            United States Court of Appeals
                       For the First Circuit


No. 98-1808

                     UNITED STATES OF AMERICA,

                             Appellee,

                                 v.

                      RAFAEL COLLAZO-APONTE,

                       Defendant, Appellant.


          ON REMAND FROM THE UNITED STATES SUPREME COURT
            APPEAL FROM A FINAL JUDGMENT OF CONVICTION
                IN THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF PUERTO RICO

          [Hon. José Antonio Fusté, U.S. District Judge]


                               Before

                     Torruella, Circuit Judge,
                  Wallace,* Senior Circuit Judge,
                and O'Toole, Jr.,** District Judge.


     Rafael Collazo-Aponte, pro se.
     Lena Watkins, Trial Attorney, Criminal Division, U.S. Department
of Justice, was on brief for appellee.



                         February 28, 2002


*    Of the Ninth Circuit, sitting by designation.
**   Of the District of Massachusetts, sitting by designation.
-2-
           TORRUELLA, Circuit Judge. On June 27, 2000, this Court

affirmed the conviction and sentence of appellant Rafael Collazo-Aponte

("Collazo-Aponte") for a drug-related gun offense and for his

participation in a drug conspiracy.      Collazo-Aponte appealed our

decision to the Supreme Court of the United States. The Supreme Court

granted appellant's petition for a writ of certiorari, vacated this

Court's judgment, and remanded the case to this Court for further

consideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Upon reconsideration, we affirm appellant's convictions but vacate his

sentence in part and remand for re-sentencing consistent with this

opinion.

                              BACKGROUND

A.   Facts Elicited at Trial

           In the mid-1980s, a drug-dealing conspiracy was formed in the

Virgilio Dávila public housing project in Bayamón, Puerto Rico. The

conspirators processed and packaged cocaine and heroin for delivery to

various drug distribution points throughout Puerto Rico. In February

1993, the drug organization splintered into rival factions when the

Rosario-Rodríguez brothers murdered a fellow conspirator, Richard

Muñoz-Candelaria. A series of retaliatory murders ensued as members of

the organization engaged in hunting expeditions to kill the Rosario-

Rodríguez brothers.




                                  -3-
           Collazo-Aponte joined the conspiracy shortly after the "war"

commenced, when the organization began storing drugs at a co-

conspirator's bar where appellant worked. At trial, two cooperating

witnesses testified that on numerous occasions they delivered money to

Collazo-Aponte in exchange for drugs. When appellant was finally

arrested, he was carrying more than 1,000 "decks" of heroin, worth

$10,000.

           On June 26, 1997, a federal grand jury indicted Collazo-

Aponte on charges of using and carrying a firearm during and in

relation to a drug conspiracy in violation of 18 U.S.C. § 924(c)(1)

(A), and of conspiracy to possess with intent to distribute cocaine

base, cocaine, and heroin in violation of 21 U.S.C. §§ 841, 846. On

February 16, 1998, the jury found appellant guilty of both charges.

           At the sentencing hearing, the judge found by a preponderance

of the evidence that Collazo-Aponte was responsible for "more than 30

kilos of heroin, 150 kilos of cocaine, and/or 1.5 kilos of crack

cocaine." After assessing appellant's criminal history and the extent

of his participation in the offense, the district court sentenced

appellant to 151 months' imprisonment for the drug conspiracy count.

           During sentencing for the gun count, the government argued

that appellant should not be sentenced under the base offense of §

924(c)(1)(A), but rather under the more severe punishment offered by §

924(c)(1)(B). Whereas § 924(c)(1)(A) offers a statutory minimum of


                                  -4-
five years' imprisonment, § 924(c)(1) (B) mandates an enhanced sentence

of no less than ten years' imprisonment for the use or carrying of a

semiautomatic weapon during a crime of violence. To prove appellant's

violation of § 924(c)(1)(B), the government cited two instances in

which co-conspirators used semiautomatic weapons during the period of

Collazo-Aponte's participation in the conspiracy - namely, a double

murder in April 1994 and the shooting of a police officer in September

1994.    The government argued that since the use of semiautomatic

firearms by co-conspirators was foreseeable, Collazo-Aponte should be

held accountable for it.

