Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-4-2002

USA v. Henry
Precedential or Non-Precedential:

Docket 1-2486




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PRECEDENTIAL

       Filed March 4, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2486

UNITED STATES OF AMERICA

v.

DEAN "RAS" HENRY
Dean Henry, Appellant

On Appeal From the District Court
of the Virgin Islands
(D.C. Crim. No. 99-cr-00358)
District Judge: Honorable Thomas K. Moore

Argued: December 4, 2001

Before: BECKER, Chief Judge, NYGAARD and COWEN,
Circuit Judges.

(Filed: March 4, 2002)

       CHARLES S. RUSSELL, JR.,
        ESQUIRE (ARGUED)
       Moore & Dodson, P.C.
       No. 14A Norre Gade, P.O. Box 310
       Charlotte Amalie, St. Thomas, VI
        00804

       Counsel for Appellant
       DAVID L. ATKINSON, ESQUIRE
       United States Attorney
       KIM L. CHISHOLM, ESQUIRE
        (ARGUED)
       Assistant United States Attorney
       United States Courthouse & Federal
        Building
       5500 Veterans Drive, Suite 260
       Charlotte Amalie, St. Thomas,
        Virgin Islands 00802

       Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge:

This is yet another Apprendi case. See Apprendi v. New
Jersey, 

(2000). It comes to us in a novel
procedural posture: (1) Apprendi was decided between the
guilty plea and the sentencing; (2) the defendant clearly
raised the Apprendi issue at sentencing; and (3) the
defendant demonstrated what we find to be non-harmless
Apprendi error.

The defendant is Dean Henry, who appeals from the
judgment of the District Court of the Virgin Islands which
imposed a sentence following a guilty plea to a one-count
indictment charging him with possession with intent to
distribute 5 grams or more of cocaine base, in violation of
21 U.S.C. SS 841(a)(1) and 841(b)(1)(B)(iii). Although Henry
entered a plea to possession with intent to distribute a
controlled substance, he has never admitted to possessing
cocaine and it appears highly possible, in light of the less
than textbook perfect police investigation, that the only
controlled substance that he possessed was marijuana.
Henry submits that both the identity and quantity of the
drugs were elements of the crime that he was entitled to
have determined beyond a reasonable doubt. Thus, he
contends, the District Court violated the teachings of
Apprendi when it alone determined these issues (by a
preponderance of the evidence) at the sentencing hearing,

                               2
sentencing him to the mandatory minimum sentence of 60
months for cocaine base under S 841(b)(1)(B)(iii).

The primary question on appeal is whether facts that
determine in the first instance the statutory maximum
under which a defendant is to be sentenced -- here
particularly drug identity -- are elements that need to be
determined beyond a reasonable doubt by a jury. This
question is governed by Apprendi and by our recent opinion
in United States v. Barbosa, 

(3d Cir. 2001),
where we held that the statutory maximum penalty that
can be imposed on a defendant when drug identity is not
known or found by the jury is one year, the lowest
statutory maximum under the "catch-all" provisions of
S 841. See 

. What the District
Court (understandably) failed to appreciate (since
Barbosa had not yet been decided) was that, like the court
in Barbosa, it could not "unequivocally determine" which
provision of S 841(b) to invoke without a jury determination
as to the identity of the drug beyond a reasonable doubt
because it "cannot simply assume that only [marijuana or
cocaine is] implicated merely because the evidence was so
constrained." 

Rather, pursuant to Apprendi, any
determination of drug identity in this case would be"legally
significant because it [would] increase[ ] . . . the maximum
range within which the judge could exercise his discretion."

. We thus agree with Henry that
there has been an Apprendi violation, for Henry was
sentenced to 60 months in prison after the identity and
quantity of the controlled substance were determined by
the sentencing court (by a preponderance of the evidence).

