United States v. Calvin Wayne Buckland

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

ORDER

The mandate issued February 11, 2002 is hereby recalled for the purpose of amending the opinion. The Opinion filed January 18, 2002, and located at 277 F.3d 1173 is amended as follows:

*562 Page 1184 in section “B. § 5G1.2(d) STACKING” which reads in the second to the last sentence in the first paragraph, “However, the district court determined under U.S.S.G. § 2D1.1(a)(3) that his sentence should be 324 months based on a combined offense level of 36 and a Guideline range of 320 to 405 months”, is amended to read:

The mandate shall issue forthwith.

OPINION

TROTT, Circuit Judge, with whom SCHROEDER, Chief Judge, O’SCANNLAIN, KLEINFELD, RONALD M. GOULD, and RICHARD C. 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 “[ojther 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…

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 564, 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 “constitutionally doubtful constructions” where fairly possible,

CFTC v. Schor, 478 U.S. 833, 841 , 106 S.Ct. 3245 , 92 L.Ed.2d 675 (1986) (emendations in the original) (quoting Aptheker v.…

289 F.3d 558 UNITED STATES of America, Plaintiff-Appellee, v. Calvin Wayne BUCKLAND, Defendant-Appellant. No. 99-30285. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc September 26, 2001. Filed January 18, 2002. Amended May 7, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Zenon P. Olbertz, Law Office of Zenon Peter Olbertz, Tacoma, WA, for the defendant-appellant. J. Douglas Wilson, United States Attorney's Office, San Francisco, CA, for the plaintiff-appellee. Arlen Storm, United States Attorney's Office, Seattle, WA, for the plaintiff-appellee. Benjamin L. Coleman, Federal Defenders of San Diego, Inc., San Diego, CA, amici curiae in support of the defendant-appellant. Steven F. Hubachek, Federal Defenders of San Diego, Inc., San Diego, CA, 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: SCHROEDER, Chief Judge, HUG, REINHARDT, O'SCANNLAIN, TROTT, T.G. NELSON, KLEINFELD, TASHIMA, GOULD, PAEZ, and TALLMAN, Circuit Judges. 1 Opinion by Judge TROTT; Partial Concurrence and Partial…