           The district court agreed, finding by a preponderance of the

evidence that appellant violated § 924(c)(1)(B). The court then

imposed an enhanced sentence of ten years' imprisonment for the gun

count.

B.   Procedural History

           Collazo-Aponte appealed his conviction and sentence to this

Court. United States v. Collazo-Aponte, 216 F.3d 163 (1st Cir. 2000).

He claimed, inter alia, that he should have received a five-year,

rather than the enhanced ten-year, sentence for the gun count. More

specifically, appellant argued that (1) the use or carrying of the

semiautomatic weapons occurred prior to his joining the conspiracy, and

(2) he could not have foreseen the use of semiautomatic weapons. Id.




                                 -5-
at 202. This Court rejected appellant's arguments, citing sufficient

evidence in the record to refute both claims.

           One day before we decided Collazo-Aponte's appeal, however,

the Supreme Court rendered its opinion in Apprendi. Then, after this

Court affirmed Collazo-Aponte's conviction and sentence, appellant

sought a rehearing of his appeal raising new arguments in light of

Apprendi. On September 18, 2000, this Court denied Collazo-Aponte's

petition for rehearing.

           Appellant then filed a petition for a writ of certiorari with

the Supreme Court.     On May 21, 2001, the Supreme Court granted

appellant's petition, vacated this Court's judgment, and remanded the

case to this Court for further consideration in light of Apprendi.

                              DISCUSSION

           On June 26, 2000, the Supreme Court decided Apprendi, which

has been described as "a watershed change in constitutional law . . .

." 530 U.S. at 524 (O'Connor, J., dissenting). The Apprendi Court

held that "[o]ther 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."   Id. at 490 (internal quotations omitted).       Because this

holding was in contrast to then-existing practice, numerous appellants,

including Collazo-Aponte, were given constitutionally-engineered

ammunition to attack their convictions and sentences.


                                  -6-
          Relying on Apprendi, Collazo-Aponte argues (1) that his ten-

year enhanced sentence for the gun count must be vacated since the

jury never determined beyond a reasonable doubt that he carried a

semiautomatic weapon; (2) that his drug sentence must be vacated

because the drug quantity at issue was neither decided by the jury nor

proven beyond a reasonable doubt; and (3) that his conviction should be

vacated because § 841(b) is unconstitutional on its face.        Since

appellant's arguments are raised for the first time on appeal, we

review them for plain error. See United States v. Eirby, 262 F.3d 31,

36 (1st Cir. 2001).

          First, appellant argues that his ten-year enhanced sentence

for the gun count must be vacated because, under Apprendi, the jury

should have determined beyond reasonable doubt that he was accountable

for the semiautomatic weapons used or carried by his co-conspirators.

The government concedes that it was plain error for the district court

to impose the enhanced sentence.1 Given the government's concession,

we vacate Collazo-Aponte's ten-year sentence.

          The government proposes that we remand the case to substitute

a five-year consecutive sentence for the ten-year enhanced sentence.

The five-year sentence does not suffer from any of the constitutional



1 The government concedes this argument, in part, because the evidence
used to establish appellant's guilt for the use of semiautomatic
weapons pre-dates the amendment which authorizes an enhanced sentence
for such conduct.

                                 -7-
infirmities that plague the ten-year sentence because (1) the original

indictment included a count charging appellant with violating §

924(c)(1)(A); and (2) the jury found appellant guilty of this charge

beyond a reasonable doubt.     Therefore, we remand the case to the

district court to impose a sentence under § 924(c)(1)(A).

           Second, Collazo-Aponte argues that his drug sentence must be

vacated because the drug quantity at issue was not proven beyond a

reasonable doubt at trial, as required by Apprendi.         Appellant's

argument, however, rests on an expansive reading of Apprendi that has

been explicitly and repeatedly rejected by this Court.         We have

consistently held that the Apprendi doctrine does not apply to

defendants who are sentenced to terms less than the otherwise

applicable statutory maximum. See, e.g., Eirby, 262 F.3d at 37; United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001); United States v.

