Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-2009

USA v. Prince
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4408




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-4408


                            UNITED STATES OF AMERICA

                                            v.

                                   TYRONE PRINCE,
                                              Appellant


       APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS,
                  DIVISION OF ST. THOMAS/ST. JOHN
                       (D.C. Crim. No. 05-cr-00076-10)
                 District Judge: Honorable Curtis V. Gomez


                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 20, 2009


              Before: BARRY, HARDIMAN, and COWEN, Circuit Judges

                             (Opinion Filed: May 20, 2009)


                                        OPINION




BARRY, Circuit Judge

       Defendant Tyrone Prince was charged in a superseding indictment with two counts

of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841. A
jury convicted him of the substantive offense—possession with intent to distribute

cocaine base—but found that the government failed to prove the quantities of cocaine

base alleged in the indictment that would have supported a mandatory minimum sentence.

Prince was sentenced to a within-guidelines term of imprisonment of 33 months.

         On appeal, Prince asks us to vacate his conviction, contending that the government

failed to prove an essential element of the charged offense—quantity. He claims that he

should have been acquitted or, in the alternative, that the District Court should have

specifically instructed the jury on the lesser included offense of simple possession. He

also argues that, in the absence of a jury finding of specific quantity, he should have been

sentenced under the guideline addressed to offenses involving the minimum amount of

cocaine base. We will affirm.    1



                                              I.

         The specific statutory offense charged in the indictment does not square precisely

with the offense of conviction. The indictment charges Prince with possession with intent

to distribute crack cocaine in two counts, which correspond to varying quantities sold on

different dates—26 grams on November 16, 2004, and 27 grams on November 23,

2004—for a total quantity of 53 grams. The criminal statute charged is 21 U.S.C. §§

841(a)(1), (b)(1)(A)(iii), and (b)(1)(B)(iii). Subsection (a)(1) is the substantive conduct

element: possession with intent to distribute a controlled substance. Subsection


   1
       We have jurisdiction over this appeal under 28 U.S.C. § 1291.

                                             -2-
(b)(1)(A)(iii), which is listed under the “Penalties” subheading, calls for a mandatory

minimum term of imprisonment of 10 years for a violation involving 50 grams or more of

a mixture containing cocaine base, while subsection (b)(1)(B)(iii) sets the minimum at 5

years for 5 grams or more. Given the quantities alleged, Prince could have been charged

under (A)(iii) or (B)(iii), but the indictment does not specify which one actually applied to

him. We will use the 5-gram threshold—(B)(iii)—as it does not appear that the

government sought the 10-year mandatory minimum called for under (A)(iii), and every

reference in the record to a quantity threshold is to 5 grams.

       At trial, Prince admitted that he had sold crack cocaine to a confidential source, but

testified, without specifics, that the quantity involved was less than the amount the

government entered into evidence. The Presentence Investigation Report (“PSR”)

prepared by the Probation Office indicates that Prince sold 1.6 grams of crack cocaine on

November 16, 2004 and 2.4 grams on November 23, 2004, for a total of 4.0 grams. (PSR

¶¶ 14-18.) While there are several passing references to those amounts in the record, it is

not entirely clear how the Probation Office arrived at that total. The prosecutor referred

to “the chemists’ testimony” at the charge conference (App. 45), but that testimony is not

in the record before us.

       At the conclusion of trial, the District Court submitted to the jury a verdict form

with two questions on each count pertaining to Prince. Asked whether Prince “knowingly

and intentionally distribut[ed] . . . a detectable amount of a controlled substance . . . as


                                             -3-
charged in the indictment,” the jury answered “Guilty” on both counts. (Id. 12-13.) Next,

when asked whether the government proved that 5 grams or more of crack was involved,

the jury marked the space indicating “No.” (Id.) Thus, the jury found Prince guilty of the

substantive conduct element of the offense—the knowing and intentional distribution of a

controlled substance—but not in an amount triggering a mandatory minimum sentence

under § 841(b)(1)(B)(iii).

       After the jury returned its verdict, Prince moved for judgment of acquittal pursuant

to Federal Rule of Criminal Procedure 29(c), arguing that the government failed to prove

what he considered “an element of the offense”: the quantity of drugs required to meet §

841(b)(1)(B)(iii). The District Court denied the motion. At sentencing, Prince relied on

substantially the same argument, albeit couched as an objection to the calculation of the

base offense level in the PSR. He argued that, because the jury did not return a verdict

with a specific quantity finding, his advisory guideline range should be calculated in

accordance with the minimum quantity guideline, U.S.S.G. § 2D1.1(c)(14). The Court

denied Prince’s objections and adopted the recommended sentence in the PSR.

