           United States Court of Appeals
                      For the First Circuit


No. 05-2245

                     UNITED STATES OF AMERICA,

                            Appellant,

                                v.

                          MICHAEL MALOUF,

                       Defendant, Appellee.



           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS
             [Hon. Nancy Gertner, U.S. District Judge]


                              Before

                       Boudin, Chief Judge,
                Torruella and Dyk,* Circuit Judges.


     William D. Weinreb, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellant.
     Frank J. McGee, on brief, for appellee.
     Judith H. Mizner, Assistant Federal Public Defender, Federal
Defender Office, with whom Miriam Conrad, Federal Public Defender,
Districts of Massachusetts, New Hampshire and Rhode Island, was on
brief, as amicus curiae in support of appellee.



                         October 13, 2006




*
    Of the Federal Circuit, sitting by designation.
            TORRUELLA,      Circuit   Judge.      On    September     10,   2003,

appellee Michael Malouf ("Malouf") was charged in Count One of a

two-count indictment with conspiracy to distribute, and to possess

with intent to distribute, five kilograms or more of cocaine and an

unspecified amount of marijuana, in violation of 21 U.S.C. §§ 841

(a)(1) and 846. Section 841(b)(1)(B) imposes upon a defendant with

a prior felony conviction a mandatory minimum sentence of ten years

for offenses involving 500 grams or more of a substance containing

cocaine.    On May 28, 2004, Malouf pled guilty to the indictment,

but   he   reserved   the    right    to    contest    the   amount   of    drugs

specifically attributable to him.           At sentencing, the court found

that the government had proved by a fair preponderance of the

evidence that Malouf was responsible for more than 500 grams of

cocaine.    However, the court found that the government had not

proved its case beyond a reasonable doubt.              Because the district

court found that a fact that triggers a mandatory minimum sentence

must be proved beyond a reasonable doubt, the judge sentenced

Malouf to 60 months' imprisonment.             After careful consideration,

we reverse.

                                       I.

            In 2001, the Federal Bureau of Investigation ("FBI")

undertook an investigation of drug trafficking in the South Shore

area of Massachusetts.       Stephen Nicholson ("Nicholson") was one of

the initial targets of the investigation and he would ultimately be


                                      -2-
one of Malouf's co-defendants.        Between April 14 and June 13 2002,

the   government    intercepted    Nicholson's   telephone   calls.   The

wiretap surveillance revealed that Nicholson was selling ounce

quantities of cocaine to various buyers and that Malouf was his

primary    customer.     The      government   also   conducted   physical

surveillance of Nicholson and Malouf, among others.

           At the change of plea hearing on May 28, 2004, Malouf

pled guilty to the charge of conspiracy to distribute, and to

possess with intent to distribute, five kilograms or more of

cocaine and a quantity of marijuana in violation of §§ 841(a)(1)

and 846.   The government described the minimum applicable penalty

as follows:        "because the defendant has a prior felony drug

conviction and an 851 information1 has been filed, if he's found

accountable for 500 grams or more of cocaine he'd be subject to a

ten-year minimum mandatory sentence and a minimum mandatory eight-

year term of supervised release."          Malouf admitted that he had


1
   21 U.S.C. § 851 provides that, where the government seeks to
establish prior convictions for the purpose of increasing the
applicable criminal penalties for a drug offense under § 841, the
proper procedure is as follows:

      No person who stands convicted of an offense under this
      part shall be sentenced to increased punishment by reason
      of one or more prior convictions, unless before trial, or
      before entry of a plea of guilty, the United States
      attorney files an information with the court (and serves
      a copy of such information on the person or counsel for
      the person) stating in writing the previous convictions
      to be relied upon.

21 U.S.C. § 851(a)(1).

                                     -3-
conspired with Nicholson and others to distribute cocaine and

marijuana, and he agreed that the conspiracy-wide total drug weight

exceeded    500   grams.       However,    he   notified      the   court    of   his

intention    to     contest     the     quantity      of   drugs     specifically

attributable to him at sentencing.

            At the sentencing hearing on December 20, 2004, Malouf's

counsel again indicated that he intended to contest certain of the

alleged cocaine transactions. The court then directed both parties

to submit memoranda identifying the contested transactions and

establishing      their     competing   interpretations        of   the     relevant

intercepted telephone calls.

