345 F.

3d 149

UNITED STATES of America, Appellee,

v.
Kenneth KING, a/k/a Bucky, Defendant-Appellant.
Docket No. 02-1460.

United States Court of Appeals, Second Circuit.

Argued: June 23, 2003.
Decided September 17, 2003.

BARRY D. LEIWANT, The Legal Aid Society, Federal Defender

Division, New York, NY, for defendant-appellant.
JO ANN NAVICKAS, Assistant United States Attorney (Roslynn R.
Mauskopf, United States Attorney for the Eastern District of New York,
Peter A. Norling, Assistant United States Attorney, on the brief),
Brooklyn, NY, for appellee.
Before: WALKER, Chief Judge, STRAUB and POOLER, Circuit Judges.

PER CURIAM
1

Appellant Kenneth King appeals from a judgment of the United States District
Court for the Eastern District of New York (Sterling Johnson, Jr., District
Judge), convicting him following a jury trial of possessing with intent to
distribute an amount of cocaine base in excess of five grams in violation of 21
U.S.C. 841(a)(1) and 841(b)(1)(B), and sentencing him principally to a term
of imprisonment of 120 months. On appeal, King argues that under Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the
government was required to prove to the jury beyond a reasonable doubt that he
knew the type and quantity of narcotics involved in his offense, and that the
district court erred in failing to hold the government to that burden. We affirm
the judgment of conviction.

BACKGROUND
2

In November 1999, King was arrested after a "buy and bust" operation in the

Flatbush neighborhood of Brooklyn, New York, in which King sold cocaine

base to an undercover detective. On May 12, 2000, a grand jury indicted King,
charging that he "knowingly and intentionally possess[ed] with intent to
distribute a substance containing cocaine base ... in an amount of 5 grams or
more," in violation of 21 U.S.C. 841. At trial, King requested that the court
instruct the jury that the government was required to prove beyond a reasonable
doubt that the defendant knew he possessed five grams or more of cocaine base,
an instruction that would effectively apply the scienter requirement under
841(a) to the specific penalty provision set forth in 841(b)(1)(B).

The district court rejected this request and instead instructed the jury that "the
government must prove beyond a reasonable doubt . . . that the defendant knew
that he possessed a controlled substance," and that "the offense . . . involved the
type and quantity of drug charged in the indictment" (i.e., five grams or more of
cocaine base). The court further explained that the jury "need not decide
whether the defendant knew the type or quantity of the drug alleged in the
indictment." The jury found King guilty of possession with intent to distribute
crack cocaine, and further found that King's offense involved five grams or
more of cocaine base.

The Presentence Investigation Report ("PSR") prepared by the probation office

calculated King's offense level at 28 which, at criminal history category III,
resulted in a guidelines range of 97 to 121 months. However, because 21
U.S.C. 841(b)(1)(B) mandates a minimum sentence of 10 years imprisonment
for individuals who, like King, previously have been convicted for a felony
drug offense and who are convicted of a crime involving five grams or more of
cocaine base, the PSR recommended a sentence of 120 months. The district
court agreed with the recommendation and sentenced King principally to 10
years imprisonment.

DISCUSSION
5

King contends that the constitutional principles the Supreme Court announced
three years ago in Apprendi have cast doubt on this Court's precedent
establishing that the sentencing enhancements provided in 841(b) are
imposed regardless of the defendant's state of mind concerning the type or
quantity of drugs in his possession. See United States v. Collado-Gomez, 834
F.2d 280 (2d Cir.1987) (per curiam) (government need not prove that defendant
knew specific nature or amount of controlled substance in prosecution under 21
U.S.C. 841); United States v. Pineda, 847 F.2d 64 (2d Cir.1988) (per curiam)
(imposition of 10 year minimum sentence provided in 841(b)(1)(A) for
distribution of 5 grams or more of cocaine does not require defendant to know

the amount of cocaine involved). We write to clarify that neither Apprendi nor
any other precedent has altered this well-settled principle.
6

