United States v. 2006-09-21 | 05-30403 | USA VDURHAM | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 05-30403
Plaintiff-Appellee, D.C. No.
v.  CR-04-39-BLG-JDS
JESSICA DURHAM, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Montana
Jack D. Shanstrom, Senior District Judge, Presiding
Argued and Submitted
May 4, 2006—Portland, Oregon
Filed September 22, 2006
Before: A. Wallace Tashima and William A. Fletcher,
Circuit Judges, and Louis H. Pollak,* District Judge.
Opinion by Judge Pollak
*Honorable Louis H. Pollak, United States District Court Judge for the
Eastern District of Pennsylvania, sitting by designation.
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COUNSEL
Steven C. Babcock (argued) and Anthony R. Gallagher, Fed-
eral Defenders of Montana, Billings, Montana, for the
plaintiff-appellant.
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Marcia Hurd (argued) and William W. Mercer, Office of the
United States Attorney, Billings, Montana, for the defendant-
appellee.
OPINION
POLLAK, District Judge:
On January 11, 2005, following a bench trial, the District
Court found that defendant-appellant Jessica Durham (“Ms.
Durham”) knowingly distributed a small quantity of mari-
juana to her eighteen-month-old daughter, Michala Durham
(“Michala”).1 Accordingly, Ms. Durham was convicted of
knowingly and unlawfully distributing marijuana to a person
under the age of twenty-one, in violation of 21 U.S.C.
§§ 841(a)(1),2 859(a).3 She was sentenced to a five-year term
of imprisonment.4
On appeal, Ms. Durham argues that testimony against her
was improperly admitted and that the prosecution’s evidence
was insufficient to support her conviction. We find these
arguments lacking in merit and affirm Ms. Durham’s convic-
tion. She also argues that her five-year sentence should be
vacated because the applicable statutory maximum is two
1The briefs and record refer to her, alternatively, as Michala or Mich-
aela.
221 U.S.C. § 841(a) provides, in part, that it is “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 . . . .”
321 U.S.C. § 859(a) describes additional penalties which attach when a
person who is at least eighteen years of age violates 21 U.S.C. § 841 by
distributing a controlled substance to a person under the age of twenty-
one.
4While Judge Cebull presided over Ms. Durham’s trial, Judge Shan-
strom presided over the sentencing.
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years. With this contention, we agree. We, therefore, vacate
Ms. Durham’s sentence and remand for resentencing.
I.
Events which occurred in early February 2004 form the
factual predicate for Ms. Durham’s conviction. We recount
them here in some detail, based upon the District Court’s
findings of fact and our review of the record.
On February 3, 2004, Brandi Nichols visited Ms. Durham’s
apartment to help Ms. Durham prepare for an upcoming move
out-of-state—from Montana to Washington. Ms. Nichols has
a lengthy history of smoking marijuana, and testified that she
had, on several prior occasions, smoked with Ms. Durham,
with whom she had been friends since 2002.
Ms. Nichols testified that during her February 3rd visit she
saw Ms. Durham provide Michala with a lit marijuana water
pipe and allow Michala to inhale from the water pipe.5
According to Ms. Nichols’s testimony, Ms. Durham prepared
the water pipe for use, before giving it to Michala, by scrap-
ing matter from the inside of the water pipe, refilling the pipe
with that substance, lighting it, and sucking some smoke up
through the water into the pipe.
Ms. Nichols acknowledged that she did not have any per-
sonal knowledge of how or when the water pipe had previ-
ously been used. However, she explained that, based on her
extensive experience as a marijuana smoker for over twenty
years, she recognized the substance which Ms. Durham
scraped from the inside of the water pipe as marijuana residue
—that is, the burnt residue left on or in a pipe after smoking
marijuana. Ms. Nichols further observed that the residue con-
tained “chunks” of marijuana.
5The water pipe is also referred to in the record as a “bong” or “water
bong.”
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According to Ms. Nichols, after Michala inhaled from the
water pipe, Ms. Durham and Ms. Nichols also smoked from
the water pipe, which remained filled with the same burnt res-
idue. Ms. Nichols testified she could tell—based on her famil-
iarity with marijuana, and given the taste and smell of the
substance and its effect on her—that the substance she was
smoking was marijuana. In sum, Ms. Nichols opined that the
substance present in the water pipe when given to Michala
contained marijuana.
