                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-11-1996

United States v. McQuilkin
Precedential or Non-Precedential:

Docket 95-1127




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        UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                  ___________

                  No. 95-1127
                  ___________


            UNITED STATES OF AMERICA

                       v.

                JOHN McQUILKIN,
                            Appellant

_______________________________________________

On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
       (D.C. Criminal No. 94-cr-00356-2)
              ___________________


            Argued November 13, 1995

 Before:    BECKER and SCIRICA, Circuit Judges
           and COHILL, District Judge*

            (Filed   March 11, l996)


                     ANDREW GROSSO, ESQUIRE (ARGUED)
                     2300 N Street, N.W., Suite 600
                     Washington, D.C. 20037

                       Attorney for Appellant


                     EMILY McKILLIP, ESQUIRE (ARGUED)
                     Office of the United States Attorney
                     615 Chestnut Street, Suite 1250
                     Philadelphia, Pennsylvania 19106

                       Attorney for Appellee




                       1
*The Honorable Maurice B. Cohill, Jr., United States District
Judge for the Western District of Pennsylvania, sitting by
designation.




                               2
                          __________________

                      OPINION OF THE COURT
                       __________________


SCIRICA, Circuit Judge.


                                  I.

          The issue on appeal is whether the "safety valve"

provision in 18 U.S.C. § 3553(f) applies to 21 U.S.C. § 860, the

"schoolyard" statute, so that a court may impose a sentence

shorter than the statutory minimum provided in § 860.

                                 II.

          Between March and July 1994, John McQuilkin sold

quantities of methamphetamine to an informant cooperating with

the Drug Enforcement Agency and to an undercover DEA agent.    Each

sale occurred within 1,000 feet of a school.

          McQuilkin was arrested and charged under 21 U.S.C.

§841(a)(1) (distribution),1 21 U.S.C. § 860 (distribution within

1
   Title 21 U.S.C. § 841 ("ordinary" distribution) provides in
part:

          (a) Unlawful acts
               Except as authorized by this subchapter,
          it shall be unlawful for any person knowingly
          or intentionally--
               (1) to manufacture, distribute, or
          dispense . . . a controlled substance . . . .

          (b) Penalties
               Except as otherwise provided in section
          849, 859, 860, or 861 of this title, any
          person who violates subsection (a) of this
          section shall be sentenced as follows:
                    . . . .
               (1) . . . .
               (B) In the case of a violation of
          subsection (a) of this section involving--

                                  3
1,000 feet of a school), 21 U.S.C. § 846 (conspiracy)2 and 21

U.S.C. § 843(b) (use of a communication facility).   He pled

guilty to conspiracy to distribute methamphetamine, four counts

of distribution of methamphetamine and four counts of

distribution of within 1,000 feet of a school.   McQuilkin

stipulated that he and his co-conspirator distributed more than

100 grams but less than 400 grams of methamphetamine within 1,000

feet of a school and this quantity was reasonably foreseeable and

jointly undertaken by him.

           Based on the attributable amount of methamphetamine and

taking into account his acceptance of responsibility, McQuilkin's

sentencing guidelines range was 57 to 71 months imprisonment. The

district court held that McQuilkin's convictions under 21 U.S.C.

§§ 841 and 846 met the criteria for the "safety valve" provision

of 18 U.S.C. § 3553(f).   But the court ruled that 21 U.S.C. §

860, the "schoolyard" statute, required a five year mandatory



                     . . . .
                (viii) 10 grams or more of methamphetamine
           . . . or 100 grams or more of a mixture or
           substance containing a detectable amount of
           methamphetamine . . . ;
                such person shall be sentenced to a term
           of imprisonment which may not be less than 5
           years and not more than 40 years . . . .
2
    Title 21 U.S.C. § 846 provides:

                Any person who attempts or conspires to
           commit any offense defined in this subchapter
           shall be subject to the same penalties as
           those prescribed for the offense, the
           commission of which was the object of the
           attempt or conspiracy.