            On January 27, 2005, the government submitted a Corrected

Sentencing Memorandum and chart alleging that Malouf participated

in eighteen separate cocaine transactions involving approximately

20.5 ounces (581 grams) of cocaine during, or immediately prior to,

the   wiretap     period.      Malouf     contested    four    of   the     eighteen

transactions.      At the sentencing hearing on March 15, 2005, Malouf

first contested an alleged two-ounce (56.7-gram) transaction that

occurred two days prior to the April 14, 2002, commencement of the

wiretap period.      Malouf challenged this transaction solely on the

ground that it fell outside of the wiretap period.                    Because the

court found that Malouf was not challenging the drug quantity or

the government's interpretation of the telephone calls referring to

the transaction, the court dismissed Malouf's objection.


                                        -4-
            Next, Malouf contested an alleged one-ounce (28.35-gram)

transaction on April 25 and another on April 27 on the ground that

there was insufficient evidence that they actually transpired. The

court agreed that the evidence was insufficient to prove either

transaction, resulting in a 56.7-gram reduction of the total drug

quantity attributable to him.

            Finally, Malouf challenged the alleged June 11 one-ounce

(28.35-gram) transaction.           Although Malouf did not contest the

government's interpretation of a telephone conversation on that

date in which he and Nicholson discussed a cocaine transaction that

was to take place later that day, he argued that "there's no

evidence that the meeting ever happened." The government urged the

court to infer that the meeting took place because there were "no

other phone calls afterward indicating that it did not take place."

Because   it   was   clear   that    the   applicability   of   the   ten-year

mandatory minimum would turn on the court's determination as to the

June 11 transaction, the court continued the sentencing hearing and

invited both parties to provide additional evidence.

            When the sentencing hearing resumed on March 23, 2005,

neither party presented new evidence as to the June 11 transaction.

The critical issue was whether the appropriate legal standard by

which to judge a fact triggering a mandatory minimum sentence was

beyond a reasonable doubt or by a fair preponderance of the

evidence.      The court determined that "facts which determine a


                                      -5-
mandatory minimum ought to go before a jury," or, if both parties

agree to waive a jury trial, the sentencing judge "stands in the

shoes of the jury, and the standard is beyond a reasonable doubt."

The government objected on the ground that "there's no right under

the Sixth Amendment, the due process clause or any other source of

law to a jury trial or beyond a reasonable doubt standard with

respect to any sentencing fact, the determination of which would

result in a sentence below the statutory maximum."   When the court

dismissed the government's objection, the government agreed to

waive any jury trial right.

          The court determined that although it would find that the

June 11 transaction had occurred as alleged if the applicable

standard was a fair preponderance of the evidence, it "could not

conclude beyond a reasonable doubt" that the transaction had in

fact taken place.   As a result, the court declined to hold Malouf

accountable for the one ounce (28.35 grams) he allegedly purchased

in the June 11 transaction.   The court thus concluded that Malouf

was accountable for a total of only 17.5 ounces (496.125 grams).

Because the total was less than 500 grams of cocaine, the ten-year

mandatory minimum sentence did not apply.    Malouf's base offense

level was 26, and the court reduced it to 23 for acceptance of

responsibility. Malouf's criminal history category was IV, but the

court brought it down to III because "at least two points of the

criminal history derived from [his] addiction problems."       The


                                -6-
guidelines sentencing range was 57 to 71 months, and the court

sentenced Malouf to 60 months' imprisonment and a six-year term of

supervised release.

              On June 14, 2005, the district court issued a written

opinion   addressing     four     separate    issues   pertaining   to   the

sentencing of Malouf.     United States v. Malouf, 377 F. Supp. 2d 315

(D.   Mass.    2005).    Explaining    the    logic    underlying   Malouf's

sentence, the district court asked,

              (1) Do the drug quantities outlined in 21
              U.S.C. § 841 comprise elements of offenses, or
              sentencing factors? If the former, the
              relevant case is Apprendi, a jury trial is
              required and the standard of proof is beyond a
              reasonable doubt; if the latter, it is Harris,
              drug quantity can be determined by a judge,
              and the standard is a fair preponderance of
              the evidence. (2) What is the continued
              efficacy of Harris in the light of the Court's
              rulings in Blakely and Booker? (3) What is a
              district court to do when the First Circuit's
              interpretation of § 841 relies on Supreme
              Court precedent which predates Blakely and
              Booker? (4) In the alternative, however the
              facts are characterized (as sentencing factors
              or elements), where facts have a significant,
              indeed determinative impact, does the Due
              Process Clause of the Fifth Amendment require
              the application of the beyond a reasonable
              doubt standard?

