United States of America v.  ANDERSON BENENHALEY, a/k/a Andy

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4415 
ANDERSON BENENHALEY, a/k/a Andy,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-99-73-DWS, CR-98-524-DWS)
Argued: November 1, 2001
Decided: February 20, 2002
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
Affirmed in part and vacated and remanded in part by published per
curiam opinion. Judge Luttig wrote a dissenting opinion.
COUNSEL
ARGUED: Deborah R. J. Shupe, LOUTHIAN LAW FIRM, P.A.,
Columbia, South Carolina, for Appellant. Jane Barrett Taylor, Assis-
tant United States Attorney, Columbia, South Carolina, for Appellee.
ON BRIEF: Scott N. Schools, United States Attorney, Columbia,
South Carolina, for Appellee.

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OPINION
PER CURIAM:
Anderson Benenhaley challenges his methamphetamine conspiracy
conviction and his life sentence for that conviction, in light of the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466,
490 (2000) ("Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory max-
imum must be submitted to a jury, and proved beyond a reasonable
doubt."). We affirm the conviction, vacate the sentence, and remand
for resentencing.
Benenhaley was indicted for various firearm and controlled sub-
stance offenses. The indictments did not specify drug quantity but
simply stated that Benenhaley distributed, conspired to distribute, or
conspired to possess with intent to distribute an unspecified "quan-
tity" or "quantities" of methamphetamine. Benenhaley pled guilty to
possession of firearms as a convicted felon in violation of 18
U.S.C.A. § 922(g) (West 2000); a jury convicted him of conspiracy
to possess methamphetamine with intent to distribute it and distribu-
tion of methamphetamine, in violation of 21 U.S.C.A. § 841 (West
1997) and § 846 (West 1999).
Attributing 1.9 kilograms of pure methamphetamine to Benenha-
ley, the district court assigned him an offense level of 36. U.S. Sen-
tencing Guidelines Manual § 2D1.1 (1998). The court then sentenced
him to life imprisonment for the conspiracy count and concurrent
shorter sentences on the other counts. The life sentence exceeded the
statutory maximum otherwise applicable under the then-current ver-
sion of Section 841(b)(1)(C). 21 U.S.C.A. § 841(b)(1)(C) (West
1997). Benenhaley appeals, challenging both his conviction and sen-
tence.
As the Government concedes, Apprendi and this court’s decisions
in United States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc),
and United States v. Cotton, 261 F.3d 397 (4th Cir. 2001), require that
we vacate Benenhaley’s sentence and remand for resentencing. See
Promise, 255 F.3d at 157, 160 (holding that the failure to charge a
specific threshold drug quantity in the indictment and to submit the
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quantity to the jury constitutes plain error affecting a defendant’s sub-
stantial rights); and Cotton, 261 F.3d at 403-04, 405-07 (holding that
such an error seriously affects the fairness, integrity, or public reputa-
tion of judicial proceedings, so that this court should exercise its dis-
cretion to recognize the error even if it has not been raised before the
district court).
Benenhaley also contends that the absence of a specific drug quan-
tity in his indictment requires reversal of his conviction. However,
recently when another defendant, Mario Promise, made the same con-
tention, Promise, 255 F.3d at 160 (noting that "Promise asserts that
the error is in his conviction"), the en banc court expressly rejected
the contention. Id. ("[w]e conclude that the error was not in Promise’s
conviction"). The en banc court held that an indictment that charges
an unspecified drug quantity suffices to support a conviction under 21
U.S.C. § 841, id. at 160 and at 186 (Motz, J., joined by Judges Wid-
ener, Michael, and King concurring in this part of the principal opin-
ion), and affirmed the conviction despite Promise’s direct challenge
to it. Id. at 165. See also United States v. Dinnall, 269 F.3d 418, 423
n.3 (4th Cir. 2001) (concluding that "the error identified by Promise
is not an error . . . in the conviction"). Accordingly Benenhaley’s
challenge to his conspiracy conviction fails.
