This case is about the interpretation of an important federaldrug distribution statute, 21 U.S.C. § 841, under which thedefendant Michael Malouf ("Malouf") was indicted. Section 841creates a staircase of sentences, with steep increases at eachstep — statutory maximums up to life imprisonment and mandatoryminimums that increase from five, to ten, and to twenty years.Where the defendant is situated on this sentencing staircasedepends upon the type and quantity of drugs involved, whether thedefendant has a prior felony drug conviction, and whether deathor bodily injury resulted from the offense.
The interpretation of the statute is complicated by recentchanges in Supreme Court sentencing law, embodied by Blakely v.Washington, 124 S. Ct. 2531 (2004), United States v. Booker,125 S. Ct. 738 (2005), and Shepard v. United States,125 S. Ct. 1254 (2005). This law substantially impacts the application ofeach factor in the statute — in particular, prior convictions(implicating Almendarez-Torres v. United States, 523 U.S. 224(1998)), bodily injury (implicating Jones v. United States, 526 U.S. 227 (1999), and drug quantity — that increases the statutorymaximum penalty (implicating Apprendi v. New Jersey,530 U.S. 466 (2000)), and/or the mandatory minimums (implicating Harrisv. United States, 536 U.S. 545 (2002)). The question is whether,as the Supreme Court's decisional law has changed, theinterpretation of 21 U.S.C. § 841 should likewise change.
Specifically, the sentencing of Michael Malouf raises thefollowing questions: (1) Do the drug quantities outlined in21 U.S.C. § 841 comprise elements of offenses, or sentencingfactors? If the former, the relevant case is Apprendi, a jurytrial is required and the standard of proof is beyond areasonable doubt; if the latter, it is Harris, drug quantitycan be determined by a judge, and the standard is a fairpreponderance of the evidence. (2) What is the continued efficacyof Harris in the light of the Court's rulings in Blakely andBooker? (3) What is a district court to do when the FirstCircuit's interpretation of § 841 relies on Supreme Courtprecedent which predates Blakely and Booker? (4) In thealternative, however the facts are characterized (as sentencingfactors or elements), where facts have a significant, indeeddeterminative impact, does the Due Process Clause of the FifthAmendment require the application of the beyond a reasonabledoubt standard? On September 10, 2003, Michael Malouf1 was charged withconspiracy to distribute five kilograms or more of cocaine, aswell as a quantity of marijuana, in violation of21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(ii).2 In addition, thegovernment gave notice (under 21 U.S.C. § 851(a)) that it wouldrely on a prior felony drug offense as the basis for a sentencingenhancement.3 The prior conviction, together with thequantity of cocaine alleged in the indictment, exposed thedefendant, if convicted, to twenty years to life imprisonment.See 21 U.S.C. § 841(b)(1)(A).
On May 28, 2004, Malouf pled guilty to the indictment, but notto all of its terms. (There was no plea agreement). Malouf, withthe government's approval, reserved the right to contest theamount of drugs specifically attributable to him. The government's position was straightforward: So long as thefinal sentence was less than life imprisonment (the "5 kilogramsor more" statutory maximum) — as it was bound to be — the Courtwas authorized to decide the quantity for which Malouf wasresponsible. Drug quantity, the government argued, is asentencing factor, not an element of the offense. Accordingly,Harris authorized the Court to determine drug quantity by afair preponderance of the evidence, even if that amount triggereda substantial mandatory minimum sentence. See 536 U.S. at 567.Since, according to the government, Malouf was responsible forover 500 grams of cocaine, and had a prior felony drugconviction, he was to be sentenced to a mandatory minimumsentence of ten years.
Malouf countered that he was responsible for under 500 grams ofcocaine, an amount without a mandatory minimum. See21 U.S.C. § 841(b)(1)(C) (where the penalty ranges from probation to thirtyyears); see also infra Part II.B. In such a case, thesentencing range specified in the Federal Sentencing Guidelineswould guide the judge in sentencing an offender up to thestatutory maximum. See United States v. Jaber,362 F. Supp. 2d 365 (D. Mass. 2005) (describing the appropriate approach toanalyzing the Guidelines post-Booker).
At sentencing hearings held over three days, I made alternativelegal and factual rulings, in part to reflect the recentuncertainty in the law of sentencing: First, in order to avoid a constitutional issue, namely the question of the Harrisholding's continued efficacy following Blakely and Booker, Iconstrued 21 U.S.C. § 841 as creating three offenses: 1) anaggravated offense, namely distribution of five kilograms or moreof cocaine, and two lesser offenses, 2) distribution of 500 gramsor more (up to 5 kilograms) of cocaine, and 3) distribution ofunder 500 grams of cocaine. I concluded that, under Apprendi,the elements of each offense were to be determined by a jury andproved beyond a reasonable doubt.
I then construed the defendant's plea as an admission to all ofthe elements of the indicted offense except to the drug quantityattributable to him. I found that the defendant's reservation ofthe right to challenge quantity amounted to a request for ajury-waived trial on the question of whether his conductconstituted the lesser included offense (under 500 grams) or thehigher offense (over 500 grams). If the government agreed withthe jury waiver,4 the issue would be tried to the Court,subject to the beyond a reasonable doubt standard.
The government vigorously objected. Nevertheless, whilepreserving its objections to the Court's construction of21 U.S.C. § 841 as three offenses, the government agreed to waivethe jury with respect to the determination of quantity. Alternatively, I found that, even if the drug quantitiesenumerated in 21 U.S.C. § 841 comprised sentencing factors to bedetermined by the Court under Harris, I would still apply thehighest burden of proof to the facts at bar. If the SixthAmendment's jury trial right was not implicated under Apprendi,then at the very least, the Fifth Amendment's Due Processprotections should have been triggered. Even if the fullformality of a jury were not required, at the very least, the"beyond a reasonable doubt" standard was required. See JudgeNancy Gertner, What Has Harris Wrought, 15 Fed. Sent. Rep.83, *1 (2002).
I also made two alternative factual findings. First, I foundthat the government had not proved beyond a reasonable doubtdefendant's alleged distribution of over 500 grams of cocaine. Assuch, I sentenced the defendant under the Federal SentencingGuidelines (as described below). Second, should the First Circuitanalyze the burden of proof issue differently, I noted that Iwould have found the amount of cocaine to be over 500 grams by afair preponderance of the evidence. Under this alternativeparadigm, the defendant's sentence would have been 120 months,the mandatory minimum.