Ms. Nichols stated that she was upset by what she wit-
nessed, and decided to return to Ms. Durham’s apartment the
following day to obtain photographic evidence. She testified
that on February 4th she photographed Ms. Durham handing
the water pipe, containing lit residue, to Michala, and then
photographed Michala inhaling from the pipe. Ms. Durham
concedes that the pictures show Michala’s face “in contact
with the top of a bong, and in one of those photos, the glass
chamber of the bong arguably contains smoke.” Defendant-
Appellant’s Br. at 8.6
On February 6th, Ms. Nichols contacted the local authori-
ties; she provided them with the photographs and gave a state-
ment, claiming Ms. Durham shared marijuana with her
eighteen-month old daughter. Ms. Durham was arrested later
that day, and Michala was removed from her custody and
placed in foster care. When questioned by Jacqui Poe, a social
worker from the Department of Child and Family Services
(“D.C.F.S.”), Ms. Durham denied having provided marijuana
6According to Ms. Nichols, Ms. Durham did not oppose the taking of
photographs, and even suggested that some of the photographs might be
worth submitting to “High Times,” a drug paraphernalia magazine. The
District Court noted, “Defendant appeared to think that Michaela [sic]
smoking marijuana from the water bong was a good thing. Defendant told
Nichols that Michaela [sic] ate and slept better when she was high.”
According to Detective Denver Cobb, Ms. Durham later made similar
comments to him. See discussion infra.
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to her daughter. Urinalysis of Michala conducted around Feb-
ruary 10th was negative for narcotics, including marijuana.
On February 11th, Detective Denver Cobb interviewed Ms.
Durham, and she reportedly admitted that Michala had taken
up to “five hits” from the lit water pipe. According to Detec-
tive Cobb, Ms. Durham did not claim that the residue in the
water pipe used by Michala was from a substance other than
marijuana or that she believed it to be any other substance.
Indeed, Detective Cobb’s testimony indicates that Ms. Dur-
ham believed that Michala was under the influence of mari-
juana for at least some period of time. Ms. Durham allegedly
remarked that smoking improved Michala’s appetite and left
Michala lethargic and mellow—a manner she found consis-
tent with her own experience smoking marijuana.
II.
Before trial, Ms. Durham sought to preclude Ms. Nichols’s
drug identification testimony—that is, Ms. Nichols’s testi-
mony that the burnt residue smoked by Michala was, in fact,
marijuana. Ms. Durham argued that, as a lay person, Ms.
Nichols lacked the expertise required to give that type of
opinion testimony. The District Court ruled that, under the
circumstances, while Ms. Nichols would not be deemed a
“scientific expert in drug identification,” she would be
allowed to provide lay opinion testimony regarding the iden-
tity of the substance at issue.
To prove a violation of 21 U.S.C. § 841(a)(1) and 21
U.S.C. § 859(a), the Government was required to establish
beyond a reasonable doubt: that Ms. Durham (i) knowingly
and intentionally (ii) distributed7 (iii) a controlled substance—
7As the District Court noted, distribution includes sharing and need not
be for remuneration or profit. See United States v. Pearson, 391 F.3d
1072, 1075 (9th Cir. 2004) (“[I]n enacting § 841(a), ‘Congress intended to
prevent individuals from acquiring drugs for whatever purpose on behalf
of others and then transferring the drugs to those others.’ ” (quoting
United States v. Wright, 593 F.2d 105, 108 (9th Cir. 1979))).
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in this case, marijuana—to Michala Durham; (iv) that Ms.
Durham was over the age of eighteen; and (v) that Michala
was under the age of twenty-one.
The District Court found that Ms. Nichols’s testimony was
both appropriate and credible. Combined with other evidence
presented,8 the District Court determined that the Government
had satisfied its burden. Thus, the court found, beyond a rea-
sonable doubt, that Ms. Durham, an adult, had knowingly dis-
tributed marijuana to Michala Durham, a minor.
Following the trial, the District Court ruled that 21 U.S.C.
§ 841(b)(4) and 21 U.S.C. § 859(a) were, in combination, the
applicable sentencing statutes. Accordingly, Ms. Durham was
deemed eligible for a sentence of probation and a term of
imprisonment of no more than two years. However, at sen-
tencing, the District Court imposed a five-year sentence, to be
followed by four years of supervised release.
8The evidence included nine photographs showing Ms. Durham and
Michala interacting with the water pipe in various ways. According to the
District Court, there were photographs of Michala “smoking from the
water bong.”
