Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-31-2008

USA v. Tidwell
Precedential or Non-Precedential: Precedential

Docket No. 02-3139




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                                               PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                 _____________________

                        No. 02-3139
                   _____________________

              UNITED STATES OF AMERICA,

                                    Appellee

                                  v.

                     TYRONE TIDWELL,

                               Appellant
                    ____________________

        Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                  (D. C. No. 94-cr-00353-1)
          District Judge: Hon. Bruce W. Kauffman
                   ____________________
                    Argued April 24, 2007
        BEFORE: McKEE, AMBRO, Circuit Judges,
       and ACKERMAN, Senior District Court Judge *


       *
         The Honorable Harold A. Ackerman, Senior District
Judge for the United States District Court of New Jersey, sitting by
designation.
             (Opinion filed March 31, 2008)


JEFFREY M. LINDY, ESQ. (Argued)
MICHAEL DROSSNER, ESQ.
PAUL M. GEORGE, ESQ.
Lindy & Associates, P.C.
1800 J.F.K. Boulevard, Suite 1500
Philadelphia, PA 19103
Attorneys for Appellant


PATRICK L. MEEHAN, ESQ.
United States Attorney
ROBERT A. ZAUZMER, ESQ. (Argued)
Assistant United States Attorney
Chief of Appeals
SETH WEBER, ESQ.
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee




                       OPINION




                           2
McKEE, Circuit Judge.

       Tyrone Tidwell challenges the mandatory sentence of life

imprisonment that was imposed pursuant to 21 U.S.C. § 848(b),

after he pled guilty to engaging in a “continuing criminal

enterprise,” in violation of 21 U.S.C. § 848(c). For the reasons

that follow, we will affirm.

I. BACKGROUND

       On September 7, 1994, a grand jury returned a 23-count

indictment charging Tidwell with, inter alia, one count of

engaging in a continuing criminal enterprise, in violation of 21

U.S.C. § 848. Tidwell initially pled not guilty and proceeded to

trial before a jury. However, during the government’s case-in-

chief, Tidwell informed the court that he wished to change his

plea. Tidwell agreed to plead guilty to “Count 2–Engaging in a

continuing criminal enterprise, in violation of 21 U.S.C. § 848.”

Neither Count 2, nor any other provision of the indictment,

                               3
specifically charged Tidwell with violating § 848(b) (being a

“Super Kingpin”), or any other subsection of § 848. Nor did the

indictment allege any facts beyond those necessary to establish

a violation of § 848(c), the definitional provision of § 848.

       The resulting plea agreement provided that, based on

Tidwell’s agreement to plead guilty to Count 2, the district court

“may impose the . . . statutory maximum sentence [of]

Mandatory Life Imprisonment, a $4,000,000 fine, and a $50

special assessment.”    Tidwell also stipulated that his base

offense level would be “based upon the distribution of [more

than] 150 kilograms of cocaine.”       Accordingly, during the

ensuing Rule 11 colloquy, the prosecutor informed Tidwell that

his guilty plea to Count 2 subjected him to a mandatory sentence

of life imprisonment. After Tidwell acknowledged that he

understood the potential penalties, the court added: “to the

extent there are mandatory punishments for these offenses, I will

                                4
have to impose those punishments unless there is some basis . .

. not to do so.” Joint Appendix, at 207. The judge explained

that if the government did not file any motion for a downward

departure, “then there are mandatory sentences, mandatory life

sentences, and I’m not going to have the ability to depart from

that.”1 After again acknowledging that he understood, Tidwell

formally pled guilty to “engaging in a continuing criminal

enterprise, in violation of Title 21, United States Code, Section

848.” The court accepted the plea and sentenced Tidwell to life

imprisonment on Count 2, as mandated by 21 U.S.C. § 848(b),


       1
         Tidwell’s agreement provided for the possibility that
the government would file a motion for a downward departure
under U.S.S.G. § 5K1.1 (substantial assistance), and a motion
under 18 U.S.C. § 3553(e) (authorizing a sentence below the
otherwise applicable mandatory minimum based upon
cooperation with the government), depending upon the quality
of any subsequent cooperation. However, neither motion was
ever filed because the government was not satisfied with
Tidwell’s cooperation.


                               5
and concurrent terms of imprisonment on the remaining counts.




       As we have noted, the indictment did not specifically

charge Tidwell with violating § 848(b), nor did it allege that

Tidwell had engaged in conduct that would trigger the

application of § 848(b). Rather, the indictment merely alleged

that Tidwell had engaged in a “continuing criminal enterprise,”

as defined in 21 U.S.C. § 848(c). Moreover, during the Rule 11

colloquy Tidwell only agreed that he was pleading guilty to a

continuing criminal enterprise in violation of 21 U.S.C. §

848(c). He did not plead guilty to violating 21U.S.C. § 848(c),

nor did he admit the conduct proscribed by that section.

The relevant provisions of 21 U.S.C. § 848 provide:2


       2
         As we will explain, the structure of the statutes we discuss
is often very relevant to our inquiry. Accordingly, for convenience,
we will frequently set forth much more of the text of a statute than
would otherwise be appropriate.

                                  6
(a) Penalties; forfeitures. Any person who engages in a
continuing criminal enterprise shall be sentenced to a term of
imprisonment which may not be less than 20 years and which
may be up to life imprisonment ... except that if any person
engages in such activity after one or more prior convictions . .
. under this section have become final, he shall be sentenced to
a term of imprisonment which may not be less than 30 years and
which may be up to life imprisonment . . . .
(b) Life imprisonment for engaging in a continuing criminal
enterprise. Any person who engages in a continuing criminal
enterprise shall be imprisoned for life and fined in accordance
with subsection (a), if--

       (1) such person is the principal administrator, organizer,
       or leader of the enterprise or is one of several such
       principal administrators, organizers, or leaders; and

       (2)(A) the violation referred to in subsection (c)(1)
       involved at least 300 times the quantity of [the controlled
       substance], . . . or any other enterprise in which the
       defendant was the principal or one of several principal
       administrators, organizers, or leaders, received $10
       million dollars in gross receipts during any twelve-month
       period of its existence for the manufacture, importation,
       or distribution of a substance described in section
       401(b)(1)(B) of this Act [21 USCS § 841(b)(1)(B) ].