Unlike Barbosa and United States v. Vazquez, 

(3d Cir. 2001) (en banc), this judgment is not subject to
plain error review, for an objection was timely made in the
District Court. While the government is correct that the
sentence imposed does not offend the 60-month statutory
maximum for possession with intent to distribute
marijuana, the District Court's error is not harmless since,
under Barbosa, we cannot assume the identity of the drug
merely because the evidence presented at the sentencing
hearing was limited to marijuana or cocaine base.
Inasmuch as the identity of the drug is relevant to

                               3
determining the statutory maximum, we cannot know
which statutory maximum is applicable. Rather, we are
constrained to evaluate Henry's sentence under the lowest
"catch-all" maximum penalty of one year. Since his
sentence exceeded one year, we cannot conclude beyond a
reasonable doubt that the Apprendi violation was harmless.
Accordingly, we will vacate the judgment.

Having concluded that the Apprendi violation was not
harmless, we are presented with the novel issue of the
proper disposition in a case where a defendant has pleaded
guilty to the generic crime of possession with intent to
distribute a controlled substance under S 841(a)(1) and all
that is left to be determined is the identity and quantity of
the substance. While the suggestion has been made that
the Sentencing Court might make the determination
pursuant to normal evidentiary standards (in contrast to
the regime at sentencing, see Fed. R. Evid. 1101(a) and
United States v. Sciarrino, 

(3d Cir. 1989)), or
even under the beyond a reasonable doubt standard,
Apprendi teaches us that "any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved[to it]
beyond a reasonable doubt." 

(emphasis added). Although Henry does not desire to
withdraw his guilty plea, consistent with the mandate of
Apprendi, we will remand the case to the District Court for
a determination by a jury beyond a reasonable doubt as to
the identity and quantity of the drug possessed by Henry
with intent to distribute. We see no reason why a jury
cannot be convened for the sole purpose of deciding the
facts that will determine the sentence.

I.

In 1999, a drug task force in St. Thomas comprising
several local and federal law enforcement agencies,
conducted an undercover narcotics and firearms
investigation in an apartment project in St. Thomas known
as Pearson Gardens. For the purpose of this investigation,
the agents primarily relied on a "confidential informant"
known as Ikal Stewart to conduct narcotics purchases from
the targets while under audio and video surveillance.

                                4
The Pearson Gardens investigation commenced on the
morning of February 17, 1999. Special Agent McCollum
told Stewart that he was to attempt to purchase"crack"
cocaine from Merlin Clark. Before Stewart went into the
apartment project, McCollum searched Stewart, placed a
recording device and transmitter on him, and gave him
$500. Stewart was then dropped off near the Pearson
Gardens complex and observed by task force agents, some
of whom were in a surveillance van equipped with a video
camera. Due to a failure in the video equipment, the video
could not be linked up with the audio, and the agents had
to rely on Stewart to verify the numerous voices that were
recorded that day. As a result, the record of what exactly
happened that day is not clear.

Dean Henry is a lifelong resident of St. Thomas, where he
is a self-employed taxi operator. Henry, who frequented
Pearson Gardens, was present on February 17, 1999, and
in the weeks prior to the investigation had sold Stewart an
ounce of marijuana. On the day in question, Henry and
Stewart held a discussion regarding the price and terms of
a drug transaction, which was observed on a videotape
made by Officer Manning and recorded via the transmitter
device. Henry subsequently left Pearson Gardens for
approximately 20 or 30 minutes, during which time Stewart
was talking with two other investigation targets, both of
whom were suspected of involvement in drugs. The video
equipment malfunctioned at this time. When Henry
reappeared, he and Stewart went into an apartment in the
complex to conduct the drug transaction, but there was no
video, and only unintelligible audio surveillance of these
events. Henry, as well as another individual who observed
the transaction, testified that the drug involved was
marijuana and that Stewart secreted the drug on his
person. Stewart was then observed leaving the apartment
and walking toward the rendezvous area to meet McCollum.
During this time he was out of sight for 4 to 12 minutes.