Based on my review of the evidence, and my primary use of thebeyond a reasonable doubt standard, I found that the governmenthad not proven the completion of three cocaine transactions, on April 25, 2003, April 27, 2003, and June 11,2003. As a result, I concluded that the amount of cocainedistributed was under 500 grams, and applied the SentencingGuidelines with a one-level departure on criminal historygrounds. I sentenced Malouf to 60 months' imprisonment, with anumber of specific conditions designed to address his severe drugabuse problem.
A. Procedural Background
On May 28, 2004, Malouf pleaded guilty to a one countindictment charging him with conspiracy to distribute and topossess with intent to distribute, five kilograms or more ofcocaine, and a quantity of marijuana in violation of21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A). At the rule 11 hearing, Maloufadmitted that he conspired with Nicholson and others todistribute cocaine and marijuana and that a number of these drugtransactions were documented in phone calls intercepted overNicholson's phone.5 He also admitted that the conspiracyinvolved five kilograms or more of cocaine under21 U.S.C. § 841(a)(1).
Malouf, however, did not admit the specific quantity of drugsfor which he was to be held responsible, stating (through hiscounsel) that he would be "contesting [at the sentencing hearing] whether or not it's over or under 500 grams." Thegovernment agreed that this issue was appropriately preserved forsentencing.
The government submitted an affidavit, which effectivelycomprised Special Agent Michael Kozak's ("Kozak") directexamination. Based on Kozak's affidavit, which quoted extensivelyfrom wiretapped conversations, the government argued that Maloufwas responsible for 31.5 ounces of cocaine and four pounds ofmarijuana. The 31.5 ounces of cocaine consisted of 11 ouncespurchased before the wiretap period, offered through thetestimony of a confidential informant, and 20.5 ounces allegedlypurchased during the 60-day wiretap period. Subsequently, thegovernment withdrew allegations concerning amounts purchasedbefore the wiretap period in order to protect the identity of itsconfidential informant.
The government then focused on evidence gleaned from theoverheard conversations, and to a degree, contemporaneoussurveillance of the defendants. Like many defendants, Malouf andhis co-conspirators spoke in a sort of code; the government (largely through the AUSA) offered its own"translations,"6 which for the most part were notcontested.
Malouf did not contest the allegation that he purchased cocaineand marijuana during the wiretap period. Nor did he contest thespecifics of most of the transactions in which a price (or afairly transparent code for a price) clearly was mentioned, andfollowed by surveillance confirming that the deal wasconsummated. He did, however, contest some of the inferences thegovernment sought to draw from the conversations. In threeinstances, I agreed with Malouf's objections, based on myunderstanding of the appropriate burden of proof, to which I nowturn. II. BURDEN OF PROOF
A. Sixth Amendment Rights Under Apprendi and Harris
As described above, this case is about the construction of thefederal drug distribution statute, 21 U.S.C. § 841. It implicatesthe Supreme Court's methodology in interpreting criminal statutesin cases like McMillan v. Pennsylvania, 477 U.S. 79 (1986),Jones, Apprendi, Harris, and to a degree, its more recentjurisprudence in Blakely, Booker and Shepard.
In Apprendi, the Court held, "[o]ther than the fact of aprior conviction, any fact that increases the penalty for a crimebeyond the prescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt." Apprendi,530 U.S. at 490 (emphasis added). Apprendi pled guilty to two counts ofunlawful possession of a firearm and one count of unlawfulpossession of an antipersonnel bomb. See id. at 470. Understate law, the maximum sentence was ten years on each of thefirst two counts, or twenty years total.7 See id.
The prosecutor asked for a sentencing enhancement under aseparately codified New Jersey hate crime law. See State v.Apprendi, 304 N.J. Super. 147, 150 (1997) (citing N.J. STAT.ANN. § 2C:44-3(e), which authorizes enhanced sentences fordefendants that commit crime "with a purpose to intimidate ? anindividual or group of individuals because of race"). The enhancementincreased both the maximum and the minimum term to which thedefendant was subject for possession of a firearm, from five toten years to ten to twenty years, and for possession of anantipersonnel bomb, from three to five years to five to tenyears. See id.; Apprendi, 530 U.S. at 470. The state judgefound the relevant state of mind by a preponderance of theevidence and sentenced Apprendi to 12 years on the first count,and shorter concurrent sentences on the other two counts. SeeApprendi, 530 U.S. at 471. The Supreme Court reversed.
To the Court, it did not matter how the legislaturecharacterized the hate crime enhancement — as a sentencing factoror an element; so long as the enhancement had the effect ofincreasing the statutory maximum for the offense, it had to befound by a jury.8 Nevertheless, in the immediateaftermath of Apprendi, its scope was not clear:9 Would Apprendiapply only to factors that increase statutory maximums? Would itapply to any factors that have an impact on the sentencingoutcome?10 Would it apply only to traditional offense factors, as opposed totraditional sentencing factors, like prior convictions?
In Harris, it appeared the Court would limit Apprendisolely to factors that increase the statutory maximum. The Courtalso acknowledged certain important exceptions to the Apprendiprinciple. For example, where mandatory minimums, or"traditional" sentencing factors like prior convictions inAlmendarez-Torres v. United States, 523 U.S. 224 (1998), wereat issue, a judge could make findings in lieu of a jury. SeeHarris, 536 U.S. at 553, 557.
Harris involved a single statute: 18 U.S.C. § 924(c)(1)(A).See id. at 550. For carrying a firearm, the mandatory minimumwas five years; for brandishing it, the mandatory minimumincreased to seven years. See id. at 550-51. Although Harriswas "only" convicted by a jury of "carrying" a firearm, the judgefound him guilty of "brandishing" and sentenced him to sevenyears. See id. at 551.
Justice Kennedy, joined by Justices Rehnquist, O'Connor, Scaliaand Breyer, interpreted § 924(c)(1)(A) as establishing a singleoffense, with "brandishing" a firearm a sentencing factor akin to"traditional" sentencing factors like prior convictions. Seeid. at 556. In effect, the Court suggested that, as a generalmatter, whenever traditional sentencing factors appear in astatute, it is reasonable to assume that Congress intended them to be treated differently from offense elements — with a lesserburden of proof, and a judge, instead of a jury, asdecisionmaker. Cf. Castillo v. United States, 530 U.S. 120,126 (2000) (emphasizing that "[t]raditional sentencing factorsoften involve either characteristics of the offender, such asrecidivism, or special features of the manner in which a basiccrime was carried out (e.g., that the defendant abused aposition of trust or brandished a gun)."