(c) “Continuing criminal enterprise” defined. For purposes of
subsection (a), a person is engaged in a continuing criminal
enterprise if–


                                7
       (1) he violates any provision of this title . . . the
       punishment for which is a felony, and

       (2) such violation is a part of a continuing series of
       violations of this title . . .

       (A) which are undertaken by such person in concert with
       five or more other persons with respect to whom such
       person occupies a position of organizer, a supervisory
       position, or any other position of management, and

       (B) from which such person obtains substantial income
       or resources.

(d) Suspension of sentence and probation prohibited.

                               ***
(e) Death penalty

(1) In addition to the other penalties set forth in this section--

   (A) any person engaging in or working in furtherance of a
   continuing criminal enterprise, or any person engaging in an
   offense punishable under section 841(b)(1)(A) of this title or
   section 960(b)(1) of this title who intentionally kills or
   counsels, commands, induces, procures, or causes the
   intentional killing of an individual and such killing results,
   shall be sentenced to any term of imprisonment, which shall
   not be less than 20 years, and which may be up to life
   imprisonment, or may be sentenced to death; and(B) any
   person, during the commission of, in furtherance of, or while

                                 8
attempting to avoid apprehension, prosecution or service of
a prison sentence for, a felony violation of this subchapter or
subchapter II of this chapter who intentionally kills or
counsels, commands, induces, procures, or causes the
intentional killing of any Federal, State, or local law
enforcement officer engaged in, or on account of, the
performance of such officer‘s official duties and such killing
results, shall be sentenced to any term of imprisonment,
which shall not be less than 20 years, and which may be up
to life imprisonment, or may be sentenced to death.

                            ***

21 U.S.C. § 848.

       The district court reasoned that § 848(b) sets forth

sentencing factors that govern sentences imposed for

violating the substantive offense defined in § 848(c), rather

than elements of a separate crime. Accordingly, the court

concluded that the government did not have to charge

Tidwell with violating subsection (b), and that the conduct

proscribed therein need only be established by a

preponderance of the evidence.


                             9
            Tidwell’s primary argument on appeal is that the life

   sentence that is mandated by § 848(b) could not be

   constitutionally imposed because the factual basis was not

   charged in the indictment, nor proven beyond a reasonable

   doubt.   3



                         II. DISCUSSION

            Congressional intent controls whether § 848(b)

   contains elements of a separate offense as Tidwell maintains,

   or merely sentencing factors as the district court concluded.

   United States v. Jones, 

(1999). In order to

   discern that intent, we must examine the language and

   structure of the statute, its subject matter, context and

   legislative history. See, e.g., Almendarez-Torres v. United




       3
        Most of the other issues Tidwell raises are contingent
upon his claim that § 848(b) contains elements of an offense.
Since we reject that argument, we need not discuss those claims.

                                10
States, 

, 228 (1998); Castillo v. United States,

, 124 (2000); Harris v. United States, 

(2002). Our inquiry is guided by four Supreme Court

decisions wherein the Court discussed the difference

between statutory provisions intended as sentencing factors

and statutory provisions intended as elements of a crime. We

begin our analysis of the legislative intent underlying §

848(b) by discussing each of those decisions.

                  A. Almendarez-Torres

       In Almendarez-Torres v. United 

, the

Court held that Congress intended subsection (b)(2) of 8

U.S.C. § 1326 as sentencing factors, rather than elements of

a crime. 8 U.S.C. § 1326 provided, in relevant part:

       (a) Subject to subsection (b) of this section,
       any alien who-
       (1) has been . . . deported . . . , and thereafter



                            11
       (2) enters ..., or is at any time found in, the United
       States [without the Attorney General's consent or the
       legal equivalent], shall be fined under title 18, or
       imprisoned not more than 2 years, or both.
       (b) Notwithstanding subsection (a) of this
       section, in the case of any alien described in
       such subsection-
       (1) whose deportation was subsequent to a conviction
       for commission of [certain misdemeanors], or a
       felony (other than an aggravated felony), such alien
       shall be fined under Title 18, imprisoned not more
       than 10 years, or both; or
       (2) whose deportation was subsequent to a conviction
       for commission of an aggravated felony, such alien
       shall be fined under such Title, imprisoned not more
       than 20 years, or both.
       The defendant in Almendarez-Torres pled guilty to

illegally reentering the United States following deportation,

in violation of 8 U.S.C. § 1326. At sentencing, he admitted

that he had been convicted of three aggravated felonies

before being deported. He nevertheless argued that he could

not be sentenced under subsection (b)(2) because his



                           12
indictment did not charge that he had been convicted of an

aggravated felony before he was deported. The district court

rejected the argument based upon its conclusion that

Congress intended prior aggravated felony convictions to be

an aggravating sentencing factor rather than an element of

the crime. Accordingly, the trial court had held that the prior

convictions did not have to be formally charged or proven

beyond a reasonable 

. The

Supreme Court agreed.        The Court reasoned that the

structure of the statute, its subject matter (recidivism), its

context and legislative history, all suggested a congressional

intent to enact a sentencing enhancement based upon the

defendant’s prior record.

       The Court explained that recidivism is “as typical a

sentencing factor as one could imagine.” 

