                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-29-2001

United States v. Butch
Precedential or Non-Precedential:

Docket 99-5738




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation
"United States v. Butch" (2001). 2001 Decisions. Paper 143.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/143


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed June 29, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 99-5738

UNITED STATES OF AMERICA,

v.

JOSEPH BUTCH
       Appellant

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Criminal No. 98-00390)
District Judge: Honorable Stephen M. Orlofsky

Submitted Under Third Circuit LAR 34.1(a)
April 24, 2001

Before: BARRY, AMBRO and ALDISER T, Circuit Judges

(Filed: June 29, 2001)

       Mark W. Catanzaro
       Suite 208
       513 South Lenola Road
       Blason IV
       Moorestown, NJ 08057

       Attorney for Appellant, Joseph Butch
       Robert J. Cleary
       United States Attorney

       George S. Leone
       Chief, Appeals Division
       970 Broad Street
       Newark, NJ 07102-2535

       Norman J. Gross,
       Assistant United States Attorney
       Camden Federal Building and
        United States Courthouse
       401 Market Street, Fourth Floor
       Camden, NJ 08101-2098

       Attorneys for Appellee, United States
       of America

OPINION OF THE COURT

AMBRO, Circuit Judge:

Joseph Butch challenges his conviction following a jury
trial in the United States District Court for the District of
New Jersey (the "District Court") on one count of violating
21 U.S.C. S 846 by conspiring to distribute and to possess
with intent to distribute oxycodone, a Schedule II narcotic
controlled substance, contrary to 21 U.S.C.S 841(a)(1). He
also challenges the sentence imposed by the District Court.
Butch alleges that the District Court (1) impr operly
admitted evidence of prior thefts of oxycodone at trial, (2)
erred in determining the applicable sentencing range under
the United States Sentencing Guidelines by attributing to
him the entire weight of each pill rather than calculating
the amount of the controlled substance per pill, and (3)
erred by failing to submit the weight of the controlled
substance to the jury for a factual determination beyond a
reasonable doubt in light of Apprendi v. New Jersey, 530
U.S. 466 (2000). We have jurisdiction over this appeal
pursuant to 28 U.S.C. S 1291. For the r easons that follow,
we will affirm the conviction and sentence.

                                 2
I.

At the time of this alleged criminal activity, Butch was
employed as a scheduler and dispatcher for two r elated,
Philadelphia-based commercial truck and driver leasing
companies, Marano Truck Lease ("Marano") and American
Helper ("AH"). Marano and AH leased trucks and drivers to
the courier service Rapid Delivery Services ("RDS"). RDS in
turn was employed by Amerisource, a wholesale distributor
of pharmaceutical drugs and other medical pr oducts, to
deliver those products from its war ehouse in Thorofare,
New Jersey, to hospitals and pharmacies.

From September, 1997 through January, 1998, Butch
scheduled Robert Manning ("Manning"), a temporary driver
for AH, to a delivery route for Amerisour ce. According to
Manning's testimony, on January 7, 1998 Butch of fered
Manning $5000 to help him steal a tote of Amerisour ce's
pharmaceutical drugs from the back of the delivery truck
that Manning would be driving the next day. Manning
agreed. On January 8, 1998, Manning met Butch and
another man at a Burger King restaurant on Front Street in
Philadelphia. Butch retrieved a plastic tote containing the
drugs from the back of the truck. After Manning had
resumed his route, Butch discovered that he had stolen the
wrong tote. Butch called Manning and arranged to have the
third man meet Manning at a Dunkin' Donuts shop to pick
up the correct tote, which he did. When Manning arrived
later at the Veteran's Administration hospital in
Philadelphia, he called the police and reported the theft as
planned. Several days later, Butch gave Manning the
agreed-upon $5000.

In April and May of 1998, Butch twice solicited Manning
to steal pharmaceutical drugs from Amerisource trucks
that others were driving. Butch identified the trucks, the
delivery routes and the drug totes, and gave Manning the
key. Manning was to follow the trucks and steal the drugs
when the drivers left the trucks unattended. Manning took
the keys, but did not follow through with the theft of any
drugs.