In addition, four justices found that Apprendi applied onlyto facts increasing the maximum sentence, not to facts increasingthe mandatory minimum sentence11 — a holding in whichJustice Breyer did not join. Justice Breyer wrote separately,noting that he could not distinguish Apprendi "from this casein terms of logic." Harris, 536 U.S. at 569 (Breyer, J., concurring inpart and concurring in the judgment). At the same time, hereiterated his position that Apprendi was wrongly decided.
Justice Thomas dissented, joined by Justices Stevens, Souterand Ginsburg, characterizing Apprendi's holding more broadlythan the decision's majority. They opined that Apprendi applieswhenever a "fact exposes a defendant to greater punishment thanwhat is otherwise legally prescribed," whether that fact "raisesthe floor or raises the ceiling." Id. at 579 (Thomas, J.,dissenting).
B. Section 841(b) After Apprendi
Section 841(b)12 consists of three relevantsubsections, each containing a sentencing range. Beginning withthe most severe, § 841(b)(1)(A) imposes a mandatory minimumsentence of ten years and a maximum sentence of life when theoffense involves five kilograms or more of a substance containingcocaine. The minimum sentence is increased to twenty years "ifdeath or serious bodily injury results" or if the defendant has aprevious felony drug conviction. Section 841(b)(1)(B) imposes amandatory minimum sentence of five years and a maximum of fortyyears if the offense involves 500 grams or more of a substancecontaining cocaine. Again, death or serious bodily injuryincreases the mandatory minimum sentence to twenty years, and a previous felonydrug conviction increases it to ten years. Finally, §841(b)(1)(C) is the catch-all provision that imposes a maximumsentence of twenty years and no minimum sentence, withoutspecifying particular amounts for most controlled substances. Themaximum is increased to thirty years with a prior felony drugconviction and the minimum is set at twenty years and the maximumat life if death or serious bodily injury results.
Prior to Apprendi, all of these factors — the amount of drugsinvolved in the crime, the fact of bodily injury, and the fact ofprevious felony drug convictions — were seen as sentencingfactors found by courts. Apprendi modified this approach, butonly to a degree. Most courts, including the First Circuit,construed Apprendi to require that drug quantity be treated asan element, specially charged in the indictment and submitted tothe jury, whenever the enhancement takes the defendant's sentenceover the applicable statutory maximum.
In United States v. Perez-Ruiz, 353 F.3d 1 (1st Cir. 2003),for example, the court held that Apprendi does not precludejudicial fact findings (including findings as to drug type andquantity) that increase a defendant's sentence under21 U.S.C. § 841, so long as the sentence remains within the default statutorymaximum. See 353 F.3d at 15. The trial court could not sentenceabove the default maximum unless the jury had determined thetriggering drug type and quantity. See id. A conspiracy charge, like the one at issue here (and inPerez-Ruiz), is particularly complex. The maximum sentence towhich the defendant is exposed derives from the amounts found inthe conspiracy (which have to be specially pleaded or found by ajury if they are above the catch-all amount). See id. at 18. Ajudge is then obliged to sentence according to the drug amountsindividually attributable to the defendant, "so long as thesentence falls within the statutory maximum made applicable bythe jury's conspiracy-wide drug quantity determination." Id.(citing Derman v. United States, 298 F.3d 34, 43 (1st Cir.2002)); see also Edwards v. United States, 523 U.S. 511, 515(1998) (since the court sentenced defendant within the statutorymaximum applicable to the conspiracy, it could determine both theamount and the kind of controlled substances for which thedefendant was held responsible). Yet, again, factors thatincrease the minimum sentence but do not increase it beyond themaximum are not subject to Apprendi's safeguards.13See, e.g., United States v. Goodine, 326 F.3d 26, 28, 32 (1st Cir. 2003),cert. denied 541 U.S. 902 (2004) (holding that drug quantity in§ 841 is a "mere sentencing factor," and "a judge's determinationof drug quantity can influence the mandatory minimum sentenceimposed. . . .")
Accordingly, the government maintained that the statutorymaximum of life (because of the prior conviction, see21 U.S.C. § 841(b)(1)(A)) was framed by Malouf's plea to the 5 kilogramindictment, and the specific sentence within that range wasframed by judicial findings about the amount attributable to him.The government's position pivots on Apprendi's focus onstatutory maximums, on Harris' distinction between minimum andmaximum sentences, and on Harris' reaffirmation of thedistinction between traditional sentencing factors and offenseelements established in Almendarez-Torres. See Goodine,326 F.3d at 28-31 (where the First Circuit also relied on Apprendi,Harris, and Almendarez-Torres). However, these holdings havebeen substantially muddied, if not entirely undermined, by theCourt's decisions in Blakely, Booker, and Shepard.
C. Blakely, Booker, and Shepard Blakely broadened Apprendi by requiring that all facts"which the law makes essential to the punishment" be subject toSixth Amendment protections. Blakely, 124 S. Ct. at 2537(quoting 1 J. Bishop, Criminal Procedure § 87 (2d ed. 1872)).The Court effectively chose an "impact" test, focusing on theimpact of such facts on punishment, rather than on theformalistic distinctions between sentencing factors and offenseelements. Its concern was not simply about a fact's effect on thestatutory maximum, but more generally, about its effect onpunishment.
In Booker, the Court reaffirmed this approach by applying itto the Federal Sentencing Guidelines. See 125 S. Ct. at 749(Stevens, J.). The Sixth Amendment, the Court found, preventsfederal judges from making factual determinations that increase adefendant's sentence under the Guidelines on the basis of factsnot reflected in the jury's verdict. See id. at 756. TheCourt rejected the government's argument that the FederalSentencing Guidelines were "guidelines" after all — not the"diktats" that some critics described. See Jose Cabranes & KateStith, Fear of Judging: Sentencing Guidelines in the FederalCourts 95 (1998) (describing the Federal Sentencing Guidelinesas a set of "administrative diktats" that the Commission"promulgated and enforced ipse dixit").