The



                            13
Court cited several provisions of the United States

Sentencing Guidelines as well as provisions of other federal

statutes that increased severity of sentences based on an

offender’s criminal record. The Court also noted that courts

of appeals and district courts have almost uniformly treated

one’s criminal history as a sentencing factor, rather than as

an element of an offense. 

also reasoned that if Congress had intended

subsection (b) to define as elements of a crime, it would not

have   provided    that   those   penalties    be   imposed

“notwithstanding subsection (a).” Similarly, it would not

have been necessary to explain that the maximum sentence

proscribed in subsection (a) was “subject to subsection (b).”

       The Court was also influenced by the fact that when



                           14
Congress added subsection (b)(2) to 8 U.S.C. § 1396, it

changed the title of the statute from “Reentry of deported

aliens” to “Reentry of deported aliens: criminal penalties for

reentry of certain deported aliens.” 

(emphasis

added).    Furthermore, the legislative history referred

exclusively to creating new penalties rather than creating a

new crime, or criminalizing conduct that had not previously

been a crime. 

v. United States, 

(1999).


       The very next term, the Court decided Jones v. United

States. There, the Court held that Congress intended the

subdivisions of 18 U.S.C. § 2119 as three separate offenses,

rather than as three sentencing enhancements. 18 U.S.C. §

2119, provides:

Whoever, possessing a firearm as defined in section 921 of
this title, takes a motor vehicle that has been transported,

                           15
shipped, or received in interstate or foreign commerce from
the person or presence of another by force and violence or by
intimidation, or attempts to do so, shall-


(1) be fined under this title or imprisoned not more than 15
years, or both,
(2) if serious bodily injury . . . results, be fined under this
title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for
any number of years up to life, or both. The indictment in

Jones did not specify any of the statute’s subsections, nor did

it allege serious bodily injury. Similarly, the jury did not

make any finding that the carjacking involved serious bodily

injury. 

. Nevertheless, the trial court

imposed a twenty five year sentence after finding, by a

preponderance of the evidence, that serious bodily injury

was involved. 

Court reversed. The Court

held that Congress intended a carjacking involving serious

bodily injury to be one of three separately defined carjacking



                             16
offenses of escalating severity.

       The Court was persuaded that “serious bodily injury”

was a separate offense because “carjacking is a type of

robbery, and serious bodily injury [had] traditionally been

treated by Congress, and by the state legislatures, as defining

an element of the offense of aggravated robbery.” 

Congress drafted the legislation against that historical

background. 

serious bodily injury

or death raised the statutory maximum by ten years in

subsection (2), and to life imprisonment in subsection (3),

thereby exposing offenders to significantly steeper penalties

than the conduct proscribed in § 2119(1). Allowing such

dramatic increases in punishment without charging the

underlying conduct in an indictment and requiring proof

beyond a reasonable doubt raised serious constitutional



                            17
questions.

    C. Castillo v. United States, 

(2000).

       The Supreme Court next addressed the distinction

between sentencing enhancements and elements in Castillo

v. United States. There, the Court held that Congress

intended 18 U.S.C. § 924(c)(1) (relating to the use of a

machine gun) to be an element of a crime. The defendants

in Castillo were convicted of violating 18 U.S.C. § 924, but

the indictment did not specify the type of weapon used. At

sentencing, the judge found they had used machine guns and

hand grenades, and sentenced defendants to the mandatory

thirty-year term of imprisonment set forth in 18 U.S.C. §

924(c)(1).

       18 U.S.C. § 924 is entitled “Penalties,” and the

relevant portion of the statute provides as follows:


                           18
       (a)(1) Except as otherwise provided in this
       subsection, subsection (b), (c), or (f) of this
       section, . . .
        whoever -
(A) knowingly makes any false statement or representation
with respect to the information required by this chapter to be
kept in the records of a person licensed under this chapter .
. . [or]
                             ***
(D) willfully violates any other provision of this chapter,
shall be fined under this title, imprisoned not more than five
years, or both.
(a)(2) Whoever knowingly violates subsection (a)(6), (d),
(g), (h), (i), (j), or (o) of section 922 shall be fined as
provided in this title, imprisoned not more than 10 years, or
both.


                             ***


(b) Whoever, with intent to commit therewith an offense
punishable by imprisonment for a term exceeding one year,
or with knowledge or reasonable cause to believe that an
offense punishable by imprisonment for a term exceeding
one year is to be committed therewith, ships, transports, or
receives a firearm . . . in interstate or foreign commerce shall
be fined under this title, or imprisoned not more than ten
years, or both.


                            19
(c)(1) Whoever, during and in relation to any crime of
violence . . . uses or carries a firearm, shall, in addition to the
punishment provided for such crime of violence ,. . . be
sentenced to imprisonment for five years, and if the firearm
is a short-barreled rifle, . . ., or semiautomatic assault
weapon, to imprisonment for ten years, and if the firearm is
a machine gun, . . . to imprisonment for thirty years. In the
case of his second or subsequent conviction under this
subsection, such person shall be sentenced to imprisonment
for twenty years, and if the firearm is a machine gun, . . . to
life imprisonment without release.
                              ***
(c)(3) [defines “crime of violence” for purposes of this
subsection]
                              ***
(e)(1) In the case of a person who violates section 922(g) of
this title and has three previous convictions . . . for a violent
felony, . . . such person shall be fined not more than $25,000
and imprisoned not less than fifteen years, and,
notwithstanding any other provision of law
                              ***
(o) A person who conspires to commit an offense under
subsection (c) shall be imprisoned for not more than twenty
years, fined under this title, or both; and if the firearm is a
machine gun or destructive device, or is equipped with a
firearm silencer or muffler, shall be imprisoned for any term
of years or life.
       The Court focused on the structure of the statute


                              20
because neither the text nor legislative history was helpful.

The title (“Penalties”) suggested that Congress intended to

define penalties for engaging in the conduct proscribed in

the first sentence. However, the statute’s structure was more

indicative of an intent to treat possession of a machine gun

as a separate offense. The “basic job of the first sentence is

the definition of crimes and the role of the remaining three

[sentences] is the description of factors that pertain only to

sentencing.” 