King's argument that Apprendi required the district court to instruct the jury
that he knew the quantity and type of drugs underlying his conviction is fatally
flawed for several reasons. First, Apprendi's requirement that factors related to
sentencing be submitted to the jury and proved beyond a reasonable doubt
applies only when the factors in question "increase[s] the penalty for a crime
beyond the prescribed statutory maximum . . . ." Apprendi, 530 U.S. at 490,
120 S.Ct. 2348. King contends that Apprendi's heightened requirements apply
when, as here, the drug quantity and type lead to the imposition of a statutory
minimum sentence. Circuit and Supreme Court precedent make clear that
imposition of a mandatory minimum sentence that does not exceed the
otherwise applicable statutory maximum does not trigger Apprendi's
requirements. In Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153
L.Ed.2d 524 (2002), the Court rejected the argument that imposition of a
mandatory minimum sentence for brandishing a firearm in violation of 18
U.S.C. 924(c)(1)(A)(ii) ran afoul of Apprendi. Relying on Harris, in United
States v. Luciano, 311 F.3d 146, 152-54 (2d Cir.2002), we rejected the
defendant's argument that the jury was required to find the factors drug type
and quantity that triggered the statutory minimum sentence provided in
841(b)(1)(A). Although Luciano involved an appeal from the denial of a
petition filed pursuant to 28 U.S.C. 2255 rather than a direct appeal, its
analysis of the inapplicability of Apprendi in cases involving 841(b)'s
mandatory minimum sentencing requirements is apposite to the instant case.

In Luciano, we concluded that imposition of a statutory minimum sentence

under 841(b) is proper even absent compliance with the indictment and jury
determination requirements of Apprendi as long as the sentence does not exceed
the otherwise applicable statutory maximum that the defendant faced for an
indeterminate type and amount of narcotics. See id. at 153. For a defendant with
a prior drug felony conviction, 841 authorizes a maximum sentence of 30
years for a conviction based on an indeterminate quantity of narcotics. See 21
U.S.C. 841(b)(1)(C). In this case, King, who has a prior drug felony
conviction, was sentenced to 10 years imprisonment for a violation of 841;
his sentence did not exceed the statutory maximum sentence that could have
been imposed absent a finding of drug quantity or type, and thus did not
implicate Apprendi.

In apparent disregard for the authority of Harris and Luciano, King suggests
that under our analysis in United States v. Thomas, 274 F.3d 655 (2d Cir.2001)
(en banc), drug quantity and type are considered elements of a 841 violation,

rather than "sentencing factors," and hence must be presented to a jury and
proven beyond a reasonable doubt. King misconstrues Thomas to suggest that,
regardless of whether the sentence imposed exceeds the statutory maximum for
a violation involving an indeterminate quantity of drugs, drug quantity and type
are now "elements." See, e.g., id. at 663-64 ("Our holding that drug quantity is
an element of a 841 offense does not preclude a district court from
considering drug quantity in determining a defendant's relevant conduct for
sentencing purposes . . . in cases where quantity is not charged in the indictment
or found by the jury, so long as the resulting sentence does not exceed the
statutory maximum.") (citation and footnote omitted). Such a distortion of
Thomas cannot be squared with that opinion's clear holding that Apprendi's
protections apply only where the sentence imposed exceeds the statutory
maximum. See id. at 664 ("The constitutional rule of Apprendi does not apply
where the sentence imposed is not greater than the prescribed statutory
maximum. . . .").
9

King also argues that, when read in conjunction with Apprendi, the Supreme
Court's decisions in United States v. X-Citement Video, Inc., 513 U.S. 64, 115
S.Ct. 464, 130 L.Ed.2d 372 (1994), and Staples v. United States, 511 U.S. 600,
114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), have somehow undermined the settled
principle that a conviction under 841 rests squarely on the knowing
possession of some quantity of illegal drugs (and not the knowledge of type and
quantity). Even if Apprendi applied in the instant case, which it does not,
neither Apprendi, X-Citement, nor Staples require the district court to apply the
scienter requirements contained in 841(a) to the sentencing factors contained
in 841(b).

