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Although a drug defendant’s 24-year sentence technically violated the U.S. Supreme Court’s decision in Apprendi v. New Jersey because the jury was never asked to render a verdict on the quantity of drugs, a sharply divided 13-judge panel of the 3rd U.S. Circuit Court of Appeals has ruled that the sentence must stand because any rational jury would have reached the same conclusion as the trial judge. Voting 7-6, the court held in United States v. Vazquez that because the defense lawyer failed to raise the Apprendi issue at trial, the lower court’s error should be reviewed only for “plain error.” “Because we remain confident that a rational jury would have found, beyond a reasonable doubt, the drug quantities that the judge found, we conclude that Vazquez is not entitled to plain error relief and we will therefore affirm his sentence,” 3rd Circuit Judge Julio M. Fuentes wrote. But the court’s 63-page decision was a splintered one. Judge Dolores K. Sloviter wrote a dissent that was joined by three other judges — Carol Los Mansmann, Richard L. Nygaard and Theodore A. McKee — and partially joined by Judges Jane R. Roth and Marjorie O. Rendell. Rendell authored a second dissent, and Chief 3rd Circuit Judge Edward R. Becker wrote a concurring opinion that was joined by Judge Thomas L. Ambro. In the majority opinion, Fuentes found that the sentence should be upheld because the evidence was “overwhelming.” “The evidence at trial showed that Vazquez was the leader of a drug trafficking operation that distributed powder and crack cocaine in Lancaster County,” Fuentes wrote. Police had seized about 992 grams of powder cocaine and 859 grams of crack cocaine from a rooming house, Fuentes noted, and evidence at trial showed that Vazquez had given the drugs to a co-conspirator for storage. “The trial testimony directly tied Vazquez to a drug conspiracy with the co-conspirator. … On the basis of this evidence, including the undisputed evidence of drug quantity, a rational jury would certainly have found that Vazquez had conspired to possess or distribute no less than 992 grams of powder cocaine, almost twice the amount necessary to support his slightly more than 24-year sentence,” Fuentes wrote. Sloviter, in the portion of her dissent that enjoyed five votes, said that instead of affirming the sentence on the ground that Vazquez’s substantial rights were not affected, as the majority had, she would follow the approach adopted by several other circuits to vacate the sentence and remand for resentencing within the 20-year statutory maximum sentence authorized by the jury verdict. “Although not every court that has found an Apprendi violation followed the course of these cases, I believe that course is the one demanded by justice,” Sloviter wrote. In the second part of her dissent, Sloviter said she believed the lower court’s Apprendi error was a “structural defect.” “Structural defects are per se prejudicial and pretermit the substantial rights inquiry,” Sloviter said. The majority, she said, engaged in a flawed syllogism when it reasoned that Apprendi violations result in both trial and sentencing errors, albeit ones that rise to a constitutional dimension; that the Supreme Court has instructed that most constitutional errors can be harmless; that both trial errors and sentencing errors have been subjected to harmless or plain error analysis; and that therefore an Apprendi violation is not a structural defect. “I believe the majority’s syllogism is flawed and that the issue of an Apprendi violation as a structural defect merits more analysis than has been given to it in the cases, including even those cases that have reversed sentences imposed in violation of Apprendi and remanded for resentencing,” Sloviter wrote. In a separate dissent, Rendell said she disagreed with Sloviter’s conclusion that the error is structural. Instead, Rendell found that the error did not occur until the sentence and therefore did not “infect the entire trial process.” “I can find no Supreme Court opinion that suggests that a sentencing error can be ‘structural,’” Rendell wrote. But Rendell’s strongest criticisms were for the majority. “The majority has written a new chapter in the book of plain error review of sentencing, and, I further suggest, has rewritten Apprendi,” Rendell wrote. Rendell said the law requires resentencing whenever a sentence has been imposed in violation of the law. “And even under the microscope of plain error review, we have had little difficulty noticing an error and remanding cases for resentencing where substantial rights were affected and the integrity of our system had been undermined by illegal sentences,” she wrote. “Today, we are not requiring a new sentencing proceeding, nor are we even saying that a new trial should occur, which could arguably follow from the logic and language of Apprendi. Rather, we search for a way to uphold an offensive, unconstitutional sentence, although there is no intimation in Apprendi that such a sentence can ever be countenanced, in the first instance, let alone preserved by the jurists’ view of what may have occurred,” Rendell wrote. In his concurring opinion, Chief Judge Becker said he agreed with the majority’s ultimate conclusion that Vazquez’s sentence should be affirmed because the failure to submit the issue of the quantity of drugs to the jury did not affect his “substantial rights.” But Becker said he would have approached the case differently because Apprendi’s “doctrinal shift” has revealed fundamental flaws in the way the courts have interpreted the drug statutes. Apprendi, Becker said, “exposed the instability of our prior holding that under 21 U.S.C. Section 841, drug type and quantity are sentencing factors, requiring only proof by a preponderance of the evidence to a judge, instead of elements of the offense, which would require proof beyond a reasonable doubt to a jury.” Becker said the majority opinion “partially retreats from our prior position in holding that, at least when drug quantity increases the statutory maximum penalty, it must, per Apprendi, be submitted to the jury and proved beyond a reasonable doubt.” But Becker said he believes Apprendi calls for a complete rethinking of existing 3rd Circuit law on the issue. “It has become clear to me, however, upon reconsidering Section 841 in light of Apprendi, that our prior statutory construction ought to be abandoned altogether,” Becker wrote. “I submit that drug type and quantity are always elements of an offense under Section 841, and therefore must always be submitted to the jury for proof beyond a reasonable doubt. Concomitantly, I believe that drug type and quantity should not be treated as element-like factors only when they increase the prescribed statutory maximum penalty,” Becker wrote. Becker said he was guided by congressional intent. “In my view, Congress’s intent to make drug type and quantity elements of a Section 841 offense is evident from the statute’s legislative history. It is also evident from the structure of Section 841, which, when interpreted according to the canons of construction used by the Supreme Court to distinguish between offense elements and sentencing factors, indicates that Congress intended for drug type and quantity to be elements of an offense,” Becker wrote. On a practical level, Becker said, “requiring drug type and quantity to be proved to the jury beyond a reasonable doubt would not cause problems in the prosecution and trial processes; indeed, in the wake of Apprendi, federal courts throughout the nation are easily accommodating this requirement.”

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