In addition, Detective Cobb testified as to his interview with Ms. Dur-
ham; he reported that she admitted that she scraped residue into the water
pipe, that Michala inhaled up to “five hits,” and that she believed Michala
was under the influence of marijuana.
Other prosecution witnesses included Ms. Poe, the D.C.F.S. social
worker, and Mr. Handl, Ms. Durham’s landlord. Ms. Poe testified regard-
ing Michala’s conduct while in foster care, following Ms. Durham’s
arrest: she observed that Michala slept considerably more than a normal
toddler, and—for approximately two weeks after Ms. Durham’s arrest —
tried to inhale (“huff”) from toys and other items. Mr. Handl testified that
he visited Ms. Durham’s apartment while she was packing—the day
before she moved out—and detected the odor of marijuana, and the next
day found some “marijuana seeds” on the floor while cleaning the apart-
ment.
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III.
The District Court’s construction or interpretation of either
a statute or the Federal Rules of Evidence, including whether
particular evidence falls within the scope of a given rule, is
subject to de novo review. See United States v. Leon H., 365
F.3d 750, 752 (9th Cir. 2004); United States v. Sioux, 362
F.3d 1241, 1244 n.5 (9th Cir. 2004); United States v. Lillard,
354 F.3d 850, 853 (9th Cir. 2003) (citing United States v.
Smith, 282 F.3d 758, 768 (9th Cir. 2002)). Once it has been
determined that challenged evidence falls within the scope of
a given rule, the District Court’s decision to admit the evi-
dence is reviewed for abuse of discretion. See Smith, 282 F.3d
at 768 (citing United States v. Arambula-Ruiz, 987 F.2d 599,
602 (9th Cir. 1993)).
The applicable standard for reviewing the sufficiency of the
evidence to support a criminal conviction is whether “ ‘view-
ing the evidence in the light most favorable to the prosecu-
tion, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” United
States v. Spears, 631 F.2d 114, 117 (9th Cir. 1980) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
IV.
A. Admissibility of Ms. Nichols’s Drug Identification
Testimony
[1] Federal Rule of Evidence 701 allows a lay witness to
give opinion testimony provided it is “(a) rationally based on
the perception of the witness, (b) helpful to a clear under-
standing of [the witness’s] testimony or the determination of
a fact in issue, and (c) not based on scientific, technical, or
other specialized knowledge within the scope of Rule 702.”
[2] Given the Rule’s first two limitations, opinion testi-
mony of lay witnesses must be “ ‘predicated upon concrete
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facts within their own observation and recollection—that is
facts perceived from their own senses, as distinguished from
their opinions or conclusions drawn from such facts.’ ” United
States v. Skeet, 665 F.2d 983, 985 (9th Cir. 1982) (quoting
Randolph v. Collectramatic, Inc., 590 F.2d 844, 847-48 (10th
Cir. 1979)).
[3] The Rule’s final limitation—excluding lay opinion tes-
timony of the type that would normally fall under the purview
of Rule 7029 —was added in 2000. Ms. Durham argues that
Ms. Nichols’s testimony that the burnt residue was, or con-
tained, marijuana contravened this component of Rule 701.
However, the advisory committee notes discussing the 2000
amendment to Rule 701 offer this highly instructive passage:
[C]ourts have permitted lay witnesses to testify that
a substance appeared to be a narcotic, so long as a
foundation of familiarity with the substance is estab-
lished. See, e.g., United States v. Westbrook, 896
F.2d 330 (8th Cir. 1990) (two lay witnesses who
were heavy amphetamine users were properly per-
mitted to testify that a substance was amphetamine;
but it was error to permit another witness to make
such an identification where she had no experience
with amphetamines). Such testimony is not based on
specialized knowledge within the scope of Rule 702,
but rather is based upon a layperson’s personal
knowledge.
9Rule 702 governs the admissibility of testimony by qualified experts:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon suf-
ficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the prin-
ciples and methods reliably to the facts of the case.
Fed. R. Evid. 702.
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[4] In the instant case, there was no question as to Ms.
Nichols’s familiarity with marijuana—in both its fresh and
burnt forms.10 Ms. Nichols’s testimony was thus based upon
her personal knowledge, and her first-hand, multi-sensory
interaction with the substance in question: Ms. Nichols
viewed the contents of the water pipe used by Michala, and
Ms. Nichols then smoked from the pipe, which afforded her
the opportunity to smell, taste, and experience the effects of
its contents. Cf. Westbrook, 896 F.2d at 335-36 (allowing
drug identification testimony by lay witnesses based on their
having used the substance in question and experienced its
effects).
