In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3783

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

QUINCY T. COLLINS,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 CR 30124--David R. Herndon, Judge.

ARGUED NOVEMBER 2, 2001--DECIDED December 3, 2001


  Before POSNER, RIPPLE and EVANS, Circuit
Judges.

  RIPPLE, Circuit Judge. Quincy T. Collins
was convicted of conspiracy to distribute
crack cocaine, 21 U.S.C. sec. 846, and of
distributing crack cocaine, 21 U.S.C.
sec. 841(a), in the Southern District of
Illinois. He was sentenced to 360 months
in prison. He appeals both his conviction
and his sentence. For the reasons set
forth in the following opinion, we affirm
the judgment of the district court.

I

A.   Facts

  On May 12, 1999, Richard Rudd sold crack
cocaine to a government informant. Drug
Enforcement Administration agents told
Rudd that they had evidence of his drug
dealing, and Rudd agreed to make a
controlled purchase of crack cocaine from
Lucresius Reed, Quincy Collins’
girlfriend. On July 1, DEA agents and
officers of the Alton, Illinois Police
Department prepared Rudd for the
controlled buy. They gave him $600 in
cash and fitted him with a surveillance
device. Rudd had arranged to meet Reed at
a local video rental store. In the
store’s parking lot, Mr. Collins sat in
the passenger seat of Reed’s car and sold
Rudd 13.5 grams of crack under the
watchful eye of law enforcement.
  Mr. Collins and Reed had been living
together and dealing drugs together over
a thirteen-month period beginning in June
1998. Reed owned two homes, one where she
lived and the other where she stored and
dealt drugs. Mr. Collins and Reed worked
together selling drugs. The relationship
soured when the two had a fight over
$1,500 in drug money. Reed pleaded guilty
to three drug counts and agreed to
cooperate in the government’s prosecution
of Mr. Collins. Brandon Singleton, who
also had been in Reed’s car at the video
store, testified that he purchased
approximately   ounce of crack from Mr.
Collins on eight or nine occasions.

B.   Proceedings in the District Court

  Mr. Collins was charged in a second
superseding indictment with conspiracy to
distribute crack cocaine (Count 1) and
with distributing crack cocaine (Count
2). Before trial, the Government filed an
information under 21 U.S.C. sec. 851
giving notice of its intention to seek
enhanced penalties based on Mr. Collins’
prior felony drug conviction. Although
Mr. Collins did not respond to the filing
of this information, he did file a motion
to dismiss the indictment, alleging that
21 U.S.C. sec. 841(a)(1) was
unconstitutionally vague. He also filed a
motion in limine to preclude the
Government from mentioning his prior
convictions unless Mr. Collins testified
in his own defense. The court denied the
motion to dismiss, but granted the motion
in limine. After a jury trial, Mr.
Collins was found guilty on both counts.

  At sentencing, Mr. Collins contended
that, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), he was entitled to a
new bifurcated trial. The first phase
would determine guilt or innocence; the
second would determine whether drug
quantity and career offender status had
been proven beyond a reasonable doubt.
The defense admitted Mr. Collins’ prior
felony drug conviction; indeed, Mr.
Collins admitted it on the stand during
the sentencing hearing. The district
court denied the motion for a new
bifurcated trial and sentenced Mr.
Collins to 360 months in prison.

II
A.

  We first address whether Mr. Collins’
sentence of 360 months’ imprisonment
violated the rule of Apprendi./1 Mr.
Collins makes three arguments on this
issue. He submits that Apprendi requires
that his prior felony drug conviction,
his status as a career offender and the
drug quantity be proven beyond a
reasonable doubt. The Government replies
that Mr. Collins misreads Apprendi and
that he waived his right to have the jury
determine drug quantities when he
stipulated that Government Exhibit 4
contained 13.5 grams of cocaine base--
crack cocaine.

1.