Recidivism has historically been

regarded as a sentencing factor, as explained in Almendarez-

Torres.   Sentencing factors typically involved offender

characteristics or the manner in which a crime was

committed. 

The type of firearm employed was

not related to either of those traditional sentencing factors.

kind of weapon used in committing a crime

had traditionally been accorded significance beyond

                            21
sentencing.

       The Court concluded that several factors established

that Congress intended to regard possession of a machine

gun as an element of the crime rather than a sentencing

factor. The structure of the statute “strongly suggest[ed] that

the . . . first sentence [defines] crimes and the role of the

remaining three is the description of factors (such as

recidivism) that ordinarily pertain only to sentencing.” 

Second, courts have not “traditionally used firearm

types . . . as sentencing factors, . . .” 

a jury

to determine if the defendant “used or carried a machine gun

would rarely complicate a trial or risk unfairness.” 

contrary rule would risk creating “a conflict

between the judge and the jury.” 

Fourth, to the

extent the legislative history was helpful, it seemed to



                             22
   describe “offense conduct.” 

“Fifth and finally, the

   length and severity of ” the mandatory minimum sentence

   “weigh[ed] in favor of treating such offense-related words as

   referring to elements.” 

          Moreover, given the extent that Congress increased

   punishment, the Court “assume[d] a preference for

   traditional jury determination.” 

of all these

   considerations resulted in a “stronger ‘separate crime’ case

   than either Jones or Almendarez-Torres - cases in which [the

   Court was] closely divided as to Congress’ likely intent.” Id.4




      4
          Just three weeks after deciding Castillo, the Court
decided Apprendi v. New Jersey, 

(2005). There,
the Court held that “‘other than . . . a prior conviction, any
fact that increases the penalty for a crime beyond the
prescribed statutory maximum, whether the statute calls it an
element or a sentencing factor, ‘must be submitted to a jury,
and proved beyond a reasonable doubt.’” Harris v. United

(quoting 

).

                               23
     D. Harris v.United States, 

(2002).

       In Harris v.United States, the Court had to revisit

congressional intent underlying 21 U.S.C. § 924. Harris was

convicted of having “an unconcealed semiautomatic pistol

at his side” during an illegal sale of narcotics in violation of

21 U.S.C. § 924(c)(1)(A). The relevant statutory text

provides:

Any person who, during and in relation to any crime of
violence or drug trafficking crime ... uses or carries a
firearm, or who, in furtherance of any such crime, possesses
a firearm, shall, in addition to the punishment provided for
such crime of violence or drug trafficking crime-
(I) be sentenced to a term of imprisonment of not less than
5 years;
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.
21 U.S.C. §924.

       Harris was charged only with violating “the statute’s


                            24
principal paragraph.” At the sentencing hearing, the court

relied upon a recommendation in the presentence report to

sentence Harris to 7 years in prison because the trial court

concluded, based upon a preponderance of the evidence,

that Harris had brandished a firearm during the drug sale.

Harris appealed, arguing that “brandishing” a firearm was an

element requiring formal charge in the indictment and proof

beyond a reasonable doubt. The Court of Appeals affirmed,

and the Supreme Court granted certiorari.

       The Supreme Court first looked at the structure of the

statute. The Court explained that

[section] 924(c)(1)(A) begins with a lengthy principal
paragraph listing the elements of a complete crime- the basic
federal offense of using or carrying a gun during and in
relation to a violent crime or drug offense. Toward the end
of the paragraph is the word “shall,” which often divides
offense-defining provisions from those that specify
sentences.     And following “shall” are the separate
subsections, which explain how defendants are to be

                           25
sentenced.

(some internal quotation marks omitted).

       The Court concluded that § 924(c)(1)(A) followed

that formula: “Subsection (i) sets a catchall minimum and

certainly adds no further element. Subsections (ii) and (iii),

in turn, increase the minimum penalty if certain facts are

present, and those subsections do not repeat the elements

from the principal paragraph.” 

-53. Based on that

structure, the Court “presume[d] that [the] principal

paragraph defines a single crime and [the statute’s]

subsections identify sentencing factors.” 

However, the Court did not rest its holding on that

presumption. Rather, the Court explained that even though

the structure and “look . . . suggested that the numbered

subsections are only sentencing provisions, the text might

provide compelling evidence to the contrary, [as] illustrated

                           26
by the . . . decision in Jones. . .”. 

marks omitted). As discussed above, the statute there “had

a similar structure,” yet the Court concluded that Congress

intended to “set[] out the elements of numerous offenses.”

Court focused on the text of §

924(c)(1)(A).

          That text reinforced the Court’s conclusion that the

subsections were intended as sentencing factors rather than

separate offenses.         There is no tradition of treating

brandishing a weapon as a separate offense. 

(citing United States Sentencing Commission,

Guidelines       M anual     §§    2A2.2(b)(2),   2B3.1(b)(2),

2B3.2(b)(3)(A), 2E2.1(b)(1), 2L1.1(b)(4)). Rather, courts

have traditionally regarded such conduct as a sentencing

factor.



                              27
       Moreover, the disputed provision “alters only the

minimum, the judge may impose a sentence well in excess

of seven years, whether or not the defendant brandished the

firearm.” 

therefore “consistent with traditional

understandings about how sentencing factors operate; the

required findings constrain, rather than extend, the

sentencing judge’s discretion.” 

(emphasis added).

       There was nothing to suggest that Congress intended

to alter past practices in enacting § 924(c)(1)(A) by

converting a factor that had historically been relevant only to

punishment into an element of a crime.