On May 19, 1998, Butch offered $5000 to George Fronick
("Fronick"), another AH driver who made deliveries for

                                3
Amerisource, to help him steal pharmaceutical drugs from
the truck Fronick was driving. Fronick r eported the plan to
his supervisor at RDS, and the FBI and DEA wer e notified.
Investigators for the two agencies arranged for Fr onick to
cooperate in apprehending Butch.

After a failed attempt on May 20, 1998, Butch again
solicited Fronick to assist him in his theft plans. Fronick
reported the solicitation to his supervisor , and the
investigators supplied Fronick with a concealed micro-
cassette recorder and a video camera to place in the back
of his truck. On June 4, 1998, Butch detailed the plan to
have Fronick arrive at Mercy Hospital at 6:30 a.m., drive
the front of the truck up to the loading dock, and unlock
the back of the truck. A third man would unload the totes
from the back of the truck. Fronick was then to get rid of
the padlock, and report the theft to the police. This
conversation was recorded on the micr o-cassette carried by
Fronick. The third man was Manning, who testified that
Butch instructed him to take the drugs from the back of
the truck, deliver them to Butch at a Dunkin' Donuts shop
near the Marano facility, and report to a job Butch had
scheduled for him.

Early the next morning, Fronick met Butch at a gas
station and went over the plan. Butch gave Fr onick two
plastic trash bags, told him to put the boxes of drugs into
the bags, and to leave them at the back of the truck.
Fronick picked up the delivery and drove his truck to Mercy
Hospital according to Butch's instructions. When he
reached the hospital parking lot, Fronick activated the
hidden camera in the truck and proceeded with the plan. In
addition to the hidden camera and the hospital's own
surveillance camera, the investigators had the entir e scene
under surveillance. They observed Butch and another man,
Fred Moll ("Moll"), sitting inside Moll's car. They also
observed Manning approach the truck, remove two plastic
bags containing the boxes of pharmaceutical drugs, and
place them into the trunk of his car. As Manning attempted
to drive out of the hospital parking lot, the investigators
stopped and arrested him, seizing the bags fr om the trunk.
Other agents blocked Moll's car and arrested Moll and
Butch. The bags contained 26,400 Endocet tablets, a

                               4
generic form of Percocet, each tablet containing
approximately 4.4 milligrams of oxycodone and 325
milligrams of acetaminophen. See Physicians' Desk
Reference 1211 (55th ed. 2001).

On June 18, 1998 a federal grand jury sitting in Newark,
New Jersey returned a one count indictment, charging
"[f]rom on or about May 19, 1998 to on or about June 5,
1998, . . . Joseph Butch did knowingly and intentionally
conspire and agree with others to distribute and to possess
with intent to distribute oxycodone, a Schedule II narcotic
drug controlled substance, contrary to T itle 21, United
States Code, Section 841(a)(1), [i]n violation of Title 21
United States Code, Section 846." The indictment did not
specify the quantity of oxycodone attributable to Butch.

On April 26, 1999, the Government filed a motion in
limine seeking the admission of evidence of Butch's
January and May, 1998 dealings with Manning as intrinsic
to the conspiracy charged or, alter natively, as admissible
under Federal Rule of Evidence 404(b). On May 3, 1999,
the day that the jury trial began, the District Court issued
a published opinion1 denying the Government's motion to
admit the evidence as intrinsic to the conspiracy and as
evidence of a common scheme and plan.2 However, the
District Court admitted under Rule 404(b) the testimony of
Manning for the limited purpose of establishing the
background of the conspiracy as charged in the indictment.
The District Court also recited the limiting instruction it
intended to accompany the evidence.

The Government introduced evidence of the January and
May, 1998 events at trial. The limiting instruction was
given. Butch testified in his own defense, denying any
criminal intent and claiming that it was Manning who had
solicited him to steal the drugs. Butch also testified that he
pretended to participate in the scheme in or der to catch
Manning in the act. The jury rejected Butch's defense and
_________________________________________________________________

1. See United States v. Butch, 48 F . Supp. 2d 453 (D.N.J. 1999).

2. The indictment alleged a conspiracy fr om May 19 to June 5, 1998,
which in the District Court's opinion render ed the events in January and
early May, 1998 too remote to be inextricably intertwined with the
conspiracy as charged, and not part of a single criminal episode.