Secondarily, Ms. Durham contends that Ms. Nichols’s testi-
mony should have been deemed unreliable and contrary to
Rule 701’s requirement that the testimony be “helpful to a
clear understanding of [the witness’s] testimony or the deter-
mination of a fact in issue.” Fed. R. Evid. 701(b).
[5] The principal basis on which Ms. Durham disputes the
reliability of Ms. Nichols’s testimony is the allegedly contra-
dictory testimony by the Government’s forensic toxicologist,
Sarah Hansen: Ms. Durham stresses that Ms. Hansen was an
“expert,” who testified that the chemical nature of a residue—
here, whether it still contained marijuana’s active ingredients
—cannot be determined by looking at it or even by smoking
it. The court transcript makes plain, however, that Ms. Hansen
repeatedly stated that drug identification was not part of her
10During the trial, the District Court referred to Ms. Nichols as “expert”
with regard to marijuana. However, the District Court clarified in its writ-
ten orders that Ms. Nichols was to be regarded as a lay witness, not a sci-
entific expert. We view the former as nothing more than an imprecise
choice of words by the District Court in colloquy with counsel, and
decline to vest the court’s expression with additional, unmerited signifi-
cance. It seems clear that the District Court intended only to signal to
counsel that Ms. Nichols’s status as someone extremely familiar with mar-
ijuana had been established—not to suggest that her testimony would be
treated as that of an expert witness.
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area of expertise: she testified that she had expertise regarding
drug detection in biological samples (e.g., testing urine to
detect drug use), but that her expertise did not extend to the
testing of samples to determine whether they are controlled
substances (e.g., testing residue to ascertain whether it con-
tains marijuana). In light of this, it would not have been
proper to treat Ms. Hansen’s statements on this point as expert
testimony.
[6] The District Court, in reaching its factual determina-
tions, considered both Ms. Hansen’s testimony and Ms. Nich-
ols’s testimony, made credibility determinations, and weighed
the evidence.11 We find no error.
B. Sufficiency of Evidence
In the instant case, the Government was required to prove
beyond a reasonable doubt that Ms. Durham knowingly and
intentionally distributed marijuana to Michala. On appeal, Ms.
Durham makes two arguments: (i) that the substance distrib-
uted to Michala—the burnt residue—was not shown to be
marijuana, and (ii) that there was no proof of ingestion by
Michala. We consider these in turn.
(i)
Ms. Durham maintains that, even assuming the admissibil-
ity of Ms. Nichols’s opinion testimony, the prosecution’s evi-
dence is insufficient to establish, beyond a reasonable doubt,
that the residue in question was, in whole or in part, mari-
juana. Ms. Durham offers several reasons for this: first, she
alleges that Ms. Nichols’s testimony was generally “rife with
inconsistency . . . exposing a bias against Ms. Durham and/or
11This court cannot substitute its own judgment of the credibility of a
witness for that of the fact-finder. See, e.g., United States v. Gillock, 886
F.2d 220, 222 (9th Cir. 1989); United States v. Ramos, 558 F.2d 545, 546
(9th Cir. 1977).
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an exaggerated attachment to Michala that perhaps stemmed
from her own unfortunate upraising [sic]”; second, she claims
Ms. Nichols’s testimony was contradicted by forensic toxicol-
ogist Sarah Hansen; and third, she stresses that neither the res-
idue nor the water pipe was recovered or chemically tested.
Defendant-Appellant’s Br. at 42.
We find the first of these claims unpersuasive—the few
inconsistencies identified by appellant are trivial, and cer-
tainly do not suggest that a rational trier of fact would neces-
sarily have found Ms. Nichols’s testimony unreliable.12
Ms. Durham’s second claim is similarly uncompelling: to
begin, Ms. Hansen’s disclaimer of expertise must be taken
into account, see discussion supra. More generally, even if we
assume that Ms. Hansen was correct—that is, that a conclu-
sive identification of the residue in question could not be
accomplished through observation or ingestion—there
12Ms. Durham points to four variances in Ms. Nichols’s testimony,
which either are not fully contradictory or are not of substantive signifi-
cance.
First, Ms. Nichols testified that she had smoked marijuana with Ms.