When McCollum picked up Stewart, the latter produced
a baggie with a substance that field-tested positive for
"crack" cocaine. There is no evidence that any of the agents
proceeded to search Stewart's person to confirm that he
had no other drugs on him at the time. Stewart, however,

                                5
later admitted that he had hid some "crack" cocaine in his
sleeve on that day in order to "lace" a marijuana cigarette.
This obviously had not been discovered in the morning
search. When the FBI subsequently learned of Stewart's
behavior, they no longer considered him to be a reliable
confidential source and sent him to California to enroll in
a drug treatment program at the government's expense.
Stewart has since left the program, and was unavailable to
testify at Henry's sentencing hearing.

Henry was charged in a one-count indictment with
possession with intent to distribute 5 grams or more of
cocaine base, in violation of 21 U.S.C. SS 841(a)(1) and
841(b)(1)(B)(iii). He subsequently pleaded guilty to
possession with intent to distribute a controlled substance,
in violation of 21 U.S.C. S 841(a)(1). Under the law at the
time of his plea, the identity and quantity of the controlled
substance was a sentencing factor to be judicially
determined by a preponderance of the evidence at a
sentencing hearing. See United States v. Watts , 

, 156 (1997). Thus, Henry did not plead to any specific
drug or quantity. Henry did offer to plead to one ounce of
marijuana, but the government would not agree to this
plea.

Subsequent to acceptance of the plea, the Supreme Court
held in Apprendi v. New Jersey, 

, 490 (2000),
that "[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury
and proved beyond a reasonable doubt." As a result of this
decision, and prior to the sentencing hearing, Henry
requested the District Court to empanel a jury to determine
the identity and weight of the controlled substance beyond
a reasonable doubt. He did not move to withdraw his guilty
plea (and counsel stated at oral argument that Henry does
not desire to do so). The Court denied the request, holding
that Apprendi did not apply because a conviction for either
distribution of marijuana or cocaine base would result in a
guidelines sentence less than the forty-year "statutory
maximum penalty" that the court concluded would apply to
a drug distribution crime. Thus, the court held a
sentencing hearing on May 23, 2001, resolving the identity

                               6
and quantity issues under a preponderance of the evidence
standard. The District Court found that the substance
distributed by Henry was 22 grams of cocaine base.
Accordingly, Henry was sentenced to the "mandatory
minimum" sentence applicable to distribution of 22 grams
of cocaine base -- five years. See 21 U.S.C.
S 841(b)(1)(B)(iii).

This timely appeal followed. The District Court of the
Virgin Islands had jurisdiction pursuant to 48 U.S.C.
S 1612 and 18 U.S.C. S 3231. We have appellate jurisdiction
under 28 U.S.C. S 1291. We review de novo a District
Court's application of the Sentencing Guidelines and the
possible constitutional implication of Henry's sentence
under Apprendi. United States v. Williams, 

,
861 (3d Cir. 2000).

II.

We recently addressed the quantity and identity issues,
respectively, in United States v. Vazquez, 

(3d
Cir. 2001) (en banc), and United States v. Barbosa, 

(3d Cir. 2001). In Vazquez we held that "an
Apprendi violation . . . occurs if the drug quantity is not
found by a jury beyond a reasonable doubt and the
defendant's sentence under S 841 exceeds [the statutory
maximum]." 

(emphasis added).
Similarly, in Barbosa we held that drug identity must be
found by a jury beyond a reasonable doubt when the
"defendant would be exposed to greater punishment
depending upon . . . the identity of the controlled
substance." 

. Although neither
Vazquez nor Barbosa established a bright line rule that
drug quantity and/or identity is always an element that
must be found beyond a reasonable doubt by a jury,
inasmuch as both identity and quantity are relevant to
determining what the statutory maximum is when the
sentence imposed is greater than the "catch-all" maximum
of one year, we conclude that, under Vazquez and Barbosa,
Apprendi has been violated in this case.