Id. at 317.

              As to the first issue, the court found that "§ 841 is an

offense-defining statutory provision, all elements of which must be

tried before the jury."         Id. at 328.    As to the second question,

the district court determined that "the breadth of the holdings in


                                     -7-
Booker and Blakely have in fact overruled Harris."            Id. at 326.

With regard to the third issue, although the court acknowledged

that our decision in United States v. Goodine, 326 F.3d 26 (1st

Cir. 2003) required a different result, it determined that Goodine

was not binding because of its "reliance on Supreme Court precedent

which is crumbling."     Id. at 325.    Finally, as to the due process

issue, the court found that quantity must be proved beyond a

reasonable doubt "[i]f a substantial sentence hinges on a finding

of a specific quantity" because in such cases courts "should have

a high degree of confidence in this finding."           Id. at 329.

                                  II.

          The government argues on appeal that the district court

erred by refusing to impose on Malouf a ten-year mandatory minimum

sentence under 21 U.S.C. § 841(B)(1)(b) despite finding by a

preponderance of the evidence that he was accountable for more than

500 grams of cocaine.    The government challenges only the district

court's legal determinations, which we review de novo.              Goodine,

326 F.3d at 27.

          A.    Harris

          The   government   first     contests   the    district     court's

conclusion that the Supreme Court's decisions in United States v.

Booker and Blakely v. Washington overruled its earlier opinions in

Harris v. United States and McMillan v. Pennsylvania.




                                  -8-
                      1.   Relevant Precedent

              We begin with a brief discussion of relevant Supreme

Court precedent.      In McMillan v. Pennsylvania, the Court sustained

a   statute    that   allowed   the   sentencing   judge   to   find,   by   a

preponderance of the evidence, a fact that increased the minimum

penalty for a crime.        477 U.S. 79, 79 (1986).        In McMillan, the

Court distinguished between offense elements, which must be proved

beyond a reasonable doubt, and         sentencing factors, which may be

proved by a preponderance of the evidence.         Id. at 91.   In Apprendi

v. New Jersey, the Court held that "any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt."              530

U.S. 466, 490 (2000) (emphasis added).          Two years later in Harris,

the Court held that Apprendi did not apply to facts that increase

the mandatory minimum sentence and reaffirmed McMillan.            536 U.S.

545, 545 (2002) (emphasis added).           In Blakely v. Washington, the

Court found unconstitutional a state trial court's imposition of a

sentence that was above the statutory maximum, on the basis of the

judge's finding of fact.        542 U.S. 296, 305 (2004).       The Blakely

court held that "the 'statutory maximum' for Apprendi purposes is

the maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the defendant."

Id. at 303.      Finally, in United States v. Booker, the Court held




                                      -9-
that the reasoning of Blakely should be applied to the Federal

Sentencing Guidelines.          543 U.S. 220, 226-27 (2005).

                     2.    The district court's analysis

          The district court in the case before us reasoned that

Blakely and Booker actually "broadened Apprendi by requiring that

all facts 'which the law makes essential to the punishment' be

subject to Sixth Amendment protections."            Malouf, 377 F. Supp. 2d

at 324.      The judge determined further that Blakely and Booker

evince the Court's movement toward an "impact test" that focuses

more on "the impact of such facts upon punishment, rather than on

the formalistic distinctions between sentencing factors and offense

elements."     Id.     According to the district court, this "impact

test" approach "necessarily casts doubt on Harris' distinction

between mandatory minimum provisions and statutory maximums."               Id.

Ultimately, the court concluded, "[i]n my judgment, the breadth of

the holdings in Booker and Blakely have in fact overruled Harris.

The Court has gone from holding that the Sixth Amendment is

implicated in the determination of facts that increase a statutory

maximum (Apprendi) to applying the Sixth Amendment to all facts

'essential to the punishment' (Booker and Blakely)."               Id. at 326

(footnote omitted).