Baltas, 236 F.3d 27, 41 (1st Cir. 2001). Most succinctly, Apprendi

does not require that all sentencing factors be submitted to a jury and

proven beyond a reasonable doubt, rather only those that "increase[]

the penalty for a crime beyond the prescribed statutory maximum . . .

."   530   U.S. at 490.

           In the instant case, Collazo-Aponte's sentence for the drug

conspiracy was at least seven years less than the applicable statutory

maximum.    See 21 U.S.C. § 841(b)(1)(C) (authorizing a term of

imprisonment of not more than 20 years for a defendant who has been


                                 -8-
found guilty of a drug offense involving any quantity of cocaine, crack

cocaine, or heroin). Because Apprendi's constitutional requirements do

not even apply to appellant's drug conspiracy sentence, we affirm the

151-month sentence.    See Baltas, 236 F.3d at 41 (holding that "no

constitutional error occurs when the district court sentences the

defendant within the statutory maximum, regardless that drug quantity

was never determined by the jury beyond a reasonable doubt").

          Lastly, Collazo-Aponte argues that his conviction should be

vacated because, post-Apprendi, § 841(b) is unconstitutional on its

face. Section 841(a)(1) makes it unlawful to "manufacture, distribute,

or dispense, or possess with intent to manufacture, distribute, or

dispense, a controlled substance." Section 841(b), in turn, provides

the penalties for violations of § 841(a)(1), which vary depending upon

drug type and quantity. Before Apprendi was decided, only the elements

specified in § 841(a)(1) needed to be proved to a jury beyond a

reasonable doubt; the penalty provisions set forth in § 841(b) were

administered by the sentencing judge under a preponderance of the

evidence standard. After Apprendi, however, all facts (other than

prior convictions) that set the maximum possible punishment under §

841(b) must be established beyond a reasonable doubt by the same body

that determines culpability under § 841(a). See Eirby, 262 F.3d at 37

(finding that Apprendi applies to drug quantity determinations).




                                 -9-
Because of this shift, appellant concludes that § 841(b) can no longer

withstand constitutional scrutiny.

          We find Collazo-Aponte's argument unpersuasive because none

of the provisions of § 841(b) contradicts Apprendi's mandate. Section

841(b) does not require that sentencing judges determine the facts that

increase the penalty for the crime beyond the prescribed statutory

maximum. Nor does § 841(b) require that such facts be determined by a

preponderance of the evidence. The statute is silent as to who makes

these findings and under what burden of persuasion. Hence, there is

nothing in the statutory language that explicitly defies Apprendi.

          Moreover, the Constitution, as interpreted by Apprendi,

simply makes the jury the decisionmaker and the reasonable-doubt

standard the proper burden for facts that increase the penalty beyond

the applicable statutory maximum. "How statutes are . . . implemented

[] to fulfil that requirement is a subject to which the Constitution

does not speak." United States v. Brough, 243 F.3d 1078, 1079 (7th

Cir. 2001); see also United States v. Candelario, 240 F.3d 1300, 1311

n.16 (11th Cir. 2001) (characterizing as "without merit" a facial

challenge to §§ 841 and 846 under Apprendi), cert. denied, --- U.S. ---

, 121 S. Ct. 2535 (2001); United States v. Slaughter, 238 F.3d 580, 582

(5th Cir. 2000) (stating that "[w]e see nothing in the Supreme Court

decision in Apprendi which would permit us to conclude that 21 U.S.C.

§§ 841(a) and (b), 846, and 860(a) are unconstitutional on their


                                 -10-
face"), cert. denied, 532 U.S. 1045, 121 S. Ct. 2015 (2001); United

States v. Cernobyl, 255 F.3d 1215, 1218-19 (10th Cir. 2001) (rejecting

an Apprendi-based facial challenge to § 841); United States v.