    III. Tidwell’s sentence under 21 U.S.C. § 848(b).

       With this background as our compass, we turn to the




                            28
   statute involved here.5    As we noted at the outset, we

   examine the structure, format and text to determine if

   Congress intended § 848(b) as a sentencing enhancement or

   as elements of a crime. To the extent that we find the statute

   ambiguous, we also examine the legislative history. Our

   review of the district court’s ruling is plenary. See Gibbs v.



      5
        We have not fully considered this issue until now. We
summarily affirmed the district court’s conclusion that §
848(b) is a sentencing enhancement in in United States v.
Dumas, 

(E. D. Pa. Aug. 20, 1992). See 

(3d Cir. 1993). We declined to reach the issue in
United States v. Riddick, 

, 507 n.1 (3d Cir. 1998)
(affirming defendant’s sentence on other grounds).
        Two other Courts of Appeals have briefly considered
the issue and reached opposite conclusions to each other. See
United States v. Kramer, 

, 484 n.4 (7th Cir.
1992), and United States v. Torres, 

, 229 (2d Cir.
1990).
        The only other Court of Appeals that has engaged in
substantive analysis of § 848(b) reached the same conclusion
we reach here. See United States v. Hardin, 

(7th
Cir. 2000), cert. denied, 

(2001). The Court in
Hardin relied heavily on Jones.

                              29
Cross, 

, 964 (3d Cir. 1998).

              A. Titles, Text and Structure.


       Section 848(a) is titled “Penalties, forfeitures.”

Section 848(b) is titled “Life imprisonment for engaging in

a continuing criminal enterprise;” and § 848(c) is titled,

“‘Continuing criminal enterprise’ defined.” This suggests

that Congress intended to define the crime of CCE in §

848(c), that it set out the applicable penalties for that crime

in subsection (a), and that it intended to mandate an

enhancement when a defendant commits the offense of CCE

in the manner set forth in subsection (b). That conclusion is

tenuous because a statute’s title and heading are not always

dispositive of congressional intent. See 

(“In this case, however, the section’s title cannot help,

for Congress already has determined that at least some



                            30
portion of § 924 including § 924(c) itself, creates . . . not

penalty    enhancements,     but   entirely    new    crimes.”)

Nevertheless, our conclusion with respect to the headings is

bolstered by our analysis of the text and structure of the

statute.

       It is, however, clear from the text of the statute that if

the government can prove beyond a reasonable doubt that a

defendant has engaged in the conduct set forth in subsection

(c), it has established a continuing criminal enterprise

violation. Subsection (a) sets forth the penalty for that crime

as follows: “[a]ny person who engages in a continuing

criminal enterprise shall be sentenced to a term of

imprisonment which may not be less than 20 years and

which may be up to life imprisonment, . . . except that if any

person engages in such activity after one or more prior



                            31
convictions . . . under this section have become final, he

shall be sentenced to a term of imprisonment which may not

be less than 30 years and which may be up to life

imprisonment[.]” 21 U.S.C. § 848(a). Thus, Congress relied

upon the traditional sentencing factor of recidivism to limit

a sentencing court’s discretion and require an enhanced

mandatory minimum sentence based upon a prior conviction.

However, prior record is not the only factor Congress used

to limit the sentencing court’s discretion. Congress also

restricted sentencing discretion by requiring a sentence of

life imprisonment depending on the level of involvement in,

and the size of the CCE, as specified in subsection (b). Thus,

a judge must impose a sentence of life imprisonment if a

defendant does not merely engage in a continuing criminal

enterprise but is its “ . . . organizer . . . or leader,” and the

quantity of illegal drugs involved or gross receipts received

                             32
   exceeds a defined threshold. 21 U.S.C. § 848(b).

          We realize that the structure of § 848 is unique

   because the substantive offense is set forth in the middle of

   the statute, § 848(c), rather than at the beginning. The

   sentencing factor the Supreme Court has found most

   persuasive in establishing congressional intent - recidivism -

    is contained in the first paragraph, subsection (a), even

   though the conduct that subjects a defendant to that

   enhancement is defined two paragraphs later.

          Significantly, except for the death penalty provision

   in subsection 848(e), none of the provisions concerning

   sentencing stands alone.6 Rather, they each depend on the



      6
        For convenience, we once again set forth the relevant
text of § 848(e):

      (e) Death penalty


                              33
criminal conduct defined in subsection (c).       See United

States v. Thunder Hawk, 

, 708 (8th Cir. 1997)

(a sentencing enhancement “cannot stand alone; it is

conditioned upon conviction for the underlying offense”




   (1) In addition to the other penalties set forth in
   this section--

   (A) any person engaging in or working in
   furtherance of a continuing criminal enterprise,
   or any person engaging in an offense punishable
   under section 841(b)(1)(A) of this title or
   section 960(b)(1) of this title who intentionally
   kills . . .[,] shall be sentenced to any term of
   imprisonment, which shall not be less than 20
   years, and which may be up to life
   imprisonment, or may be sentenced to death;
   and

   (B) any person, during the commission of . . . a
   felony violation of this subchapter or subchapter
   II of this chapter who intentionally kills . . .[,]
   shall be sentenced to any term of imprisonment,
   which shall not be less than 20 years, and which
   may be up to life imprisonment, or may be
   sentenced to death.

                           34
citing cases).

       Moreover, our interpretation of the text is reinforced

by the fact that Congress and the courts have traditionally

viewed the size of a criminal enterprise, and a defendant’s

role within it, as sentencing factors. See 

(“tradition and past practice . . . were perhaps the most

important guideposts . . . in Jones”); see also McMillan v

Pennsylvania, 

, 90 (1986) (the factor had not

“historically been treated in the Anglo-American tradition as

requiring proof beyond a reasonable doubt.”) The size and

scope of the defendant’s criminal enterprise are nothing

more than the manner in which [the] basic crime was carried

out. . .”.   See 

(“Traditional

sentencing factors often involve either characteristics of the

offender, such as recidivism, or special features of the



                            35
manner in which a basic crime was carried out (e.g., that the

defendant abused a position of trust or brandished a gun.)”).

