                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-14-1997

United States v. Lewis
Precedential or Non-Precedential:

Docket 96-1468




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Filed May 14, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1468

UNITED STATES OF AMERICA

v.

ANTHONY LEWIS,
a/k/a Tony Lewis, a/k/a Henry Lewis, a/k/a Antonio
Lewis, a/k/a Tone

Anthony Lewis,
Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 95-00492)

Argued April 14, 1997

BEFORE: GREENBERG, ALITO, and SEITZ, Circuit Judges

(Filed: May 14,1997)

Michael R. Stiles
United States Attorney
Walter S. Batty, Jr.
Assistant United States Attorney
Chief of Appeals
Emily McKillip (argued)
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106-4476

Attorneys for Appellee
Stephen P. Patrizio (argued)
Dranoff & Patrizio
Suite 1600
117 S. 17th Street
Philadelphia, PA 19103

Attorneys for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

Appellant, Anthony Lewis, appeals from a judgment of
conviction and sentence entered in the district court on an
indictment charging him with distribution of at least five
grams of a mixture or substance containing a detectible
amount of cocaine base, which, as a matter of convenience,
we will call simply cocaine base. A jury found Lewis guilty
under 21 U.S.C. § 841(a)(1) ("section 841(a)(1)") which
prohibits the distribution of a controlled substance. The
court subsequently sentenced Lewis to 120 months in
prison under 21 U.S.C. § 841(b) ("section 841(b)") for
distribution of at least five grams of cocaine base. Lewis
contends that he is entitled to a new trial because,
notwithstanding his indictment for distribution of at least
five grams of cocaine base, the district court instructed the
jury that it could find him guilty whether he had
distributed cocaine powder or cocaine base. He argues that
this instruction infringed upon the jury's fact-finding
function. He also contends that because the court
instructed the jury that it could find him guilty whether he
distributed cocaine powder or cocaine base, the basis for its
finding of guilt cannot be determined. He thus asserts that
the district court erred because it sentenced him for
distribution of cocaine base rather than powder cocaine. He
claims that this error prejudiced him as the mandatory
minimum penalties for distribution of cocaine base in
section 841(b) are more severe than those for the
distribution of powder cocaine. Finally, Lewis argues that
even if we uphold his conviction he is entitled to a remand
for resentencing because the government failed to prove by

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a preponderance of the evidence that the controlled
substance he distributed was cocaine base.

The government counters that to prove that Lewis
violated section 841(a) it needed to prove only that he knew
he was distributing a controlled substance even if he did
not know its identity. It also asserts that a jury need not
determine which controlled substance a defendant charged
under section 841(a)(1) distributed, provided it determines
that the defendant distributed a controlled substance. It
further argues that the district court was correct in
determining for sentencing purposes the identity of the
controlled substance that Lewis distributed, for the "type
and quantity of the controlled substance in an offense is an
issue of fact to be decided by the court at sentencing." Br.
at 4. Finally, the government argues that the district court's
finding that Lewis distributed cocaine base was not clearly
erroneous.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a). The district court had jurisdiction
pursuant to 18 U.S.C. § 3231. We exercise plenary review
over the questions before us, except that we review the
court's finding that Lewis distributed cocaine base to
determine if the finding was clearly erroneous.

I. FACTUAL AND PROCEDURAL HISTORY

On February 17, 1995, Edward Jones, a confidential
informant for the Drug Enforcement Administration (the
"DEA"), went to Bristol Township, Pennsylvania, as
instructed by DEA agents, to purchase $2,000 worth of
crack cocaine from a particular person. App. at 219-21.
While unsuccessfully seeking that person, Jones met Lewis
who offered to sell him crack cocaine. App. at 222. After
obtaining permission from the DEA agents, Jones initiated
a purchase of cocaine from Lewis. Lewis informed Jones
that he had 25 dime bags with him, which he gave to
Jones, and then suggested that Jones drive him to a
residence belonging to a third person to obtain more. Lewis
then procured an additional 50 dime bags of cocaine, which
he also gave to Jones. Jones, in turn, paid Lewis for the
cocaine. Laboratory analysis showed that Jones purchased

                    3
7.5 grams of cocaine base from Lewis. App. at 35. Based on
these events, a grand jury returned a two-count indictment
charging Lewis with distribution of cocaine base in violation
of 21 U.S.C. § 841(a)(1) and distribution of cocaine base
within 1,000 feet of a public housing project in violation of
21 U.S.C. § 860. App. at 15-16.