                                 4
minimum term of imprisonment, and that 18 U.S.C. §3553(f) did not

apply to the mandatory minimum sentence under §860.

          The district court sentenced McQuilkin to 60 months

imprisonment to be served concurrently on all counts.    In

imposing sentence, the court stated that it intended to sentence

McQuilkin to the lowest sentence allowed by law.     McQuilkin has

appealed contending the "safety valve" provision of 18 U.S.C.

§3553(f) permits a shorter sentence than the statutory minimum of

60 months.    We exercise plenary review.   See United States v.

Sabarese, 71 F.3d 94, 95 n.1 (3d Cir. 1995), amended by, No. 95-

5160 (3d Cir. Jan. 22, 1996).

                                 III.

                                  A.

             This is a matter of statutory interpretation.    Title 21

U.S.C. § 860 (the schoolyard statute) provides in part:
          Any person who violates section 841(a)(1) . .
          . of this title by distributing . . . a
          controlled substance in or on, or within one
          thousand feet of, the real property
          comprising a . . . school . . . is (except as
          provided in subsection (b) of this section)
          subject to (1) twice the maximum punishment
          authorized by section 841(b) of this title;
          and (2) at least twice any term of supervised
          release authorized by section 841(b) of this
          title for a first offense. A fine up to
          twice that authorized by section 841(b) of
          this title may be imposed in addition to any
          term of imprisonment authorized by this
          subsection. Except to the extent a greater
          minimum sentence is otherwise provided by
          section 841(b) of this title, a person shall
          be sentenced under this subsection to a term
          of imprisonment of not less than one year
          . . . .




                                  5
          Because under the relevant facts here, 21 U.S.C.

§ 841(b)(1)(B)(viii) mandates a five year minimum term of

imprisonment, it supersedes the one year minimum term in § 860.

The issue on appeal is whether 18 U.S.C. § 3553(f) may relieve a

defendant from the mandatory minimum penalty for violating 21

U.S.C. § 860.

          Section 3553(f) provides:
              (f) Limitation on applicability of
          statutory minimums in certain cases.--
          Notwithstanding any other provision of law,
          in the case of an offense under ... 21 U.S.C.
          §§ 841, 844, 846 ... 961, 963 the court shall
          impose a sentence pursuant to guidelines
          promulgated by the United States Sentencing
          Commission ... without regard to any
          statutory minimum sentence, if the court
          finds at sentencing [that the defendant
          satisfies certain criteria].3
          3
             The criteria specified in 18 U.S.C. §
          3553(f) are:

          (1)   the defendant does not have more than 1 criminal
                history point, as determined under the sentencing
                guidelines;
          (2)   the defendant did not use violence or credible
                threats of violence or possess a firearm or other
                dangerous weapon (or induce another participant to
                do so) in connection with the offense;
          (3)   the offense did not result in death or serious
                bodily injury to any person;
          (4)   the defendant was not an organizer, leader,
                manager, or supervisor of others in the offense,
                as determined under the sentencing guidelines and
                was not engaged in a continuing criminal
                enterprise, as defined in 21 U.S.C. § 848; and
          (5)   not later than the time of the sentencing hearing,
                the defendant has truthfully provided to the
                Government all information and evidence the
                defendant has concerning the offense or offenses
                that were part of the same course of conduct or of
                a common scheme or plan, but the fact that the
                defendant has no relevant or useful other
                information to provide or that the Government is
                already aware of the information shall not

                                6
In the event of a violation under §§ 841, 844, 846, 961 and 963,

18 U.S.C. § 3553(f) allows a sentencing court under specified

conditions to disregard the statutory minimum and impose a

sentence in accordance with the guidelines.4

          By its terms, 18 U.S.C. § 3553(f) applies only to

convictions under 21 U.S.C. §§ 841, 844, 846, 961 and 963.