Thus, it is not likely that a court would impose the same

sentence on a defendant who is a leader of a drug conspiracy

as on a defendant who is only involved in small “retail”

street-level drug sales. Similarly, a sentencing court would

not likely give an organizer of a conspiracy involving a few

hundred dollars worth of contraband the same sentence as

the organizer of a conspiracy involving tens of millions of

dollars worth of contraband. With the exception of the death

sentence authorized in § 848 (e), the demarcated penalties

contained in § 848 have no more constitutional significance

than that. Congress “simply took one factor that has always

been considered . . . to bear on punishment. . . and dictated

the precise weight” it must receive. 

.

                           36
       The application and role of such sentencing

considerations is readily apparent in the sentencing

guidelines. U.S.S.G. § 3B1.1 increases the applicable

sentencing range based on the number of participants

involved and whether the defendant is an “organizer, leader,

manager, or supervisor,” of the criminal activity. U.S.S.G.

§ 3B1.2 decreases the range when a defendant’s role is

“minimal” or “minor.” See United States v. Bierley, 

, 1065 (3d Cir. 1990). Similarly, the guidelines provide

for increasingly severe sentences as the quantity of drugs

increases. See U.S.S.G. § 2D1.1(c). The Guidelines also

generally provide for increasing sentences based upon

economic gain to the defendant and/or foreseeable economic

loss to the victim. See U.S.S.G. § 2B1.1(b).

       Moreover, a defendant’s role in a criminal enterprise



                           37
   and the amount of money involved were relevant sentencing

   factors long before Congress adopted the Guidelines. As the

   court noted in United States v. Schultz, 

, 1099

   (6th Cir. 1994), the “[r]ole in the offense is a traditional

   determination, made in every sentencing, which long

   antedates the Guidelines.”       Similarly, drug quantity has

   historically been regarded as a sentencing factor, subject

   only to the recent qualification of Apprendi.7

           Tidwell suggests that because courts have held that

   the death penalty provision contained in § 848(e) is a

   separate offense, we must similarly regard §848(b).

   However, that argument is belied by the very text of § 848.



       7
        “Other than the fact of a prior conviction, any fact that
increases the penalty of a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt ” 

(quoting

).

                               38
As the court explained in United States v. NJB, 

, 633 (4th Cir. 1997), “[t]he language, structure and

legislative history of § 848(e)(1) establish that it is a separate

offense, not merely a penalty provision.” Thus, “[s]everal

other subsections of § 848 refer to § 848(e) as a separate

offense.” 

§ 848(i) refers to “an offense under

subsection (e) of this section.” Section 848(n) lists factors to

be considered in imposing a sentence for “an offense under

subsection (e).” Section 848(j) refers to proving aggravating

and mitigating factors “‘when a defendant is found guilty of

. . . an offense under subsection (e) of this section.” See 

.” The fact that the statute internally refers

to § 848(e) as an “offense” clearly establishes Congress’

intent to create a separate crime in § 848(e). In addition, we

must never forget that “death is different in kind from any

other punishment imposed under our system of criminal

                             39
justice.” Gregg v. Georgia, 

, 188 (1976)

(emphasis added). Given the qualitative difference between

a sentence of death and a sentence of life imprisonment, as

well as the text and structure of the statute, we are satisfied

that Congress intended subsection 848(b) as a sentencing

enhancement rather than elements of a separate offense.

       B.     Legislative History

       Furthermore, even assuming arguendo that the text,

structure and titles are ambiguous, we would reach the same

conclusion based on the legislative history of § 848(b).

When Congress added § (b) to the Anti-Drug Abuse Act of

1986, P.L. 99-570, Title I, § 1253, 100 Stat. 3207, it was

described as “providing tough new penalties for drug

dealers, not as creating new crimes.”        United States v.

Hardin, 

, 658 (7th Cir. 2000), cert. denied, 531



                            

(2001). The debate surrounding subsection (b)

centered on creating stiffer penalties for drug crimes. See,

e.g., 132 Cong. Rec. S26711 (1986) (statement of Sen.

Durenberger) (“This legislation is predominantly a crime

bill: interdiction; stiff penalties; new authority for law

enforcement.”) (emphasis added); 132 Cong. Rec. S26834

(1986) (“[t]he bill strengthens the penalties for major drug

traffickers”) (statement of Sen. Nunn) (emphasis added); 132

Cong. Rec. S26728 (1986) (“[T]he measure establishes

tougher penalties for individuals convicted of drug-related

crimes.”) (statement of Sen. Bingaman) (emphasis added);

132 Cong. Rec. S26746 (1986) (statement of Sen. Mattingly)

(“The bill which we have before us does enhance this

nation’s law enforcement capabilities.     It provides for

stricter penalties for those who engage in the illegal drug

trade.”) (emphasis added); 132 Cong. Rec. 31417 (1986)

                           41
(statement of Sen. Byrd (“it contains significantly enhanced

penalties for drug crimes. It requires minimum mandatory

sentences, with no parole, no probation. And it provides for

life sentences for major criminals-the drug ‘king pins’”)

(emphasis added).

       C.     Tidwell’s Attempt to Distinguish Precedent

       Tidwell disagrees with our interpretation of the cases

we have discussed. He claims that an important, if not

dispositive consideration in Jones supports his view that §

848(b) is a separate offense. There, the Court did observe

that where a provision appears to be a sentencing

enhancement, but nevertheless provides for significantly

steeper penalties based upon the presence of certain factors,

the extent of the increase in punishment can alone suggest a

congressional intent to create a separate crime. See Jones,



                           42


, 233 (1999).

