                                                                        PUBLISH

             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________  ELEVENTH CIRCUIT
                                                              01/07/2000
                                No. 97-9232                THOMAS K. KAHN
                         ________________________              CLERK

                    D. C. Docket No. 93-00007-3-CR-DF

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

SAMUEL J. HESTER,

                                                          Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Georgia
                      _________________________

                              (January 7, 2000)


Before BLACK and WILSON, Circuit Judges, and RONEY, Senior Circuit Judge.

BLACK, Circuit Judge:
      After a jury convicted Appellant Samuel J. Hester of 5 counts relating to the

production and sale of marijuana, the district court imposed a 20-year mandatory

minimum sentence which significantly exceeded the range prescribed by the

Sentencing Guidelines. Appellant contends that the district court erred in imposing

the mandatory minimum sentence because the disparity between the Guidelines

and the mandatory minimum violates the Due Process and Equal Protection

Clauses and because the amount of marijuana involved constitutes an element of

the offense which the Government did not prove beyond a reasonable doubt. We

discern no error and affirm.

                                I. BACKGROUND

      On April 15, 1994, a jury convicted Appellant of conspiracy to manufacture,

possess with intent to distribute, and distribute marijuana; manufacture of

marijuana; distribution of marijuana; possession with intent to distribute marijuana;

and possession of a firearm by a convicted felon. The Government filed a notice of

enhancement based on Appellant’s prior Georgia conviction for the sale of

marijuana. At Appellant’s first sentencing, the district court found Appellant

responsible for 2,924 marijuana plants. United States Sentencing Guidelines §

2D1.1(c)(4), as then in effect, instructed the district court to impose an equivalency

of one kilogram per plant for an offense involving more than 50 plants. This


                                          2
produced a Guideline range of 240 to 262 months. Similarly, 21 U.S.C. §

841(b)(1)(A)(vii) contains a mandatory minimum sentence of 20 years for a drug

amount in excess of 1,000 plants combined with a prior conviction. The district

court selected the upper end of the Guideline range and sentenced Appellant to 262

months. Appellant filed his first notice of appeal on February 10, 1995.

      Effective November 1, 1995, the Sentencing Commission changed the

Guidelines by adding Amendment 516 which applies retroactively. Amendment

516 altered the weight calculation with respect to marijuana plants and instructed

district courts to use a standard of 100 grams per plant (or the actual weight of the

plant if higher) regardless of the number of plants involved in the offense. The

Amendment reveals that the Sentencing Commission felt that 100 grams per plant

better reflected the true weight of marijuana plants. Accordingly, on May 20,

1996, this Court affirmed Appellant’s conviction but remanded for resentencing in

light of Amendment 516.

      On remand, on July 5, 1996, the district court observed that with the

application of Amendment 516 the Guideline range reached from 108 to 135

months but that the statutory mandatory minimum remained at 20 years. The

district court thus imposed the mandatory minimum sentence. This appeal

followed.


                                          3
                                  II. DISCUSSION

      Appellant offers two arguments against the imposition of the mandatory

minimum sentence. First, Appellant claims that the difference between the

Guideline range and the statutory mandatory minimum violates the Due Process

and Equal Protection Clauses. Second, Appellant maintains that the Government

failed to prove the amount of drugs as an element of the offense beyond a

reasonable doubt. This Court reviews the factual findings of the district court for

clear error but reviews the district court’s interpretation of the Sentencing

Guidelines de novo. See United States v. Moore, 6 F.3d 715, 718 (11th Cir. 1993).

We review constitutional challenges to a statutory scheme de novo. See United

States v. Dascenzo, 152 F.3d 1300, 1301 (11th Cir. 1998).

A. Validity of the Sentencing Scheme

      In United States v. Osburn, this Court upheld the former sentencing

structure, under § 841(b)(1)(B)(vii) and § 2D1.1 of the Guidelines, in the face of a

constitutional challenge. 955 F.2d 1500 (11th Cir. 1992). We explained that

Congress could rationally have decided that large-scale drug traffickers present a

greater danger to society and deserve harsher punishment. See id. at 1508.