          We    need      not   delve   deeper   into   the   district   court<s

analysis because, since its opinion issued on June 14, 2005, we

have had cause to consider the continued vitality of Harris in


                                        -10-
light of subsequent Supreme Court case law.                 Approximately ten

months after the district court decided Malouf, we decided the case

of United States v. Lizardo, in which we held that "Booker left

intact the Supreme Court's precedent in Harris, which allowed the

use of judicially found facts to increase a mandatory minimum

sentence."    445 F.3d 73, 90 (1st Cir. 2006).

           B.    Goodine

           The district court concluded that even if Harris remains

good law, § 841 "is an offense-defining statutory provision, all

elements of which must be tried before the jury."                Malouf, 377 F.

Supp. 2d at 328.         This finding is directly contrary to -- and

foreclosed by -- Goodine in which we held that "drug quantity for

purposes of § 841 is a sentencing factor that may be determined by

a preponderance of the evidence."             326 F.3d at 32.        Goodine was

decided after Apprendi and Harris but before Booker and Blakely.

The district court found that it was not bound by Goodine because

that   opinion    was    based   on   Supreme    Court   precedent     "which   is

crumbling."      Malouf, 377 F. Supp. 2d at 325.            As we have since

held in Lizardo, we are bound by Goodine.           Lizardo, 445 F.3d at 90.

           We    tarry    here   to   reaffirm    that   there   are    only    two

exceptions to the principle that newly constituted panels are bound

by decisions of prior panels in the same circuit.            As to the first,

"[a]n existing panel decision may be undermined by controlling

authority, subsequently announced, such as an opinion of the


                                       -11-
Supreme Court, an en banc opinion of the circuit court, or a

statutory overruling."        United States v. Guzmán, 419 F.3d 27, 31

(1st Cir. 2005) (citation and internal quotation marks omitted).

With regard to the second exception which "operates in instances

that fairly may be described as hen's-teeth rare, authority that

postdates the original decision, although not directly controlling,

may nevertheless offer a compelling reason for believing that the

former panel, in light of new developments, would change its

collective mind."      Id.   Neither exception applies in this case.     As

we discussed in the previous section, Harris remains good law after

Blakely and Booker, and there is no other reason for us to

contravene our own precedent.        Goodine is binding on this circuit

and the district court erred when it concluded otherwise.

           C.     Due Process

           The district court made an alternative finding that even

if drug quantity is a sentencing factor under § 841, it must be

proven   beyond    a   reasonable   doubt   because   of   the   protections

afforded by the due process provision of the Fifth Amendment.

Citing a "new concern for procedural fairness in the finding of

facts," the district court held that "[i]f a substantial sentence

hinges on a finding of a specific quantity, then . . . I (and the

public) should have a high degree of confidence in this finding,"

and thus the quantity finding must be proved beyond a reasonable

doubt.   Malouf, 377 F. Supp. 2d at 329.


                                    -12-
              The   district       court's      analysis        and    conclusion         are

foreclosed by the Supreme Court's decision in McMillan.                             In that

case, the Court considered the constitutionality of a Pennsylvania

statute that required a sentencing court to impose a five-year

minimum sentence if it found by a preponderance of the evidence

that   the    defendant        "visibly    possessed      a     firearm"      during      the

commission     of   certain      enumerated       offenses.           477    U.S.    at   81.

McMillan held that due process did not require visible possession

of a firearm to be treated as an element of the offense that must

be   proved    beyond      a   reasonable       doubt.        The    Court    noted       that

"sentencing courts have always operated without constitutionally

imposed      burdens      of   proof"     and    that     the       visible    possession

requirement, despite triggering a mandatory minimum penalty, did

not implicate the Due Process Clause because it "neither alters the

maximum penalty for the crime committed nor creates a separate

offense calling for a separate penalty."                      Id. at 92 n.8, 87-88.

The same is true here with respect to drug quantity, insofar as it

determines the mandatory minimum sentence.

                                          III.

              For   the    foregoing      reasons,       we   reverse       the     district

court's decision and remand for sentencing in accordance with this

opinion.

              Reversed and remanded.




                                          -13-