                               5
on May 11, 1999, convicted him of the charge. The District
Court sentenced Butch to 240 months (20 years)
imprisonment, the statutory maximum for the crime of
which he was convicted.

II.

Butch's initial challenge on appeal is that the District
Court improperly permitted the Gover nment to introduce
evidence of his January and May, 1998 dealings with
Manning under Federal Rule of Evidence 404(b).3 The
nature of his objection is twofold. First, Butch argues that
the testimony of specific events admitted to establish the
background of a conspiratorial relationship goes well
beyond the limited, general questioning that this Court
permits. See United States v. O'Leary, 739 F.2d 135 (3d Cir.
1984). Second, he argues that the probative value of the
evidence is substantially outweighed by its pr ejudicial
effect. We review the District Court's decision to admit
evidence under Rule 404(b) for an abuse of discr etion,
which "may be reversed only when `clearly contrary to
reason and not justified by the evidence'." United States v.
Balter, 91 F.3d 427, 436 (3d Cir. 1996) (citing United States
v. Bethancourt, 65 F.3d 1074, 1079 (3d Cir. 1995)). We
conclude that the District Court did not abuse its discretion
in admitting Manning's testimony as background evidence
of a conspiratorial relationship pursuant to Rule 404(b).

The "threshold inquiry a court must make before
admitting similar acts evidence under Rule 404(b) is
whether that evidence is probative of a material issue other
_________________________________________________________________

3. Federal Rule of Evidence 404(b) provides:

       (b) Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs,
       or acts is not admissible to prove the character of a person in
order
       to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive,
opportunity,
       intent, preparation, plan, knowledge, identity, or absence of
mistake
       or accident, provided that upon request by the accused, the
       prosecution in a criminal case shall pr ovide reasonable notice in
       advance of trial, or during trial if the court excuses pretrial
notice
       on good cause shown, of the general nature of any such evidence it
       intends to introduce at trial.

                                6
than character." Huddleston v. United States, 485 U.S. 681,
686 (1988). This Court recently set out a four -factor
standard governing the admissibility of evidence pursuant
to Rule 404(b), which requires: (1) a pr oper evidentiary
purpose; (2) relevance under Rule 402; (3) a weighing of the
probative value of the evidence against its pr ejudicial effect
under Rule 403; and (4) a limiting instruction concerning
the purpose for which the evidence may be used. United
States v. Mastrangelo, 172 F.3d 288, 294 (3d Cir. 1999).

The District Court found that the Government met its
burden of articulating the requisite "chain of logical
inferences" in support of a proper evidentiary purpose,
satisfying the first prong. Butch, 48 F. Supp. 2d at 459
(citing Mastrangelo, 172 F.3d at 294). Because Manning's
testimony was "logically relevant to explain his role in the
criminal enterprise" and because it "would give the jury a
complete story of the crime by explaining the cir cumstances
of the alleged relationship between the alleged
conspirators," the District Court found the testimony
relevant under the second prong. Id. at 460. Under the Rule
403 balancing test, the District Court concluded that the
probative value of Manning's testimony outweighed any
prejudicial effect. "As an alleged participant in the charged
conspiracy, Manning's testimony is significantly probative
of the formation of his criminal relationship with Butch in
January, 1998, as well as[ ] the further development of that
relationship during the events of early May, 1998." Id.
Moreover, the evidence of the prior criminal activity detailed
a similar crime against the same victim, without the use of
violence or threats, and thus the testimony to this effect
was not overly prejudicial. Thus, the District Court
concluded that the evidence "does not rise to the level of
the distracting, confusing, or emotionally char ged evidence
from which Rule 403 protects a criminal defendant." Id. at
461. Finally, the District Court gave the requisite limiting
instruction to satisfy the fourth prong and eliminate an
"undue tendency . . . suggest[ing] a decision on an
improper basis . . . ." See Fed. R. Evid. 403, Advisory
Committee's Note.4
_________________________________________________________________

