Filed: Mar. 11, 1996
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1996 Decisions States Court of Appeals for the Third Circuit 3-11-1996 United States v. McQuilkin Precedential or Non-Precedential: Docket 95-1127 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996 Recommended Citation "United States v. McQuilkin" (1996). 1996 Decisions. Paper 210. http://digitalcommons.law.villanova.edu/thirdcircuit_1996/210 This decision is brought to you for free and open access by the Opinions of the United S
Summary: Opinions of the United 1996 Decisions States Court of Appeals for the Third Circuit 3-11-1996 United States v. McQuilkin Precedential or Non-Precedential: Docket 95-1127 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996 Recommended Citation "United States v. McQuilkin" (1996). 1996 Decisions. Paper 210. http://digitalcommons.law.villanova.edu/thirdcircuit_1996/210 This decision is brought to you for free and open access by the Opinions of the United St..
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Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
3-11-1996
United States v. McQuilkin
Precedential or Non-Precedential:
Docket 95-1127
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996
Recommended Citation
"United States v. McQuilkin" (1996). 1996 Decisions. Paper 210.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/210
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 95-1127
___________
UNITED STATES OF AMERICA
v.
JOHN McQUILKIN,
Appellant
_______________________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 94-cr-00356-2)
___________________
Argued November 13, 1995
Before: BECKER and SCIRICA, Circuit Judges
and COHILL, District Judge*
(Filed March 11, l996)
ANDREW GROSSO, ESQUIRE (ARGUED)
2300 N Street, N.W., Suite 600
Washington, D.C. 20037
Attorney for Appellant
EMILY McKILLIP, ESQUIRE (ARGUED)
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
Attorney for Appellee
1
*The Honorable Maurice B. Cohill, Jr., United States District
Judge for the Western District of Pennsylvania, sitting by
designation.
2
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
I.
The issue on appeal is whether the "safety valve"
provision in 18 U.S.C. § 3553(f) applies to 21 U.S.C. § 860, the
"schoolyard" statute, so that a court may impose a sentence
shorter than the statutory minimum provided in § 860.
II.
Between March and July 1994, John McQuilkin sold
quantities of methamphetamine to an informant cooperating with
the Drug Enforcement Agency and to an undercover DEA agent. Each
sale occurred within 1,000 feet of a school.
McQuilkin was arrested and charged under 21 U.S.C.
§841(a)(1) (distribution),1 21 U.S.C. § 860 (distribution within
1
Title 21 U.S.C. § 841 ("ordinary" distribution) provides in
part:
(a) Unlawful acts
Except as authorized by this subchapter,
it shall be unlawful for any person knowingly
or intentionally--
(1) to manufacture, distribute, or
dispense . . . a controlled substance . . . .
(b) Penalties
Except as otherwise provided in section
849, 859, 860, or 861 of this title, any
person who violates subsection (a) of this
section shall be sentenced as follows:
. . . .
(1) . . . .
(B) In the case of a violation of
subsection (a) of this section involving--
3
1,000 feet of a school), 21 U.S.C. § 846 (conspiracy)2 and 21
U.S.C. § 843(b) (use of a communication facility). He pled
guilty to conspiracy to distribute methamphetamine, four counts
of distribution of methamphetamine and four counts of
distribution of within 1,000 feet of a school. McQuilkin
stipulated that he and his co-conspirator distributed more than
100 grams but less than 400 grams of methamphetamine within 1,000
feet of a school and this quantity was reasonably foreseeable and
jointly undertaken by him.
Based on the attributable amount of methamphetamine and
taking into account his acceptance of responsibility, McQuilkin's
sentencing guidelines range was 57 to 71 months imprisonment. The
district court held that McQuilkin's convictions under 21 U.S.C.
§§ 841 and 846 met the criteria for the "safety valve" provision
of 18 U.S.C. § 3553(f). But the court ruled that 21 U.S.C. §
860, the "schoolyard" statute, required a five year mandatory
. . . .
