United States of America v. Corey Kelly, a/k/a "Tre,"

Filed December 5, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 00-2705, 00-2849 & 00-3688
UNITED STATES OF AMERICA
v.
COREY KELLY, a/k/a "Tre," Appellant at No. 00-2705;
ROBERT DAVID, Appellant at No. 00-2849; and
BERNARD WINSTON, Appellant at No. 00-3688.
On Appeal from the United States District Court
for the District of New Jersey
(D. C. Nos. 99-cr-00672-1, 99-cr-00672-7 & 99-cr-00672-8)
District Judge: Hon. Jerome B. Simandle
Submitted under Third Circuit LAR 34. 1(a)
September 11, 2001
Before: MANSMANN, RENDELL and ALDISERT,
Circuit Judges.
(Filed: December 5, 2001)
STEPHEN A. FELDMAN, ESQUIRE
Feldman and Feldman
300 Rabro Drive
Hauppauge, NY 11788
ATTORNEY FOR COREY KELLY
DAVID L. RHOADS, ESQUIRE
311 Whitehorse Ave. -- Suite A
Trenton, N.J. 08610
ATTORNEY FOR ROBERT DAVID

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MARK W. CATANZARO, ESQUIRE
Blason IV -- Suite 208
513 South Lenola Road
Moorestown, N.J. 08057
ATTORNEY FOR BERNARD
WINSTON
ROBERT J CLEARY, ESQUIRE,
United States Attorney
GEORGE S. LEONE, ESQUIRE,
Chief Appeals Division
NORMAN GROSS, ESQUIRE,
Assistant United States Attorney,
United States Attorney' s Office
Camden Federal Building and
United States Courthouse
P. O. Box 2098
Camden, N.J. 08101-2098
ATTORNEYS FOR UNITED STATES
OF AMERICA
OPINION OF THE COURT
PER CURIAM:
We affirmed the judgment of the district court in all
respects in a Not for Publication Memorandum Opinion
filed October 26, 2001. We rejected, inter alia, Appellants'
contention that in light of the holding in Apprendi v. New
Jersey, 530 U.S. 466 (2000), the provisions of 21 U. S.C.
§ 841 are facially unconstitutional and thus conspiracy
convictions thereunder are invalid. Thereafter, the United
States Attorney filed a motion asking that the portion of our
opinion addressing this issue be published, noting that the
constitutionality of the statute has been challenged in a
number of pending cases in this court and in various
district courts in our judicial circuit.1 We have decided to
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1. See e.g., Wasang Thomas Mock v. Bernie D. Ellis, No. 01-2013; United
States v. Richard Marshall, No. 01-1825; United States v. Joseph Criniti,
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accommodate this request and set forth this brief statement
of our reasons for rejecting Appellants' argument.
Because this is a question of law only, we need not set
forth the facts other than to state that in these consolidated
cases, Corey Kelly, Robert David and Bernard Winston
appeal their respective judgments of conviction and
sentencing in drug cases. Count one of the indictment
charged Kelly, David, Winston and three other co-
defendants with conspiracy to distribute and possess with
the intent to distribute more than five grams of cocaine
base. Count four charged Kelly and another with the
substantive offense of distribution, and possession with
intent to distribute 4.1 grams of cocaine base. Count five
charged Kelly, David, Winston and others with a drug
trafficking count involving 23.5 grams. The jury convicted
Kelly on the conspiracy count and the substantive counts
four and five. The jurors also convicted both David and
Winston on the conspiracy count, but acquitted them on
count five.
Section 841(a), captioned "Unlawful acts," provides:
Except as authorized by this subchapter, it shall be
unlawful for any person knowingly or intentionally--
(1) to manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a
controlled substance; or (2) to create, distribute, or
dispense, or possess with intent to distribute, or
dispense, a counterfeit substance.
21 U.S. C. § 841(a) (1994).
Section 841(b), captioned "Penalties," states that "any
person who violates subsection (a) of this section shall be
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No. 01-1673; United States v. Eugene Williams , No. 01-1479. The issue
has also been raised in criminal and civil proceedings in our district
courts. See e.g., Gary Nero v. United States, D.N.J. Civ. No. 01-1927;
United States v. Wayman Brown, D.N.J. Crim. No. 01-477; United States
v. Louis Santaguida et al., D.N.J. Crim. No. 00-247; Anderson Delgado v.
Olson, D.N.J. Civ. No. 01-2538; Glendon Henry v. United States, D. Del.
No. 00-43, Civ. No. 01-619; Jorge Luis Orendain v. Warden, FCI McKean,
W.D. Pa. Civ. No. 01-310E; United States v. Hamlin, W.D. Pa. Crim. No.
98-43; United States v. Hurley, W.D. Pa. Crim. No. 88-219.
