The issue on appeal is whether the "safety valve" provision in 18 U.S.C. § 3553(f) applies to 21 U.S.C. § 860, the "schoolyard" statute, so that a court may impose a sentence shorter than the statutory minimum provided in § 860.

Between March and July 1994, John McQuilkin sold quantities of methamphetamine to an informant cooperating with the Drug Enforcement Agency and to an undercover DEA agent. Each sale occurred within 1,000 feet of a school.

McQuilkin was arrested and charged under 21 U.S.C. § 841(a)(1) (distribution),1 21 U.S.C. § 860 (distribution within 1,000 feet of a school), 21 U.S.C. § 846 (conspiracy)2 and 21 U.S.C. § 843(b) (use of a communication facility). He pled guilty to conspiracy to distribute methamphetamine, four counts of distribution of methamphetamine and four counts of distribution of within 1,000 feet of a school. McQuilkin stipulated that he and his co-conspirator distributed more than 100 grams but less than 400 grams of methamphetamine within 1,000 feet of a school and this quantity was reasonably foreseeable and jointly undertaken by him.

Based on the attributable amount of methamphetamine and taking into account his acceptance of responsibility, McQuilkin's sentencing guidelines range was 57 to 71 months imprisonment. The district court held that McQuilkin's convictions under 21 U.S.C. §§ 841 and 846 met the criteria for the "safety valve" provision of 18 U.S.C. § 3553(f). But the court ruled that 21 U.S.C. § 860, the "schoolyard" statute, required a five year mandatory minimum term of imprisonment, and that 18 U.S.C. § 3553(f) did not apply to the mandatory minimum sentence under § 860.

The district court sentenced McQuilkin to 60 months imprisonment to be served concurrently on all counts. In imposing sentence, the court stated that it intended to sentence McQuilkin to the lowest sentence allowed by law. McQuilkin has appealed contending the "safety valve" provision of 18 U.S.C. § 3553(f) permits a shorter sentence than the statutory minimum of 60 months. We exercise plenary review. See United States v. Sabarese, 71 F.3d 94, 95 n. 1 (3d Cir.1995), amended by, No. 95-5160 (3d Cir. Jan. 22, 1996).

This is a matter of statutory interpretation. Title 21 U.S.C. § 860 (the schoolyard statute) provides in part:

Any person who violates section 841(a)(1) ... of this title by distributing ... a controlled substance in or on, or within one thousand feet of, the real property comprising a ... school ... is (except as provided in subsection (b) of this section) subject to (1) twice the maximum punishment authorized by section 841(b) of this title; and (2) at least twice any term of supervised release authorized by section 841(b) of this title for a first offense. A fine up to twice that authorized by section 841(b) of this title may be imposed in addition to any term of imprisonment authorized by this subsection. Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year

....

Because under the relevant facts here, 21 U.S.C. § 841(b)(1)(B)(viii) mandates a five year minimum term of imprisonment, it supersedes the one year minimum term in § 860. The issue on appeal is whether 18 U.S.C. § 3553(f) may relieve a defendant from the mandatory minimum penalty for violating 21 U.S.C. § 860.

(f) Limitation on applicability of statutory minimums in certain cases.--Notwithstanding any other provision of law, in the case of an offense under ... 21 U.S.C. §§ 841, 844, 846 ... 961, 963 the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission ... without regard to any statutory minimum sentence, if the court finds at sentencing [that the defendant satisfies certain criteria].3

In the event of a violation under §§ 841, 844, 846, 961 and 963, 18 U.S.C. § 3553(f) allows a sentencing court under specified conditions to disregard the statutory minimum and impose a sentence in accordance with the guidelines.4

By its terms, 18 U.S.C. § 3553(f) applies only to convictions under 21 U.S.C. §§ 841, 844, 846, 961 and 963. Section 860 is not one of the enumerated sections. It is a canon of statutory construction that the inclusion of certain provisions implies the exclusion of others. The doctrine of inclusio unius est exclusio alterius "informs a court to exclude from operation those items not included in a list of elements that are given effect expressly by the statutory language." In re TMI, 67 F.3d 1119, 1123 (3d Cir.1995) (quoting Williams v. Wohlgemuth, 540 F.2d 163, 169 (3d Cir.1976)), cert. denied, --- U.S. ----, 116 S. Ct. 1560, --- L.Ed.2d ---- (1996). The government contends the stark exclusion of § 860 from the list of sections embraced by § 3553(f) reflects Congress' rational decision that drug dealing in a protected location is sufficiently serious to merit substantial penalties. In any event, nothing in the legislative history of § 3553(f) provides a basis for interpreting the statute other than as the clear language provides.5 See In re TMI, 67 F.3d at 1125 ("A construction inconsistent with a statute's plain meaning ... is justifiable only when clear indications of contrary legislative intent exist") (quoting Government of the Virgin Islands v. Knight, 989 F.2d 619, 633 (3d Cir.), cert. denied, --- U.S. ----, 114 S. Ct. 556, 126 L. Ed. 2d 457 (1993)). In clear and unambiguous language, therefore, 18 U.S.C. § 3553(f) does not apply to convictions under 21 U.S.C. § 860, the "schoolyard" statute.6

McQuilkin argues that 21 U.S.C. § 860 does not state a substantive offense but merely enhances the penalty for violations of 21 U.S.C. § 841(a) committed within l,000 feet of a school. McQuilkin contends the only substantive offense he violated was § 841(a), not § 860. Because 18 U.S.C. § 3553(f) applies to an "offense" under § 841, he argues the safety valve provision should be available to him. Accordingly, he believes the court erred in imposing a mandatory minimum sentence.

