                      United States Court of Appeals
                               FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 00-1218
                                      ___________

United States of America,                  *
                                           *
       Plaintiff - Appellee,               *
                                           * Appeal from the United States
       v.                                  * District Court for the
                                           * Eastern District of Missouri.
Forestell Norman Sheppard,                 *
                                           *
       Defendant - Appellant.              *
                                      ___________

                                Submitted: May 9, 2000

                                     Filed: July 18, 2000
                                      ___________

Before BOWMAN, LOKEN, and BYE, Circuit Judges.
                           ___________

LOKEN, Circuit Judge.

        A jury convicted Forestell Norman Sheppard of conspiring to possess with intent
to distribute methamphetamine in violation of 21 U.S.C. §§ 841and 846. Finding that
more than 500 grams of methamphetamine were involved in the offense, the district
court1 sentenced Sheppard to 240 months in prison. Sheppard appeals, raising three
issues. Most important, from the standpoint of its impact on other cases, is his
contention the district court erred in failing to instruct the jury that drug quantity is an

       1
       The HONORABLE CATHERINE D. PERRY, United States District Judge for
the Eastern District of Missouri.
element of the crime. Based upon the Supreme Court’s recent decision in Apprendi v.
New Jersey, No. 99-478, 2000 WL 807189 (U.S. June 26, 2000), we conclude that
drug quantity must often be treated as an element of the offense under § 841 but that
any error was harmless in this case because the indictment charged Sheppard with
conspiring to distribute more than 500 grams, and the jury made a special finding of
that quantity. We also reject Sheppard’s arguments that the evidence was insufficient
to convict, and that the court’s jury instructions created a material variance between the
indictment and the offense proved. Accordingly, we affirm.

                  I. Is Drug Quantity an Element of the Crime?

       Sheppard was convicted of conspiring to violate 21 U.S.C. § 841(a)(1), which
makes it unlawful to possess with intent to distribute any quantity of a controlled
substance such as methamphetamine. Sheppard was sentenced in accordance with
§ 841(b), which is entitled “Penalties” and which provides for increased sentencing
ranges based upon a variety of factors, including the type and quantity of illegal drugs
involved in the offense. Because of this statutory structure, which separates the
definition of “unlawful acts” in § 841(a) from the penalty factors in § 841(b), this court
(and most circuits) have held that drug quantity, even if alleged in the indictment, is not
an element of the offense and is therefore determined at sentencing by the district court
applying the preponderance-of-the-evidence standard, not by the jury applying the
beyond-a-reasonable-doubt standard. See, e.g., United States v. Mabry, 3 F.3d 244,
250 (8th Cir. 1993), cert. denied, 511 U.S. 1020 (1994).

        In Jones v. United States, 119 S. Ct. 1215, 1228 (1999), the Supreme Court
construed the federal carjacking statute, 18 U.S.C. § 2119, “as establishing three
separate offenses by the specification of distinct [penalty] elements, each of which must
be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury
for its verdict.” The Court highlighted, but did not resolve, what it called a grave and
doubtful constitutional question, namely —

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      under the Due Process Clause of the Fifth Amendment and the notice and
      jury trial guarantees of the Sixth Amendment, any fact (other than prior
      conviction) that increases the maximum penalty for a crime must be
      charged in an indictment, submitted to a jury, and proven beyond a
      reasonable doubt.

119 S. Ct. at 1224 n.6. Sheppard argues that Jones overruled our prior decisions
holding that drug quantity is an element of sentencing under 21 U.S.C. § 841, not an
element of the offense. The district court rejected this contention, and a number of
circuits have likewise concluded that § 841(b) clearly evidences Congress’s intent that
drug quantity be a sentencing factor, and that the suggestion in Jones of a broad
constitutional prohibition against this type of legislation does not require rejection of
clear circuit precedent. See United States v. Thomas, 204 F.3d 381, 384 (2d Cir. 2000)
(collecting cases); accord United States v. Grimaldo, 2000 WL 709498 (8th Cir.
June 2, 2000).