Durham on a handful of occasions, but also testified that Ms. Durham was
not really a pot smoker. Second, Ms. Nichols testified that Ms. Durham
encouraged the taking of photographs on February 4th, but also admitted
that Ms. Nichols herself initially suggested that photographs be taken. We
do not find these statements contradictory.
Third, Ms. Durham notes that Ms. Nichols testified that she became sick
after seeing Michala smoke and went home, but later testified that she
smoked after Michala. In further testimony, Ms. Nichols reconciled these
statements when she clarified the alleged sequence of events: after
Michala smoked, Ms. Nichols and Ms. Durham took “hits.” Then Michala
smoked again and finally Ms. Nichols—feeling ill on account of what she
had witnessed—departed.
Finally, Ms. Nichols gave inconsistent testimony about whether or not
she thought a person should “fry” for sharing marijuana with his or her
child. However, we are not persuaded that this bears on the reliability of
Ms. Nichols’s testimony.
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remained additional evidence to support the District Court’s
determination that the elements of Ms. Durham’s crime were
proven beyond a reasonable doubt. Cf. United States v.
Wright, 16 F.3d 1429, 1440 (6th Cir. 1994). In addition to tes-
timony by Ms. Nichols and Ms. Hansen, the court heard testi-
mony by other prosecution witnesses and was presented with
photographic evidence. See supra note 8. The District Court
made clear that it found Ms. Nichols credible, but this does
not suggest that her testimony was the only evidence guiding
the verdict.
Finally, Ms. Durham notes that no chemical tests were
completed to determine the make-up of the substance con-
sumed by Michala. Ms. Durham suggests that, due to the lack
of chemical testing, it is impossible to know whether the resi-
due came from the burning of something other than marijuana
or whether it came from marijuana that had been so com-
pletely burned that the residue no longer contained or consti-
tuted marijuana.
The District Court, citing United States v. Sanchez DeFun-
dora, properly ruled that “[t]he government need not intro-
duce scientific evidence to prove the identity of a substance
so long as there is sufficient lay testimony or circumstantial
evidence from which a jury could find that a substance was
identified beyond a reasonable [doubt].” See also Tolliver v.
United States, 224 F.2d 742, 745 (9th Cir. 1955); United
States v. Traylor, 656 F.2d 1326, 1333-34 (9th Cir. 1981);
Wright, 16 F.3d at 1439-41; United States v. Meeks, 857 F.2d
1201, 1204 (8th Cir. 1988); United States v. Eakes, 783 F.2d
499, 504-05 (5th Cir. 1986); United States v. Harrell, 737
F.2d 971, 978-79 (11th Cir. 1984); United States v. Dolan,
544 F.2d 1219, 1221 (4th Cir. 1976).
[7] Ms. Nichols’s extensive history as a marijuana smoker,
including a number of prior experiences smoking marijuana
with Ms. Durham, coupled with her consumption of the resi-
due in question, rendered her testimony comparable to testi-
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mony which has been found to support a drug identification
in other cases. See, e.g., United States v. Zielie, 734 F.2d
1447, 1456 (11th Cir. 1984) (“The uncorroborated testimony
of a person who observed a defendant in possession of a con-
trolled substance is sufficient if the person is familiar with the
substance at issue.”), abrogated on other grounds, United
States v. Chestang, 849 F.2d 528, 531 (11th Cir. 1988); State
v. Neal, 624 S.W.2d 182 (Mo. App. 1981); see also United
States v. Murray, 753 F.2d 612, 615 (7th Cir. 1985) (finding
evidence sufficient to support drug identification based, in
particular, on the identification of the substance as marijuana
by two witnesses—each with five to ten years experience
smoking marijuana—who had observed that the substance in
question “looked, smelled, and smoked like marijuana”); Peo-
ple v. Partin, 62 Cal. Rptr. 59 (Ct. App. 1967); cf. People v.
McLean, 365 P.2d 403 (Cal. 1961).
[8] In addition, the District Court took note of testimony of
Ms. Nichols and Detective Cobb attributing to Ms. Durham
comments about the benefits—better appetite and sleep—
Michala derived from smoking marijuana. See supra notes 6
and 8. That testimony strengthens the inference that the resi-
due in the water pipe which Ms. Durham encouraged her
daughter to inhale from was marijuana. Further, the District
Court’s findings included a reference to the observation of
Ms. Poe, the D.C.F.S. social worker, that while Michala was
in foster care she “was always very sleepy and that she would
attempt to ‘huff’ on any number of objects by bringing it to
her face and inhaling.” See supra note 8.