Appellant now asks us to conclude that Congress acted irrationally, and thus in

violation of the Constitution, by standardizing the plant to weight conversion ratio


                                           4
in the Sentencing Guidelines without a concomitant change in the governing

statute.1 The only Court of Appeals that has considered this issue rejected

Appellant’s argument. See United States v. Marshall, 95 F.3d 700, 701 (8th Cir.

1996).

       We agree with the Eighth Circuit that Amendment 516 did not render the

sentencing regime unconstitutional. We need not determine Congress’s

justification for approving the Amendment; we need only examine the decision to

evaluate whether it rests on a rational basis. Congress could have approved of a

more uniform approach to plant and weight equivalency while it decided to

maintain a severe penalty for large-scale traffickers. We approved of such a

consideration in Osburn. Congress might have acted incrementally and ratified the

Guideline change as a precursor to Congress’s reconsideration of the statutory

mandatory minimum. Such an act by Congress would survive a rational basis

review. See Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S. Ct. 461, 465




       1
         Of course, the passage of Amendment 516 did not alter the mandatory minimum
sentence contained in the statute. See United States v. Eggersdorf, 126 F.3d 1318, 1320-21 (11th
Cir. 1997). See also U.S.S.G. § 5G1.1(b) (explaining that when the mandatory minimum
exceeds the applicable guideline range, the mandatory minimum becomes the guideline
sentence).

                                               5
(1955). Under either approach, Congress did not act irrationally by approving

Amendment 516.2

       This conclusion comports with other decisions that have considered arguable

discrepancies between mandatory minimums and the Sentencing Guidelines. See,

e.g., Neal v. United States, 516 U.S. 284, 296, 116 S. Ct. 763, 769 (1996)

(upholding mandatory minimum with respect to LSD sentence despite its potential

conflict with a provision of the Guidelines). It also reflects the general view that

Congress enjoys wide latitude in deciding the severity of punishment for drug

offenses. See, e.g., United States v. Solomon, 848 F.2d 156, 157-58 (11th Cir.

1998) (upholding punishment based on drug weight regardless of purity).

       Finally, we reject Appellant’s argument that the sentencing regime treats

similar offenders differently in violation of the Equal Protection Clause. Appellant

points out that two offenders with his criminal history and role in the offense

caught with 999 and 1000 plants respectively would face guideline ranges of 86 to

108 months and 108 to 135 months but mandatory minimum sentences of 120

months and 240 months. While Appellant correctly describes the applicable


       2
          We also observe, but do not decide, a hidden peril in Appellant’s argument: as the First
Circuit noted in a discussion of Amendment 488, “[w]ere a court to conclude that the [Guideline
and statutory approaches] cannot coexist constitutionally, it seems virtually certain that
Amendment 488, rather than [the statute] would be struck down, and with it the Guidelines
sentence reduction.” United States v. Dimeo, 28 F.3d 240, 241 n.4 (1st Cir. 1994).

                                                6
sentences, he fails to recognize that Congress must draw lines between classes of

offenders and that those lines might appear arbitrary at the edges. We have already

approved of this sentencing regime, which sharply distinguishes between the

possession of certain numbers of plants, see Osburn, 955 F.2d at 1507, and we do

so again here.

B. Drug Amount as an Element of the Offense

      The parties agree, as they must, that in order to obtain a conviction the

Government must charge all of the elements of an offense, submit all the elements

to a jury, and prove all of them beyond a reasonable doubt. See Jones v. United

States, ___ U.S. ___, 119 S. Ct. 1215, 1219 (1999). The parties also agree that the

Government did not consider the number of marijuana plants an element of

Appellant’s offense. Instead, while the Government clearly introduced evidence at

trial regarding the number of plants involved, the district court determined the

actual number of plants at sentencing.

