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A U.S. Supreme Court ruling mandating that any fact increasing a sentence beyond the statutory maximum must be alleged in the indictment and proven beyond a reasonable doubt to a jury has been applied in another context by the 2nd U.S. Circuit Court of Appeals. In the latest 2nd Circuit decision to follow the Supreme Court’s ruling in the so-called Apprendi case, the appeals court found that a failure to prove drug quantity beyond a reasonable doubt prejudiced a drug dealer who was sentenced to 22 months beyond the maximum penalty. The appeals court in United States v. John Doe, 00-1514, vacated the sentence imposed by Eastern District of New York Judge Sterling Johnson Jr. and directed that the defendant be sentenced to no more than 20 years in prison. The rule announced by the U.S. Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) prompted the 2nd Circuit to decide United States v. Thomas, 274 F.3d 466 (2001), an en banc ruling involving drug type and quantity as essential elements of the drug dealing offense of 21 U.S.C. � 841(b). The appeals court found in Thomas that both elements — in that they increase the penalty beyond the statutory maximum — must be alleged in the indictment and found by a jury. But in the subsequent case, John Doe, where the defendant pleaded guilty and was cooperating with the government, the relevant drug statute was 21 U.S.C. � 960 (b)(1)(B)(ii), which deals with the importation of controlled substances. The 2nd Circuit quickly concluded that the two statutes track one another, and that the rulings announced in the Apprendi and Thomas apply to � 960. But John Doe’s case was also unique because he was cooperating with the government. He had been arrested after authorities discovered he had provided payoffs to a U.S. Customs inspector at J.F.K. International Airport as part of a cocaine smuggling operation. After reaching a cooperation agreement with the government, the defendant in Doe pleaded guilty to a single count in the indictment. No mention of drug quantity was made during the guilty plea. While the defendant testified against the U.S. Customs inspector, the government was less than pleased with his cooperation, and following trial, prosecutors refused to provide a letter to the presiding judge saying that they would not oppose a downward departure under the sentencing guidelines. In its presentence report, the probation department recommended that 65 kilograms of cocaine be attributed to John Doe, an amount that would have subjected him to a prison sentence of between 188 to 235 months in prison. But the government later requested, and received, an amendment to the report increasing the drug quantity to 150 kilograms, which would have subjected the defendant to a sentence of between 262 and 325 months in prison. Judge Johnson, without making specific finding of drug quantity, sentenced the defendant to 262 to 325 months in prison. The sentence was at least 22 months over the statutory maximum sentence. The defendant then appealed. PLAIN ERROR REVIEW Writing for the 2nd Circuit, Judge Fred I. Parker said that in Thomas, the appeals court had found that the “failure to charge drug type and quantity in the indictment or to submit the question of drug type or quantity to the jury is subject to plain error review … when the defendant raised no objection before the District Court.” If the reviewing court finds plain error that affects substantial rights, it then decides whether to exercise its discretion to correct the error, something that is done only if it is one that “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Parker said the failure to charge drug quantity in the Doe indictment was indeed plain error, but the error did not affect substantial rights because Doe was “well-warned” that his “punishment was not governed by the provision for undetermined quantities of cocaine, but by the more stringent quantity-based standard noted parenthetically in the indictment.” But Parker said the same did not hold true on the requirement that the quantity be submitted to the jury for a finding beyond reasonable doubt. The defendant in Doe, he said, did not “admit or specifically address drug quantities in his plea allocution,” and therefore the district court’s plain error in sentencing the defendant to 22 months in excess of the statutory maximum affected his substantial rights. “Unlike the error in Doe’s indictment, we find that the error in Doe’s sentence should be noticed and corrected at this stage because failure to correct it would seriously affect the fairness and public reputation of judicial proceedings,” Judge Parker said. ISSUE IN ‘COTTON’ Parker said there remained one unresolved issue. After oral argument in Doe, the U.S. Supreme Court issued a decision in United States v. Cotton, 01-687, 2002 U.S. LEXIS 3565, in which it reversed a 4th Circuit ruling and reinstated a district court’s finding of drug quantity and subsequent sentence beyond the statutory maximum. The Supreme Court noted that evidence at the Cotton trial on drug quantity was “overwhelming” and “substantially uncontroverted,” and that the “real threat” to the fairness, integrity and public reputation of judicial proceedings would be if, despite such overwhelming evidence, a defendant received a lesser sentence over an “error that was never objected to at trial.” Nonetheless, Parker said: “we cannot find the evidence against Doe sufficient to meet Cotton‘s deservedly high standard.” And while Cotton “clearly governs” plain error review where the evidence is overwhelming, he said, “we will not apply its rule to a case in which drug quantity was not only not charged in the indictment or found by the jury, but was further not ‘overwhelmingly’ established by the evidence accumulated during the course of the district court proceedings.” Senior Judge Wilfred Feinberg and James L. Oakes joined in the opinion. James Neuman and Richard Jasper represented the defendant. Assistant U.S. Attorney Bernadette Miragliotta represented the government.

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