An impact test necessarily casts doubt on Harris' distinctionbetween mandatory minimum provisions and statutory maximums. It is difficult to envision a situation in which a factthat determines a mandatory minimum is not considered "essential"to punishment. Moreover, if Federal Sentencing Guidelinestroubled the majority in Booker, despite the possibility ofdownward departures, mandatory minimum provisions are likely tobe of even greater concern.14
And to complete the trilogy, dicta in Shepard even calls intoquestion the "traditional sentencing factor" approach. InShepard, the Court held that a sentencing court could only relyon prior convictions as predicates for Armed Career Criminalstatus, if the statutorily required characteristics of theseconvictions were evidenced by "the charging document, the termsof the plea agreement or transcript of colloquy between judge anddefendant in which the factual basis for the plea was confirmedby the defendant or ?some comparable judicial record of thisinformation." 125 S. Ct. at 1263. Justice Thomas, concurring,went further, casting doubt on Almendarez-Torres, which henoted was "eroded" by the Court's subsequent decisional law.See id. (Thomas, J., concurring in part and concurring in thejudgment). Indeed, he went so far as to count the votes forreversing Almendarez-Torres; a majority of the Court, he maintained, nowrecognized that Almendarez-Torres was wrongly decided. Seeid. (citing Almendarez-Torres, 523 U.S. at 248-49 (Scalia,J., joined by Stevens, Souter, and Ginsburg, J., dissenting);Apprendi, 530 U.S. at 520-21 (Thomas J., concurring)).
D. District Court's Role in a Time of Changing SentencingLaw
The question is this: Do I ignore Booker's impact on theHarris holding or Shepard's on Almendarez-Torres insentencing this defendant? And do I apply the First Circuit'sinterpretation of 21 U.S.C. § 841 in Goodine and Perez-Ruiznotwithstanding their reliance on Supreme Court precedent whichis crumbling?
Lower courts are facing this dilemma across the country. Forthe most part, they have been carving out "exceptions" toHarris or Almendarez-Torres, to avoid the issue. In UnitedStates v. Greer, 359 F. Supp. 2d 1376 (M.D. Ga. 2005), forexample, the court held that declaring a defendant an ArmedCareer Criminal and thereby imposing a mandatory minimum 15-yearsentence absent a jury finding of three previous felonyconvictions under 18 U.S.C. § 924(e)(1) violates the SixthAmendment. See id. at 1380. The court effectively carved outa new distinction, not previously recognized, that the Sixthamendment applies to mandatory sentence enhancements that arebased on the "nature of a prior conviction" while not "the fact of a prior conviction." Id. Other courts have sought new anddifferent ways to interpret existing statutes, now informed byrecent decisional law. In United States v. Harris, 397 F.3d 404(6th Cir. 2005), for instance, the Court held that the impositionof a mandatory minimum sentence based on judicial determinationof firearm type, as provided in 18 U.S.C. § 924(c) (the statuteat issue in Harris and Castillo), would violate the SixthAmendment. See Harris, 397 F.3d at 414. The Court describedthe case as one of "first impression." Id. at 412.
My dilemma is slightly different. I could avoid any collisionwith Harris by reinterpreting § 841 as the Supreme Court did inJones. In Jones, where the statute was equally susceptible totwo interpretations, one of which raised "grave and doubtfulquestions" of constitutional law that the other did not, thecourt held that it should interpret the statute so as to avoidthe constitutional questions. Jones, 526 U.S. at 239. Butreinterpreting § 841 to bring it in line with recent SupremeCourt law runs afoul of the First Circuit's pre-Bookerinterpretation in Goodine.
There has been considerable debate about what lower courtsshould do in the face of Supreme Court precedent that is nowdoubtful. One scholarly commentator has described various data(short of binding precedent) that a lower court might invoke,along a continuum of circumstances, to predict how its superior court will decide the matter on appeal. These data fall into thefollowing categories, from the relatively concrete to the moreabstract: (a) "`fragmented-majority dispositional rule[s],'meaning ? dispositional rule[s] endorsed by a majority of theJustices when such endorsement is fragmented across two or moreopinions (and perhaps two or more cases) in a manner deprivingthe rule of precedential status[;]" (b) dicta contained invarious Justices' opinions; (c) Justices' declarations of theirlegal positions in public fora other than written judicialopinions; and (d) other informal information concerningparticular Justices' general ideological commitments ortendencies. Evan H. Caminker, Precedent and Prediction: TheForward-Looking Aspects of Inferior Court Decisionmaking,73 Tex. L. Rev. 1, 17-18 (1994) [hereinafter Caminker, Precedentand Prediction]; see generally Kent Greenawalt, Reflectionson Holding and Dictum, 39 J. Legal Educ. 431 (1989).
Yet, in this case, I need not go so far as to advocate thelegitimacy of invoking non-binding precedent. In my judgment, thebreadth of the holdings in Booker and Blakely have in factoverruled Harris.15 The Court has gone from holdingthat the Sixth Amendment is implicated in the determination of facts thatincrease a statutory maximum (Apprendi) to applying the SixthAmendment to all facts "essential to the punishment" (Bookerand Blakely). It has extended the application of the SixthAmendment from statutory maximum penalties (Apprendi) to themandatory "Guidelines" (Booker).16 And, even if one does not characterize this group of holdingsas overruling Harris, plainly the reasoning underlying themdoes overrule Harris. At worst, this is Caminker's category (a)situation, described above, in which a majority of the Justiceshave endorsed a particular legal rule that is deprived ofprecedential status simply because it is "fragmented across twoor more opinions." Caminker, Precedent and Prediction at 17-18.
E. Section 841 after Blakely, Booker and Shepard
Section 841, after all, is a hybrid provision — withoffense-defining aspects and ostensibly sentencing regulatingportions. Its structure mirrors the statute in Jones, whichbegins with a principal paragraph appearing to list a series ofobvious offense elements, followed by numbered paragraphscontaining apparent sentencing factors. See Jones,526 U.S. at 230, 232. However, as in Jones, this "superficialimpression" about the nature of the provision's components isproblematic because the numbered penalty subsections "not onlyprovide for steeply higher penalties, but condition them onfurther facts (injury, death) that seem quite as important as theelements in the principal paragraph. . . ." Id. at 233.Further, as the Jones Court explained, it is "at bestquestionable whether the specification of facts sufficient to increase a penalty range bytwo thirds, let alone from 15 years to life, was meant to carrynone of the due process safeguards that elements of an offensebring with them for a defendant's benefit." Id.
