                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-5-2001

USA v. Kelly
Precedential or Non-Precedential:

Docket 00-2705




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Recommended Citation
"USA v. Kelly" (2001). 2001 Decisions. Paper 283.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/283


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Filed December 5, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-2705, 00-2849 & 00-3688

UNITED STATES OF AMERICA

v.

COREY KELLY, a/k/a "Tre," Appellant at No. 00-2705;
ROBERT DAVID, Appellant at No. 00-2849; and
BERNARD WINSTON, Appellant at No. 00-3688.

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Nos. 99-cr-00672-1, 99-cr-00672-7 & 99-cr-00672-8)
District Judge: Hon. Jerome B. Simandle

Submitted under Third Circuit LAR 34.1(a)
September 11, 2001

Before: MANSMANN, RENDELL and ALDISERT,
Circuit Judges.

(Filed: December 5, 2001)

       STEPHEN A. FELDMAN, ESQUIRE
       Feldman and Feldman
       300 Rabro Drive
       Hauppauge, NY 11788

       ATTORNEY FOR COREY KELLY

       DAVID L. RHOADS, ESQUIRE
       311 Whitehorse Ave. -- Suite A
       Trenton, N.J. 08610

       ATTORNEY FOR ROBERT DAVID
       MARK W. CATANZARO, ESQUIRE
       Blason IV -- Suite 208
       513 South Lenola Road
       Moorestown, N.J. 08057

       ATTORNEY FOR BERNARD
       WINSTON

       ROBERT J CLEARY, ESQUIRE,
       United States Attorney
       GEORGE S. LEONE, ESQUIRE,
       Chief Appeals Division
       NORMAN GROSS, ESQUIRE,
       Assistant United States Attorney,
        United States Attorney's Office
       Camden Federal Building and
        United States Courthouse
       P.O. Box 2098
       Camden, N.J. 08101-2098

       ATTORNEYS FOR UNITED STATES
       OF AMERICA

OPINION OF THE COURT

PER CURIAM:

We affirmed the judgment of the district court in all
respects in a Not for Publication Memorandum Opinion
filed October 26, 2001. We rejected, inter alia, Appellants'
contention that in light of the holding in Apprendi v. New
Jersey, 530 U.S. 466 (2000), the provisions of 21 U.S.C.
S 841 are facially unconstitutional and thus conspiracy
convictions thereunder are invalid. Thereafter, the United
States Attorney filed a motion asking that the portion of our
opinion addressing this issue be published, noting that the
constitutionality of the statute has been challenged in a
number of pending cases in this court and in various
district courts in our judicial circuit.1 We have decided to
_________________________________________________________________

1. See e.g., Wasang Thomas Mock v. Bernie D. Ellis, No. 01-2013; United
States v. Richard Marshall, No. 01-1825; United States v. Joseph Criniti,

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accommodate this request and set forth this brief statement
of our reasons for rejecting Appellants' argument.

Because this is a question of law only, we need not set
forth the facts other than to state that in these consolidated
cases, Corey Kelly, Robert David and Bernard Winston
appeal their respective judgments of conviction and
sentencing in drug cases. Count one of the indictment
charged Kelly, David, Winston and three other co-
defendants with conspiracy to distribute and possess with
the intent to distribute more than five grams of cocaine
base. Count four charged Kelly and another with the
substantive offense of distribution, and possession with
intent to distribute 4.1 grams of cocaine base. Count five
charged Kelly, David, Winston and others with a drug
trafficking count involving 23.5 grams. The jury convicted
Kelly on the conspiracy count and the substantive counts
four and five. The jurors also convicted both David and
Winston on the conspiracy count, but acquitted them on
count five.

Section 841(a), captioned "Unlawful acts," provides:

       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; or (2) to create, distribute, or
       dispense, or possess with intent to distribute, or
       dispense, a counterfeit substance.

21 U.S.C. S 841(a) (1994).

Section 841(b), captioned "Penalties," states that "any
person who violates subsection (a) of this section shall be
_________________________________________________________________

No. 01-1673; United States v. Eugene Williams , No. 01-1479. The issue
has also been raised in criminal and civil proceedings in our district
courts. See e.g., Gary Nero v. United States, D.N.J. Civ. No. 01-1927;
United States v. Wayman Brown, D.N.J. Crim. No. 01-477; United States
v. Louis Santaguida et al., D.N.J. Crim. No. 00-247; Anderson Delgado v.
Olson, D.N.J. Civ. No. 01-2538; Glendon Henry v. United States, D. Del.
No. 00-43, Civ. No. 01-619; Jorge Luis Orendain v. Warden, FCI McKean,
W.D. Pa. Civ. No. 01-310E; United States v. Hamlin, W.D. Pa. Crim. No.
98-43; United States v. Hurley, W.D. Pa. Crim. No. 88-219.