      Appellant argues, based on Jones, that the number of plants constitutes an

element of his offense which the Government failed to prove beyond a reasonable

doubt. While this Court has not yet had an opportunity to address Jones, we have

clearly rejected the characterization of the amount of drugs as an element of the

offense under 841. See United States v. Perez, 960 F.2d 1569, 1574-76 (11th Cir.


                                          7
1992) (reaffirming that weight or quantity of a controlled substance does not

constitute an element of the offense under § 841); United States v. Cross, 916 F.2d

622, 623 (11th Cir. 1990) (holding that nature and quantity of controlled substance

is a sentencing provision, not an element, applicable only after conviction under §

841(a)); United States v. Williams, 876 F.2d 1521, 1524-25 (11th Cir. 1989)

(concluding that “nature and quantity of the controlled substance are relevant only

to sentencing and do not constitute elements of a lesser included offense”).

Accordingly, binding authority in this Circuit forecloses Appellant’s argument

unless the Supreme Court decided otherwise in Jones. We now turn to that issue.

      In Jones v. United States, the Supreme Court examined the federal

carjacking statute, 18 U.S.C. § 2119, to determine if it defined three distinct

offenses or one offense with a choice of three maximum penalties. 119 S. Ct. at

1217. The Court concluded that the statute did not clearly resolve the question. It

commented that two subsections provided for significantly higher penalties and

relied on further facts such as injury and death “that seem quite as important as the

elements in the principal paragraph.” Id. at 1219. The Court then observed that

the statute was “unlike most offense-defining provisions in the federal criminal

code, which genuinely stand on their own grammatical feet thanks to phrases such

as ‘shall be unlawful’” and recommended examining other, similar statutes to


                                          8
discern Congress’ intent. Id. at 1219-20. It noted that many statutes consider

injury or death elements of an offense because the statutes use them to differentiate

between types of offenses such as robbery and aggravated robbery. The Court then

announced that while it believed the fairest reading of § 2119 would treat serous

bodily harm as an element of the offense, it would resolve any doubt in favor of the

defendant. Id. at 1222.

      In the next section of the opinion, the Court canvassed its past cases to

remind courts of the principle that the Government must allege and prove every

element of the crime beyond a reasonable doubt and cannot shift the burden of

proof on an element to the defense. See id. at 1227-28. The Court noted that in its

last Term it approved the use of recidivism as a sentencing factor, not an element

of the offense. See id. at 1226-27 (citing Almendarez-Torres v. United States, 118

S. Ct. 1219 (1998)). The Court commented in a footnote that

      under the Due Process Clause of the Fifth Amendment and the notice
      and jury trial guarantees of the Sixth Amendment, any fact (other than
      prior conviction) that increases the maximum penalty for a crime must
      be charged in an indictment, submitted to a jury, and proven beyond a
      reasonable doubt.

119 S. Ct. at 1224 n.6.

      This language allows two plausible readings of Jones. First, footnote six

means exactly what it says: any factor which can increase the maximum penalty for


                                          9
an offense constitutes an element of that offense.3 Second, when a court finds a

statute and its legislative history unclear,4 the court should err in favor of the

defendant and consider an element of the offense any factor which increases the

maximum penalty for the offense.

       The latter reading correctly reflects the Court’s opinion in Jones. If the

Court meant to announce a rule that any factor which increases the maximum

penalty counts as an element, then it would render irrelevant the detailed analysis

of the statute and its legislative history discussed in the first part of the opinion. In

other words, if any factor that increases the maximum penalty amounts to an

element of the crime, the Court did not need to bother with determining whether or

not Congress considered it an element. It seems that the Court proceeded with its

analysis only because it first found Congress’ intent ambiguous. See id. at 1222.