Jones testified at the trial, but during his cross-
examination the district court barred any inquiry into the
difference between cocaine base and cocaine powder,
explaining that the difference was not relevant. App. at
300-04. Lewis also testified, denying that he distributed
crack, and contending that he had sold cocaine powder to
Jones. App. at 171-73. App. at 172-73. The district court,
over Lewis's objection, instructed the jury that it could find
Lewis guilty regardless of whether he distributed cocaine
powder or cocaine base. App. at 348-49, 361, 393-94, 396.

The jury found Lewis guilty of distribution of cocaine but
found him not guilty of distribution of cocaine within 1,000
feet of a public housing project. We cannot ascertain from
the verdict whether it concluded that Lewis distributed
cocaine base or powder cocaine or, indeed, even whether it
reached a unanimous conclusion on this point. On May 30,
1996, the district court sentenced Lewis to a custodial term
of 120 months, a $500 fine, eight years of supervised
release and a $50 special assessment, the sentence being
predicated on its finding that Lewis distributed cocaine
base. As we have indicated, this finding was significant for
it is undisputed that the sentence for distributing powder
cocaine would have been less than the sentence the court
imposed. App. at 10-14.

II. DISCUSSION

a. Sentencing issues

While ordinarily we would consider questions relating to
the validity of a conviction before questions relating to a
sentence, in this case we reverse that order because our
determination of the sentencing issues informs our result
on the issues relating to the conviction. Section 841(a)(1),

                    4
which is entitled "Unlawful acts," prohibits the distribution
of controlled substances. It states:

(a) Except as authorized by this subchapter, it shall
be unlawful for any person knowingly or intentionally
--

(1) to manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute or dispense, a
controlled substance;

...

Section 841(b), entitled "Penalties," provides:

Except as otherwise provided in section 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 --

....

(iii) 5 grams or more of a mixture or substance
described in clause (ii) which contains cocaine base;
. . . such person shall be sentenced to a term of
imprisonment which may not be less than 5 years and
not more than 40 years. . . .

The sentence mandated for distribution of at least 500
grams of cocaine is the same as the sentence mandated for
distribution of at least five grams of cocaine base -- not
less than five years and not more than 40 years'
imprisonment. Section 841(b)(1)(B)(ii). On the other hand,
the sentence for distributing at least five grams of cocaine
does not include the five-year minimum term. Section
841(b)(1)(C).

We have held that the district court rather than the jury
determines the weight of drugs involved in a section 841
offense as the amount of drugs involved in an offense is a
sentencing factor. United States v. Chapple, 985 F.2d 729
(3d Cir. 1993). Substantial authority supports this
conclusion. See, e.g., United States v. Madkour, 930 F.2d
234, 237 (2d Cir. 1991); United States v. Cross, 916 F.2d
622 (11th Cir. 1990); United States v. McNeese, 901 F.2d

                    5
585, 605 (7th Cir. 1990); United States v. Jenkins, 866 F.2d
331, 334 (10th Cir. 1989); United States v. Wood, 834 F.2d
1382, 1388-90 (8th Cir. 1987). While we seem never to
have decided whether a determination of the identity of the
controlled substance in a section 841(a)(1) case also is a
sentencing factor, we conclude that a logical application of
Chapple constrains us to hold that it is. Thus, the court
determines the identity of the controlled substance at
sentencing.