Barbosa involved the appeal of a man convicted for
possession with intent to distribute more than 50 grams of

                                7
cocaine base and sentenced to 21 years in prison. At trial,
there was a dispute as to whether Barbosa, a "swallower,"
intended to transport heroin or cocaine (he maintained that
he thought he had swallowed heroin, but what he excreted
following his apprehension was cocaine). While the jury
found Barbosa guilty of trafficking in a controlled
substance, the case was tried pre-Apprendi and the jury
was not asked to make findings with respect to the identity
or quantity of the substance. On appeal, Barbosa
challenged his sentence based, in part, on Apprendi,
arguing that the issue of which substance he intended to
transport into the country should have been submitted to
the jury and determined beyond a reasonable doubt. We
agreed with Barbosa that drug identity should have been
submitted to the jury, but we affirmed his conviction
because, under the facts of the case, there was no plain
error.

In concluding that Apprendi had been violated when drug
identity was not submitted to the jury for a determination
beyond a reasonable doubt, we observed:

       Congress separated controlled substances into five
       drug schedules, which are updated and republished on
       an annual basis. See 21 U.S.C. SS 802(6), 812(a). . . .
       Congress . . . provided for several "catch-all"
       provisions, all of which generally contain no reference
       to specific drug quantity or drug identity, except by
       schedule number. See, e.g., [21 U.S.C.] S 841(b)(1)(C)
       ("In the case of a controlled substance in schedule I or
       II . . ."); 

(". . . in the case of any
       controlled substance in schedule III . . ."); 

("In the case of any controlled substance in
       schedule IV . . ."); 

("In the case of a
       controlled substance in schedule V . . ."). The
       maximum penalties under these "catch-all" provisions
       range from one year (schedule V) to twenty years
       (schedules I and II).

are different "catch-all" maximums
depending on drug quantity and identity. In Barbosa's case,
we noted that "under the facts found by the jury, we [could
not] unequivocally determine which of the `catch-all'
provisions to invoke against Barbosa. Only under the

                                8
`catch-all' provision for a schedule I or II controlled
substance would [his] twenty year sentence be within the
prescribed statutory maximum." 

(citation
omitted). Since Apprendi requires us to analyze the
permissible sentences authorized by the jury's verdict,
which, in Barbosa's case, did not have any factual finding
as to drug identity, we concluded that we could not"simply
assume that only schedule I and II controlled substances
are implicated merely because the evidence [presented to
the jury] was so constrained." 

Rather, since
identity was not submitted to the jury, we held that
Barbosa's twenty-year sentence "far exceeded the statutory
maximums under the potentially applicable `catch-all'
provisions . . . ." 

not knowing the identity
of the drug, we concluded that the only "catch-all"
maximum penalty that could be imposed on Barbosa was
one year -- the lowest statutory maximum under the
"catch-all" provisions. See 21 U.S.C.S 841(b)(3).

Recognizing that prior cases had concluded that drug
identity was a sentencing factor, not an element of the
crime that had to be submitted to the jury, we did not go
so far as to decide that identity is always an element. Cf.

(Becker, C.J., concurring)
("[D]rug type and quantity are always elements of an
offense under S 84, and therefore must always be
submitted to the jury for proof beyond a reasonable
doubt.") (emphasis in original). Rather, we reaffirmed that
"even after Apprendi, drug identity will not always be an
element of a S 841(a) offense. . . . So long as the resulting,
and possibly enhanced, sentence is below the statutory
maximum authorized by the jury's factual findings , no
Apprendi problem exists." 

(emphasis added). However, what we did conclude in
Barbosa is that in cases where drug identity is not known
or found by the jury, "drug identity would not be an
element [only] in those cases where the sentence imposed
is below the lowest `catch-all' maximum of one year found
in S 841(b)(3) . . . ." 

This result was driven by
our observation that, without a jury determination on the
particular substance, we cannot assume the identity and,
thereby, the provision under which the individual should be
sentenced. Thus, the rule of Barbosa is that when the jury's

                               9
factual findings do not include a finding as to the identity
of the drug beyond a reasonable doubt, Apprendi will be
violated when the sentence exceeds the lowest "catch-all"
statutory maximum of one year. See 21 U.S.C.S 841(b)(3).