In addition, a broad rule would have sweeping implications for factors that




       3
         Appellant urges us to reach this result. Appellant also attempts to take a more
moderate approach. He argues that we should certainly find that the amount of drugs constitutes
an element of the offense when the amount leads to a dramatic increase in sentence even if we
decide that weight is not an element when faced with trivial increases.
       4
          Assuming, of course, that courts keep in mind the separate limitation that Congress
cannot shift the burden of proof on elements of the offense to defendants even if Congress
clearly attempts to do so.

                                               10
Congress has traditionally considered sentencing considerations, not elements of

the crime.5

       Other circuits have adopted the narrower reading of Jones. Three circuits

reexamined whether the enhanced penalties based upon the type of firearm in 18

U.S.C. § 924(c)(1) constitute elements of the offense. See United States v. Eads,

191 F.3d 1206 (10th Cir.1999), petition for cert. filed, ___ S. Ct. ___ (U.S. Nov. 1,

1999) (No. 99-6907); United States v. Baldwin, 186 F.3d 99 (2d Cir.1999), cert.

denied, ___ S. Ct. ___ (U.S. Nov. 29, 1999); United States v. Castillo, 179 F.3d

321 (5th Cir. 1999), petition for cert. filed, ___ S. Ct. ___ (U.S. Oct. 15, 1999)

(No. 99-658). The Tenth Circuit held that the enhancement did not constitute an

element of the offense. It noted that the broad language in footnote six of Jones

“seems to call this rationale into question” but decided that its ruling did not run

afoul of Jones because of a “more reasonable reading of Jones, one that anchors its

holding to its facts, i.e., the statutory provision involved.” 191 F.3d at 1213-14.

The Fifth Circuit decided that, unlike Jones, the legislative history regarding §

924(c)(1) never indicated an intent to create a new offense based on the type of

weapon and thus the enhancement amounted to only a sentencing factor. See


       5
          In fact, tradition played a central role in the Court’s decision to allow recidivism as a
sentencing factor just one year earlier in Almendarez-Torres, and Jones explicitly refused to
disturb that precedent. See id. at 1227.

                                                 11
Castillo, 179 F.3d at 328. The Second Circuit also took this approach. That court

commented that Congress divided the statute into two sections—§ 922 “Unlawful

acts” and § 924 “Penalties.” See Baldwin, 186 F.3d at 101.

       Similarly, Congress divided § 841 into several subsections. Subsection (a)

lists “Unlawful acts” while subsection (b) enumerates “Penalties.” As we have

announced in our previous cases, Congress decided that the elements of a § 841

offense do not include the weight of the drugs. This conclusion follows our latest

case on the subject, United States v. Rutherford, 175 F.3d 899 (11th Cir. 1999).

Rutherford came after Jones, and, although it did not explicitly address the holding

of Jones, it continued to rely on Williams and Cross for the proposition that the

“nature of the controlled substance neither constitutes an element of the offense nor

broadens the bases for conviction, but is relevant only for sentencing purposes.”

175 F.3d at 906.6

                                      III. CONCLUSION




       6
          Appellant also argues that we should utilize the rule of lenity or avoid the constitutional
questions raised by the statute by holding that the district court had the authority to sentence
Appellant under § 841(b)(1)(B) instead of § 841(b)(1)(A). Appellant would have us ignore the
fact that while the former section governs offenses involving “100 or more marijuana plants
regardless of weight,” the latter section explicitly applies when the offense involves more than
1000 plants. We decline to do so because we think it clear that subsection (b)(1)(B) applies to
offenses involving more than 100 but less than 1000 plants. In addition, because we do not
observe any ambiguity in the statute, the rule of lenity does not apply.

                                                 12
      Congress did not create a constitutionally impermissible sentencing regime

by approving Amendment 516 to the Sentencing Guidelines and the Government

did not need to prove the amount of drugs as an element of Appellant’s offense.

Accordingly, the district court properly sentenced Appellant to the statutory

mandatory minimum.

      AFFIRMED.




                                         13