       The judgment of conviction states that Prince was adjudicated guilty of 21 U.S.C.

§ 841(b)(1)(C). Section 841(b)(1)(C) sets forth the possible penalties for a violation of §

841(a)(1) involving an amount of crack cocaine that does not exceed the threshold for a

mandatory minimum—in other words, a crack distribution offense involving less than 5

grams. Thus, while § 841(b)(1)(C) provides for a maximum twenty-year sentence, it does


                                           -4-
not require imposition of a mandatory minimum sentence.

                                             II.

       Prince argues that, because the government failed to prove the “requisite element”

of 5 grams or more of cocaine base charged in the indictment, the District Court should

either have granted his Rule 29 motion for acquittal or instructed the jury to consider a

lesser included misdemeanor—simple possession pursuant to 21 U.S.C. § 844(a). He is

incorrect.

       The evidence adduced at trial did not support a quantity finding above the 5-gram

mandatory minimum threshold charged by the government. The jury determined,

however, that Prince engaged in the substantive conduct charged under § 841(a)(1), and

that this conduct involved an unspecified quantity of crack cocaine consistent with §

841(b)(1)(C). In effect, Prince avoided a mandatory minimum sentence by dropping one

level on the penalty scale established by Congress for the punishment of drug distribution

offenses under § 841.

       In arguing that he should have been sentenced under 21 U.S.C. § 844(a), Prince

misreads our holding in United States v. Lacy, 

(3d Cir. 2006), to provide

that the only “lesser included offense” 2 for a violation of § 841(a)(1) is simple possession




   2
    An offense “necessarily included in the offense charged” under Federal Rule of
Criminal Procedure 31(c) “is one that does not require proof of any additional element
beyond those required by the greater offense.” Gov’t of the V.I. v. Joseph, 

,
396 (3d Cir. 1985) (emphasis omitted).

                                            -5-
pursuant to § 844(a).3 While, in Lacy, we held that § 844(a) is a lesser included offense

of § 

, we did not hold that it is the only one. Section

841(b)(1)(C)—the penalty subsection cited in the Court’s judgment—when coupled with

§ 841(a)(1), punishes (1) knowing or intentional (2) possession (3) with intent to

distribute (4) a controlled substance. As evidenced by its completed verdict sheet, the

jury found that the government proved each of these elements beyond a reasonable doubt.

The jury’s determination that the quantity proved at trial did not exceed the 5-gram

threshold is of no significance, because § 841(b)(1)(C) does not require proof of a

specified drug quantity.

       Prince does not explain why the District Court should have looked past the jury’s

finding that he met the “intent to distribute” element of § 841(a)(1) and (b)(1)(C) such

that a sentence in accordance with § 844(a) was the only appropriate option. Nor can he

contend that his sentence in excess of the one-year ceiling imposed for a conviction of §

844(a) was in violation of Apprendi v. New Jersey, 

(2000),4 because the

finding of intent that distinguishes a § 841 offense from a § 844(a) offense was made by

the jury. Accordingly, Prince was properly convicted under § 841(b)(1)(C).

   3
     Prince seeks a sentence in accordance with § 844(a) because he would be subject to
a maximum one-year prison term. See 21 U.S.C. § 844(a) (“Any person who violates this
subsection may be sentenced to a term of imprisonment of not more than 1 year . . . .”).
   4
     The Supreme Court held in Apprendi that a defendant’s constitutional rights are
violated when his prescribed statutory maximum penalties are increased by any fact, other
than a prior conviction, that a jury does not find beyond a reasonable 

. Such facts are the “functional equivalent[s]” of “elements” of an aggravated offense
with a higher statutory maximum. 

n.19.

                                           -6-
       Prince’s second argument—that he should have been sentenced pursuant to the

minimum quantity guideline, U.S.S.G. § 2D1.1(c)(14), which carries a base offense level

of 12—is also incorrect. For sentencing purposes, drug quantity is considered relevant

conduct determinable by the sentencing court, see U.S.S.G. § 2D1.1, cmt. n.12, and

Prince does not dispute that his criminal conduct involved a total of 4 grams of crack

cocaine. Accordingly, we see no reason to upset the sentence.

                                           III.

       For the reasons set forth above, we will affirm the judgment of conviction.




                                           -7-