In Chapple, an individual, unaware that he was under
police surveillance, attempted to send a large quantity of
cocaine to another state. After the police seized the cocaine,
the defendants were indicted and tried under 21 U.S.C.
§ 846 for conspiracy to possess cocaine with intent to
distribute. In addition, one defendant was indicted and
tried under section 841(a)(1) for possession of cocaine with
intent to distribute. The quantity of cocaine in the package
sent was a hotly contested issue because in the event of
conviction its weight would impact significantly on the
statutorily available sentence. At trial, the district court
ruled that the weight of the cocaine was an element of the
substantive offense which the jury had to determine. The
jury subsequently convicted the defendants.

On appeal, we affirmed the convictions but vacated the
sentences on the ground that section 841 clearly
distinguishes between the elements of the substantive
offense, as laid out in section 841(a), and the sentencing
provisions, which are set forth in section 841(b). Thus, we
held that "§ 841(b) is merely a penalty provision to be used
at sentencing, after conviction of the substantive crime."
Chapple, 985 F.2d at 731 (quoting United States v. Gibbs,
813 F.2d 596, 600 (3d Cir. 1987)). Accordingly, inasmuch
as section 841(b) rather than section 841(a) deals with the
weight of controlled substances, we remanded Chapple for
the district court to resentence on the basis of its
determination of the quantities involved. We conclude that
inasmuch as section 841(b) specifies both the quantities
and identities of controlled substances to be considered in
determining the sentence, Chapple requires us to hold that
the district court was correct in its determination that the
court should determine the type of cocaine Lewis
distributed as a sentencing factor.

                    6
At bottom, resolution of the issue with respect to whether
the jury or the court determines the identity of the
controlled substance depends on how Congress defined the
offense under section 841(a)(1). As we observed in United
States v. Conley, 92 F.3d 157, 165 (3d Cir. 1996), cert.
denied, 117 S.Ct. 1244 (1997), the Supreme Court has
permitted a state to treat conduct which arguably was an
element of an offense, the visible possession of a weapon,
as a sentencing factor to be determined by the court rather
than the jury. McMillan v. Pennsylvania, 477 U.S. 79, 106
S.Ct. 2411 (1986). The Supreme Court made clear in
McMillan that while there are constitutional limits beyond
which a state may not go in allocating to the trial court
factors affecting sentences, the requirement that the jury
determine beyond a reasonable doubt that the defendant
committed the crime depends on how the state defines the
offense. See id. at 84-86, 106 S.Ct. at 2415-16. In United
States v. Gaudin, ___ U.S. ___, #6D 6D6D#, 115 S.Ct. 2310, 2321
(1995), Chief Justice Rehnquist emphasized in his
concurrence that "definition of the elements of a criminal
offense is entrusted to the legislature, particularly in the
case of federal crimes which are solely creations of
statutes."

In this case, Congress clearly defined the offense as the
distribution of a "controlled substance," seemingly
purposely refraining from specifying a particular "controlled
substance" in section 841(a)(1). Furthermore, section
841(a)(1) is entitled "Unlawful acts," suggesting that the
section completely sets forth the elements of the offenses it
creates. While Congress could have enacted separate
statutes criminalizing the distribution of particular
controlled substances, it did not do so. Instead, it
characterized the determination of the identity and the
weight of the controlled substance as penalty factors in
section 841(b). We must honor that approach.

United States v. Conley supports our result, as it
indicates that the sentencing guidelines could make "the
object of a conspiracy charged under 18 U.S.C. § 371 a
matter for the sentencer rather than an element of the
crime" without violating the Sixth Amendment right to a
trial by jury. Conley, 92 F.3d at 166. Of course, we

                    7
acknowledge that the authority of Conley is somewhat
limited here because the object of the conspiracy in that
case was significant only with respect to the application of
the sentencing guidelines while here the identity of the
controlled substance was a factor in establishing the
possible sentence under section 841(b). Nevertheless, there
is likely no pertinent distinction to a defendant between a
court determining facts applicable to setting a guidelines
range and determining the sentence available under a
statute.

