United States v. Calvin Wayne Buckland

277 F.3d 1173 (9th Cir. 2002) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. CALVIN WAYNE BUCKLAND, DEFENDANT-APPELLANT. No. 99-30285 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted En Banc September 26, 2001 Filed January 18, 2002 NOTE: SEE AMENDED OPINION OF MAY 7, 2002.[Copyrighted Material Omitted][Copyrighted Material Omitted] Zenon P. Olbertz, Law Office of Zenon Peter Olbertz, Tacoma, Washington, for the defendant-appellant. J. Douglas Wilson, United States Attorney's Office, San Francisco, California, for the plaintiff-appellee. Arlen Storm, United States Attorney's Office, Seattle, Washington, for the plaintiff-appellee. Benjamin L. Coleman, Federal Defenders of San Diego, Inc., San Diego, California, amici curiae in support of the defendant-appellant. Steven F. Hubachek, Federal Defenders of San Diego, Inc., San Diego, California, amici curiae in support of the defendant-appellant. Appeal from the United States District Court for the Western District of Washington Jack E. Tanner, District Judge, Presiding D.C. No. CR 94-5073 JET Before: Mary M. Schroeder, Chief Judge, Procter Hug, Jr., Stephen Reinhardt, Diarmuid F. O'Scannlain, Stephen S.…

Opinion by Judge TROTT; Partial Concurrence and Partial Dissent by Judge HUG; Dissent by Judge TASHIMA.

OPINION

with whom SCHROEDER, Chief Judge, O’SCANNLAIN, KLEINFELD, GOULD, and TALLMAN, Circuit Judges, join. Circuit Judge T.G. NELSON joins except for Part IV B:

On June 26, 2000, the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 490 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), 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.” Calvin Buckland asks us to conclude that this holding renders facially unconstitutional 21 U.S.C. § 841 (b)(1)(A), (B), the laws which provide in certain controlled substance cases for sentences beyond the basic 20-year maximum imposed by § 841(b)(1)(C) for default cases where quantity is not a sentence-determining fac *1177 tor. In the alternative, Buckland argues that his individualized sentence examined in the light of Apprendi constituted plain error, and urges that we vacate and remand for resentencing. As have our sister circuits before us, 1 we hold that § 841 is not facially…

Concurring and Dissenting. Circuit Judges REINHARDT and T.G. NELSON join in part V of Judge Hug’s opinion:

Basically, I agree with the majority opinion with the exception of Section IV B, from which I dissent. I concur in the judgment.

Section III of the opinion correctly determines that Section 841 is constitutional and that Sections 841(b)(1)(A) and 841(b)(1)(B), which set forth increased maximum sentences for drug quantity and type, must be charged in the indictment and proved to a jury beyond a reasonable doubt. Where I differ with section III is that I believe that those statutory sections prescribe separate aggravated offenses, even though they are labeled as penalties, and the quantities specified are elements of those aggravated offenses. The opinion appears to conclude that these sections fall into a new category denominated “sentencing factors” that must be charged in the indictment and proved to a jury beyond a reasonable doubt, but are not elements of aggravated crimes. I believe this unnecessarily complicates the inquiry in this case and the application of Section 841 in future cases.

In applying recent Supreme Court cases, the proper inquiry is whether the statute…

with whom REINHARDT and PAEZ, Circuit Judges, join, dissenting:

Because the majority, while purporting to follow the “basic principles of statutory construction,” Maj. op. at 1179, fails to do so, I dissent. My position that 21 U.S.C. § 841 is facially unconstitutional is fully set forth in the panel opinion. See United States v. Buckland, 259 F.3d 1157 (9th Cir.), reh’g en banc granted, 265 F.3d 1085 (9th Cir.2001). Rather than restate all of the reasons for my position, to which I continue to adhere, I emphasize only a few salient points.

The overarching principle of statutory construction is not to avoid finding a statute unconstitutional at all costs. Rather, as the majority acknowledges, “[wjhere Congress has made its intent clear, ‘we must give effect to that intent.’ ” Miller v. French, 530 U.S. 327, 341 , 120 S.Ct. 2246 , 147 L.Ed.2d 326 (2000) (quoting Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, 215 , 82 S.Ct. 1328 , 8 L.Ed.2d 440 (1962)). Thus, although I agree that we should avoid *1199 “constitutionally doubtful constructions” where fairly possible,

CFTC v. Schor, 478 U.S. 838 , 841, 106 S.Ct. 3245 , 92 L.Ed.2d 675 (1986) (emendations in the original) (quoting…