United States v. Lamance Cookie Bert, United States of America v. Lamance Cookie Bert

Lamance Cookie Bert (Bert) appeals his convictions under three counts of possession of a controlled substance with intent to distribute. The Government cross-appeals Bert’s sentence under one of the counts. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm with regard to Bert’s appeal. However, we vacate Bert’s sentence and remand for re-sentencing on the Government’s cross-appeal. In this opinion we address only the Government’s cross-appeal. We address the issues Bert raises on appeal in a contemporaneously filed unpublished memorandum.

I. BACKGROUND

Bert was tried and convicted under 21 U.S.C. § 841 for possessing, with intent to distribute, three controlled substances: cocaine, cocaine base and methamphetamine. Bert objected to the jury verdict form. Bert argued that the form conflicted with the plain language of 21 U.S.C. § 841 (b)(1)(A)(iii), because the form asked the jury whether it found that the substance or mixture involved in count one contained a “detectable amount” of cocaine base, while § 841 (b)(1)(A)(iii), unlike clauses (i), (ii) and (iv)-(viii), does not contain the phrase “detectable amount.”. The district court overruled Bert’s objection. The…