate court itself reads the uncontested trial record". The (b)(1)(A) tier is tagged [no-evidence] (the evidence showed only 44.6 g, though no verdict on quantity existed to reverse) and the (b)(1)(B) tier [conceded] (chemist's weights uncontested, possession admitted; but the defendant never conceded quantity as such, and the court's own word is "proved"). misfit The opinion's holding on sentencing with uncharged/hung-count quantities (relevant conduct, 1857 g by preponderance) is a Guidelines question distinct from the statutory `quantity` element; there is no slot for the sentencing-fact vs. offence-element distinction. misfit Large parts of the opinion concern other law: Fourth Amendment Terry stop/frisk (which produced the § 841 evidence) and 18 U.S.C. § 922(g)(1) constructive possession of a gun in a jointly occupied car (reversed for insufficiency). The 10th Circuit joint-occupancy "nexus" rule is stated for "firearm or other contraband" and would be a useful § 841 possession rule, but it was applied only to the firearm count. misfit Internal inconsistency in the source: the offence date appears as both July 10 and "June 10, 1998"; quotes preserve it.