In the instant case, the "further facts" on which enhancedpenalties are based — injury, scope of the operation (as definedby quantity) — are as important as the general elements in § 841(a) — manufacture, distribution, nature of the controlledsubstance. Moreover, injury and quantity are the kinds of factorstypically related to the offense rather than to characteristicsof the offender. Indeed, I have already interpreted one aspect of§ 841, the portion increasing punishment whenever "bodily injury"results, under this rationale. See United States v. Martinez,234 F. Supp. 2d 80 (D. Mass. 2002).17
And the punishment ranges — minimum and maximum — increasesubstantially with the finding of each additional aggravatingfactor. The result is not a mere two-year increase as inHarris. For Malouf, the mandatory minimum takes him from aGuidelines range that could only go as high as 71 months (withoutdeparture), to 120 months. As one scholar noted, "[a]s a matter of statutory interpretation, . . . a court might conclude thatinclusion of a mandatory minimum in an otherwise offense-definingstatute, rather than enactment as a clearly demarcatedsentencing-regulating provision, indicated legislative intent tomake that mandatory minimum a statutory element of the offense."Priester, Structuring Sentencing at 878 n. 92 (2004).
The better view in my judgment is to conclude that § 841 is anoffense-defining statutory provision, all elements of which mustbe tried before the jury. Out of an abundance of caution, then, Iinterpreted Malouf's plea as an admission to one element ofconspiracy — that he was a participant in a conspiracy — but Ireserved for a jury-waive trial the determination of anotherelement — statutory quantity.
F. An Alternative Holding: Due Process
While sentencing law is being reexamined in courts across thecountry — appropriately, in the judgment of this Court — onething is clear: There is a new concern for procedural fairness inthe finding of facts. In the instant case, a substantialmandatory minimum sentence pivots on a finding of a specificquantity. Quantity can be "a rough measure of an offender'sculpability to the extent it reflects the offender's positionwithin the drug distribution network." Paul J. Hofer & Mark H.Allenbaugh, The Reason Behind the Rules: Finding and Using thePhilosophy of the Federal Sentencing Guidelines, 40 Am. Crim. L. Rev. 19, 71 (2003). As Hofer and Allenbaugh noted, thelegislation appears to reflect the principal that "leaders ofdrug distribution operations will be linked to large amounts,while underlings will be linked only to smaller amountsreflecting their position as wholesale distributer, street-levelretail dealer, etc."18 Id. at 71-72. The legislativehistory of the Anti-Drug Abuse Act of 1986, which includedsubstantial amendments to § 841(b), describes the quantities tiedto the ten-year mandatory minimum penalties as typical of "majortraffickers, the manufacturers or the heads of organizations, whoare responsible for creating and delivering very largequantities," while the quantities tied to five-year minimumpenalties as typical of "managers of the retail traffic, theperson who is filling the bags of heroin, packaging crack cocaineinto vials . . . and doing so in substantial street quantities."H.R. Rep. No. 99-845, at 11-12 (1986).
In the past, before the Federal Sentencing Guidelines andmandatory minimum statutes, courts looked to other evidence ofthe scope of drug dealing to determine sentences (e.g., thedefendant's standard of living, whether he dealt in cash, etc.).In contrast, under § 841, quantity is all, despite the fact that it may well depend on variables that have nothing to do with thereal scope of the offense, or defendant's role in it (e.g., howlong the government happened to have surveilled the defendant,how explicit a co-defendant was about amounts, etc.).19
If quantity figures so prominently in this important decision,it is not unreasonable to ask, as the court did of the FederalSentencing Guidelines in United States v. Gray,362 F. Supp. 2d 714 (S.D.W. Va. 2005) — what level of confidence should adecisionmaker have in that fact before it sentences? The burdenof proof, the Gray court noted, allocates the "risk of errorbetween the litigants" and indicates the "relative importanceattached to the ultimate decision." Id. at 720 (quotingAddington v. Texas, 441 U.S. 418, 423 (1979)). "As a tool forreducing the risk of error," the court noted, "reasonable doubtretains its usefulness in the advisory regime." Id. at 723.Accordingly, the court also noted that, while it would calculatethe Guidelines range under the usual preponderance standard, itwould then determine whether that range would have been differenthad it evaluated the facts by the beyond a reasonable doubt standard, as a way to determine howmuch weight to give the "advice" of the Guidelines.20Id.
In the instant case, I go further. If a substantial sentencehinges on a finding of a specific quantity, then, in the languageof Gray, I (and the public) should have a high degree ofconfidence in this finding. In effect, this was the message ofthe Court in McMillan v. Pennsylvania, where despite upholdinga mandatory minimum sentence of five years for visible possessionof a firearm, see supra note 11, the Court suggested adifferent result when the statute at issue gives the "impressionof having been tailored to permit the visible possession findingto be a tail which wags the dog of the substantive offense."Id. at 88.
Moreover, to the extent that the procedural concerns of themajority in Booker were assuaged by construing the Guidelinesas advisory, that alternative is not available under § 841. Oncea given quantity is found, the statute's range is mandatory andbinding.
III. APPLYING THE BURDEN OF PROOF TO THE FACTS
A. Mandatory Minimum or Not I agree with the government that Malouf was an importantcustomer of Nicholson's. He may well have been one of Nicholson'smost important customers. Indeed, the wiretaps suggest that therewere times when Nicholson allowed Malouf to have a running "tab,"or money owed for transactions over a period of time, paid off asMalouf received payment from his customers. However, Malouf wasalso an addict; Nicholson even asked during one exchange, "areyou still smoking [cocaine]?," reflecting a certain skepticismthat Malouf could be counted on to follow through.
The government took the position that the defendant wasresponsible for 581.175 grams of cocaine (not counting amountsoutside of the wiretap period), 81.175 grams over the 500 grammandatory minimum trigger. Defendant argued that he purchasedless than that amount. While he challenged a number of thetransactions, only three bear discussion — the transactions onApril 25, 2003, April 27, 2003, and June 11, 2003.
As described supra in Part I.B., the defendants spoke overthe phone in a sort of code. Sometimes the code was completelytransparent; more often, particularly when the drug involved orthe specific quantity was at issue, the code was unclear.Sometimes the transaction was followed up by governmentsurveillance, which confirmed that a drug deal was consummated;sometimes it was not. I have scrutinized each and every conversation, as well as the accounts of the surveillance thatfollowed them.