10

"The language of the statute [is] the starting place [for any] inquiry" into a
criminal statute's mens rea requirements, Staples, 511 U.S. at 605, 114 S.Ct.
1793 (citations omitted), and in this case the language of 841 clearly conveys
Congress's intent to subject drug dealers to the enhancements provided in
841(b) regardless of their awareness of drug type and quantity. See ColladoGomez, 834 F.2d at 281. Section 841 is divided into several separate
provisions, the first of which addresses the substantive elements of the offense,
and the second of which separately addresses factors that lead to an enhanced
sentence. See 21 U.S.C. 841(a) & (b). Only 841(a) contains a mens rea
requirement: The trier of fact must determine that the defendant "knowingly or
intentionally" manufactured, distributed, dispensed, or possessed with intent to
distribute a schedule I or II controlled substance. 21 U.S.C. 841(a)(1). Section
841(b) contains no mens rea requirement and is drafted as an independent
provision one need not read subsection (a) in order for subsection (b) to be
grammatically coherent. In short, the structure and language of 841 clearly

indicates that the terms "knowingly or intentionally" in 841(a) modifies the

conduct set forth in that sub-section of the statute, and not the penalty
provisions in 841(b).
11

Under some circumstances courts will depart from the plain language of the
statute and will impute a mens rea requirement into a criminal statute (or apply
the mens rea from one portion of a criminal statute to another). See, e.g., XCitement Video, 513 U.S. at 71; Staples, 511 U.S. at 619, 114 S.Ct. 1793.
However, none of those circumstances exist in this case. First, this is not a
situation where a traditional common law offense has been codified without
inclusion of a mens rea element, warranting imputation of a mens rea element
from the common law. See, e.g., Morissette v. United States, 342 U.S. 246, 262,
72 S.Ct. 240, 96 L.Ed. 288 (1952). Second, because 841(a) contains a mens
rea element there is no risk that, absent a requirement that the defendant knew
the quantity and type of narcotics involved in the offense, his apparently
innocent conduct will be criminalized. See X-Citement Video, 513 U.S. at 71,
115 S.Ct. 464; Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 85
L.Ed.2d 434 (1985). For the same reason, there is no risk that a defendant
convicted under 841 will incur a relatively severe penalty provided in the
statute absent a sufficiently culpable mental state. See X-Citement Video, 513
U.S. at 72, 115 S.Ct. 464. Accordingly, we find no basis for disturbing the
settled principle that drug dealers convicted under 841(a) need not know the
type and quantity of drugs in their possession in order to be subject to
sentencing enhancements contained in 841(b). In so holding, we join all of
the courts of appeals that have considered this issue after the Court announced
its decision in Apprendi. See United States v. Gamez-Gonzalez, 319 F.3d 695,
700 (5th Cir.), cert. denied, ___ U.S. ___, 123 S.Ct. 2241, 155 L.Ed.2d 1126
(2003); United States v. Carranza, 289 F.3d 634, 644 (9th Cir.), cert. denied,
537 U.S. 1037, 123 S.Ct. 572, 154 L.Ed.2d 458 (2002); United States v.
Collazo-Aponte, 281 F.3d 320, 326 (1st Cir.), cert. denied, 537 U.S. 869, 123
S.Ct. 275, 154 L.Ed.2d 117 (2002); United States v. Barbosa, 271 F.3d 438,
458 (3d Cir.2001); United States v. Carrera, 259 F.3d 818, 830 (7th Cir.2001);
United States v. Garcia, 252 F.3d 838, 844 (6th Cir.2001); United States v.
Sheppard, 219 F.3d 766, 769 (8th Cir.2000).

12

We have considered King's other arguments and find them to be without merit.

CONCLUSION
13

For the reasons set forth above, the judgment of the district court is hereby
AFFIRMED.