United States v. Hishaw

Facts

1. 3 Possession (actual, constructive, sole, or joint dominion and control) satisfied conceded

   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.

2. 3 Possession (actual, constructive, sole, or joint dominion and control) satisfied conceded

   He further admitted that he had possessed crack cocaine on July 10, 1998.

3. 5 Controlled substance (21 U.S.C. §§ 802(6), 812 Schedules I-V) or counterfeit substance (§ 841(a)(2)) satisfied conceded

   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.

4. 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) not no-evidence

   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.”

5. 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) not no-evidence

   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.”

6. 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) not no-evidence

   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.

7. 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) satisfied conceded

   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.

8. 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) not no-evidence

   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).

9. 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) not no-evidence

   Mr. Hishaw responded, “Yes.... That’s mine.... I accept my responsibility for that.”

10. 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) not no-evidence

    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.

11. 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) satisfied conceded

    Thus, Mr. Hishaw’s 360 month sentence on his § 841 conviction falls within that statutory maximum.

12. 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) satisfied conceded

    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.

13. 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) satisfied conceded

    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.