1. On April 25, 2003, Nicholson and Malouf agreed to meet anddiscussed a good location. At some point, Malouf asked Nicholsonto meet him at "Bagnell's" in 15 minutes. Nicholson called hisgirlfriend and told her that he was "at Bagnell's" waiting forMalouf to show up with money. Agents surveilled the scene and sawMalouf arrive and walk over to Nicholson. Nicholson reached intohis helmet (he was on a motorcycle) and "appeared to takesomething out." Malouf continued walking toward the motorcycleand reached into his right pocket. Each then drove away.
Nothing in the prior conversation suggested the type orquantity of drug. While the government characterized this as aone ounce cocaine transaction (28.35 grams), based on the amountand regularity with which Malouf and Nicholson dealt, I cannotagree under either a fair preponderance or a beyond a reasonabledoubt standard.
2. On April 27, 2003, Malouf called Nicholson and they agreedto meet at noon. Nicholson told Malouf to bring "eight milliondollars with you" (the meaning of which was unclear). Agentssurveilled Malouf, but lost him for about ten minutes. Malouf wasseen by agents driving to a Dunkin' Donuts in Pembroke andparking there. At that point, Malouf exited his car, opened thetrunk and "hid a brown lunch bag." The government added that the brown lunch bag probably contained the cocaine he had justpicked up from Nicholson (1 ounce or 28.35 grams). Nothing in therecord supports that inference.
3. On June 11, at 3:01 p.m., Malouf called Nicholson,indicating that his "friend" called, that the "friend" wanted a"block, intact, a 12-dollar item," and that Malouf promised tofind out about it. The "block, intact, a 12-dollar item,"referred to an ounce of cocaine, according to the government.Malouf indicated that he would get the item so long as the"friend" brought him the money. He asked Nicholson, "Should Itell him that if he comes and brings the money . . . [I'll] callyou?" Nicholson replied in the affirmative so long as it was"C.O.D." or cash on delivery. Some time later, Malouf called andsaid that the individual had put cash in his hand, and that hewould call Nicholson en route. Two hours later, Malouf called,saying he was "coming up on Freetown" about "fifteen minutesaway." Nicholson said, "Okay, I'll see you when you get here."
This transaction was a close call. Quantity was arguablyspecified, but there was no surveillance of the transaction, andtherefore no indication that it had actually taken place. Thegovernment had no calls after June 11 indicating that the dealhad occurred (even though the wiretap continued until June 17.)There was no confirmation that money or drugs had changed handson that occasion. I concluded that, if the standard were a fair preponderance ofthe evidence, I would clearly agree with the government andcharge another 28.35 grams to Malouf. If the standard were beyonda reasonable doubt, I would not.21
By June 11, the pace of Malouf's dealings with Nicholson hadapparently slowed down. Nicholson was plainly dealing with othercustomers. While Malouf may well have been a good customer, someof Nicholson's calls reflect skepticism that Malouf would be ableto follow through, to pay what he owed. The meeting locationschanged; the location mentioned in the June 11 calls was anentirely new site for Nicholson and Malouf. Under thecircumstances, I cannot conclude, with what I believe to be thenecessary certainty, that this transaction occurred.
Without these three transactions, on April 25, April 27, andJune 11, Malouf's distribution totals fell below 500 grams, andthe mandatory minimum did not apply.
B. The Application of the Guidelines
The Federal Sentencing Guidelines set a base offense level forthe distribution of marijuana and cocaine. Indeed, they require each substance to be converted to its marijuanaequivalent through the drug equivalency table. The parties agreethat pursuant to U.S.S.G. § 2D1.1(a)(3) and § 2D1.1(c)(7), Maloufis accountable for at least 100 kilograms of marijuana(translating the cocaine into marijuana equivalencies and addingthe marihuana amounts to it), but less than 400 kilograms. Assuch, the base offense level is 26. With acceptance ofresponsibility — with which the government concurs — Malouf isentitled to a three level reduction to an offense level of 23.
Malouf's criminal history was calculated at eight points, orlevel IV. Two of those points involved traffic offenses — drivingunder the influence and operating after a license suspension. Thedefendant moved for a one-level downward departure, with thosetwo points eliminated, and I agreed. I concluded that hiscriminal history should have been at six points, or a level III.The resulting Guidelines range was 57-71 months.
The defendant sought a further downward departure because ofthe substantial, and documented, mental and physical abuse thathe suffered as a child at the hands of his father. Indeed,counsel for the defendant had known the family for a considerableperiod of time. He had represented the defendant's father, whoserved time on drug charges. Moreover, the story of Malouf'stroubled childhood was confirmed by the letters sent to the Court. In addition, as described above, Malouf was addicted to avariety of substances for a considerable period of time.
Nevertheless, I declined to order a further reduction in hissentence from the range calculated above.
I sentenced the defendant to the mid-point of the range, orsixty months. Sixty months was a substantial sentence. I coupledMalouf's sentence with the requirement of drug treatment both inprison and outside. Malouf's sentence was more than adequate tomeet the purposes of sentencing under 18 U.S.C. § 3553(a); itenabled him to receive treatment for his addiction, to bepunished, and to be off the streets for a considerable amount oftime.
1. Malouf was indicted along with Frederick Joseph Martineau("Martineau"), Edward Ennis ("Ennis"), Sabarian Taba ("Taba"),Stephen Nicholson ("Nicholson"), James Sardina Jr. ("Sardina"),and John Soares ("Soares"). A superceding indictment wassubsequently brought against defendants Ennis, Nicholson, Sardinaand Soares. As indicated in my Memorandum and Order Re: Motionsto Suppress, dated February 23, 2005, I concluded that there wasprobable cause to believe that Martineau was supplying Nicholsonwith cocaine and that Nicholson in turn was supplying Sardina andMalouf. Ennis allegedly worked with Martineau in the distributionof drugs to Nicholson. Soares was another customer of the group. Martineau was sentenced to 120 months. Soares, allegedly theleast culpable, was sentenced to 24 months. The cases against theremaining defendants are still pending.
2. The conspiracy spanned the period from April 2003, throughJuly 2003.
3. The qualifying charge was the defendant's 1997 convictionin Norfolk Superior Court, Docket Number 101631, for Traffickingin Cocaine.