III.

A.

In this case, as in Barbosa, an Apprendi violation has
occurred because Henry was convicted without having the
identity of the drug determined by a jury beyond a
reasonable doubt and the sentence that Henry received
exceeds one year, the lowest statutory maximum "under the
potentially applicable `catch-all' provision[ ] . . . ." 

. Henry pleaded guilty to S 841(a)(1),
possession of a controlled substance, but did not plead to
any particular substance. The government points out that
Henry "expressly admitted" to marijuana during the plea
colloquy; however we decline to adjudicate this appeal as if
Henry pleaded guilty to possession with intent to distribute
marijuana. Henry's counsel stated to the Court that"[i]t is
the defendant's position that the substance involved was
marijuana," and that he was pleading guilty only to the
crime as alleged in Count 1, which did not reference any
particular substance.1
_________________________________________________________________

1. The plea colloquy makes clear not only that Henry maintained that he
was in possession of marijuana, not cocaine, but also that he did not
plead to any particular substance:

       HENRY'S COUNSEL: Your Honor . . . Mr. Henry is pleading guilty
       to possession with intent to distribute a
       controlled substance. There is a disagreement
       between the Government and the Defendant
       as to exactly what that substance was and
       the weight and quality of it. It is the
       Defendant's position that the substance
       involved was marijuana, and it's his intent to
       plead guilty to the crime as alleged in Count
       1. But he does disagree as to the substance,
       Your Honor.

                               10
We acknowledge that a lay reader may wonder what the
harm would be in evaluating this appeal as if Henry had
pleaded guilty to possession with intent to distribute
marijuana since Henry expressly argued that the substance
was marijuana. However, while Henry has always
maintained that he possessed marijuana and not cocaine,
his admission does not change the fact that Henry did not
plead guilty to possession with intent to distribute
marijuana. There is no indication that he was charged
_________________________________________________________________

       GOV'T COUNSEL: Your Honor, it appears -- and this is discussion
       [sic] that defense counsel and the Government
       would have -- is that under the Third Circuit
       and other circuits the identity as well as the
       quantity of this controlled substance is a
       sentencing factor, so that the determination of
       what the substance is is made by the
       sentencing court as a matter of the Court's
       decision and not the jury. So that the Defendant
       would be pleading to possession of a controlled
       substance. . . .

       ***

       COURT: Mr. Henry, do you agree the Government could prove the
       facts against you as stated by [the government's attorney],
       with the exception of the identity of the substance?

       ***

       COURT: [T]he issue of what that substance was will be, of course,
       reserved for sentencing. . . .

       COURT: . . . Now, I'm going to read the Indictment and after I have
       read it, I'm going to ask how you plead to it, guilty or not
       guilty? And I'm going to omit the portion of the Indictment
       which identifies the substance. Now, the Grand Jury
       charges that this Count 1, on or about February 17 of
       1999, at St. Thomas, in the District of the Virgin Islands,
       the Defendant Dean "Ras" Henry, did knowingly and
       intentionally possess with intent to distribute a controlled
       substance in violation of Title 21 of the U.S. Code, Section
       841(a)(1) and as follows: Mr. Henry, how do you plead to
       the charge, guilty or not guilty?

       HENRY: Guilty.

                               11
under 21 U.S.C. S 841(b)(1)(D), the provision for marijuana.
Henry's admission, in and of itself, cannot be deemed a
plea of guilty to the crime when he was never charged with
that crime, especially since the government maintains that
he is not guilty of that crime, but of the crime of possession
with intent to distribute cocaine. Criminal trials are
governed by rules and, thus, we cannot always bow to
practical realities. Rather, in this case, we are constrained
by the rule of Barbosa that when there is no finding beyond
a reasonable doubt or stipulation as to the controlled
substance, the court cannot simply assume the substance
is of a particular kind. Moreover, the District Court stated
explicitly that it was omitting any reference to drug identity
when it read the Indictment to which Henry pleaded guilty.
See supra note 1.