       Accordingly, the Court in Jones explained that

       [it is] at best questionable whether the
       specification of facts sufficient to increase a
       penalty range by two-thirds, let alone from 15
       years to life, was meant to carry none of the
       procedural safeguards that elements of an
       offense bring with them for a defendant’s
       benefit. The “look” of the statute, then, is not
       a reliable guide to congressional intentions . .
       ..

argument is wholly unpersuasive

because, even absent § 848(b), § 848(a) would still allow for

a life sentence to be imposed on any defendant convicted of

a CCE. Thus, unlike the sentencing scheme in Jones, a

sentencing judge’s imposition of a mandatory life sentence

under subsection (b) neither alters the maximum penalty, nor

steeply increases a defendant’s exposure. Rather, “it makes

the existing maximum sentence [equal to the] minimum


                            43
   sentence . . . for a defendant who played an aggravated role

   in the CCE.” 

.8 The life sentence it

   mandates was already an available sentencing option based

   upon conviction for violating § 848(c). Thus, the concern

   that a defendant is denied “process safeguards” where the

   available sentence sharply exceeds the punishments

   otherwise available is not a persuasive consideration here.

   See 

.

          Tidwell also relies on Blakely v. Washington, 

(2004). There, the Supreme Court held that a judge

   can not impose a sentence on a criminal defendant that is

   greater than the maximum sentence authorized by the facts



      8
        Since we do not believe that § 848(b) is ambiguous,
we reject Tidwell’s attempt to rely on the principle of
constitutional doubt. See United States ex rel. Attorney
General v. Delaware & Hudson Co., 

, 408
(1909).

                              44
   reflected in the jury verdict or defendant’s guilty plea. See

   

. The 90-month sentence that was

   imposed in Blakely could not have been imposed based

   solely on the facts Blakely admitted. Rather, the sentence

   rested upon the judicial finding at sentencing that Blakely

   acted “with deliberate cruelty.” 

.

   Here, no such additional fact finding is required because a

   life sentence was already authorized by Tidwell’s plea to §

   848 (c).9 Absent consideration of the additional factors in §

   848(b), Tidwell could certainly have hoped for something

   less than a sentence of life imprisonment, but he had no right

   to anything less. It is a defendant’s right to a lesser sentence



       9
         It is now well established in this circuit that facts that
only enhance sentences within the range allowed by the jury’s
verdict (or guilty plea) need not be charged in an indictment
or proven beyond a reasonable doubt. See, United States v.
Grier, 

(3d Cir. 2006) (en banc).

                                45
absent additional fact finding that makes all the difference

under the Sixth Amendment. 

.

       Tidwell concedes that proof of the additional

subsection (b) facts did not increase his maximum sentence.

Appellant’s Br. at 63. However, he claims that Congress

cannot constitutionally require a mandatory minimum

sentence that is equal to the maximum sentence, without

affording the defendant the Sixth Amendment’s procedural

protections. This is particularly true, argues Tidwell, when

that mandatory minimum is life imprisonment. 

       Tidwell’s argument is foreclosed by the Supreme

Court’s decision in McMillan v. Pennsylvania. In McMillan,

defendants challenged the constitutionality of sentences

imposed pursuant to Pennsylvania’s Mandatory Minimum

Sentencing Act, 18 Pa. C.S.A. § 9712(a).       That statute



                           46
required a mandatory minimum prison sentence of five years

for anyone committing certain offenses “if the person visibly

possessed a firearm during the commission of the offense, . . 

. The defendants argued that visible possession

of a firearm was an element of the offense and therefore had

to be charged in the indictment and proven to a jury beyond

a reasonable doubt.      The Supreme Court disagreed. The

Court held that the Act merely limited the sentencing court’s

discretion by requiring a penalty within the range already

available.    No additional findings were required. The

legislature “simply took one factor that has always been

considered by sentencing courts to bear on punishment . . .

and dictated the precise weight to be given that factor.” 

Here, as in McMillan, the additional fact finding

“operates solely to limit the sentencing court's discretion in

selecting a penalty within the range already available to it

                             47
   without the special finding . . .”. 

            Tidwell claims that McMillan, as well as Harris, are

   distinguishable because § 848(b) denied the sentencing court

   any opportunity to impose a sentence within a prescribed

   range. By contrast, in both Harris and McMillan, imposition

   of the mandatory minimum “required the judge to impose a

   ‘specific sentence within the range authorized by the judge’s

   finding that the defendant [was] guilty.’” 

(quoting 

n.19). As we have

   just noted, although Tidwell may have expected that the

   district court would have discretion to impose a lesser

   sentence, that expectation does not rise to the level of a

   constitutional guarantee.10


       10
         According to Tidwell, pleading guilty to § 848(c)
makes no sense if it subjects him to a life sentence pursuant to
§ 848(b) because he would have had nothing to lose by
“rolling the dice” and going to trial. The argument ignores

                                 48
            Tidwell also claims that, where the minimum and

   maximum sentences are identical, the already difficult task

   of distinguishing Apprendi from McMillan and Harris

   becomes even more tenuous. However, it is not for us to

   reconsider McMillan and Harris, or resolve any tension that

   may exist between that line of cases, Apprendi and its

   progeny. See Agostini v. Felton, 

, 237 (1997)

   ("[i]f a precedent of [the Supreme Court] has direct

   application in a case, yet appears to rest on reasons rejected

   in some other line of decisions, the Court of Appeals should

   follow the case which directly controls, leaving to this Court

   the prerogative of overruling its own decisions." ).11



the fact that the court may have been able to impose a lesser
sentence based on his “substantial assistance.”
       11
          See 

(Breyer, J., concurring)
(“I cannot easily distinguish Apprendi . . . from this case in
terms of logic.”); United States v. Grier, 

, 575

                               49
          D. Stipulation to Drug Quantity.

          Finally, Tidwell claims that the stipulation of drug

   quantity in the plea agreement only extended to calculating

   his base offense level, and that it was error to rely on it to

   enhance his sentence pursuant to § 848(b). Tidwell believes

   that this is the only logical interpretation of the stipulation

   because the drug quantity would otherwise have required a

   life sentence and the guideline range would have become

   irrelevant. The argument again ignores the possibility of

   motions under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1.