Finally, Benenhaley asks us to direct the district court when resen-
tencing him not to attribute to him certain methamphetamine seen in
his possession, because a drug-addicted witness’s estimate supplied
the only evidence of quantity. Evidence underlying a finding of drug
quantity must "possess[ ] sufficient indicia of reliability to support its
probable accuracy." United States v. Uwaeme, 975 F.2d 1016, 1021
(4th Cir. 1992). The witness in question testified that he saw Benen-
haley with "three or four bags," that he did not see the bags weighed,
that he estimated the bags to weigh "about four pounds, maybe five"
based on a third party’s estimate of their financial value, and that
Benenhaley gave him pure methamphetamine out of one of the bags.
The district court used the lower estimate of four pounds, or 1.8
kilograms, and the Government otherwise established 96.65 grams of
pure methamphetamine. We have approved district courts’ use of the
low end of a witness’s estimate, United States v. Lamarr, 75 F.3d
964, 972-73 (4th Cir. 1996), and reliance on an estimate based on a
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visual comparison to a candy vial. United States v. Cook, 76 F.3d 596,
604 (4th Cir. 1996). Moreover, in this case the low end of the wit-
ness’s estimate could almost be halved without any effect on Benen-
haley’s offense level. U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(2, 3). Given these circumstances, we see no error in the
district court, on remand, again considering the testimony in question.
For the foregoing reasons, we affirm Benenhaley’s conviction,
vacate his sentence, and remand for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
LUTTIG, Circuit Judge, dissenting:
I separately stated my views regarding the proper interpretation of
21 U.S.C. § 841 in United States v. Promise, 255 F.3d 150, 168-86
(4th Cir. 2001) (en banc), and I need not repeat those views today.
However, I noted there that, while the reasoning of the Supreme
Court’s opinion in Apprendi is arguably quite broad, the actual hold-
ing of that case is considerably narrower. Although the Court’s rea-
soning could be read to require that any fact that increases a
defendant’s sentence, even within the statutory range, must be
charged in the indictment and proven beyond a reasonable doubt to
the jury, the narrower holding is only that the jury must find beyond
a reasonable doubt those facts that increase a sentence beyond the
maximum authorized by statute.
I explained in Promise my view that the majority of our court had
mistakenly applied the broader reasoning in Apprendi — effectively
ignoring both Apprendi’s more limited holding and the Supreme
Court’s own explicit refusal to overrule McMillan v. Pennsylvania,
477 U.S. 79 (1986) — to hold that, "in order to authorize the imposi-
tion of a sentence exceeding the maximum allowable without a jury
finding of a specific threshold drug quantity, such drug quantities
must be treated as elements of aggravated drug trafficking offenses,"
255 F.3d at 152. As I noted, the Promise majority created literally
scores of separate offenses within section 841 alone by so holding.
I did not believe at the time that the majority of our court fully
understood the consequences of its misunderstanding of Apprendi,
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even for section 841. Now, however, those consequences — not only
for section 841 but for all criminal statutes — are becoming painfully
more apparent.
Of paramount importance, the reasoning of Promise leads inexora-
bly to the conclusion that the actual convictions under section 841,
and not merely the sentences imposed for those convictions, are
invalid, whenever merely "a quantity" of controlled substance is
charged in the underlying indictment. This follows from two concep-
tually independent, though related, lines of reasoning.
First, the reasoning of Promise applies not only to the statutory
provisions of section 841, but also to the sentencing scheme superim-
posed by the Sentencing Guidelines. The unavoidable results of this
principled application of the Promise reasoning to the sentencing
scheme is that section 841(b)(1)(C) itself must also be parsed into
multiple offenses, and further, that some allegation regarding drug
quantity more specific than merely "a quantity" is now, as a matter
of constitutional law, an element of each such offense. Second, it is
evident, on the reasoning of Promise, that the statutory language of
section 841(b)(1)(C), which was never analyzed by the Promise
majority, also dictates that a specific allegation of drug quantity is an
element of every section 841 offense.
On each of these lines of reasoning, it follows that an indictment
that alleges only "a quantity" of the drug in question does not charge
a section 841 offense at all. In other words, by virtue of the reasoning
in Promise, it turns out that section 841(b)(1)(C) is not, as the Prom-
ise majority believed, a catch-all or lesser-included offense, under
which defendants may be sentenced even when indictments do not
specify drug quantity.