  We cannot accept Mr. Collins’ arguments
with respect to the applicability of
Apprendi to his prior conviction and
career offender status. Apprendi
establishes the general rule that any
fact that will increase a defendant’s
sentence beyond the statutory maximum
must be found beyond a reasonable doubt
by the jury. See Apprendi, 530 U.S. at
490. However, in Apprendi, the Supreme
Court carved out an exception to its
general rule for evidence of prior
convictions. See id. at 489-90. While the
Court acknowledged that it was arguable
that the logic of Apprendi applied to
recidivism situations, it specifically
declined to overrule Almendarez-Torres v.
United States, 523 U.S. 224 (1998), which
held that evidence of a prior conviction
did not need to be submitted to a grand
jury in order for heightened sentencing
to apply. See Apprendi, 530 U.S. at 489-
90. Consequently, we have held that
evidence of a prior conviction that would
increase the statutory maximum under sec.
841(b) need not be submitted to the jury.
See Edwards v. United States, 266 F.3d
756, 759 (7th Cir. 2001); United States
v. Booker, 260 F.3d 820, 822 (7th Cir.
2001). We see no reason to overrule this
line of cases.

  Apprendi is violated here only if Mr.
Collins’ sentence exceeds the statutory
maximum permitted by the evidence proved
beyond a reasonable doubt before the jury
and by his prior conviction. See United
States v. Skidmore, 254 F.3d 635, 642
(7th Cir. 2001); United States v. Brough,
243 F.3d 1078, 1079-80 (7th Cir. 2001).
Under 21 U.S.C. sec. 841(b) (1)(C), the
default provision if no drug quantity is
charged in the indictment, the maximum
sentence for a convicted felon like Mr.
Collins is thirty years, or 360 months,
precisely the sentence he received here.
His status as a career offender is
determined by the applicable Sentencing
Guidelines. Like other sentencing
decisions made within the maximum
sentence determined in accordance with
Apprendi, Mr. Collins’ status as a
career offender need not be put before
the jury nor proved beyond a reasonable
doubt. It is not the district court’s
determination that Mr. Collins is a
career offender under the Guidelines that
raises the statutory maximum from twenty
to thirty years under sec. 841(b) (1)(C),
but his prior conviction. See United
States v. Sanchez, 251 F.3d 598, 603 (7th
Cir. 2001).

2.

  Mr. Collins also argues that Apprendi
requires that the drug quantity be
established beyond a reasonable doubt. We
have held that, as a general proposition,
when drug quantity is not alleged in the
indictment and proven beyond a reasonable
doubt, a maximum sentence of twenty years
may be imposed. See 21 U.S.C. sec.
841(b)(1)(C); United States v. Noble, 246
F.3d 946, 955 (7th Cir. 2001); Brough,
243 F.3d at 1079-80.
  Several considerations make this
precedent inapplicable to Mr. Collins’
case. Here, Mr. Collins stipulated to the
presence of 13.5 grams of crack cocaine
in Government Exhibit 4. The Government
undoubtedly tied Mr. Collins to the crack
in Exhibit 4; Richard Rudd purchased it
in the controlled buy outside the video
store. Rudd and DEA Agent Harold Watson
testified to the amount of crack Rudd
bought there. Reed testified that Rudd
purchased the crack from Mr. Collins
while he sat in the parked car. In
addition, Brandon Singleton testified
that he purchased "eight balls" of crack,
each consisting of three grams of crack
worth about $150, from Quincy Collins on
eight or nine occasions. Tr. Vol. II at
198-99. A conviction for any amount of
crack over 5 grams carries with it a
minimum sentence of five years and a
maximum of 40 years. 21 U.S.C. sec.
841(b)(1)(B). Mr. Collins’ 360-month
sentence is within the 40-year maximum
sentence under that statutory provision.

B.

  Mr. Collins next argues that 21 U.S.C.
sec.sec. 841(a) and 846 are
unconstitutionally void for vagueness. He
submits that these provisions are void
under the vagueness doctrine because the
statute fails to define "knowingly or
intentionally . . . to possess with
intent to . . . distribute . . . a
controlled substance." 21 U.S.C. sec.
841(a)(1). Further, he contends, 21
U.S.C. sec. 846 is constitutionally
infirm because it does not define an
"attempt or conspiracy" to violate sec.
841(a)(1)./2

  "[T]he void-for-vagueness doctrine
requires that a penal statute define the
criminal offense with sufficient
definiteness that ordinary people can
understand what conduct is prohibited and
in a manner that does not encourage arbi
trary and discriminatory enforcement."
Kolender v. Lawson, 461 U.S. 352, 357
(1983). "Unconstitutionally vague
statutes pose two primary difficulties:
(1) they fail to provide due notice so
that ’ordinary people can understand what
conduct is prohibited,’ and (2) ’they
encourage arbitrary and discriminatory enforcement.’"
United States v. Cherry, 938 F.2d 748,
753 (7th Cir. 1991) (quoting Kolender,
461 U.S. at 357). "The second of these
two aspects is more important than the
first." United States v. Jackson, 935
F.2d 832, 838 (7th Cir. 1991). "Vagueness
challenges to statutes not threatening
First Amendment interests are examined in
light of the facts of the case at hand;
the statute is judged on an as-applied
basis." Maynard v. Cartwright, 486 U.S.
356, 361 (1988). There is no First
Amendment right at issue here, so Mr.
Collins’ constitutional challenge is
"evaluated as the statute is applied to
the facts of this case." Cherry, 938 F.2d
at 753 (internal quotation omitted).