4. Waiver of the jury required an agreement by both thegovernment and the defendant under Rule 23(a).
5. One marijuana transaction on April 29, 2003, did notcontribute to the mandatory minimum issue but was considered inthe total Guidelines calculation.
6. Kozak's affidavit consisted of a transcript of thewiretapped phone calls from a cell phone subscribed to and usedby Nicholson. (At various times during April 2003, through July2003, the FBI conducted court-ordered electronic surveillance ofthe phones of Nicholson, Sardina and Martineau). The affidavitquoted the relevant code language and, in brackets, includedAgent Kozak's interpretations of the statements. During a hearingon motions to suppress filed by the other defendants, I learnedthat the prosecutor provided these interpretations of the phoneconversations — not Agent Kozak. Agent Kozak later reviewed theprosecutor's interpretations and apparently adopted them. As Iindicated in my Memorandum and Order Re: Motions to Suppress,dated February 23, 2005, "I am very troubled that the prosecutoris providing the interpretations that should be based on theagents' independent training and experience in druginvestigations." Mem. at 5 n. 6. I indicated that I would acceptthose interpretations ultimately adopted by the investigatingagents under oath, and found that — in the case of the specifictranscribed conversations at issue in that proceeding — theinterpretations seemed reasonable based on my review of thematerials. In the Malouf sentencing, after critically examining threeconversations interpreted by the government through agent Kozak,I determined that the evidence was deficient when measured by thereasonable doubt standard.
7. The maximum sentence was five years on the third count, butthe plea agreement provided that this sentence would runconcurrently with the other two sentences. See Apprendi,530 U.S. at 470.
8. Apprendi was presaged by the Supreme Court's decision inJones, interpreting the federal carjacking statute,18 U.S.C. § 2119. See 526 U.S. at 229. In Jones, a jury convicted thedefendant under 18 U.S.C. § 924(c) and 18 U.S.C. § 2119, whichincluded a sentencing provision that spelled out the elements ofthe offense. See id. at 230. That provision increased themaximum sentence from 15 to 25 years "if serious bodily injury . . .result[ed]." Id. (quoting 18 U.S.C. § 2119(2) (1988 ed.,Supp. V)). Neither the indictment nor the jury verdict mentioned"serious bodily injury." See id. at 230-31. Nonetheless, thejudge concluded that "serious bodily injury" had occurred andthereby increased the defendant's sentence to 25 years. Seeid. at 231. The Supreme Court reversed, finding "serious bodily injury" tobe an element of the offense and not a sentencing factor. Itcharacterized its decision as one of statutory interpretation,but noted that "grave and doubtful constitutional questions"would be raised by any other interpretation. Id. at 239(quoting United States ex rel. Attorney General v. Delaware &Hudson Co., 213 U.S. 366, 408 (1909)).
9. In United States v. Wilkes, 130 F. Supp. 2d 222, 231 (D.Mass. 2001), I noted that there are "[t]hree currents" ofconstitutional analysis in Apprendi. I described them asfollows: (1) The impact analysis: This approach suggests that, if thefactor at issue has a substantial impact on the sentence, it mustbe considered an "element" of the offense. See id. It isreflected in Justice Thomas' concurrence in Apprendi: [I]f the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact — of whatever sort, including the fact of a prior conviction — the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime.Id. (quoting Apprendi, 120 S. Ct. 2348, 2368-69 (2000)(Thomas, J., concurring)). (2) The statutory analysis: The linchpin under this approach iswhat the statute itself describes — an offense element or asentencing factor. See id. at 231-32. Throughout theApprendi opinion, the Court repeated the holding that, otherthan the fact of a prior conviction, any fact that increases theprescribed statutory maximum penalty must be submitted to a juryand proven beyond a reasonable doubt. See id. at 232. Thelimitation on the statutory analysis approach, as noted byJustice Breyer, is that legislatures may avoid Apprendi's juryprotections by returning to an indeterminate sentencing scheme.See id. (citing Apprendi, 120 S. Ct. at 2399-2402 (Breyer,J., dissenting). (3) The third approach suggests that there are certaintraditional sentencing factors and certain traditionalsubstantive factors. For example, the Court noted that recidivismis a traditional sentencing factor. See id. (citingApprendi, 120 S.Ct. at 2362-63; Almendarez-Torres v. UnitedStates, 523 U.S. 224, 247 (1998)). In Apprendi, the Supreme Court did not clearly reconcile thethree approaches outlined above. The hate crime statute violatedthe defendant's rights under all three approaches.
10. Justice Thomas in concurrence and Justices O'Connor andBreyer in dissent noted that the logical extension of themajority's position was to factors that increase the range ofpenalties to which the defendant was subject. See530 U.S. at 521-22 (Thomas, J., concurring); 530 U.S. at 533 (O'Connor, J.,dissenting); 530 U.S. at 563 (Breyer, J., dissenting); seealso Jones, 526 U.S. at 252-53 (Stevens, J., concurring).
11. The Court expressly affirmed McMillan v. Pennsylvania,477 U.S. 79 (1986). See Harris, 536 U.S. at 557. InMcMillan, the Court characterized as a sentencing factor,rather than an element, the "visible possession of a firearm."477 U.S. at 86-88. It upheld a statute that imposed the mandatoryminimum sentence of five years where the "judge finds, by apreponderance of the evidence, that the person `visibly possesseda firearm' during the commission of the offense." Id. at 81. Justice Stevens dissented, and in a forecast of the majority inApprendi, argued, "if a State provides that a specificcomponent of a prohibited transaction shall give rise both to aspecial stigma and to a special punishment, that component mustbe treated as a `fact necessary to constitute the crime'" and besubjected to a jury trial. Id. at 103 (Stevens, J.,dissenting). Congress, he maintained, cannot avoid constitutionalrequirements merely by declaring that certain conduct is not anelement of the offense. As one commentator described Harris, the Court's rulingsuggested that it was limiting the jury's function to being theadjudicator of the "worst possible fate the defendant faces,"namely, the statutory maximum, as opposed to lengthy mandatoryminimum sentences short of that outer limit. Benjamin J.Priester, Structuring Sentencing: Apprendi, the Offense ofConviction, and the Limited Role of Constitutional Law, 79 Ind.L.J. 863, 876 (2004) [hereinafter Priester, StructuringSentencing].