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sentenced as follows . . ." It then proceeds to lay out the
minimum and maximum penalties for possession of various
types and quantities of drugs, with adjustments depending
on whether the defendant has prior drug-related
convictions or whether the activities caused death or
serious injury.

In a recent en banc decision, this court made the
following determination in an Apprendi context:

       We indicated in United States v. Williams, 235 F.3d 858
       (3d Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3763
       (U.S. 2001), and we hold here, that an Apprendi
       violation only occurs if the drug quantity is not found
       by a jury beyond a reasonable doubt and the
       defendant's sentence under S 841 exceeds 20 years.

United States v. Vazquez, ___ F.3d ___, ___; 2001 WL
1188250 *3 (3d Cir. 2001) (en banc).

In light of the Apprendi holding, Appellants contend that
21 U.S.C. S 841 is facially unconstitutional, because
sentencing factors must now be treated as elements of the
offense and proven beyond a reasonable doubt. Kelly Brief
at 31. Because none of the Appellants challenged the facial
constitutionality of S 841(a) in the district court, this
contention is reviewed for plain error.

We conclude that Appellants may not prevail, because
the district court committed no "clear" or"obvious" error by
declining to declare all convictions under S 841(a) to be
facially unconstitutional. Every appellate court that has
considered the issue has upheld its constitutionality.2 One
court that has addressed facial constitutional challenges to
S 841 under Apprendi has concluded that such claims are
not only meritless, but "confused." United States v. Brough,
243 F.3d 1078, 1079 (7th Cir. 2001).3
_________________________________________________________________

2. A split panel of the Court of Appeals for the Ninth Circuit held
otherwise, but its opinion has been vacated. United States v. Buckland,
259 F.3d 1157 (9th Cir. 2001), opinion vacated and en banc
consideration granted, 2001 WL 1091167 (9th Cir. Sept. 24, 2001).

3. At least five other courts of appeals have considered the issue and
have essentially agreed with the Brough formulation. See United States v.

                               4
We agree with and adopt the reasoning of Brough:

       Apprendi . . . [does] not establish that anything in
       S 841 is unconstitutional or require[s] its severance. If
       Congress had specified that only judges may make the
       findings required by S 841(b), or that these findings
       must be made by a preponderance of the evidence,
       then S 841 would create a constitutional problem. But
       the statute does not say who makes the findings or
       which party bears what burden of persuasion. Instead
       the law attaches effects to facts, leaving it to the
       judiciary to sort out who determines the facts, under
       what burden. It makes no constitutional difference
       whether a single subsection covers both elements and
       penalties, whether these are divided across multiple
       subsections (as S 841 does), or even whether they are
       scattered across multiple statutes (see 18 U.S.C.
       SS 924(a), 1963). Apprendi holds that the due process
       clauses of the fifth and fourteenth amendments make
       the jury the right decision maker (unless the defendant
       elects a bench trial), and the reasonable-doubt
       standard the proper burden, when a fact raises the
       maximum lawful punishment. How statutes are
       drafted, or implemented, to fulfil that requirement is a
       subject to which the Constitution does not speak.

Brough, 243 F.3d at 1079.
_________________________________________________________________

Candelario, 240 F.3d 1300, 1311 n.16 (11th Cir. 2001) (finding a facial
challenge to drug statutes to be "without merit"); United States v.
Slaughter, 238 F.3d 580, 582 (5th Cir. 2000) ("We see nothing in the
Supreme Court decision in Apprendi which would permit us to conclude
that 21 U.S.C. SS 841(a) and (b), 846, and 860(a) are unconstitutional on
their face"); United States v. Meyst, 2001 WL 1126642 at *1 (4th Cir.
Sept. 25, 2001) ("On appeal, Meyst argues that the rule announced in
Apprendi v. New Jersey, 530 U.S. 466 (2000), renders 21 U.S.C.A S 841
. . . unconstitutional on its face. We reject this argument and affirm his
conviction and sentence"); United States v. Cernobyl, 255 F.3d 1215,
1219 (10th Cir. 2001) ("We now join [other] courts in holding that S 841
remains constitutionally enforceable notwithstanding Apprendi"); United
States v. Martinez, 253 F.3d 251, 256 n.6 (6th Cir. 2001) ("We decline
Appellants' invitation to find that 21 U.S.C. S 841 is unconstitutional in
light of the Supreme Court's decision in Apprendi").

                               5
Notably, the Supreme Court did not find the New Jersey
statute at issue in Apprendi to be facially unconstitutional
and unenforceable, but struck down only the procedure
employed to increase petitioner's sentence. See Apprendi,
530 U.S. at 497 ("[t]he New Jersey procedure challenged in
this case is an unacceptable departure from the jury
tradition that is an indispensable part of our criminal
justice system") (emphasis added).

Accordingly, we reject the contention that S 841 is facially
unconstitutional in light of Apprendi.

The judgment of the district court will be affirmed.

A True Copy:
Teste:

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

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