In sum, for purposes of analyzing this appeal, we dismiss
any argument that Henry actually pleaded guilty to
possession with intent to distribute marijuana. This
conclusion is bolstered by the District Court's statement in
its order denying Henry's request to apply Apprendi, stating
that it "accepted Henry's plea of guilty to the generic section
841(a)(1) violation of knowingly and intentionally possessing
with the intent to distribute an unidentified substance"
(emphasis added).2
_________________________________________________________________

2. Were we to conclude that Henry pleaded guilty to possession of
marijuana, we would know the applicable statutory maximum and would
be able to determine whether he received a sentence that exceeded that
maximum. Moreover, if Henry had pleaded guilty to possession of
marijuana, Apprendi would not be implicated since the 60-month
sentence that Henry received is no more than the statutory maximum
allowed for marijuana under 21 U.S.C. S 841(b)(1)(D). See, e.g., Edwards
v. United States, 

(1998) (upholding sentence where jury did
not determine the identity of the substance since the sentence imposed
was within the lowest statutory maximum which would apply to either
substance at issue); United States v. Williams , 

(3d Cir.
2000) (holding it to be irrelevant that the court determined a fact that
increased the statutory maximum when the actual sentence imposed
was below the original statutory maximum). To be sure, a 60-month
sentence for possession with intent to distribute marijuana under 21
U.S.C. S 841(b)(1)(D) might constitute error under the Sentencing
Guidelines in a case such as this, where the sentence is outside the

                               12
B.

Not knowing the identity or quantity of the substance,
the District Court proceeded to conclude that Apprendi did
not apply because it determined that "[t]he range of
punishment facing Henry for conviction under section
841(a)(1) extends from a statutory maximum penalty of five
years imprisonment and a fine for five grams or more of
marijuana, see 21 U.S.C. S 841(b)(1)(D), to a statutory
maximum of forty years, with a mandatory minimum of five
years, and a fine for five grams or more of cocaine base, see
21 U.S.C. S 841(b)(1)(B)(iii)." The District Court relied on
United States v. Williams, 

(3d Cir. 2000),
which held that, post-Apprendi, it is up to the judge to
determine the applicable statutory range by applying the
sentencing guidelines, and that Apprendi is not violated as
long as that range does not exceed the statutory maximum.
Applying Williams, the District Court concluded that
Apprendi was not implicated in this case because the
Guideline range "as calculated in the presentence report for
Mr. Henry does not and cannot exceed the statutory
maximum of forty years," which is the statutory maximum
applicable to possession with intent to distribute cocaine
base under S 841(b)(1)(B)(iii). The District Court proceeded
to determine the identity of the substance by a
preponderance of the evidence, which is the appropriate
standard that applies at a sentencing hearing. See United
States v. Watts, 

, 156 (1997) ("The Guidelines
state that it is `appropriate' that facts relevant to sentencing
be proved by a preponderance of the evidence, USSG
S 6A1.3 comment, and we have held that application of the
preponderance standard at sentencing generally satisfies
due process.").

The teachings of Williams, however, are not applicable
since we are not dealing with the District Court's
_________________________________________________________________

applicable guideline range, notwithstanding the fact that Apprendi would
not be implicated. See U.S. Sentencing Guidelines Manual S 5K2.O.
However, it is precisely because we do not know the identity of the drug,
and, thus, the applicable statutory maximum in the first place, that
Apprendi is implicated in this case.

                               13
sentencing within a guideline range below a known
statutory maximum. Indeed, post-Apprendi,"a District
Court's sentence that is under the statutory maximum
cannot be constitutionally objectionable under Apprendi."

. In this case, however, any
determination on drug identity would be "legally significant
because it [would] increase[ ] . . . the maximum range
within which the judge could exercise his discretion."

.