12. For a general analysis, see Derrick Bingham, Note andComment, The Meaning of Fifth and Sixth Amendment Rights:Sentencing in Federal Drug Cases After Apprendi v. New Jersey andHarris v. United States, 20 Ga. St. U.L. Rev. 723 (2004).
13. The Sixth Circuit, alone, applied Apprendi to factorsthat increased the minimum sentence. In United States v.Ramirez, 242 F.3d. 348 (6th Cir. 2001), the district courtsentenced the defendant to a mandatory minimum of twenty years inprison after a jury convicted him of "conspiracy to distributecocaine" and the judge found the quantity of cocaine to be morethan five kilograms. Id. at 350. The Sixth Circuit reversed,holding that "[a]ggravating factors . . ., that increase thepenalty from . . . a lesser to a greater minimum sentence, arenow elements of the crime to be charged and proved." Id. at351. The court characterized Apprendi as having two holdings: [F]irst, that courts must count any `fact' that increases the `penalty beyond the prescribed statutory maximum' as an element of the offense . . . and second, that it `is unconstitutional for a legislature' to treat `facts that increase the prescribed range of penalties to which a criminal defendant is exposed' as mere sentencing factors. . . .Id. at 350 (Siler, J., concurring). Since the drug quantity increased the range of penalties ithad to be charged in an indictment and proven before a jury.
14. Indeed, two members of the Harris plurality, JusticesBreyer and Scalia, took positions in Booker at odds with theirHarris positions. In authoring the remedy portion of theopinion in Booker, Justice Breyer obviously — if reluctantly —accepted the rule of Apprendi, which he had not agreed to inHarris. See Booker, 125 S. Ct. at 756 (Breyer, J.). JusticeScalia, who joined the Harris plurality without opinion, alsojoined the Booker majority's broad statement of the Apprendiprinciple. See id. at 746 (Stevens, J.).
15. Indeed, what I am doing in the instant case is consistentwith Caminker's precedent model: Sometimes the demise of an old Supreme Court precedent is foreshadowed by newer binding precedents that are inconsistent with the reasoning or result of the old case. In such circumstances, an inferior court might conclude that the newer precedents implicitly overrule the old. Because the inferior court reaches this conclusion simply by interpreting binding precedents, the court can fairly be characterized as following the precedent model.Caminker, Precedent and Prediction at 20 n. 73 (citationomitted).
16. Indeed, I do not regard this as a case of "anticipatoryoverruling," which the Court decried in Rodriguez de Quijas v.Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). In myjudgment, the holdings of Booker and Blakely apply directlyhere. And they reflect not simply aberrant decisions, but aconsistent decisional law across a number of cases. One commentator described a similar dilemma after Brown v.Board of Education, 347 U.S. 483 (1954): Brown v. Board of Education, decided in 1954, rejected the separate-but-equal doctrine and held that racial segregation in public education was constitutionally impermissible. Two challenges to segregation policies on buses followed the Brown decision. At the time those cases arose, the Supreme Court had not expressly overruled Plessy v. Ferguson [163 U.S. 537 (1896)], which allowed segregated public transportation. Under the Rodriguez view, the lower courts would have been required to follow Plessy and uphold the segregated bus policies, even though Brown clearly disapproved of public racial segregation. In fact, lower courts refused to follow Plessy. One lower court noted that `a judicial decision, which is simply evidence of the law and not the law itself, may be so impaired by later decisions as no longer to furnish any reliable evidence.'C. Steven Bradford, Following Dead Precedent: The SupremeCourt's ill-advised Rejection of Anticipatory Overruling, 59Fordham L. Rev. 39, 71 (1990). Bradford added: The question is not whether the lower court should follow the Supreme Court, but how the lower court should follow the Supreme Court. When the Supreme Court casts doubt on its own precedent, it is better for the lower court to reject the doubtful precedent and follow the doctrinal developments in more recent decisions. The same policies that usually favor stare decisis favor anticipatory overruling in these situations.Id. at 75.
17. I distinguished Harris, holding that "bodily injury" isan element of the offense necessarily determined by the jurybecause such a finding increased both the maximum and minimumterms. I analogized it to aggravated offenses, and lesserincluded offenses. The aggravated crime was distributionaccompanied by serious bodily injury ("aggravated distribution");the lesser included offense was simple distribution (distribution"simpliciter").
18. In fact, the statute does not work that way; themechanistic emphasis on quantity sweeps street dealers into themix, solely by virtue of what they have distributed, seeU.S.S.C., Report to Congress: Cocaine and Federal SentencingPolicy (2002), available athttp://www.ussc.gov/r_congress/02crack/2002crackrpt.htm, or thelength of the government surveillance.
19. In United States v. Dicenso, Criminal No. 03-10323, Isentenced Tomas Cubilette ("Cubilette") on September 30, 2004,and Carlos Diaz ("Diaz") on May 4, 2005. Neither had the benefitof a motion for a downward departure based on "substantialassistance" to the government, even though both cooperatedimmediately upon arrest. Cubilette described his drug traffickingin general terms; Diaz was more explicit. As a result, Diaz'sGuidelines numbers were higher than Cubilette's based on his owninterview. The result made no sense; the testimony at trialsuggested that they were at the same level. Moreover, Cubilette'spresentence report disclosed the purchase of an expensive car forcash, surely a factor that gives rise to the inference of drugdealing.
20. The commentary to § 6A1.3 of the Guidelines states, "[t]heCommission believes that use of a preponderance of the evidencestandard is appropriate to meet due process requirements andpolicy concerns in resolving disputes regarding application ofthe guidelines to the facts of a case." U.S.S.G. § 6A1.3, cmt.(2004). However, Justice Thomas' dissent to the remedial opinionin Booker called into question the assumption in the commentsto the Guidelines that the preponderance standard satisfies dueprocess concerns. Booker, 125 S. Ct. at 797 (Thomas, J.,dissenting).
21. The government argued that the exchange between Malouf andNicholson suggested an intent to complete the transaction, whichshould be sufficient under § 841. I do not agree. The methodologyfor calculating drug quantity is different under the Guidelinesthan it is under § 841. Under the Guidelines, the court couldconsider other transactions as "relevant conduct," even attemptedtransactions. See U.S.S.G. § 2D1.1(b)(5) (2004). However, § 841 is clear. It is dealing with the actualdistribution of a certain quantity of drugs. In any case, even ifit did allow "attempts," the indictment in the case at bar didnot so specify.