      This landscape changed dramatically with the Court’s decision last month in
Apprendi. At issue was a conviction and lengthy sentence under a state statute
allowing the sentencing judge to impose a sentence greater than the statutory maximum
based upon the court’s finding that the crime was motivated by racial bias. The
Supreme Court reversed, concluding that, under the Fifth and Sixth Amendments as
made applicable to the States by the Due Process Clause of the Fourteenth Amendment,
“Other than the fact of a prior conviction, 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.” 2000 WL 807189, at *13. As we read 21 U.S.C.
§ 841(b), in some cases its application will be subject to that principle. For example,
the statutory maximum sentence for the drug types and quantities specified in
§ 841(b)(1)(D) is “not more than 5 years,” whereas the maximum sentence for the drug




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types and quantities specified in § 841(b)(1)(A) is “not . . . more than life.”2 On the
other hand, another sentencing factor that increases the statutory maximum sentence
in many § 841 prosecutions is the defendant’s prior drug felony conviction. See
§ 841(b)(1)(C). In cases where a prior conviction increases the statutory maximum, the
use of drug quantity at sentencing will not conflict with Apprendi so long as it results
in a sentence within the § 841(b)(1)(C) maximum. See United States v. Aguayo-
Delgado, No. 99-4098 (8th Cir. July 18, 2000).

       The district court understandably followed this court’s established precedent,
failing to predict, as some circuit courts failed to predict, that the constitutional doubt
expressed by the Supreme Court in Jones would become a firm constitutional rule in
Apprendi. Although this case is on direct appeal and therefore governed by Apprendi,
we conclude that any instructional error was harmless. At the instruction conference,
Sheppard argued that Jones required the court to submit the issue of drug quantity to
the jury as an element of the offense. The court declined to do so but, at the
government’s request, did submit a “Special Finding” dealing with drug type and
quantity. Answering this finding in the affirmative, the jury unanimously found beyond
a reasonable doubt that more than 500 grams of methamphetamine were involved in
Sheppard’s offense. Because the indictment had alleged this drug type and quantity,
and because the district court made a drug quantity finding at sentencing that was
consistent with the jury’s special finding, Sheppard received all the Fifth and Sixth




      2
        As we point out in Part III of this opinion, the § 841(b) sentencing provisions
only require the government to prove that the offense “involved” a particular type and
quantity of controlled substance, not that the defendant knew he was distributing that
particular type and quantity. Thus, to the extent Apprendi applies, the jury need only
be instructed to find, as it did in this case, that a particular type and quantity of
controlled substance was involved in the offense.

                                           -4-
Amendment protections that Jones and Apprendi require. In these circumstances, any
failure to treat drug type and quantity as an element of the crime was harmless error.3

                           II. Sufficiency of the Evidence

       Tonya Eaden boarded a bus in Phoenix, bound for St. Louis and carrying a bag
containing a two-pound package of methamphetamine. A drug dog detected the
narcotics at a bus stop in Tulsa. Eaden was arrested and agreed to cooperate with the
police by delivering a substitute package in St. Louis. St. Louis police officers working
for the Drug Enforcement Administration escorted Eaden as she checked into a St.
Louis hotel, as instructed by her source, Michael Taylor. The police stayed in her room
as Eaden called Taylor’s pager in Phoenix, and then left the room with audio and video
monitors in place. Taylor soon returned the call, and then another man called the hotel
room. Twenty minutes later, Sheppard knocked on the door. Eaden had met Sheppard
in Phoenix, recognized him, and let him in. Sheppard asked, “Where’s the stuff at?”
Eaden showed him the bag. Sheppard retrieved the substitute package from the bag,
stuffed it inside his trousers, and was arrested as he left the hotel room. When arrested,
Sheppard refused to cooperate, saying, “You all got me. That’s enough.”

