United States Court of Appeals for the Tenth Circuit · 2000-12-20
21usc841: author: Fable · historical QA: PASS (QA2, neov2/qa/cases-QA2.md) · changed after review; current content not independently reviewed
Case and law context
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; claim: (a)(1),(b)(1)(A),(b)(1)(B)
Uncertainty
None recorded
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.
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").
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.
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.
Internal inconsistency in the source: the offence date appears as both July 10 and "June 10, 1998"; quotes preserve it.
B · Case × element grid
Top-level elements follow claim order in panels of up to six elements. Case rows repeat across panels. Every recorded block retains its holding and basis; multiple blocks are not merged into a case-level verdict. ✓ satisfied · ✗ not satisfied · ○ not reached · · not addressed. Muted blocks are not counted. Sub-element evidence remains on case and element pages.
Elements 1–6 of 18
| Case | Mens rea: "knowingly or intentionally" (including knowledge that the substance is a controlled substance) | Controlled substance (21 U.S.C. §§ 802(6), 812 Schedules I-V) or counterfeit substance (§ 841(a)(2)) | Authorization exception ("Except as authorized by this subchapter") for registered practitioners/handlers | Possession (actual, constructive, sole, or joint dominion and control) | Specific intent to manufacture, distribute, or dispense the possessed controlled substance | Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) |
|---|---|---|---|---|---|---|
| United States v. Hishaw — 235 F.3d 565 (2000) · United States Court of Appeals for the Tenth Circuit · 2000 (21usc841: author: Fable · historical QA: PASS (QA2, neov2/qa/cases-QA2.md) · changed after review; current content not independently reviewed) | ○ not reached · basis not recordedNot counted: applied/merits | · not addressed | ○ not reached · basis not recordedNot counted: applied/merits |
Elements 7–12 of 18
| Case | Death or serious bodily injury results from the use of such substance (§ 841(b)(1)(A)-(C) 20-year mandatory minimum) | Recidivist enhancement for prior conviction for a serious drug felony or serious violent felony (§ 841(b)(1), 21 U.S.C. § 851) | Prohibited act under § 841(a)(1): manufacture, distribute, or dispense | Cross-statute route alias: see separate aiding-abetting (§ 2) and x-conspiracy-846 (§ 846) routes | Aiding and abetting route under 18 U.S.C. § 2 (cross-statute) | Categorical / modified categorical comparison of state drug offense to 21 U.S.C. § 841 (INA / ACCA / Guidelines) |
|---|---|---|---|---|---|---|
| United States v. Hishaw — 235 F.3d 565 (2000) · United States Court of Appeals for the Tenth Circuit · 2000 (21usc841: author: Fable · historical QA: PASS (QA2, neov2/qa/cases-QA2.md) · changed after review; current content not independently reviewed) | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed |
Elements 13–18 of 18
| Case | Drug conspiracy route under 21 U.S.C. § 846 (cross-statute) | Fifth Amendment Due Process / Equal Protection challenge to carrier-medium weight sentencing (Chapman) | Affirmative defense of entrapment (government inducement + lack of predisposition) | Rule of lenity in construing ambiguous penalty provisions of § 841(b) | Fifth Amendment void-for-vagueness challenge to "mixture or substance" or analogue provisions | Continuing-offense venue for § 841(a)(1) possession with intent to distribute / distribution (18 U.S.C. § 3237(a)) |
|---|---|---|---|---|---|---|
| United States v. Hishaw — 235 F.3d 565 (2000) · United States Court of Appeals for the Tenth Circuit · 2000 (21usc841: author: Fable · historical QA: PASS (QA2, neov2/qa/cases-QA2.md) · changed after review; current content not independently reviewed) | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed |
Instances and excluded annotation blocks
| Case | Element | Holding and scope | Pattern | Exact source quotations |
|---|---|---|---|---|
| United States v. Hishaw — 235 F.3d 565 (2000) · United States Court of Appeals for the Tenth Circuit · 2000 — not reached (21usc841: author: Fable · historical QA: PASS (QA2, neov2/qa/cases-QA2.md) · changed after review; current content not independently reviewed) | Specific intent to manufacture, distribute, or dispense the possessed controlled substance | not_reached Excluded from merits counts applied / merits claim: (a)(1),(b)(1)(A),(b)(1)(B) 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. | Unspecified route | No source quotation recorded for this block. |
| United States v. Hishaw — 235 F.3d 565 (2000) · United States Court of Appeals for the Tenth Circuit · 2000 — not reached (21usc841: author: Fable · historical QA: PASS (QA2, neov2/qa/cases-QA2.md) · changed after review; current content not independently reviewed) | Mens rea: "knowingly or intentionally" (including knowledge that the substance is a controlled substance) | not_reached Excluded from merits counts applied / merits claim: (a)(1),(b)(1)(A),(b)(1)(B) | Unspecified route | No source quotation recorded for this block. |
| United States v. Hishaw — 235 F.3d 565 (2000) · United States Court of Appeals for the Tenth Circuit · 2000 — satisfied · conceded (21usc841: author: Fable · historical QA: PASS (QA2, neov2/qa/cases-QA2.md) · changed after review; current content not independently reviewed) | Possession (actual, constructive, sole, or joint dominion and control) | satisfied Counted merits instance applied / merits basis: conceded; claim: (a)(1),(b)(1)(A),(b)(1)(B) Admitted at trial and not contested on appeal; no rule or held sentence exists in the opinion. | drugs-concealed-on-person | 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.Source: docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [3980:4203] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3.He further admitted that he had possessed crack cocaine on July 10, 1998.Source: docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [7145:7218] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3. |