(viii) 10 grams or more of methamphetamine
. . . or 100 grams or more of a mixture or
substance containing a detectable amount of
methamphetamine . . . ;
such person shall be sentenced to a term
of imprisonment which may not be less than 5
years and not more than 40 years . . . .
2
Title 21 U.S.C. § 846 provides:
Any person who attempts or conspires to
commit any offense defined in this subchapter
shall be subject to the same penalties as
those prescribed for the offense, the
commission of which was the object of the
attempt or conspiracy.
4
minimum term of imprisonment, and that 18 U.S.C. §3553(f) did not
apply to the mandatory minimum sentence under §860.
The district court sentenced McQuilkin to 60 months
imprisonment to be served concurrently on all counts. In
imposing sentence, the court stated that it intended to sentence
McQuilkin to the lowest sentence allowed by law. McQuilkin has
appealed contending the "safety valve" provision of 18 U.S.C.
§3553(f) permits a shorter sentence than the statutory minimum of
60 months. We exercise plenary review. See United States v.
Sabarese, 71 F.3d 94, 95 n.1 (3d Cir. 1995), amended by, No. 95-
5160 (3d Cir. Jan. 22, 1996).
III.
A.
This is a matter of statutory interpretation. Title 21
U.S.C. § 860 (the schoolyard statute) provides in part:
Any person who violates section 841(a)(1) . .
. of this title by distributing . . . a
controlled substance in or on, or within one
thousand feet of, the real property
comprising a . . . school . . . is (except as
provided in subsection (b) of this section)
subject to (1) twice the maximum punishment
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. A fine up to
twice that authorized by section 841(b) of
this title may be imposed in addition to any
term of imprisonment authorized by this
subsection. Except to the extent a greater
minimum sentence is otherwise provided by
section 841(b) of this title, a person shall
be sentenced under this subsection to a term
of imprisonment of not less than one year
. . . .
5
Because under the relevant facts here, 21 U.S.C.
§ 841(b)(1)(B)(viii) mandates a five year minimum term of
imprisonment, it supersedes the one year minimum term in § 860.
The issue on appeal is whether 18 U.S.C. § 3553(f) may relieve a
defendant from the mandatory minimum penalty for violating 21
U.S.C. § 860.
Section 3553(f) provides:
(f) Limitation on applicability of
statutory minimums in certain cases.--
Notwithstanding any other provision of law,
in the case of an offense under ... 21 U.S.C.
§§ 841, 844, 846 ... 961, 963 the court shall
impose a sentence pursuant to guidelines
promulgated by the United States Sentencing
Commission ... without regard to any
statutory minimum sentence, if the court
finds at sentencing [that the defendant
satisfies certain criteria].3
3
The criteria specified in 18 U.S.C. §
3553(f) are:
(1) the defendant does not have more than 1 criminal
history point, as determined under the sentencing
guidelines;
(2) the defendant did not use violence or credible
threats of violence or possess a firearm or other
dangerous weapon (or induce another participant to
do so) in connection with the offense;
(3) the offense did not result in death or serious
bodily injury to any person;
(4) the defendant was not an organizer, leader,
manager, or supervisor of others in the offense,
as determined under the sentencing guidelines and
was not engaged in a continuing criminal
enterprise, as defined in 21 U.S.C. § 848; and
(5) not later than the time of the sentencing hearing,
the defendant has truthfully provided to the
Government all information and evidence the
defendant has concerning the offense or offenses
that were part of the same course of conduct or of
a common scheme or plan, but the fact that the
defendant has no relevant or useful other
information to provide or that the Government is
already aware of the information shall not
6
In the event of a violation under §§ 841, 844, 846, 961 and 963,
18 U.S.C. § 3553(f) allows a sentencing court under specified
conditions to disregard the statutory minimum and impose a
sentence in accordance with the guidelines.4
By its terms, 18 U.S.C. § 3553(f) applies only to
convictions under 21 U.S.C. §§ 841, 844, 846, 961 and 963.