4. Deciding on the Government's motion in limine, the District Court
stated:

                               7
In light of the District Court's thorough analysis in its
published opinion of Manning's testimony under the
Mastrangelo factors, Butch cannot demonstrate an abuse of
discretion. This Court has held that "testimony of . . . a co-
conspirator . . . could be considered r elevant to provide
necessary background information, to show an ongoing
relationship between [the defendant and a co-conspirator],
and to help the jury understand the co-conspirator's role in
the scheme." United States v. Simmons, 679 F.2d 1042,
1050 (3d Cir. 1982). This was precisely the purpose for
which the Government sought to introduce Manning's
testimony. Moreover, in its discussion of O'Leary, the
District Court noted:

       The Government's evidentiary purposes in O'Leary and
       the Government's evidentiary purposes in this case are
       identical, namely, to show background of the charges,
       the witness' and the defendant's relationship, and their
       concerted action. In light of Simmons, Harris, Moore,
       and Pipola, Butch's attempt to limit O'Leary to its
       specific facts, though spirited, is without merit.
_________________________________________________________________

       Prior to the Government's inquiry into the events of January and
       early May, 1998, at the conclusion of Manning's testimony, and
       again when I charge the jury, I will instruct the jury as follows:

       Evidence that Mr. Butch was involved in a criminal enterprise
       with Mr. Manning in January, 1998, and with Mr. Manning and
       Mr. Frederick Moll in early May, 1998, has been admitted into
       evidence, but you may consider that evidence only as background
       to the offense charged in the Indictment, as evidence of Mr.
       Manning's and Mr. Butch's relationship prior to May 19, 1998,
       and as evidence of their concerted efforts prior to May 19, 1998.
       You may not, however, consider this evidence of Mr. Butch's prior
       involvement in a criminal enterprise in deciding whether or not
       the Government has proven Mr. Butch's guilt beyond a reasonable
       doubt for the offense charged in the Indictment. For the limited
       purpose for which this evidence has been received, you may give
       it such weight as you feel it deserves. You may not, however,
       consider this evidence for any other purpose. See 1 Devitt, et al.,
       Federal Jury Practice and Instructions S 11.09 (4th ed).

Butch, 48 F. Supp.2d at 461. The limiting instruction actually given by
the District Court mirrors this instruction.

                               8
       Accordingly, I find that the Government has sufficiently
       proffered a proper evidentiary purpose for introducing
       into evidence the January and early May, 1998, events.

Butch, 48 F. Supp. 2d at 460 (citations omitted). We agree
with the District Court's reading of O'Leary, and can find
no abuse of the Court's discretion.5 As a result, we will
affirm Butch's conviction.

III.

Butch also challenges his sentence on the gr ound that
the District Court erred when it attributed to him the gross
weight of the Endocet pills rather than the net weight of the
controlled substance oxycodone in the pills. This error, he
contends, resulted in an incorrect range under the
Sentencing Guidelines. Our review of the District Court's
interpretation and application of the Sentencing Guidelines
is plenary, whereas we review its findings of fact for clear
error. United States v. Yeaman, 194 F.3d 442, 456 (3d Cir.
1999).

The District Court sentenced Butch to 240 months
imprisonment, determined as follows. Accor ding to the
DEA's laboratory report, the accuracy of which Butch did
not contest, the 26,400 Endocet pills had a combined
weight of 14.49 kilograms. See Presentence Report ("PSR")
_________________________________________________________________