But 21 U.S.C. § 860 is a separate substantive offense, not a sentence enhancement provision. To distinguish an enhancement provision from a separate offense we look to the intent of Congress. See United States v. Hawkins, 811 F.2d 210, 218 (3d Cir.) ("As is the case in all questions dealing with the scope and separate identities of criminal offenses, the answer hinges on the intent of Congress."), cert. denied, 484 U.S. 833, 108 S. Ct. 110, 98 L. Ed. 2d 69 (1987). To ascertain intent we begin with the language of the statute. Hawkins, 811 F.2d at 218 (citing Garrett v. United States, 471 U.S. 773, 779, 105 S. Ct. 2407, 2411, 85 L. Ed. 2d 764 (1985)).

In this instance, the language of the statute specifies § 860 is a separate offense. Although § 860 refers to § 841, ("any person who violates § 841(a)(1) ... by distributing ..."), it requires a separate and distinct element--distribution within l,000 feet of a school. Distribution within l,000 feet of a school must be charged and proven beyond a reasonable doubt in order to obtain a conviction under § 860. See United States v. Smith, 13 F.3d 380, 382-83 (10th Cir.1993) (holding " § 860 constitutes an 'offense' which has as an element of proof that the distribution occurred within 1,000 feet of a protected place."). Moreover, while § 860 incorporates the elements of § 841(a), it does not incorporate statutory references to § 841, such as the one found in 18 U.S.C. § 3553(f).

Other courts of appeals have uniformly held § 860 is a separate offense that requires proof of an element that is not included in § 841. See, e.g., United States v. Parker, 30 F.3d 542, 551-53 (4th Cir.) (reversing a conviction under § 860 where there was no evidence that the distribution occurred within 1,000 feet of a protected place), cert. denied, --- U.S. ----, 115 S. Ct. 605, 130 L. Ed. 2d 515 (1994); United States v. Ashley, 26 F.3d 1008, 1011 (10th Cir.) (reaffirming an earlier decision that § 860 requires proof that the distribution occurred within 1,000 feet of a protected place), cert. denied, --- U.S. ----, 115 S. Ct. 348, 130 L. Ed. 2d 303 (1994); Smith, 13 F.3d at 382-83 (holding "that the distribution occurred within 1,000 feet of a protected place" must be separately proved); United States v. Holland, 810 F.2d 1215, 1218 (D.C.Cir.) (holding statute "adds an element to the offense of section 841(a)" which must be "proved"), cert. denied, 481 U.S. 1057, 107 S. Ct. 2199, 95 L. Ed. 2d 854 (1987).

Moreover, nothing in the language indicates § 860 is an enhancement provision. Most enhancement provisions are triggered by the defendant's criminal history. In contrast, § 860 requires proof of certain factual predicates that are independent of the defendant's past crimes. Most importantly, § 860 differs from enhancement provisions because it requires proof of an additional element beyond a reasonable doubt.

Only one court, the Court of Appeals for the Ninth Circuit, has suggested § 860 is an enhancement of the offense defined in § 841(a).7 See United States v. Thornton, 901 F.2d 738, 740-41 (9th Cir.1990) (statute "provides that if the drug transaction made illegal by section 841 took place within 1,000 feet of a school, the punishment for such offense will be enhanced.") (emphasis in original). But in Thornton, the Ninth Circuit also held the predecessor to § 860 "incorporates the sentencing enhancement element into the underlying offense." Id. (emphasis added). Thus the court's analysis reveals some confusion as to whether § 860 required an additional element of proof or was simply an enhancement provision. Moreover, all other courts of appeals that have addressed the issue have held § 860 is not an enhancement provision. See e.g. United States v. Ashley, 26 F.3d 1008, 1011 (10th Cir.) (holding § 860 is not a sentencing enhancer) cert. denied, --- U.S. ----, 115 S. Ct. 348, 130 L. Ed. 2d 303 (1994); see also United States v. Horsley, 56 F.3d 50, 51 (11th Cir.1995) (§ 841(a) is a lesser included offense of § 860); United States v. Parker, 30 F.3d 542, 553 (4th Cir.) (same), cert. denied, --- U.S. ----, 115 S. Ct. 605, 130 L. Ed. 2d 515 (1994); United States v. Scott, 987 F.2d 261, 266 (5th Cir.1993) (same).

We conclude § 860 is a separate offense and not a sentencing enhancement of § 841(a). Accordingly, § 3553(f) may not mitigate the mandatory minimum penalty under § 860.

For the foregoing reasons we will affirm the judgment of sentence.