With respect to the first argument, the reasoning marshaled in
Promise that showed that section 841 actually comprises numerous
different substantive offenses likewise shows, when the Sentencing
Guidelines are brought into play, that section 841(b)(1)(C) itself com-
prises multiple separate offenses. The analysis is this. In order to jus-
tify its fragmentation of section 841, Promise explained that "a fact
finding increases a defendant’s sentence beyond the statutory maxi-
mum whenever it exposes him to a ‘penalty exceeding the maximum
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[the defendant] would receive if punished according to the facts
reflected in the jury verdict alone.’" Promise, 255 F.3d at 167 n.6
(quoting Apprendi, 530 U.S. at 483). Promise, therefore, wholly with-
out regard to the language of section 841, defined "statutory maxi-
mum" as the maximum penalty that could be imposed based
exclusively on the facts found by the jury.1 On this understanding of
Apprendi, Promise concluded that, where specific threshold drug
quantities were not both indicted and proven to the jury beyond a rea-
sonable doubt, a defendant could only be sentenced under section
841(b)(1)(C), to a maximum prison term of 20 years.
The Promise majority further believed that "Apprendi dictates that
in order to authorize the imposition of a sentence exceeding the maxi-
mum allowable without a jury finding of a specific threshold drug
quantity, the specific threshold quantity must be treated as an element
of an aggravated drug trafficking offense." 255 F.3d at 156.
Thereby did our court in Promise dice section 841 into countless
different substantive offenses.
But under the Sentencing Guidelines, U.S.S.G. § 2D1.1, the so-
called threshold quantity under section 841(b)(1)(C) is not 5 grams,
as under section 841(b)(1)(B), but, rather, 2.5 grams. The Guidelines
assign an offense level of 12 to a defendant found to possess less than
2.5 grams of methamphetamine. Assuming away criminal history,
which does not substantively alter the analysis, such a defendant is
exposed to a sentence of at most 16 months, not 20 years. In order
to impose a sentence greater than 16 months, a finding that the defen-
dant is responsible for 2.5 grams or more must be made, raising the
defendant’s offense level to 14. The reasoning of Promise requires
1This definition of "statutory maximum" stands in stark contrast to the
definition at least implicitly accepted by this court in United States v.
Kinter, 235 F.3d 192, 199-200 (4th Cir. 2000) (approving of the govern-
ment’s argument that in order to find the "‘prescribed statutory maxi-
mum’ as contemplated in Apprendi, one need only look to the language
of the statute criminalizing the offense, and no further") (emphasis
added). Based on this understanding, the court went on to reject the argu-
ment that the Guidelines provide the statutory maximum for Apprendi
purposes.
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that this element of a quantity of 2.5 grams or more be indicted and
found by the jury beyond a reasonable doubt. That is, focusing on
methamphetamine for example, Promise’s reasoning requires the sep-
aration of section 841(b)(1)(C) into two distinct offenses — one, the
manufacture or distribution of 2.5 grams or more of controlled sub-
stance; the other, the manufacture or distribution of less than 2.5
grams — just as that reasoning required that section 841 be separated
into its multiple offenses.
Accordingly, Promise, without any additional analysis whatever,
requires that Benenhaley be sentenced to no more than 16 months
imprisonment. To authorize a sentence of twenty years, as the major-
ity does, is, per our own decision in Promise, to deprive Benenhaley
of his constitutional right to trial by jury.
But, in my view, even this minimum sentence cannot stand,
because drug quantity information is an element of each of these new,
Promise-created section 841(b)(1)(C) offenses, not simply the more
culpable of the two. This follows from an analysis of the text of the
statute, and, in this case, the Guidelines. See, e.g., Staples v. United
States, 511 U.S. 600, 604 (1994) (noting that the determination of the
elements of an offense is a matter of statutory construction). A viola-
tion of the "aggravated" section 841(b)(1)(C) offense (to borrow
Promise’s terminology) requires the defendant to be responsible for
2.5 grams or more of methamphetamine. See U.S.S.G. § 2D1.1. This
is the threshold drug quantity that, under Promise, must be treated as
an element.