As we noted in Barbosa, "Apprendi compels us to focus
on the permissible sentences authorized by the jury's

(emphasis added). Unlike
Williams, where the parties stipulated to the identity and
quantity of the drug, there was no such agreement in this
case. See 

. Henry's plea was only
to S 841(a)(1), the generic section for possession of a
controlled substance. Thus, since drug identity was not
determined beyond a reasonable doubt in this case, and
Henry was sentenced to 5 years, which is greater than the
lowest "catch-all" maximum of one year, under Barbosa
there is an Apprendi violation.

C.

We have previously concluded that an Apprendi error is
not a structural defect, but instead, is subject to harmless
or plain error analysis, depending upon the presence of an
objection at trial. 

. If the
defendant objects at trial, we review for harmless error.
Since Henry raised the Apprendi issue at sentencing, we
must determine, pursuant to Fed. R. Crim. Pro. 52(a),
whether the error is harmless. See Neder v. United States,

, 7 (1999) (Fed. R. Crim. Pro. 52(a) "by its terms
applies to all errors where a proper objection is made at
trial."). Fed. R. Crim. Pro. 52(a) provides that"Any error,
defect, irregularity or variance which does not affect
substantial rights shall be disregarded."

In Apprendi, the "Supreme Court recognized a new
constitutional right grounded in the Due Process Clause
and the Sixth Amendment's notice and jury trial
guarantees." 

. Thus, to determine

                                14
whether the error was harmless, we apply the
constitutional harmless error analysis set forth in Chapman
v. California, 

(1967), and ask "whether it
appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained."

(citation omitted). The
government bears the burden of persuasion. See 

. A court should not find harmless error if "at
the end of the examination [of the record],[we] cannot
conclude beyond a reasonable doubt that the jury verdict
would have been the same absent error." Neder , 527 U.S. at
15.

The government submits, and we agree, that the
statutory maximum sentence that Henry would have faced
had the District Court determined that he possessed with
intent to distribute marijuana would have been 60 months
under S 841(b)(1)(D). It is also true that Henry was, in fact,
sentenced to 60 months. As a result, the government
argues that there is no harm since Henry's sentence did not
exceed the lowest statutory maximum sentence that would
apply to either marijuana or cocaine. For this proposition,
the government relies on Edwards v. United States, 

(1998), where the Supreme Court upheld the
judge's power to make a determination under the
sentencing guidelines with respect to drug identity when
the sentence imposed is within the lowest statutory
maximum which would apply under either of two possible
drug substances.

We find, however, that Edwards is inapplicable to this
case. In Edwards, the District Court instructed the jury
that "the government must prove that the conspiracy . . .
involved measurable amounts of cocaine or cocaine base."

The jury returned a general verdict of guilty. By
so doing, the jury necessarily determined that the
government had proven that the conspiracy involved
cocaine or cocaine base. In this case, by contrast, there was
no such determination, by a judge or a jury, with respect to
the identity of the substance. Thus, when the judge
sentenced the defendants in Edwards based on his finding
that the illegal conduct involved both cocaine and cocaine
base and the sentence imposed fell within the lower

                               15
statutory maximum for cocaine, there was no error since
the element of drug identity had necessarily been
determined by the jury. Since there was no such
determination in this case, we fail to see how Edwards is
controlling.

Moreover, we find the inquiry advanced by the
government to be foreclosed by Barbosa. We cannot
assume, simply because the evidence presented to the
District Court was so limited, that the drug was either
marijuana or cocaine. See 

("[B]ecause the identity of the drug was not submitted to
the jury, we cannot simply assume that only schedule I and
II controlled substances are implicated merely because the
evidence was so constrained.").3 Moreover, if the substance
were marijuana, under all the relevant and applicable
factors under the sentencing guidelines, the maximum
sentence that Henry would have faced would have been six
months. As the government acknowledged at oral
argument, it is inconceivable that Henry would have
received a 60-month Guidelines sentence in this case if
drug quantity was one ounce of marijuana given his
_________________________________________________________________

3. In Barbosa, reviewing under the plain error standard under Fed. R.
Crim. P. 52(b), where the defendant bears the burden of persuasion, we
affirmed his conviction. We found that "Barbosa[could not] show that
the error affected his substantial rights. The evidence established
indisputably, and certainly beyond a reasonable doubt, that Barbosa
possessed with the intent to distribute 882 grams of a controlled
substance and that this controlled substance was cocaine base."