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sentenced as follows . . ." It then proceeds to lay out the
minimum and maximum penalties for possession of various
types and quantities of drugs, with adjustments depending
on whether the defendant has prior drug-related
convictions or whether the activities caused death or
serious injury.
In a recent en banc decision, this court made the
following determination in an Apprendi context:
We indicated in United States v. Williams, 235 F. 3d 858
(3d Cir. 2000), petition for cert. filed, 69 U.S.L. W. 3763
(U. S. 2001), and we hold here, that an Apprendi
violation only occurs if the drug quantity is not found
by a jury beyond a reasonable doubt and the
defendant' s sentence under § 841 exceeds 20 years.
United States v. Vazquez, ___ F. 3d ___, ___; 2001 WL
1188250 *3 (3d Cir. 2001) (en banc).
In light of the Apprendi holding, Appellants contend that
21 U.S.C. § 841 is facially unconstitutional, because
sentencing factors must now be treated as elements of the
offense and proven beyond a reasonable doubt. Kelly Brief
at 31. Because none of the Appellants challenged the facial
constitutionality of § 841(a) in the district court, this
contention is reviewed for plain error.
We conclude that Appellants may not prevail, because
the district court committed no "clear" or" obvious" error by
declining to declare all convictions under § 841(a) to be
facially unconstitutional. Every appellate court that has
considered the issue has upheld its constitutionality.2 One
court that has addressed facial constitutional challenges to
§ 841 under Apprendi has concluded that such claims are
not only meritless, but "confused." United States v. Brough,
243 F.3d 1078, 1079 (7th Cir. 2001).3
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2. A split panel of the Court of Appeals for the Ninth Circuit held
otherwise, but its opinion has been vacated. United States v. Buckland,
259 F.3d 1157 (9th Cir. 2001), opinion vacated and en banc
consideration granted, 2001 WL 1091167 (9th Cir. Sept. 24, 2001).
3. At least five other courts of appeals have considered the issue and
have essentially agreed with the Brough formulation. See United States v.
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We agree with and adopt the reasoning of Brough:
Apprendi . . . [does] not establish that anything in
§ 841 is unconstitutional or require[s] its severance. If
Congress had specified that only judges may make the
findings required by § 841(b), or that these findings
must be made by a preponderance of the evidence,
then § 841 would create a constitutional problem. But
the statute does not say who makes the findings or
which party bears what burden of persuasion. Instead
the law attaches effects to facts, leaving it to the
judiciary to sort out who determines the facts, under
what burden. It makes no constitutional difference
whether a single subsection covers both elements and
penalties, whether these are divided across multiple
subsections (as § 841 does), or even whether they are
scattered across multiple statutes (see 18 U.S.C.
§§ 924(a), 1963). Apprendi holds that the due process
clauses of the fifth and fourteenth amendments make
the jury the right decision maker (unless the defendant
elects a bench trial), and the reasonable-doubt
standard the proper burden, when a fact raises the
maximum lawful punishment. How statutes are
drafted, or implemented, to fulfil that requirement is a
subject to which the Constitution does not speak.
Brough, 243 F. 3d at 1079.
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Candelario, 240 F.3d 1300, 1311 n.16 (11th Cir. 2001) (finding a facial
challenge to drug statutes to be "without merit"); United States v.
Slaughter, 238 F. 3d 580, 582 (5th Cir. 2000) ("We see nothing in the
Supreme Court decision in Apprendi which would permit us to conclude
that 21 U. S.C. §§ 841(a) and (b), 846, and 860(a) are unconstitutional on
their face"); United States v. Meyst, 2001 WL 1126642 at *1 (4th Cir.
Sept. 25, 2001) ("On appeal, Meyst argues that the rule announced in
Apprendi v. New Jersey, 530 U.S. 466 (2000), renders 21 U.S.C.A § 841
. . . unconstitutional on its face. We reject this argument and affirm his
conviction and sentence"); United States v. Cernobyl, 255 F. 3d 1215,
1219 (10th Cir. 2001) ("We now join [other] courts in holding that § 841
remains constitutionally enforceable notwithstanding Apprendi"); United
States v. Martinez, 253 F. 3d 251, 256 n.6 (6th Cir. 2001) ("We decline
Appellants' invitation to find that 21 U.S.C. § 841 is unconstitutional in
light of the Supreme Court' s decision in Apprendi").
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Notably, the Supreme Court did not find the New Jersey
statute at issue in Apprendi to be facially unconstitutional
and unenforceable, but struck down only the procedure
employed to increase petitioner' s sentence. See Apprendi,
530 U.S. at 497 ("[t]he New Jersey procedure challenged in
this case is an unacceptable departure from the jury
tradition that is an indispensable part of our criminal
justice system") (emphasis added).
Accordingly, we reject the contention that § 841 is facially
unconstitutional in light of Apprendi.
The judgment of the district court will be affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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