A violation of the un-"aggravated" section 841(b)(1)(C) offense,
however, requires that the defendant be responsible for less than 2.5
grams; defendants responsible for at least 2.5 grams have committed
the separate aggravated section 841(b)(1)(C) offense, but not the
lower offense. This follows from the fact that the Guidelines require
a quantity less than 2.5 grams in order for the lesser sentence to be
applicable. Drug quantity information, then, is an element of both sec-
tion 841(b)(1)(C) offenses, not merely the aggravated offense,
because such information goes to the very definition of the offenses.
Of course, this means that drug quantity information is an element of
all methamphetamine-related section 841 offenses.
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To be sure, Promise was concerned with statutory maximums
(though certainly not in the traditional sense), but the administrative
nature of the Guidelines changes nothing. The Guidelines have the
force of law. And there is no constitutional difference between the
gradations of offenses that exist within section 841(b)(1)(C) by opera-
tion of the Guidelines and the gradations of offenses the Promise
majority created within section 841 as a whole. The Sixth Amend-
ment is no less offended by a judicially-imposed sentence in excess
of that authorized by Guidelines (based upon a judicial finding of
quantity), than by a sentence in excess of that authorized by statute
(based upon the same judicial finding of quantity). The defendant has
been equally deprived of his right to a trial by jury in both circum-
stances.
The second argument that shows that the section 841 conviction,
not just the sentence, must be reversed when quantity is not charged
in the indictment rests on Promise’s conclusion that sections
841(b)(1)(A), (B), (C), and (D) set forth separate substantive crimes,2
the elements of each of which are to be found in the text of the statute.
See, e.g., Staples, 511 U.S. at 604. Section 841(b)(1)(C) provides, in
relevant part, that "[i]n the case of a controlled substance in schedule
I or II, . . ., except as provided in subparagraphs (A), (B), and (D),
such person shall be sentenced to a term of imprisonment of not more
than 20 years." (Emphasis added). In order to ascertain whether sec-
tion 841(b)(1)(C) has been violated, it must be determined (again,
using methamphetamine as an example) that the quantity in question
is less than 5 grams — i.e., that subsection (B) has not been violated.
(Of course, the defendant must also be responsible for less than the
section 841(b)(1)(A) threshold quantity of 50 grams, but if he is
responsible for less than the section 841(b)(1)(B) quantity of 5 grams,
2Of course, the Promise opinion carefully avoids stating that these sec-
tions actually define separate substantive offenses. Instead, it claims
merely that "specific threshold quantity must be treated as an element of
an aggravated drug trafficking offense." 255 F.3d at 156 (emphasis
added). But these facts, according to Promise, must be indicted and
proven to a jury beyond a reasonable doubt. In other words, they are ele-
ments. And because "aggravated drug trafficking offenses" have ele-
ments not needed for other section 841 offenses, they are, in fact and in
law, separate offenses.
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then he necessarily is responsible for less than 50 grams.) It follows
from the text of section 841(b)(1)(C) that the fact that the quantity at
issue is less than 5 grams is an element of the section 841(b)(1)(C)
offense; this fact is part of the definition of the offense. For drugs
mentioned in sections 841(b)(1)(A) and (B) (excluding marijuana,
which presents a slightly more complicated problem) then, to state a
violation of section 841(b)(1)(C), the indictment must allege that the
defendant is responsible for some positive quantity less than the sec-
tion 841(b)(1)(B) threshold quantity for that drug.
I will be the first to admit that the fact that the manufactured or dis-
tributed quantity does not exceed the threshold amounts applicable
under sections 841(b)(1)(A), (B), or (D) (or that a defendant pos-
sessed with intent to distribute less than a certain quantity) bears little
resemblance to a traditional element. But this oddity is a necessary
consequence of interpreting section 841(b)’s sentencing factors to be
not that at all, but instead to be substantive offenses. Unfortunately,
Promise actually did, and now requires, exactly that. As our court,
and our sister circuits, are only now beginning to appreciate, although
section 841(b) functions well as a sentencing scheme (albeit one dis-
placed by the Guidelines), it functions dismally as a list of substantive
offenses.