5. We also agree with the Gover nment's contention that it also could
have introduced the evidence under Rule 404(b) to rebut Butch's
testimony that he acted without criminal intent. Such evidence is
permissible to show criminal intent and the absence of innocent
association. See United States v. Zackson, 12 F.3d 1178, 1182-83 (2d
Cir. 1993) (ruling evidence of appellant's prior involvement with the co-
defendant in a marijuana trafficking and conspiracy properly admitted
under Rule 404(b) as relevant to intent and to rebut defense of innocent
association); see also United States v. Howell , 231 F.3d 615, 628-29 (9th
Cir. 2000) (admitting evidence of appellant's previous drug-trafficking
convictions under Rule 404(b) to rebut claimed innocent motive for being
present where drugs were found); United States v. Williams, 31 F.3d 522,
527 (7th Cir. 1994) (ruling evidence r egarding appellant's prior drug
smuggling was properly admitted in a drug-trafficking conspiracy
prosecution to rebut defense that he was merely an innocent Spanish
interpreter for a co-conspirator).

                                9
at P18. Because oxycodone, the controlled substance in
Endocet, is not one for which the Sentencing Guidelines'
Drug Quantity Table provides a base of fense level by unit
of weight, the Probation Office looked to the Drug
Equivalency Tables found in Application Note 10 of S 2D1.1.
U.S. Sentencing Guidelines Manual, S 2D1.1(c) (1998);6 PSR
P17. According to those tables, one gram of oxycodone is
equivalent to 500 grams of marijuana, resulting in this case
to an equivalency of 7,245 kilograms of marijuana. PSR
P18. The base offense level for this quantity is 34. See U.S.
Sentencing Guidelines Manual, S 2D1.1(c)(3). The District
Court overruled Butch's objection to the PSR's calculation
of drug quantity attributable to him "because the PSR
accurately reflects the appropriate drug equivalency
calculation under the United States Sentencing Guideline
Section 2D1.1." The District Court imposed a two-level
enhancement to this base level for Butch's r ole as a
manager or supervisor of the offense pursuant to S 3B1.1(c)
of the Sentencing Guidelines. The District Court then found
Butch's criminal history category to be IV. See PSR PP 56-83.7
The effective Sentencing Guideline range was 262 to 327
months. However, given the statutory maximum penalty of
240 months, the District Court sentenced Butch to the
statutory maximum pursuant to S 5G1.1 of the Sentencing
Guidelines, which provides that "wher e the statutorily
authorized maximum sentence is less than the minimum of
the applicable guideline range, the statutorily authorized
maximum sentence shall be the guideline sentence."

In support of his argument, Butch cites to Amendment
517 to the Sentencing Guidelines,8 applicable to Schedule I
_________________________________________________________________

6. The 1998 edition of the Sentencing Guidelines is applicable in this
case.

7. Butch does not challenge either of these deter minations on appeal.

8. Amendment 517

       modifies S 2D1.1 . . . with respect to the determination of the
offense
       levels for Schedule I and II Depressants . . . by applying the Drug
       Quantity Table according to the number of pills, capsules or
tablets
       rather than by the gross weight of the pills, capsules or tablets.
       . . . The current guidelines use the total weight of the pill,
capsule,
       or tablet containing the controlled substance. This method leads to

                               10
or II Depressants, which equates one unit or one pill to one
gram of marijuana (as opposed to the 500 grams of
marijuana figure used by the District Court). He argues
that because, under the language of 28 C.F.R.S 1308.12(e),
oxycodone acts like a depressant and is not specifically
excepted or listed in another schedule, oxycodone qualifies
as a Schedule II Depressant. If this pr ovision of the Drug
Equivalency Table were followed as Butch suggests, the
drug equivalency would equal 26.4 kilograms of marijuana,
not 7,245 kilograms. The resultant base of fense level would
then be 18. Alternatively, using the net weight of the
oxycodone would result in an equivalency of 59 kilograms
of marijuana and a base offense level of 20. Butch invokes
the rule of lenity9 to resolve the alleged ambiguity in the
Sentencing Guidelines with respect to the calculation of the
drug equivalency of oxycodone after Amendment 517.