There is substantial support for our result in other
circuits. For example, in United States v. Barnes, 890 F.2d
545 (1st Cir. 1989), the Court of Appeals for the First
Circuit upheld a conviction and sentence in a case in which
the indictment charged the defendant with possession of
cocaine base with intent to distribute. In Barnes, the
district court sentenced the defendant on the basis of its
finding that the substance involved was cocaine base over
her objection that one chunk of cocaine seized may not
have contained cocaine base. The court explained that it
was

important to note that the court, not the jury,
determines the quantity and type of controlled
substance appropriate under 21 U.S.C. § 841(b).
Section 841(b) describes the penalty provisions for
violations of section 841(a), in this case possession of
a controlled substance with intent to distribute.
Therefore, as a penalty provision, the district court
judge determines the facts at the sentencing, and, on
appeal, we review the court's factual findings, not the
jury's verdict.

Id. at 551 n.6 (citations omitted).

Accordingly, in Barnes the court of appeals indicated that
"the district court judge properly made a finding during the
sentencing as to the quantity and type of the cocaine." Id.;
See also, e.g., United States v. Bingham, 81 F.3d 617, 628-
29 (6th Cir.), cert. denied, 117 S.Ct. 250 (1996); United
States v. McMurray, 34 F.3d 1405, 1414 (8th Cir. 1994),
cert. denied, 115 S.Ct. 1164 (1995); United States v. Young,
981 F.2d 180, 188 (5th Cir. 1992); United States v. Levy,
904 F.2d 1026, 1034 (6th Cir. 1990).

                     8
In reaching our result, we recognize that the Court of
Appeals for the Fifth Circuit in United States v. Bounds,
985 F.2d 188, 194-95 (5th Cir. 1993), has held that
although the quantity of controlled substances does not
constitute an element of the crime and is to be determined
by the court at sentencing, the identity of the controlled
substance is an element of the substantive crime to be
determined by the jury. The Bounds court, however, did not
provide any explanation for the distinction it drew in its
differing treatment of the identity and weight of the
controlled substance. Thus, we do not find Bounds
persuasive and we are unable to rely on it to distinguish
Chapple from this case.

We also are aware of opinions of other courts of appeals
which have held that where a jury returns a general verdict
of guilty to a conspiracy charge under 21 U.S.C. § 846
covering several controlled substances, the court must treat
the case as if the defendant conspired to commit an offense
involving only the controlled substance carrying the lowest
penalty under section 841(b). See United States v. Bounds,
985 F.2d at 195; United States v. Owens, 904 F.2d 411,
414-15 (8th Cir. 1990); Newman v. United States, 817 F.2d
635, 637-38 (10th Cir. 1987); United States v. Orozco-
Prada, 732 F.2d 1076, 1083 (2d Cir. 1984). In several of
these cases, the court of appeals remanded the case to the
district court for a new trial unless the government
consented to imposition of a sentence based on the
controlled substance carrying the lowest penalty.

But these conspiracy cases are not without detractors,
because the Court of Appeals for the Seventh Circuit has
held that where an indictment charges conspiracy to
distribute both powder cocaine and cocaine base, "as long
as the jury finds that the defendants conspired to distribute
any drug proscribed by § 841(a)(1), the judge possesses the
power to determine which drug, and how much [for the
purposes of sentencing the defendants]." United States v.
Edwards, 105 F.3d 1179, 1182 (7th Cir. 1997) (emphasis
in original). While Edwards reached its conclusion for what
it called the "simple" reason that under the sentencing
guidelines "the judge alone determines which drug was
distributed, and in what quantity," id. at 1180, the court

                    9
recognized that the distinction between powder cocaine and
cocaine base was significant under section 841(b) as well as
under the guidelines. Id. at 1181. Nevertheless, the court
reached its result on the theory that the distinction was not
germane to identifying the substantive offense committed,
because an "indictment could charge the defendants with
`conspiring to distribute controlled substances in violation
of 21 U.S.C. § 841(a)' without identifying either the
substances or the quantities." Id.