. The inquiry under Barbosa was quite different
from the inquiry we are presented with here. In Barbosa, although the
jury was not asked to determine beyond a reasonable doubt the identity
of the substance, it was presented with a great deal of evidence with
respect to the identity of the drug. Noting that"[i]ndeed, cocaine base
and heroin were the only controlled substances presented to the jury
through the evidence at trial, the former through the testimony of the
DEA forensic chemist," we proceeded to conclude that, "[n]onetheless, we
may confidently infer that the jury, in convicting Barbosa and rejecting
the entrapment defense, necessarily found the controlled substance to be
cocaine base." 

We also concluded that "a defendant who is in
actual possession of a particular controlled substance, while intending to
distribute another, may be punished for the drug with which he is found
to be in possession." 

Thus, intent is irrelevant.

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criminal history score of 1. Under the Guidelines Manual,
these factors result in a punishment range of zero to six
months. See U.S. Sentencing Guidelines Manual
S 2D1.1(c)(17) (2000) (classifying the offense level as 6); U.S.
Sentencing Guidelines Manual Sentencing Table (2000)
(diagraming sentences based on offense level and criminal
history). The District Court's conclusion that the substance
was cocaine meant that Henry was subject to a mandatory
minimum sentence of 60 months. Thus, the mere fact that
Henry received a sentence that did not exceed the statutory
maximum for marijuana does not render the error harmless
in this case.

D.

To recapitulate, we conclude that the error in this case
was not harmless because we cannot say beyond a
reasonable doubt that Henry would have received a 60-
month sentence if the quantity and identity of the
substance had been determined by a jury beyond a
reasonable doubt. No evidence was presented to a jury for
a determination of the identity and quantity issues. Rather,
the evidence of drug identity and quantity was presented to
the judge during the sentencing hearing and the
determination was made by a preponderance of the
evidence. We also note that, under the circumstances, the
rules of evidence did not apply. See Fed. R. Evid. 1101(d)(3).
This raises the further complication of evaluating whether
there was sufficient evidence that would have led a jury to
conclude beyond a reasonable doubt that the substance
was cocaine, since it is not clear that the evidence
presented to the District Court met the standard of
admissibility of evidence presented to a jury for a
determination beyond a reasonable doubt.

Two additional points buttress our conclusion. First, 18
U.S.C. S 3661 prohibits any "limitation . .. on the [kind] of
information" a sentencing court may consider about the
defendant's "background, character and conduct." Thus,
what the Court considered at the sentencing hearing could
have encompassed information that would otherwise be
inadmissible if presented to a jury. Second, the District
Court stated during the sentencing hearing that it did not

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think that the government had established beyond a
reasonable doubt that the substance was cocaine, rather
than marijuana.

IV.

Having concluded that there was an Apprendi violation
that was not harmless error, we are presented with the
novel issue of the proper remedy in such a case (where the
defendant pleaded guilty to the general crime). Apprendi
teaches us that "Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt." Apprendi v. New
Jersey, 

, 490 (2000) (emphasis added). We find
it consistent with the mandate of Apprendi to remand for a
jury to determine these facts beyond a reasonable doubt.
This is what Henry requested in the District Court. We see
no reason why a jury cannot be convened for the sole
purpose of deciding the facts that will determine the
sentence. After all, that is the job of the jury as fact-finder.

In view of the foregoing, the judgment of the District
Court will be vacated and the case remanded to that Court
for a determination by a jury, beyond a reasonable doubt,
as to the identity and quantity of the drug possessed by
Henry with intent to distribute, and then for resentencing.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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