Butch's argument fails for two reasons. His assertion that
the net controlled substance should be used in determining
the base offense level is directly contrary to Application
Note A to the Drug Quantity Table, which pr ovides that
"[u]nless otherwise specified, the weight of a controlled
substance set forth in the table refers to the entire weight
of a mixture or substance containing a detectable amount
of the controlled substance." See U.S. Sentencing
Guidelines Manual, S 2D1.1(c), cmt. n.A. Mor eover, this
argument was expressly rejected by this Court in United
_________________________________________________________________

        anomalies because the weight of most pills is deter mined primarily
        by the filler rather than the controlled substance. Thus, heavy
pills
        lead to higher offense levels even though ther e is little or no
        relationship between gross weight and the potency of the pill.
        Applying the Drug Quantity Table accor ding to the number of pills
        will both simplify guideline application and mor e fairly assess
the
        scale and seriousness of the offense.

Appendix C to the U.S. Sentencing Guidelines Manual, November 1,
1997, p. 341 ("Appendix C").

9. The rule of lenity provides that "when ambiguity in a criminal statute
cannot be clarified by either its legislative history or inferences drawn
from the overall statutory scheme, the ambiguity is resolved in favor of
the defendant." United States v. Pollen, 978 F.2d 78, 85 (3d Cir. 1992)
(citing Rewis v. United States, 401 U.S. 808, 812 (1971)).

                                11
States v. Gurgiolo, 894 F.2d 56 (3d Cir. 1990), wherein we
reversed the District Court's calculation of the applicable
drug quantity based on the net weight of the oxycodone in
Percocet pills.

       Indeed, Congress requires the whole drug to be
       weighed when the drug consists at least in part of a
       detectable amount of Schedule I substances, such as
       LSD and heroin, which are the most danger ous
       substances available. . . . In short, where Congress
       provides for full-weight conversion of Schedule I, III
       and IV substances, there is no self-evident r eason to
       conclude that it meant to treat Schedule II drugs
       differently.

Id. at 61.10

Second, oxycodone is not a Schedule II Depressant. It is
a Schedule II Opiate, a classification distinguishable from
Schedule II Depressants. See 21 U.S.C.S 812; 21 C.F.R.
S 1308.12(b)(1); U.S. Sentencing Guidelines Manual,
S 2D1.1(c). Consequently, Amendment 517 does not operate
to require that oxycodone be converted into a drug
equivalency based on the number of pills as opposed to its
weight. Although Butch is correct that the Amendment
replaced the marijuana drug equivalencies for Schedule I
and II Depressants with a provision that one unit (pill,
_________________________________________________________________

10. The other Circuit Courts of Appeals to consider this issue are in
agreement. See United States v. Limber opoulos, 26 F.3d 245, 252-53 (1st
Cir. 1994) (concluding Application Note A applies to Percodan, Percocet
and Valium); United States v. Meitinger , 901 F.2d 27, 29 (4th Cir. 1990)
(ruling the same with respect to Dilaudid, containing the active
ingredient hydromorphone, a Schedule II Opiate), cert. denied, 498 U.S.
531 (1990); United States v. Blythe, 944 F .2d 356, 362 (7th Cir. 1991)
(same); United States v. Young, 992 F .2d 207 (8th Cir.1993) (holding that
the weight of the entire tablet and not just the amount of the illegal
hydromorphine contained therein should be used to compute the
defendant's sentence); United States v. Cr owell, 9 F.3d 1452, 1454-55
(9th Cir. 1993) (same); United States v. Lazarchik, 924 F.2d 211, 214
(11th Cir. 1991) (concluding the same with r espect to hydrocodone
(Tussionex) and diazepam (Valium)), cert. denied, 502 U.S. 827 (1991);
United States v. Shabazz, 933 F.2d 1029, 1032-33 (D.C. Cir. 1991)
(ruling that Application Note A applies to Dilaudid), cert. denied, 502
U.S. 964 (1991).