| United States v. Hishaw — 235 F.3d 565 (2000) · United States Court of Appeals for the Tenth Circuit · 2000 — not · no-evidence (21usc841: author: Fable · historical QA: PASS (QA2, neov2/qa/cases-QA2.md) · changed after review; current content not independently reviewed) | Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) | not Counted merits instance applied / merits basis: no-evidence; claim: (a)(1),(b)(1)(A),(b)(1)(B); count: count eight, (b)(1)(A) 50-gram cocaine-base tier; subject: count=count eight, (b)(1)(A) 50-gram cocaine-base tier 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. | threshold-not-found-by-jury/lab-weight-below-charged-tier | 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.”Source: docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [32715:32960] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3.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).Source: docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [35844:36041] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3.Mr. Hishaw responded, “Yes.... That’s mine.... I accept my responsibility for that.”Source: docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [36374:36458] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3.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.”Source: docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [32397:32683] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3.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.Source: docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [33719:33970] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3.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.Source: docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [36825:37068] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3. |
| United States v. Hishaw — 235 F.3d 565 (2000) · United States Court of Appeals for the Tenth Circuit · 2000 — satisfied · conceded (21usc841: author: Fable · historical QA: PASS (QA2, neov2/qa/cases-QA2.md) · changed after review; current content not independently reviewed) | Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) | satisfied Counted merits instance applied / merits basis: conceded; claim: (a)(1),(b)(1)(A),(b)(1)(B); count: count eight, (b)(1)(B) 5-gram cocaine-base tier; subject: count=count eight, (b)(1)(B) 5-gram cocaine-base tier 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. | lower-tier-supported/sentence-within-proved-quantity-maximum | 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.Source: docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [35605:35843] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3.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.Source: docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [39370:39562] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3.Thus, Mr. Hishaw’s 360 month sentence on his § 841 conviction falls within that statutory maximum.Source: docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [37317:37415] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3.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.Source: docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [41993:42308] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3. |
| United States v. Hishaw — 235 F.3d 565 (2000) · United States Court of Appeals for the Tenth Circuit · 2000 — satisfied · conceded (21usc841: author: Fable · historical QA: PASS (QA2, neov2/qa/cases-QA2.md) · changed after review; current content not independently reviewed) | Controlled substance (21 U.S.C. §§ 802(6), 812 Schedules I-V) or counterfeit substance (§ 841(a)(2)) | satisfied Counted merits instance applied / merits basis: conceded; claim: (a)(1),(b)(1)(A),(b)(1)(B) | identity/lab-test-plus-defendant-admission | 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.Source: docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [4204:4408] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3. |
Court interpretations recorded from this case
interpretation
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.”
United States v. Hishaw — 235 F.3d 565 (2000) · United States Court of Appeals for the Tenth Circuit · 2000 (21usc841: author: Fable · historical QA: PASS (QA2, neov2/qa/cases-QA2.md) · changed after review; current content not independently reviewed)
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.”Source:
docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [32397:32683] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3.PARTIAL_THRESHOLD_TABLE: this entry anchors the § 841(b)(1) drug-specific threshold matrix without pretending that one heroin threshold quote enumerates every listed substance and tier. Under Chapman v. United States (500 U.S. 453 (1991)), "mixture or substance" includes the carrier medium in which the drug is marketed/consumed, but not unusable waste water or packaging containers that must be separated before use.
interpretation
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.
United States v. Hishaw — 235 F.3d 565 (2000) · United States Court of Appeals for the Tenth Circuit · 2000 (21usc841: author: Fable · historical QA: PASS (QA2, neov2/qa/cases-QA2.md) · changed after review; current content not independently reviewed)
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.Source:
docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [39370:39562] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3.PARTIAL_THRESHOLD_TABLE: this entry anchors the § 841(b)(1) drug-specific threshold matrix without pretending that one heroin threshold quote enumerates every listed substance and tier. Under Chapman v. United States (500 U.S. 453 (1991)), "mixture or substance" includes the carrier medium in which the drug is marketed/consumed, but not unusable waste water or packaging containers that must be separated before use.
interpretation
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.”
United States v. Hishaw — 235 F.3d 565 (2000) · United States Court of Appeals for the Tenth Circuit · 2000 (21usc841: author: Fable · historical QA: PASS (QA2, neov2/qa/cases-QA2.md) · changed after review; current content not independently reviewed)
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.”Source:
docroot/ir/caselaw/f3d_235.jsonl#/f3d/235/0565-01; Unicode character offsets [32397:32683] (end exclusive); SHA-256 e39d6753bdf3d76861b3d1be40c57e6ef42ba592e6631a22b0ebfaf8386122f3.Penalty enhancements in § 841(b) that increase the statutory maximum or mandatory minimum operate as elements of an aggravated offense, with the base § 841(a)(1) violation serving as a lesser included offense.