Because we conclude that the court at sentencing must
determine the nature of the controlled substance, the
government need only have proved by a preponderance of
the evidence that Lewis distributed cocaine base. See
Chapple, 985 F.2d at 731; see also United States v. James,
78 F.3d 851, 857-58 (3d Cir.) (holding that government
must prove by a preponderance of the evidence that cocaine
base sold by defendant was actually crack if judge is to
apply enhanced penalty under sentencing guidelines
applicable to cocaine base), cert. denied, 117 S.Ct. 128
(1996). The record in this case compels a conclusion that
the government met this burden because a laboratory
analysis established that the controlled substance involved
was cocaine base. We thus affirm the sentence imposed by
the district court.

b. Issues relating to the conviction

Lewis also has challenged the indictment and proofs,
arguing that there was a fatal variance between them. In
this regard, he points out that even though he was indicted
for distributing in excess of five grams of cocaine base, the
court charged the jury that it did not matter whether the
controlled substance was powder cocaine or cocaine base.
Lewis asserts that this charge to the jury broadened the
indictment and violated his right to be tried only on an
indictment returned by the grand jury.

We reject this argument. As we explained in United States
v. Padilla, 982 F.2d 110, 113 (3d Cir. 1992) (emphasis in
original), "[w]hen there is a variance between the indictment
and the proof at trial and when that variance prejudices a
substantial right of the defendant, we have held that the

                    10
conviction must be vacated." In determining whether there
has been a fatal variance, courts ascertain whether the
variance affects "the substantial rights of the accused either
(1) by insufficiently informing [the defendant] of the charges
against him such that he is taken by surprise and
prevented from presenting a proper defense, or (2) by
affording him insufficient protection against reprosecution
for the same offense." United States v. Pierce, 893 F.2d 669,
676 (5th Cir. 1990) (citation omitted). Here the alleged
variance clearly was not prejudicial because Lewis does not
contend that he was unaware that he was being tried for
the distribution of a controlled substance to Jones. Thus,
Lewis was able fully to make his defense and there is no
possibility that he will be indicted again for the events
involved here. Lewis suffers from the unfortunate fact that
his defense -- that he distributed powder cocaine--
amounted to a confession in front of the jury.

Other courts have held that there is not an impermissible
variance where the indictment charges the defendant with
offenses involving one controlled substance but the
evidence shows that the offenses actually involved another
controlled substance. Thus, in United States v. Knuckles,
581 F.2d 305 (2d Cir. 1978), the defendants were charged
with possession and distribution of heroin but they alleged
that the substance was cocaine. Nevertheless, the Court of
Appeals for the Second Circuit affirmed the conviction.
While we recognize that in Knuckles the court pointed out
that the variance did not affect the sentence, id. at 311, in
view of our conclusion that the determination of the
identity of the controlled substance is a sentencing factor
for the court, we do not see why the difference for
sentencing purposes between powder cocaine and cocaine
base should matter in a variance analysis. The Court of
Appeals for the Fifth Circuit, in a holding similar to
Knuckles, held that where the offense charged is
distribution of cocaine powder but the evidence at trial
showed that the substance was cocaine base, there was not
a fatal variance. United States v. Pierce, 893 F.2d at 676.

We also point out that we see no reason why an
indictment under section 841(a)(1) for possession or
distribution of a controlled substance need specify the

                    11
identity of the substance since, as we have explained, the
identity of the substance is a sentencing factor rather than
an element of the offense. See United States v. Edwards,
105 F.2d at 1181. Accordingly, the allegation in the
indictment that Lewis distributed cocaine base probably
was not needed. We hasten to add, however, that we are
well aware that indictments under section 841(a)(1)
ordinarily do specify the identity and amount of the
controlled substance and we do not question this practice.
Accordingly, United States Attorneys should not take this
opinion as signalling that that practice should be changed.

III. CONCLUSION

For the foregoing reasons, the judgment of conviction and
sentence of May 30, 1996, will be affirmed.

A True Copy:
Teste:

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

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