Section 860 is not one of the enumerated sections. It is a canon
of statutory construction that the inclusion of certain
provisions implies the exclusion of others. The doctrine of
inclusio unius est exclusio alterius "informs a court to exclude
from operation those items not included in a list of elements
that are given effect expressly by the statutory language." In
re TMI, 67 F.3d 1119, 1123 (3d Cir. 1995) (quoting Williams v.
Wohlgemuth,
540 F.2d 163, 169 (3d Cir. 1976)), petition for cert.
filed, (U.S. Feb. 20, 1996) (No. 95-1315). The government
contends the stark exclusion of § 860 from the list of sections
embraced by § 3553(f) reflects Congress' rational decision that
drug dealing in a protected location is sufficiently serious to
merit substantial penalties. In any event, nothing in the
legislative history of § 3553(f) provides a basis for
preclude a determination by the court that the
defendant has complied with this requirement.
4
Congress adopted the "safety valve" provision in the Violent
Crime Control and Law Enforcement Act of 1994 to mitigate the
effects of certain mandatory minimum sentences. See generally
Philip Oliss, Mandatory Minimum Sentencing: Discretion, the
Safety Valve, and the Sentencing Guidelines, 63 U. Cin. L. Rev.
1851 (1995); Fred A. Bernstein, Discretion Redux--Mandatory
Minimums, Federal Judges, and the "Safety Valve" Provision of the
1994 Crime Act, 20 U. Dayton L. Rev. 765 (1995).
7
interpreting the statute other than as the clear language
provides.5 See In re TMI, 67 F.3d at 1125 ("A construction
inconsistent with a statute's plain meaning ... is justifiable
only when clear indications of contrary legislative intent
exist") (quoting Government of the Virgin Islands v. Knight, 989
F.2d 619, 633 (3d Cir.), cert. denied,
114 S. Ct. 556 (1993)). In
clear and unambiguous language, therefore, 18 U.S.C. § 3553(f)
does not apply to convictions under 21 U.S.C. § 860, the
"schoolyard" statute.6
B.
McQuilkin argues that 21 U.S.C. § 860 does not state a
substantive offense but merely enhances the penalty for
violations of 21 U.S.C. § 841(a) committed within l,000 feet of a
school. McQuilkin contends the only substantive offense he
violated was § 841(a), not § 860. Because 18 U.S.C. § 3553(f)
applies to an "offense" under § 841, he argues the safety valve
provision should be available to him. Accordingly, he believes
the court erred in imposing a mandatory minimum sentence.
5
The "safety valve" provision adopted in the 1994 crime bill
engendered little debate. The only comments of plausible
relevance were made during an exchange between Senators Biden and
Brown on the Senate floor. Responding to Senator Brown's
question whether the "safety valve" applied to 21 U.S.C. § 859
(distribution to persons under age twenty-one), Senator Biden
said "the safety valve does not apply" to the offense of selling
drugs to minors, and that the mandatory minimum sentence for that
offense remained in place. See 140 Cong. Rec. S12514 (daily ed.
Aug 25, 1994). There was no reference to § 860, although the
government suggests the analogy to § 860 is manifest. For the
purposes of McQuilkin's argument, however, this exchange over
§859 was at best inconclusive.
6
The one year minimum sentence set forth in § 860 applies when
the quantity of drugs involved is less than required for the
mandatory minimum sentences set forth in § 841(b).
8
But 21 U.S.C. § 860 is a separate substantive offense,
not a sentence enhancement provision. To distinguish an
enhancement provision from a separate offense we look to the
intent of Congress. See United States v. Hawkins, 811 F.2d 210,
218 (3d Cir.) ("As is the case in all questions dealing with the
scope and separate identities of criminal offenses, the answer
hinges on the intent of Congress."), cert. denied, 484 U.S. 833
(1987). To ascertain intent we begin with the language of the
statute.