      Sheppard argues the evidence was insufficient to convict him of conspiring to
possess methamphetamine because the government failed to prove that either Eaden or
Sheppard, the only two named conspirators, knew the package contained the drug
methamphetamine. We disagree. Eaden testified she knew in Phoenix that Taylor had
given her methamphetamine or “crystal” to deliver in St. Louis. Under cross

      3
       In addition, we note that the sentence Sheppard actually received under
§ 841(b)(1)(A) -- the mandatory minimum of 240 months in prison -- is within the
twenty-year statutory maximum penalty for § 841 offenses involving any quantity of
a Schedule II controlled substance such as methamphetamine. See § 841(b)(1)(C). In
some cases, this fact may bear on whether the sentence actually imposed was within
the constitutional limits prescribed by Apprendi.

                                           -5-
examination, Eaden became uncertain whether she knew the illegal drug was
methamphetamine before her arrest. But she was unequivocal that she was to be paid
$1,000 for delivering illegal drugs, and Sheppard’s videotaped conduct and statements
in the hotel room were sufficient to permit a reasonable jury to infer, beyond a
reasonable doubt, that he was there to pick up illegal drugs. To convict a defendant of
violating 21 U.S.C. § 841(a), or of conspiring to violate § 841(a) in violation of 21
U.S.C. § 846, “[t]he government is not required to prove that the defendant actually
knew the exact nature of the substance with which he was dealing.” United States v.
Jewell, 532 F.2d 697, 698 (9th Cir.) (en banc), cert. denied, 426 U.S. 951 (1976).
Viewing the evidence in the light most favorable to the jury’s verdict, as we must, we
conclude it was sufficient to convict Sheppard of the crime charged. Compare United
States v. Moser, 509 F.2d 1089, 1092 (7th Cir. 1975).

                         III. The Material Variance Issue

       Finally, Sheppard argues that the district court gave internally inconsistent jury
instructions, and created a material variance with the indictment, when it defined the
elements of the charged conspiracy as including “an understanding to possess
methamphetamine with intent to distribute it,” and then instructed:

      To assist you in determining whether there was an agreement or
      understanding to possess with the intent to distribute a mixture or
      substance containing methamphetamine, you are advised that the elements
      of possession with the intent to distribute a mixture or substance
      containing methamphetamine are . . . 2, the defendant knew that he was
      in possession of a controlled substance . . . .

(Emphasis added.) The material variance arose, Sheppard explains, because the
indictment specifically alleged that he and Eaden knowingly and intentionally conspired
to possess with the intent to distribute “a mixture or substance containing
methamphetamine.” The variance prejudiced the defense, he argues, because his cross

                                          -6-
examination of Eaden created doubt whether she knew the contraband was
methamphetamine. By broadening the knowledge element of the charge to include all
controlled substances, the jury instructions destroyed his defense based on lack of
knowledge of the specific controlled substance alleged in the indictment.

       A material variance between the indictment and the government’s proof at trial
requires a new trial if it prejudices the defense by depriving the defendant of adequate
notice of the charges he must defend. See United States v. Begnaud, 783 F.2d 144,
147-48 (8th Cir. 1986). As we have explained, a defendant may be convicted of a drug
conspiracy violation without proof that he knew the precise drug he conspired to
possess and distribute. Here, the same drug transaction was alleged in the indictment
and proved at trial. The district court’s instructions required the jury to find that the
drug in question was methamphetamine, and that Sheppard knew it was a controlled
substance. Thus, the indictment gave Sheppard adequate notice of the offense the
government proved at trial, and the jury instructions properly stated the law. There was
no material variance because the instructions only took away a “non-defense” -- that
Sheppard knew it was a controlled substance, but not the controlled substance,
methamphetamine. See United States v. Fragoso, 978 F.2d 896, 902 (5th Cir. 1992),
cert. denied, 507 U.S. 1012 (1993).

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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