McCallister, 272 F.3d 228 (4th Cir. 2001); United States v. Kelly, 272

F.3d 622 (3d Cir. 2001) (same); United States v. Martínez, 253 F.3d

251, 256 n.6 (6th Cir. 2001) (same); United States v. Woods, 270 F.3d

728, 729-30 (8th Cir. 2001) (same).

           Thus, a shift in how judges implement § 841(b) simply does

not raise the constitutional doubts of which Collazo-Aponte complains.

 Because there is no constitutional defect inherent in the language or

design of § 841, we find no impediment to appellant's conviction under

the statute.2

           Collazo-Aponte's second challenge to § 841(b) argues that

the statute is unconstitutional because it does not require proof

beyond a reasonable doubt that the defendant knew of the specific

quantity of cocaine involved in the offense. Since the plain language

of § 841(a) requires that the proscribed acts be committed "knowingly

and intentionally," appellant claims that this mens rea requirement

should extend to all the elements of the offense. See United States v.



2 Appellant also challenges the constitutionality of 21 U.S.C. § 846,
which (among other things) makes the penalty provisions of § 841(b)
applicable to anyone who conspires to violate § 841(a). Because § 846
is inextricably intertwined with § 841(b) and simply offers another
occasion to apply the penalties set forth in § 841 (b), our ruling as
to § 841(b) applies with equal force to § 846.

                                 -11-
Ahmad, 101 F.3d 386, 390 (5th Cir. 1996) (applying mens rea requirement

in statute to all elements of offense). He concludes by noting that

since, post-Apprendi, § 841 (b) must be determined by a jury beyond

reasonable doubt, the drug quantity at issue is now an element of the

offense to which the mens rea requirement should apply.3

          To determine whether Congress intended to impose the specific

scienter requirement that appellant proposes, we must first examine the

statutory language of § 841(b). See Staples v. United States, 511 U.S.

600, 605 (1994) (noting that statutory language is the starting point

in analyzing whether Congress intended to impose a mens rea

requirement). The plain language of § 841(b) requires the government

to prove only that the offense "involved" a particular type and

quantity of drug, not that the defendant knew that he was distributing

that particular drug type and quantity. See United States v. Sheppard,

219 F.3d 766, 768 n.2, 770 (8th Cir. 2000) (ruling that the statutory

language of § 841(b) does not require the government to prove that

defendant knew of the specific drug type and quantity at issue). Thus,

nothing in the statutory language of § 841(b) supports a mens rea

requirement.      Furthermore, a specific criminal intent requirement


3 We disagree with appellant's characterization of the drug quantity
as an element of the offense. Apprendi did not convert all sentencing
factors into elements of the offense, only those that "increase[] the
penalty for a crime beyond the prescribed statutory maximum . . . ."
530 U.S. at 490. Because the drug conspiracy sentence in this case
was within the applicable statutory maximum, the drug quantity at issue
never became an element of the offense.

                                 -12-
"serves only to separate those who understand the wrongful nature of

their act from those who do not." United States v. X-Citement Video,

Inc., 513 U.S. 64, 72 n.3 (1994). Thus, the presumption in favor of a

scienter requirement should only apply "to each of the statutory

elements that criminalize otherwise innocent conduct." Id. at 72. In

the instant case, the drug quantity involved in appellant's offense is

not a factor that is necessary to the determination of whether his

conduct is "criminal" or "innocent." Appellant is guilty whether he

conspired to sell 30 kilos of heroin or 30,000. Because the amount of

drugs at issue would not make appellant's behavior unpunishable, his

argument necessarily fails.

                             CONCLUSION

          Given the government's concession, we vacate appellant's ten-

year enhanced sentence imposed under § 924(c)(1)(B), and we remand the

case to the district court to impose an Apprendi-compliant sentence

under § 924(c)(1)(A). We uphold the constitutionality of § 841(b), and

thereby affirm appellant's conviction under it. Lastly, we affirm

appellant's sentence under the drug count, as it was within the

applicable statutory maximum.

          Affirmed in part, vacated in part, and remanded for action

consistent with this opinion.




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