Section 860 is not one of the enumerated sections.    It is a canon

of statutory construction that the inclusion of certain

provisions implies the exclusion of others.     The doctrine of

inclusio unius est exclusio alterius "informs a court to exclude

from operation those items not included in a list of elements

that are given effect expressly by the statutory language."       In

re TMI, 67 F.3d 1119, 1123 (3d Cir. 1995) (quoting Williams v.

Wohlgemuth, 540 F.2d 163, 169 (3d Cir. 1976)), petition for cert.

filed, (U.S. Feb. 20, 1996) (No. 95-1315).     The government

contends the stark exclusion of § 860 from the list of sections

embraced by § 3553(f) reflects Congress' rational decision that

drug dealing in a protected location is sufficiently serious to

merit substantial penalties.   In any event, nothing in the

legislative history of § 3553(f) provides a basis for

               preclude a determination by the court that the
               defendant has complied with this requirement.
4
   Congress adopted the "safety valve" provision in the Violent
Crime Control and Law Enforcement Act of 1994 to mitigate the
effects of certain mandatory minimum sentences. See generally
Philip Oliss, Mandatory Minimum Sentencing: Discretion, the
Safety Valve, and the Sentencing Guidelines, 63 U. Cin. L. Rev.
1851 (1995); Fred A. Bernstein, Discretion Redux--Mandatory
Minimums, Federal Judges, and the "Safety Valve" Provision of the
1994 Crime Act, 20 U. Dayton L. Rev. 765 (1995).



                                7
interpreting the statute other than as the clear language

provides.5    See In re TMI, 67 F.3d at 1125 ("A construction

inconsistent with a statute's plain meaning ... is justifiable

only when clear indications of contrary legislative intent

exist") (quoting Government of the Virgin Islands v. Knight, 989

F.2d 619, 633 (3d Cir.), cert. denied, 114 S. Ct. 556 (1993)). In

clear and unambiguous language, therefore, 18 U.S.C. § 3553(f)

does not apply to convictions under 21 U.S.C. § 860, the

"schoolyard" statute.6

                                  B.

             McQuilkin argues that 21 U.S.C. § 860 does not state a

substantive offense but merely enhances the penalty for

violations of 21 U.S.C. § 841(a) committed within l,000 feet of a

school.   McQuilkin contends the only substantive offense he

violated was § 841(a), not § 860.      Because 18 U.S.C. § 3553(f)

applies to an "offense" under § 841, he argues the safety valve

provision should be available to him.     Accordingly, he believes

the court erred in imposing a mandatory minimum sentence.
5
   The "safety valve" provision adopted in the 1994 crime bill
engendered little debate. The only comments of plausible
relevance were made during an exchange between Senators Biden and
Brown on the Senate floor. Responding to Senator Brown's
question whether the "safety valve" applied to 21 U.S.C. § 859
(distribution to persons under age twenty-one), Senator Biden
said "the safety valve does not apply" to the offense of selling
drugs to minors, and that the mandatory minimum sentence for that
offense remained in place. See 140 Cong. Rec. S12514 (daily ed.
Aug 25, 1994). There was no reference to § 860, although the
government suggests the analogy to § 860 is manifest. For the
purposes of McQuilkin's argument, however, this exchange over
§859 was at best inconclusive.
6
   The one year minimum sentence set forth in § 860 applies when
the quantity of drugs involved is less than required for the
mandatory minimum sentences set forth in § 841(b).

                                  8
            But 21 U.S.C. § 860 is a separate substantive offense,

not a sentence enhancement provision.    To distinguish an

enhancement provision from a separate offense we look to the

intent of Congress.   See United States v. Hawkins, 811 F.2d 210,

218 (3d Cir.) ("As is the case in all questions dealing with the

scope and separate identities of criminal offenses, the answer

hinges on the intent of Congress."), cert. denied, 484 U.S. 833

(1987).    To ascertain intent we begin with the language of the

statute.    Hawkins, 811 F.2d at 218 (citing Garrett v. United

States, 471 U.S. 773, 779 (1985)).