                               12
capsule or tablet) equals one gram of marijuana, the
Amendment by its own terms does not extend to Schedule
II Opiates. Appendix C at 340. The Congressional intent
behind Amendment 517 is clear. Congress specifically
excepted Schedule I and II Depressants, not Schedule I and
II Opiates. Had Congress intended to modify the Guidelines
with respect to the latter, it would have done so. Those
Circuit Courts of Appeals to consider the issue, albeit in
unpublished form, have come to the same conclusion. See
United States v. Carruthers, 215 F.3d 1328, 2000 WL
712382, *2 (6th Cir. 2000) (unpublished opinion); United
States v. Flores, 112 F.3d 506, 1996 WL 599798, *2 (2d Cir.
1996) (unpublished opinion). As the Sixth Cir cuit
explained:

       Congress only intended to make an exception for
       Schedule I or II Depressants[,] not Schedule I or II
       Opiates-the category to which hydromorphones belong.
       Had it intended to make an exception for Opiates to be
       measured by their active ingredients as opposed to the
       gross weight of the drug, Congress pr esumably would
       have done so. . . . . Amendment 517 was enacted to
       clarify the law with respect to Schedule I and II
       Depressants and Schedule III, IV and V contr olled
       substances. Nothing more can be gleaned fr om the
       Amendment. Therefore, Defendant's contention that
       the legislative intent is inconsistent with the statute
       must fall.

Carruthers, 215 F.3d 1328, 2000 WL 712382 at *2.

Moreover, no ambiguity exists in the operation of the
Sentencing Guidelines with respect to oxycodone. The Drug
Equivalency Tables provide that one gram of oxycodone is
equivalent to 500 grams of marijuana. See U.S. Sentencing
Guidelines Manual, S 2D1.1(c) (1998). Ther efore, Butch's
reliance on the rule of lenity is misguided. United States v.
Johnson, 529 U.S. 53, 59 (2000) ("Absent ambiguity, the
rule of lenity is not applicable to guide statutory
interpretation."); Muscarello v. United States, 524 U.S. 125,
138-39 (1998) ("The rule of lenity applies only if, after
seizing everything from which aid can be derived . . . we
can make no more than a guess as to what Congr ess
intended. . . . To invoke the rule, we must conclude that

                               13
there is a grievous ambiguity or uncertainty in the
statute.").

In summary, we can find no error in the District Court's
determination of the quantity of oxycodone attributable to
Butch, nor in the application of the Sentencing Guidelines
to this determination.

IV.

Butch's final argument on appeal is that the District
Court erred by failing to submit the weight of the controlled
substance to the jury for a factual determination beyond a
reasonable doubt in light of Apprendi v. New Jersey, 530
U.S. 466 (2000). The preliminary issue is whether Apprendi
even applies to cases in which judicial factfinding at
sentencing increases the Sentencing Guideline range, and
thus the potential sentence, above the statutory maximum,
but the actual sentence imposed is equal to the statutory
maximum. Because Butch did not raise this claim in the
District Court at sentencing, we review his challenge for
plain error. United States v. Mack , 229 F.3d 226, 234-35 &
n.12 (3d Cir. 2000).

Our recent decision in United States v. W illiams, 235
F.3d 858 (3d Cir. 2000) controls this case. In Williams, the
appellant argued that Apprendi was implicated because the
trial court's finding of drug quantity incr eased the
prescribed range of penalties and the maximum penalty to
which he was exposed, even though his actual penalty did
not exceed 20 years. Id. at 863. We ruled that "Apprendi is
not applicable to [Appellant's] sentence, because the
sentence actually imposed . . . was well under the original
statutory maximum of 20 years." Id. at 863 (relying on
Mack, 229 F.3d 226).

In Mack, Chief Judge Becker prescribed a two-step
"Apprendi inquiry" under which

       [a] court must first determine the"prescribed statutory
       maximum" sentence for the crime of which the
       defendant was convicted and assess whether the
       defendant's ultimate sentence exceeded it. If it did, the
       court must consider . . . whether the enhanced

                                14
       sentence was based on "the fact of a prior conviction."
       If it was, then the sentence is constitutional. If it was
       not, then the sentence is unconstitutional.

Id. at 237. Just as in Williams, Butch's claim fails to get
past step one because the ultimate sentence imposed by
the District Court did not exceed the "pr escribed statutory
maximum" of 20 years. Apprendi is therefore not
implicated.

V.

For the foregoing reasons, we will affir m Mr. Butch's
conviction and sentence.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               15