Hawkins, 811 F.2d at 218 (citing Garrett v. United
States,
471 U.S. 773, 779 (1985)).
In this instance, the language of the statute specifies
§ 860 is a separate offense. Although § 860 refers to § 841,
("any person who violates § 841(a)(1) . . . by distributing . .
."), it requires a separate and distinct element -- distribution
within l,000 feet of a school. Distribution within l,000 feet of
a school must be charged and proven beyond a reasonable doubt in
order to obtain a conviction under § 860. See United States v.
Smith, 13 F.3d 380, 382-83 (10th Cir. 1993) (holding "§ 860
constitutes an 'offense' which has as an element of proof that
the distribution occurred within 1,000 feet of a protected
place."). Moreover, while § 860 incorporates the elements of
§841(a), it does not incorporate statutory references to § 841,
such as the one found in 21 U.S.C. § 3553(f).
Other courts of appeals have uniformly held § 860 is a
separate offense that requires proof of an element that is not
included in § 841. See, e.g., United States v. Parker, 30 F.3d
542, 551-53 (4th Cir.) (reversing a conviction under § 860 where
9
there was no evidence that the distribution occurred within 1,000
feet of a protected place), cert. denied, 115 S. Ct. 605 (1994);
United States v. Ashley,
26 F.3d 1008, 1011 (10th Cir.)
(reaffirming an earlier decision that § 860 requires proof that
the distribution occurred within 1,000 feet of a protected
place), cert. denied,
115 S. Ct. 348 (1994);
Smith, 13 F.3d at
382-83 (holding "that the distribution occurred within 1,000 feet
of a protected place" must be separately proved); United States
v. Holland,
810 F.2d 1215, 1218 (D.C. Cir.) (holding statute
"adds an element to the offense of section 841(a)" which must be
"proved"), cert. denied,
481 U.S. 1057 (1987).
Moreover, nothing in the language indicates § 860 is an
enhancement provision. Most enhancement provisions are triggered
by the defendant's criminal history. In contrast, § 860 requires
proof of certain factual predicates that are independent of the
defendant's past crimes. Most importantly, § 860 differs from
enhancement provisions because it requires proof of an additional
element beyond a reasonable doubt.
Only one court, the Court of Appeals for the Ninth
Circuit, has suggested § 860 is an enhancement of the offense
defined in § 841(a).7 See United States v. Thornton, 901 F.2d
738, 740-41 (9th Cir. 1990) (statute "provides that if the drug
transaction made illegal by section 841 took place within 1,000
feet of a school, the punishment for such offense will be
enhanced.") (emphasis in original). But in Thornton, the Ninth
7
Section 860 was formerly classified as 21 U.S.C. § 845a. Pub. L.
No. 101-647(1) amended § 845a and redesignated it as §860.
10
Circuit also held the predecessor to § 860 "incorporates the
sentencing enhancement element into the underlying offense." Id.
(emphasis added). Thus the court's analysis reveals some
confusion as to whether § 860 required an additional element of
proof or was simply an enhancement provision. Moreover, all
other courts of appeals that have addressed the issue have held
§860 is not an enhancement provision. See e.g. United States v.
Ashley,
26 F.3d 1008, 1011 (10th Cir.) (holding § 860 is not a
sentencing enhancer) cert. denied,
115 S. Ct. 348 (1994); see
also United States v. Horsley,
56 F.3d 50, 51 (11th Cir. 1995) (§
841(a) is a lesser included offense of § 860); United States v.
Parker,
30 F.3d 542, 553 (4th Cir.) (same), cert. denied, 115 S.
Ct. 605 (1994); United States v. Scott,
987 F.2d 261, 266 (5th
Cir. 1993) (same).
We conclude § 860 is a separate offense and not a
sentencing enhancement of § 841(a). Accordingly, § 3553(f) may
not mitigate the mandatory minimum penalty under § 860.
IV.
For the foregoing reasons we will affirm the judgment
of sentence.
11