            In this instance, the language of the statute specifies

§ 860 is a separate offense.    Although § 860 refers to § 841,

("any person who violates § 841(a)(1) . . . by distributing . .

."), it requires a separate and distinct element -- distribution

within l,000 feet of a school.    Distribution within l,000 feet of

a school must be charged and proven beyond a reasonable doubt in

order to obtain a conviction under § 860.    See United States v.

Smith, 13 F.3d 380, 382-83 (10th Cir. 1993) (holding "§ 860

constitutes an 'offense' which has as an element of proof that

the distribution occurred within 1,000 feet of a protected

place.").    Moreover, while § 860 incorporates the elements of

§841(a), it does not incorporate statutory references to § 841,

such as the one found in 21 U.S.C. § 3553(f).

            Other courts of appeals have uniformly held § 860 is a

separate offense that requires proof of an element that is not

included in § 841.    See, e.g., United States v. Parker, 30 F.3d

542, 551-53 (4th Cir.) (reversing a conviction under § 860 where


                                 9
there was no evidence that the distribution occurred within 1,000

feet of a protected place), cert. denied, 115 S. Ct. 605 (1994);

United States v. Ashley, 26 F.3d 1008, 1011 (10th Cir.)

(reaffirming an earlier decision that § 860 requires proof that

the distribution occurred within 1,000 feet of a protected

place), cert. denied, 115 S. Ct. 348 (1994); Smith, 13 F.3d at

382-83 (holding "that the distribution occurred within 1,000 feet

of a protected place" must be separately proved); United States

v. Holland, 810 F.2d 1215, 1218 (D.C. Cir.) (holding statute

"adds an element to the offense of section 841(a)" which must be

"proved"), cert. denied, 481 U.S. 1057 (1987).

          Moreover, nothing in the language indicates § 860 is an

enhancement provision.    Most enhancement provisions are triggered

by the defendant's criminal history.    In contrast, § 860 requires

proof of certain factual predicates that are independent of the

defendant's past crimes.    Most importantly, § 860 differs from

enhancement provisions because it requires proof of an additional

element beyond a reasonable doubt.

          Only one court, the Court of Appeals for the Ninth

Circuit, has suggested § 860 is an enhancement of the offense

defined in § 841(a).7    See United States v. Thornton, 901 F.2d

738, 740-41 (9th Cir. 1990) (statute "provides that if the drug

transaction made illegal by section 841 took place within 1,000

feet of a school, the punishment for such offense will be

enhanced.") (emphasis in original).    But in Thornton, the Ninth

7
 Section 860 was formerly classified as 21 U.S.C. § 845a. Pub. L.
No. 101-647(1) amended § 845a and redesignated it as §860.

                                  10
Circuit also held the predecessor to § 860 "incorporates the

sentencing enhancement element into the underlying offense."      Id.

(emphasis added).    Thus the court's analysis reveals some

confusion as to whether § 860 required an additional element of

proof or was simply an enhancement provision.     Moreover, all

other courts of appeals that have addressed the issue have held

§860 is not an enhancement provision.     See e.g. United States v.

Ashley, 26 F.3d 1008, 1011 (10th Cir.) (holding § 860 is not a

sentencing enhancer) cert. denied, 115 S. Ct. 348 (1994); see

also United States v. Horsley, 56 F.3d 50, 51 (11th Cir. 1995) (§

841(a) is a lesser included offense of § 860); United States v.

Parker, 30 F.3d 542, 553 (4th Cir.) (same), cert. denied, 115 S.

Ct. 605 (1994); United States v. Scott, 987 F.2d 261, 266 (5th

Cir. 1993) (same).

          We conclude § 860 is a separate offense and not a

sentencing enhancement of § 841(a).     Accordingly, § 3553(f) may

not mitigate the mandatory minimum penalty under § 860.

                                IV.

          For the foregoing reasons we will affirm the judgment

of sentence.




                                 11