[9] In sum, we are persuaded that the evidence adduced
was sufficient to support the District Court’s finding that the
substance in the water pipe distributed to Michala was mari-
juana.
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(ii)
Ms. Durham’s second objection—based on a lack of proof
of ingestion by Michala—is meritless. Ms. Durham was
charged with distribution to a minor, which federal law
defines as follows: “to deliver (other than by administering or
dispensing) a controlled substance or a listed chemical.” 21
U.S.C. § 802(11); cf. 21 U.S.C. § 802(2), (10) (defining “ad-
minister” and “dispense”). There is no basis on which to con-
clude that proof of distribution includes, as an element, proof
of ingestion.13
(iii)
Viewing the evidence in the light most favorable to the
Government, we are satisfied that a rational trier of fact could
conclude that Ms. Durham knowingly and intentionally dis-
tributed marijuana to her eighteen-month old daughter.
C. Sentencing
Ms. Durham was sentenced by the District Court to a
prison term of five years, to be followed by a term of super-
vised release of four years.
13Relatedly, Ms. Durham questions the admissibility of Ms. Nichols’s
testimony that Michala inhaled the marijuana, on the grounds that Ms.
Nichols does not have specialized knowledge regarding the pulmonary
capacity of an eighteen-month old child. To the extent that Ms. Nichols
relayed what she witnessed—by testifying, for example, that she saw
Michala blow smoke out of her mouth—the testimony is admissible. Cf.
Skeet, 665 F.2d at 985. To the extent that any of Ms. Nichols’s testimony
attempted to draw conclusions about the extent to which Michala success-
fully ingested the marijuana, it would be beyond the scope of appropriate
lay opinion testimony. However, such testimony would, in any case, be
irrelevant since actual ingestion is not an element of the crime of distribu-
tion with which Ms. Durham was charged and of which she was found
guilty.
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On appeal, Ms. Durham contends that, under a proper read-
ing of the several interconnected statutory provisions govern-
ing sentencing for the offense committed by Ms. Durham, the
District Court was without authority to impose a prison term
longer than two years.
Analysis begins with subsection (a) of section 841 of Title
21; subsection (a) provides, in pertinent part: “[I]t shall be
unlawful for any person knowingly or intentionally — (1) to
. . . distribute, . . . or possess with intent to . . . distribute, . . .
a controlled substance.” 21 U.S.C. § 841(a). Subsection (b) of
21 U.S.C. § 841 establishes “Penalties” for “any person who
violates subsection (a) of this section.” Subsection (b) pro-
vides, in pertinent part:
(b) Except as otherwise provided in section 859,
860, or 861 of this title, any person who violates sub-
section (a) of this section shall be sentenced as fol-
lows:
(1) . . . .
(D) In the case of less than 50 kilograms of
marihuana, . . . such person shall, except as provided
in paragraphs (4) and (5) of this subsection, be sen-
tenced to a term of imprisonment of not more than
5 years, a fine not to exceed the greater of that autho-
rized in accordance with the provisions of Title 18,
or $250,000 if the defendant is an individual . . . , or
both. . . .
. . . .
(4) Notwithstanding paragraph (1)(D) of this
subsection, any person who violates subsection (a) of
this section by distributing a small amount of mari-
huana for no remuneration shall be treated as pro-
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vided in section 844 of this title and section 3607 of
Title 18.
[10] If analysis were to be confined to the first sentence of
paragraph D of subsection (b)(1) of section 841, see 21 U.S.C.
§ 841(b)(1)(D), it would appear that Ms. Durham, a first
offender, could be sentenced to a prison term of up to five
years—the term the District Court imposed. But since it is
undisputed that Ms. Durham’s offense consisted of “distribut-
ing a small amount of marihuana for no remuneration,” within
the meaning of subsection (b)(4) of section 841, see 21 U.S.C.
§ 841(b)(4), Ms. Durham contends that, pursuant to that sub-
section’s directive, she should, for sentencing purposes, “be
treated as provided in section 844 of this title and section
3607 of Title 18.” In the case of first offenders, 21 U.S.C.
