In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2695

United States of America,

Plaintiff-Appellee,

v.

Jerome Brough,

Defendant-Appellant.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98-CR-222--C.N. Clevert, Judge.


Argued March 2, 2001--Decided March 22, 2001



  Before Cudahy, Easterbrook, and Rovner, Circuit
Judges.

  Easterbrook, Circuit Judge. After a bench trial,
Jerome Brough was convicted of conspiring to
distribute both heroin and crack cocaine, and he
was sentenced to life imprisonment. His main
appellate arguments arise from Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)--
oddly, because Apprendi principally concerns the
division of responsibility between judge and
jury, while Brough agreed that all issues in his
case would be resolved by a judge. But Apprendi
affects the burden of persuasion as well as the
identity of the decisionmaker, so it has
potential bearing even when the defendant has
waived his entitlement to decision by a jury.
  Brough’s lead argument is that 21 U.S.C.
sec.841 is unconstitutional (and that all
conspiracy convictions under 21 U.S.C. sec.846
fail derivatively) because sec.841 does not
mention the burden of persuasion (or the
allocation of issues between judge and jury) and
does not identify sentencing considerations as
elements of the offense. Section 841(a),
captioned "Unlawful acts", provides:

Except as authorized by this subchapter, it shall
be unlawful for any person knowingly or
intentionally--(1) to manufacture, distribute, or
dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance;
or (2) to create, distribute, or dispense, or
possess with intent to distribute or dispense, a
counterfeit substance.


Then sec.841(b), captioned "Penalties", says that
"any person who violates subsection (a) of this
section shall be sentenced as follows" and lays
out the minimum and maximum penalties for various
types and quantities of drugs, with adjustments
depending on whether the defendant has prior
drug-related convictions and whether the
activities caused death or serious injury. Until
Apprendi we took Congress at its caption and held
that only the elements specified in sec.841(a)
need be proved beyond a reasonable doubt to the
jury’s satisfaction; the penalty provisions in
sec.841(b) were to be administered by the
sentencing judge under the preponderance
standard. See United States v. Edwards, 105 F.3d
1179 (7th Cir. 1979), affirmed, 523 U.S. 511
(1998); United States v. Jackson, 207 F.3d 910
(7th Cir. 2000), remanded, 121 S. Ct. 376 (2000),
decision on remand, 236 F.3d 886 (7th Cir. 2001).
But United States v. Nance, 236 F.3d 820 (7th
Cir. 2000), holds that Apprendi requires a
different approach, and that all facts (other
than prior convictions) that set the maximum
possible punishment under sec.841(b) must be
established beyond a reasonable doubt to the
satisfaction of the same body that determines
culpability under sec.841(a). See also, e.g.
United States v. Patterson, No. 97-3159 (7th Cir.
Mar. 2, 2001); United States v. Westmoreland, No.
99-1491 (7th Cir. Feb. 15, 2001), and the opinion
on remand in Jackson. These constitutional
requirements are external to sec.841. It follows,
Brough believes, that sec.841 is unconstitutional
and cannot support any criminal punishment, for
courts are not supposed to rewrite criminal
statutes and sec.841 cannot be severed to produce
a constitutional rule.

  Brough’s argument is confused. Apprendi and
Nance do not establish that anything in sec.841
is unconstitutional or require its severance. If
Congress had specified that only judges may make
the findings required by sec.841(b), or that
these findings must be made by a preponderance of
the evidence, then sec.841 would create a
constitutional problem. But the statute does not
say who makes the findings or which party bears
what burden of persuasion. Instead the law
attaches effects to facts, leaving it to the
judiciary to sort out who determines the facts,
under what burden. It makes no constitutional
difference whether a single subsection covers
both elements and penalties, whether these are
divided across multiple subsections (as sec.841
does), or even whether they are scattered across
multiple statutes (see 18 U.S.C. sec.sec. 924(a),
1963). Apprendi holds that the due process
clauses of the fifth and fourteenth amendments
make the jury the right decisionmaker (unless the
defendant elects a bench trial), and the
reasonable-doubt standard the proper burden, when
a fact raises the maximum lawful punishment. How
statutes are drafted, or implemented, to fulfil
that requirement is a subject to which the
Constitution does not speak.