   See App. at 16. Had these motions been filed, the sentencing

   judge would have had discretion and the quantity of drugs



(3d Cir. 2007) (Ambro, J., concurring) (“To create a
sentencing process that fully carries through on the promise of
Apprendi and Blakely, I believe the Supreme Court would
have to overrule at least, McMillan [citation omitted] and
Harris [citation omitted]”).

                               50
would have become relevant to calculating the correct

advisory sentencing range under 18 U.S.C. § 3553(a). See

United States v. Gunter, 

(3d Cir. 2006).

         We are also not persuaded to the contrary by

Tidwell’s reliance on United States v. Thomas, 

(3d Cir. 2004). There, because we merely discussed the

various meanings of an “admission” under Blakely, Thomas

is not as helpful as Tidwell claims. As we have explained,

Tidwell’s sentence does not exceed the statutory maximum.

Cf. United States v. Munoz, 

, 414 (6th Cir.

2000).

         Accordingly, we hold that Congress intended § 848(b)

as a sentencing enhancement, not as a separate crime. That

does not, however, end our inquiry. Tidwell’s claim that he

did not know that he was pleading guilty to an offense that



                            51
carried a mandatory life sentence requires us to determine if

his plea comports with the requirements of due process. See

Brady v. United States, 

, 748 (1970) (A plea of

guilty is constitutionally valid only to the extent it is

“voluntary and “intelligent”.)

       E.     The Voluntariness of Tidwell’s Plea.


       In order for a guilty plea to comply with the

requirements of the Due Process Clause of the Fifth

Amendment, it must be knowing, voluntary and intelligent.

 Bousely v. United States, 

, 618-19 (1998). To

that end, Fed. R. Crim. P. 11 provides that: “[b]efore

accepting a plea of guilty . . . the court must address the

defendant personally in open court and inform the defendant

of, and determine that the defendant understands [,] . . . the

maximum possible penalty provided by law . . .”. Fed. R.



                            52
   Crim. P. 11(c). Tidwell claims that his plea violated both the

   Due Process Clause and Rule 11 because he was not advised

   that he was pleading guilty to an offense that had a

   mandatory penalty of life imprisonment. Appellants’s Br. at

   35-42.12

           Tidwell argues that the District Court erred by failing

   to advise him that admitting involvement with 150 kilograms

   of cocaine triggered a mandatory life sentence absent

   motions under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.

   Tidwell’s argument rests in large part upon the fact that the

   judge told him the following during the colloquy:

           If you don’t like the sentence that I give you,
           you can appeal that. But very often I have



      12
        Tidwell’s argument “bleeds into” the more central
question before us which we have discussed above: whether
the mandatory sentencing provision in Section 848(b) is a
sentencing enhancement or a separate offense.

                               53
       discretion in these matters, and if you appeal
       the sentence, you may or may not be
       successful. But that’s the only thing you’re
       going to be able to appeal after today.


App. 195-96. Although this statement standing alone is

misleading, any confusion was dispelled by the judge’s other

admonitions to Tidwell. Throughout the colloquy, Tidwell

was advised that his guilty plea exposed him to a mandatory

sentence of life imprisonment, and he acknowledged that he

understood.

       The prosecutor explained: “Mr. Tidwell is pleading to

engaging in a continuing criminal enterprise. The maximum

sentence . . . is a mandatory life imprisonment . . . ”. App. at

185. Tidwell acknowledged that he understood. The judge

then explained: “to the extent there are mandatory

punishments for these offenses, I will have to impose those

punishments unless there is some basis on which I would . .

                            54
. be able not to do so.” 

The judge also clearly

explained that there was no guarantee that the government

would file any motion to allow the court to reduce Tidwell’s

sentence.

       I am assuming that the motion, you’re hoping the
       Government will make with respect to assistance
       would be a way in which I could go below the
       mandatory life term and the mandatory 20-year term.
       But there’s no assurance here that, number one, what
       you do for the Government is going to be deemed by
       them to be substantial. Number two, that they’re
       going to file a motion. Number three, that I’m going
       to grant the motion. And, number four, there’s no
       telling how I’m going to view the situation in terms
       of any departure I might make.

Finally, the judge warned: “[I]f there is not a

departure here, then there are mandatory sentences,

mandatory life sentences, and I’m not going to have the

ability to depart from that.” 

(emphasis added).

       Tidwell nevertheless pled guilty to “engaging in a


                           55
continuing criminal enterprise, in violation of Title 21,

United States Code, Section 848,” and stipulated that the

drug quantity exceeded 150 kilograms.         App. at 216.

Tidwell now complains that the plea agreement did not

specifically inform him that the stipulated drug quantity

would subject him to the mandatory life sentence in §

848(b). Tidwell overlooks the fact that, when he pled guilty,

the judge did advise him that a mandatory life sentence

would apply unless the government filed motions that would

authorize some sentencing discretion. The court could only

advise Tidwell of his maximum exposure, and the court did

that. See 

(discussing United States

v. Mustafa, 

(3d Cir. 2001)).

       Thus, Tidwell was informed that his guilty plea

subjected him to a mandatory sentence that would have to be



                           56
imposed unless the government moved for a reduction based

on Tidwell’s subsequent cooperation. The cooperation was

not forthcoming, but that does not alter the fact that

Tidwell’s plea was knowing, voluntary and intelligent.

                    IV. Conclusion

      For all of the foregoing reasons, we will affirm the

judgment of sentence.




                          57