Split Widened: Are the Provisions of 21 U.S.C. § 848(b) Elements of a Separate Crime, or Sentencing Factors?

Per United States v. Tidwell, 2008 WL 835252, *29 n. 5 (3d Cir. Mar. 31, 2008)

Before detailing the facts and holdings of this case, a little bit of statutory background is necessary. 21 U.S.C. § 848 concerns the offense of a continuing criminal enterprise. Section (c) defines the offense, and section (a) provides that the penalty for engaging in such offense is a minimum of 20 years and a maximum of life imprisonment. Section (b) raises the statutory minimum to life imprisonment for those who are leaders, principals, or organizers of those continuing criminal enterprises that either (A) distribute (in relevant part) more than 150 kilograms of cocaine or (B) receive over ten million dollars in gross receipts in one year.

Tyrone Tidwell pled guilty to engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848(c). No part of the indictment contained facts beyond those necessary to establish a violation of that section, nor was he specifically charged with violation of § 848(b), the “super-kingpin” provision. Tidwell stipulated that his base offense level would be based on distribution of more than 150 kilograms of cocaine. During the rule 11 colloquy, the prosecutor informed Tidwell that his plea subjected him to a mandatory sentence of life imprisonment – that it triggered § 848(b).

The district court concluded that § 848(b) set forth sentencing factors which only needed to be proved by a preponderance of the evidence rather than providing a separate offense which would require proof beyond a reasonable doubt. Tidwell appeals, arguing that § 848(b) is a separate offense, the factual basis for which was neither set forth in the indictment nor proved beyond a reasonable doubt.

Congressional intent is the key to determining whether a statutory provision provides sentencing factors or elements of a separate offense. This Third Circuit panel engages in an extensive discussion of the relevant Supreme Court precedents, and concludes that the Court has emphasized the structure, format, background history, and text of statutes in making this inquiry. *10-*28. Applying these lessons to § 848(b), it reasons that the statutory headings (*30), text (*31-*32), structure (*33-*34), and background history (*35-*38) all support the conclusion that § 848(b) merely provides sentencing factors to be considered in a conviction for an offense proscribed by § 848(c). Were these arguments insufficient to reach this conclusion, the panel also cites legislative history supporting its result. *40-*42.

Finally, the panel notes that there is no violation of the Jones, Blakely, or Apprendi line of cases because the conduct to which Tidwell pled guilty already carried a maximum potential sentence of life imprisonment under § 848(a). *42-*49. While § 848(b) made this maximum also the minimum (and thus removed any discretion), it did not increase the penalty beyond the statutory maximum. Therefore, Tidwell’s sentence is affirmed. In a footnote, the panel admits that there is some tension between the Supreme Court precedent dictating this result (Harris and McMillan) and Apprendi, but that any such tension is for the Court to resolve.

Judge McKee acknowledges that this decision widens the split between the CA 7 (agreeing) and the CA 2. He notes, however, that only the Seventh Circuit has engaged in substantive analysis. The Second Circuit held, without further discussion, that the elements of § 848(b) must be proved beyond a reasonable doubt.