  "The statute punishes only those who
knowingly," engage in the prohibited
conduct; "[t]his requirement of the
presence of culpable intent as a
necessary element of the offense does
much to destroy any force in the
argument" that sec. 841(a)(1) is too
vague to be constitutionally enforceable.
Boyce Motor Lines v. United States, 342
U.S. 337, 342 (1952). Given this scienter
provision, Mr. Collins "bears an
especially heavy burden in raising his
vagueness challenge," Cherry, 938 F.2d at
753, as "the Court has recognized that
scienter requirements may mitigate a
law’s vagueness, especially with respect
to the adequacy of notice to the
complainant that his conduct is
proscribed," Vill. of Hoffman Estates v.
The Flipside, Hoffman Estates, Inc., 455
U.S. 489, 499 (1982). Such requirements
diminish the likelihood of unfair
enforcement. See Jackson, 935 F.2d at
839.

  As applied to Mr. Collins, Section 841
cannot be characterized as in any way
vague. The statute’s "absolute
prohibition against the manufacture, use
and possession of controlled substances
provides an explicit warning against
dealing with any quantity." United States
v. Campbell, 61 F.3d 976, 980 n.4 (1st
Cir. 1995) (emphasis in original). The
Government was required to prove that he
had entered into an agreement to
distribute "cocaine base." The indictment
specifically defined this latter term as
the substance "commonly known as ’crack’
cocaine." R.1, Ex.61. The presence of the
requirement that Mr. Collins undertake
this activity "knowingly and
intentionally" ensured that he would be
convicted only if he deliberately agreed
to undertake this activity.

  Under these circumstances, we hardly can
conclude that Mr. Collins was not put on
explicit notice as to the nature of the
proscribed activity. Nor can we say that
the statute, as applied to the charged
activities, had such a broad sweep as to
permit "policemen, prosecutors, and
juries to pursue their personal
predilections." Smith v. Gogen, 415 U.S.
566, 575 (1974). There is no lack of
clarity in the word "distribution" that
would give law enforcement officials
discretion to pull within the statute
activities not within Congress’ intent.
Further, this case is not based on
circumstantial evidence. The Government
had direct evidence, in the form of the
controlled buy at the movie store and the
testimony of Brandon Singleton, that Mr.
Collins sold drugs. There can be little
doubt that the sale of drugs comes within
the meaning of "distribution." As applied
to Mr. Collins’ case, there is no
vagueness problem here.


Conclusion

  For the foregoing reasons, the judgment
of the district court is affirmed.

AFFIRMED

FOOTNOTES

/1 Mr. Collins also argues that his criminal history
calculation grossly overstates the severity of
that history. We have no jurisdiction to review
the district court’s discretionary decision not
to depart downward from the sentence mandated by
the applicable guideline range. See United States
v. Williams, 202 F.3d 959, 964 (7th Cir. 2000).

/2 This is a novel argument. Most vagueness chal-
lenges to this statute have attacked the in-
creased penalties for crack as opposed to pow-
dered cocaine. See, e.g., United States v. Avant,
907 F.2d 623 (6th Cir. 1990); United States v.
Brown, 859 F.2d 974 (D.C. Cir. 1988). We also
note that a panel of the Ninth Circuit has
declared this provision unconstitutional, albeit
on a different ground than that urged here.
United States v. Buckland, 259 F.3d 1157, 1165-66
(9th Cir. 2001), reh’g en banc granted, 265 F.3d
1085 (9th Cir. 2001). The Ninth Circuit, specifi-
cally disagreeing with this court’s decision in
United States v. Brough, 243 F.3d 1078 (7th Cir.
2001), held that sec. 841(b) is a sentencing
provision that permits sentences to be imposed
beyond the statutory maximum without a jury
finding beyond a reasonable doubt and is, there-
fore, unconstitutional under Apprendi.