§ 844 establishes a maximum prison term of one year and a
minimum fine of $1000,14 while 18 U.S.C. § 3607 authorizes
“probation for a term of not more than one year without enter-
ing a judgment of conviction.”15
1421 U.S.C. § 844(a) states, as the penalty for a first offense of simple
possession:
Any person who violates this subsection may be sentenced to a
term of imprisonment of not more than 1 year, and shall be fined
a minimum of $1,000, or both . . . . Further, upon conviction, a
person who violates this subsection shall be fined the reasonable
costs of the investigation and prosecution of the offense, includ-
ing the costs of prosecution of an offense as defined in sections
1918 and 1920 of Title 28, except that this sentence shall not
apply and a fine under this section need not be imposed if the
court determines under the provision of Title 18 that the defen-
dant lacks the ability to pay.
1518 U.S.C. § 3607(a) provides, with regard to sentencing:
If a person found guilty of an offense described in section 404 of
the Controlled Substances Act (21 U.S.C. 844)—
(1) has not, prior to the commission of such offense, been con-
victed of violating a Federal or State law relating to controlled
substances; and
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However, to complete the analysis, account must also be
taken of another statute, 21 U.S.C. § 859. This is because sub-
section (b) of section 841, see 21 U.S.C. § 841(b), begins with
a phrase—“Except as otherwise provided in section 859, 860,
or 861 of this title”—which qualifies the language of subsec-
tion 841(b) that follows. It is undisputed that sections 860 and
861 are without application to this case. Subsection 859(a)
provides, in relevant part, as follows:
Except as provided in section 860 of this title, any
person at least eighteen years of age who violates
section 841(a)(1) of this title by distributing a con-
trolled substance to a person under twenty-one years
of age is . . . subject to (1) twice the maximum pun-
ishment authorized by section 841(b) of this title,
and (2) at least twice any term of supervised release
authorized by section 841(b) of this title, for a first
offense involving the same controlled substance and
schedule.
Appellant and the Government agree that section 859 applies,
but they differ as to how it applies.
(2) has not previously been the subject of a disposition under this
subsection;
the court may, with the consent of such person, place him on pro-
bation for a term of not more than one year without entering a
judgment of conviction. At any time before the expiration of the
term of probation, if the person has not violated a condition of his
probation, the court may, without entering a judgment of convic-
tion, dismiss the proceedings against the person and discharge
him from probation. At the expiration of the term of probation,
if the person has not violated a condition of his probation, the
court shall, without entering a judgment of conviction, dismiss
the proceedings against the person and discharge him from pro-
bation. If the person violates a condition of his probation, the
court shall proceed in accordance with the provisions of section
3565.
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[11] Ms. Durham points out that a first offender who “dis-
tribut[ed] a small amount of marihuana for no remuneration,”
21 U.S.C. § 841(b)(4), is subject, pursuant to 21 U.S.C. § 844
to a prison term of up to a year. But, conceding that she was
older than eighteen and was found to have distributed mari-
juana to a person younger than twenty-one, Ms. Durham
acknowledges that section 859 operates to authorize a maxi-
mum sentence “twice the maximum punishment authorized
by section 841(b) of this title . . . for a first offense involving
the same controlled substance and schedule.” Accordingly, in
appellant’s view, the District Court had authority to impose a
prison term of up to, but not more than, two years.
The Government contends that the number of years to be
doubled is not “one” but “five,” the maximum term autho-
rized by subsection (b)(1)(D) of section 841, see 21 U.S.C.
§ 841(b)(1)(D), for a first-time offender who has distributed
less than fifty kilograms of marijuana.
If subsection 841(b)’s incorporation of section 859 were
limited to 841(b)(1), the Government’s argument would be
persuasive. But, as noted supra, section 859 appears at the
very beginning of subsection 841(b), operating as a qualifica-
tion of the entirety of that subsection, including section
841(b)(4). And, also as noted supra, 21 U.S.C. § 841(b)(4)
directs that a “person who violates subsection (a) of this sec-
tion by distributing a small amount of marihuana for no remu-
neration shall be treated as provided in section 844 of this
title,” which establishes a one-year maximum prison term.
[12] Thus, section 859’s doubling provision authorized a
prison sentence for Ms. Durham of no greater than two years.
Because the District Court imposed a prison sentence of five
years, we vacate Ms. Durham’s sentence and remand this case
to the District Court for resentencing.
CONCLUSION
For the reasons stated above, defendant’s conviction is
AFFIRMED; defendant’s sentence is VACATED and the
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matter REMANDED for resentencing consistent with this
opinion.
CONVICTION AFFIRMED; SENTENCE VACATED
and REMANDED.
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