  Once the maximum penalty has been established
in a constitutional manner, the judge selects a
punishment using the preponderance standard. See
Edwards, 523 U.S. at 514-15. Thus we concluded in
Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000),
that if (for example) the indictment specifies
that the drug was cocaine or heroin, then any
penalty up to 20 years is lawful even if the jury
does not find a particular quantity, because 20
years is the maximum under sec.841(b)(1)(C) for
unlawfully distributing any detectable quantity
of any Schedule I or II controlled substance. See
also, e.g., Westmoreland, slip op. 27-28. Edwards
and Talbott demonstrate, and we now hold, that
there is no constitutional defect in the design
of sec.841, and that there is no impediment to
convictions under the statute as written. Accord,
United States v. Candelario, 2001 U.S. App. Lexis
1524 (11th Cir. Feb. 5, 2001), at *28 n.16.
Apprendi strongly affects how sec.841 is
implemented; as we concluded in Nance and
Westmoreland, a post-Apprendi indictment should
specify, and the trier of fact must be instructed
to determine, not only the elements of the
offense, which appear in sec.841(a), but also the
events listed in sec.841(b) on which the
prosecutor relies to establish the maximum
sentence. But even if the trier of fact does not
find any particular drug or quantity, a convicted
defendant still faces some penalty--if only the
one year for distributing the least serious of
the drugs on Schedule V. 21 U.S.C. sec.841(b)(3).
See United States v. Norby, 225 F.3d 1053, 1058
(9th Cir. 2000). Brough cannot take advantage of
that low maximum, however, because the indictment
charged him with distributing not only more than
50 grams of crack cocaine but also more than one
kilogram of heroin, each enough to authorize life
in prison if proved beyond a reasonable doubt. 21
U.S.C. sec.841(b)(1)(A)(i), (iii).

  The evidence was quite sufficient to show guilt
beyond a reasonable doubt; we reject Brough’s
attack on the district judge’s finding of
culpability. But the judge, acting before
Apprendi, found the kinds and quantities of drugs
involved by a preponderance of the evidence
rather than beyond a reasonable doubt. Brough did
not ask the judge to do otherwise, so we must
decide whether the court’s conclusion is plain
error. See Nance, Westmoreland, Patterson, and
the opinion on remand in Jackson. Brough’s
argument has some appeal, because when imposing
sentence the judge expressed skepticism about the
veracity of the witnesses whose testimony he
credited; maybe the judge would find the drug-
quantity evidence sufficient at the preponderance
standard but not enough to suppress a reasonable
doubt. Yet the same judge convicted Brough, on
the testimony of these same witnesses, and
concluded on the basis of evidence received at
the sentencing hearing that Brough conspired to
distribute at least 2,000 grams of crack cocaine,
40 times the amount that Congress deemed
sufficient to support life imprisonment. Would a
judge who thought that a preponderance of the
evidence demonstrates distribution of 2,000 grams
have thought that a much smaller quantity had not
been established beyond a reasonable doubt? That
is very unlikely, and for a simple reason. Agents
seized 37 grams of crack at the end of this
conspiracy, which lasted for four years. If 37
grams was in stock on a single day, is it
conceivable that, during the remaining 1,460 days
of the conspiracy, Brough and his confederates
handled no more than 12 grams of crack in total?
No, it is not conceivable. A judge willing to
credit the evidence of the 37-gram seizure, and
to find guilt beyond a reasonable doubt, would
have been bound to determine beyond a reasonable
doubt that the conspirators distributed at least
an additional 13 grams of crack during the
conspiracy’s lifetime. That is enough to
establish that a penalty under sec.841(b)(1)(A)
is not plain error.
  As for heroin: Because Brough’s conviction for
distributing cocaine is itself enough to
authorize a sentence of life imprisonment, it is
unnecessary to decide whether the evidence of
heroin quantity is equally compelling. Even if
the sentence for distributing heroin were cut
down to the 20-year maximum authorized for a
smidgen of that drug, see 21 U.S.C.
sec.841(b)(1)(C), Brough’s aggregate sentence
would be unaffected, for the Sentencing
Guidelines instruct the district judge to use the
maximum available for the most serious count (and
consecutive sentences if necessary) to achieve
the total punishment appropriate to the
convictions and all relevant conduct. U.S.S.G.
sec.5G1.2. The concurrent sentence doctrine makes
it unnecessary to consider the maximum term that
could have been imposed for a conviction that
does not augment the total punishment. Although
the $100 special assessment means that a court
must consider every challenge to the propriety of
a conviction, see Ray v. United States, 481 U.S.
736 (1987), we have done this by holding that
Brough’s convictions are valid. There is no need
to go further and consider matters that do not
affect the total sentencing package.

  This conclusion also makes it unnecessary to
rely on a possibility raised by the prosecutor at
oral argument: that even 5 grams of crack
suffice, because Brough has a prior conviction
for a drug felony. In the district court the
prosecutor gave notice of this conviction under
21 U.S.C. sec.851, and Apprendi does not overrule
the holding of Almendarez-Torres v. United
States, 523 U.S. 224 (1998), that penalty
enhancements based on recidivism need not be
established beyond a reasonable doubt. See 120 S.
Ct. at 2362. The drugs seized, coupled with the
conviction, expose Brough to life in prison.
Bafflingly, the United States did not mention
this in its brief on appeal, and Brough says that
a recidivism enhancement therefore has been
forfeited. Maybe so, but a defendant who
forfeited his own contentions and must urge plain
error is not in the best position to complain
about the prosecutor’s oversight. Brough’s prior
conviction reinforces our conclusion that no
miscarriage of justice has occurred. Had Apprendi
been decided before the district court imposed
sentence, the effect of his prior conviction
would have held center stage. A remand could not
lead to a lower sentence.

Affirmed