Where, as in the present case, the indictment alleges only "a quan-
tity" of methamphetamine, it is impossible to evaluate whether the
section 841(b)(1)(C) exception applies or not: "A quantity" could just
as easily refer to 50 grams or more or to some quantity between 5 and
50 grams (triggering an aggravated section 841(b)(1)(A) or (B)
offense, respectively) as it could refer to one gram (falling squarely
within section 841(b)(1)(C)). It follows, therefore, that Benenhaley’s
indictment does not allege the violation of any federal law and that
his conviction based upon that indictment is unconstitutional. See,
e.g., Stirone v. United States, 361 U.S. 212, 217 (1960) ("The Bain
case [Ex Parte Bain, 121 U.S. 1 (1887)], which has never been disap-
proved, stands for the rule that a court cannot permit a defendant to
be tried on charges that are not made in the indictment against him.").
An indictment that could just as easily be read to charge any one of
at least three separate and distinct offenses cannot be considered con-
stitutionally adequate because it does not serve to inform the defen-
dant of the "nature and cause of the accusation," as required by the
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Sixth Amendment. See, e.g., Russell v. United States, 369 U.S. 749,
762 (1962). Nor, for that matter, could it even serve to protect the
defendant from being twice tried for the same offense. Needless to
say, it does not follow from the fact that under law (post Promise) the
defendant could not be sentenced to more than 20 years, that the
defendant was, as a factual and legal matter, charged with an offense
that carried a penalty of at most 20 years. That is, that Promise is now
on the books does not, and cannot, remedy the inadequacy in such an
indictment.
In summary, the reasoning of Promise leads inescapably to the
conclusion that, at least for the drugs explicitly mentioned in sections
841(b)(1)(A) and (B), some definite statement regarding drug quan-
tity is an element of all such section 841 offenses, not merely the so-
called "aggravated" offenses. Under Promise, at least the appropriate
drug quantity ranges (sufficient to establish what offense the indict-
ment alleges) must always be charged in the indictment and proven
to the jury beyond a reasonable doubt. It is not, as the Seventh Circuit
recently put it, that drug "quantity is not an ‘element’ of the § 841
offense in the strong sense" — whatever that means. See United
States v. Bjorkman, 270 F.3d 482, 492 (7th Cir. 2001) (emphasis
added). It is that drug quantity information is an element of these
offenses in the only sense currently known to the law, and therefore
must be charged in the indictment and proven before the jury beyond
a reasonable doubt.
Despite our unexplained and unsupported statements to the con-
trary in Promise, United States v. Dinnall, 269 F.3d 418 (4th Cir.
2001), and here, the error in indictment I have identified above taints
the conviction and not merely the sentence. Under the reasoning of
Promise, it bears repeating, Benenhaley’s indictment failed to charge
any crime under federal law. Although one court has held on the
authority of the Supreme Court’s decisions in Johnson v. United
States, 520 U.S. 461 (1997), and Neder v. United States, 527 U.S. 1
(1999), that such an omission of a critical element from an indictment
does not invalidate the conviction, see Bjorkman, 270 F.3d at 490
(holding that "a conviction may be affirmed on plain-error analysis if
the charge omits an element and the defendants do not object before
or at trial"), no court that actually analyzed those cases could fail to
recognize that at issue in both were omissions from jury instructions,
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not omissions from indictments. And, of course, no court that did
understand this difference between Johnson and Neder, on the one
hand, and cases like today’s and that before us in United States v.
Cotton, 261 F.3d 397 (4th Cir. 2001), on the other, would hold —
much less by bare citation — that Johnson and Neder directly control
disposition of cases like the latter, wherein elements of offense are
entirely omitted from the indictment (as opposed to from the jury
instruction). For, while these precedents obviously would have little
if any relevance in the course of addressing whether the omission of
an element from an indictment is subject to plain error review, it
would be judicial treachery to "elect to ignore" the difference between
the omissions from jury instructions at issue in Johnson and Neder
and the omissions from indictments at issue here and in Cotton, in the
course of holding, on the authority of Johnson and Neder, that the
omission of an element from an indictment is subject to plain error
review.
Because the present indictment omits an essential element of the
offense charged (and the elements alleged do not otherwise constitute
an offense), Benenhaley’s conviction for violation of section 841 sim-
ply cannot stand. This is a result that our court, like every other Court
of Appeals that has misapplied Apprendi to section 841, is at pains to
avoid. But it is a result that is now analytically and constitutionally
required by our holding (however mistaken) in Promise.
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