United States v. Cross, 916 F.2d 622, 623 (11th Cir. 1990), cert. denied, 499 U.S. 929, 111 S.Ct. 1331, 113 L.Ed.2d 263 (1991); United States v. Williams, 876 F.2d 1521 (11th Cir. 1989); United States v. Smith, 840 F.2d 886, 888 (11th Cir.) cert. denied, 488 U.S. 859, 109 S.Ct. 154, 102 L.Ed.2d 125 (1988). Alvarez's apparent conflict with Cross, Williams, and Smith was explained in our recent decision in United States v. Perez, 960 F.2d 1569, 1574-75 (11th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1421, 122 L.Ed.2d 790 (1993). In Perez, we explained that the Supreme Court's decision in McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S.Ct. 2411, 2415, 91 L.Ed.2d 67 (1986), precipitated the Cross court's departure from Alvarez.
This court has held that sentencing factors, such as those set out in § 841(b) — including the amount of the controlled substance that the defendant is charged with possessing — need not be averred in the indictment. United States v. Harden, 37 F.3d 595, 601 (11th Cir. 1994), and United States v. Perez, 960 F.2d 1569, 1575 (11th Cir. 1992), cert. denied,507 U.S. 975, 113 S.Ct. 1421, 122 L.Ed.2d 790 (1993). So long as the defendant has notice of the factors to be considered in making the sentencing determination, that is usually enough to avoid constitutional problems.
This argument is ineffective since we have determined that "[b]ecause the quantity of controlled substance triggering the enhanced penalties provided in § 841(b) is relevant only at sentencing, there is no reason that the quantity involved must necessarily appear in the indictment if the defendant is otherwise on adequate notice that enhanced penalties are available." United States v. Perez, 960 F.2d 1569, 1574 (11th Cir. 1992) (per curiam), cert. denied, ___ U.S. ___, 113 S.Ct. 1421, 122 L.Ed.2d 790 (1993); see United States v. Milton, 979 F.2d 839, 840 (11th Cir. 1992) (per curiam); United States v. Cross, 916 F.2d 622, 623-24 (11th Cir. 1990) (per curiam), cert. denied, 499 U.S. 929, 111 S.Ct. 1331, 113 L.Ed.2d 263 (1991). In Perez, we held that if the existence of the requisite quantity for the enhancement is established by a preponderance of the evidence at sentencing and due process requirements are met, then "courts are constrained to apply the sentencing framework established by statute, notwithstanding absence of quantitative reference in the indictment."
We consistently rejected this claim, construing § 841(a) as setting forth a single, complete offense and § 841(b) as setting forth sentencing factors relevant only to determining a defendant's sentence for having violated § 841(a).See, e.g., United States v. Rutherford, 175 F.3d 899, 906 (11th Cir. 1999) (concluding that to prove completely the elements of an offense under § 841(a), the government need not prove that a particular controlled substance was involved in the offense conduct, it need only show that some controlled substance was involved); United States v. Mejia, 97 F.3d 1391, 1392-93 (11th Cir. 1996) ("To sustain a conviction for possession of cocaine with intent to distribute, the government must prove beyond a reasonable doubt that the defendant knowingly possessed the cocaine and that he intended to distribute it."); United States v. Perez, 960 F.2d 1569, 1574 (11th Cir. 1992) ("The rule that has developed in this circuit . . . is that the weight or quantity of a controlled substance is not an element of the offense that must be included in a § 841(a)(1) indictment."); United States v. Gomez, 905 F.2d 1513, 1514 (11th Cir. 1990) ("[I]t is well-settled that to sustain a conviction for possession with intent to distribute a controlled substance, it need not be proved that the defendant had knowledge of the particular drug involved, as long as he knew he was dealing with a controlled substance."); United States v. Williams, 876 F.2d 1521, 1525 (11th Cir. 1989) ("A violation of section 841(a)(1) occurs when the government proves beyond a reasonable doubt that a defendant possessed and intended to distribute a 'controlled substance,' regardless of whether that substance is cocaine or cocaine base."); United States v. Smith, 840 F.2d 886, 888 (11th Cir. 1988) (noting that the express language of § 841(a) "puts no quantity requirement on the amount of controlled s
At the time the safety valve provision was enacted, the Circuit Courts of Appeals applied the McMillan rule in holding that drug amount for purposes of sentencing was not an element of the substantive offense. See, e.g., United States v. Lowden, 955 F.2d 128, 129-30 (1st Cir. 1992) ; United States v. Lam Kwong-Wah, 966 F.2d 682, 685-88 (D.C. Cir. 1992) ; United States v. Royal, 972 F.2d 643, 649-50, 649 n.10 (5th Cir. 1992) ; United States v. Harrison-Philpot, 978 F.2d 1520, 1523-24 (9th Cir. 1992) ; United States v. Perez, 960 F.2d 1569, 1574-75 (11th Cir. 1992) ; United States v. Madkour, 930 F.2d 234, 237-38 (2d Cir. 1991) ; United States v. Moreno, 899 F.2d 465, 472-74 (6th Cir. 1990) ; States v. Reynolds, 900 F.2d 1000, 1002-04 (7th Cir. 1990) ; United States v. Powell, 886 F.2d 81, 84-85 (4th Cir. 1989) ; United States v. Jenkins, 866 F.2d 331, 333-34 (10th Cir. 1989) ; United States v. Wood, 834 F.2d 1382, 1389-90 (8th Cir. 1987). It was not until years after the safety valve provision was enacted that McMillan's definition of what constituted an "offense" and "offense elements" was overruled.
Because the district court's loss calculation was supported by a preponderance of the evidence admitted at sentencing, Mr. Todd's Fourteenth Amendment due process rights were not violated. See United States v. Perez, 960 F.2d 1569, 1575 (11th Cir. 1992) ("Due process requires that factual determinations at sentencing be supported by a preponderance of the evidence . . . and that the defendant be on notice that such an amount is involved as may trigger enhancement."). --------
We review the district court's overruling of defendant Tejada's objections, based on Rule 16 and hearsay grounds, for an abuse of discretion. See United States v. Brown, 441 F.3d 1330, 1359 (11th Cir. 2006) (addressing hearsay rulings); United States v. Perez, 960 F.2d 1569, 1572 (11th Cir. 1992) (addressing Rule 16 rulings). Rule 16 requires the government to disclose and make available to a defendant "the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent."
ore Jones was decided, every single court to address the issue of Congress' intent in enacting section 841 concluded, as I have, that the elements of the section 841 offense are set forth in their entirety in subsection (a) and that the facts arrayed in subsection (b) are mere sentencing factors, which need not be charged in the indictment or proved to the jury beyond a reasonable doubt. See, e.g., United States v. Caldwell, 176 F.3d 898, 900 (6th Cir. 1999) (drug quantity); United States v. Hare, 150 F.3d 419, 428 n. 2 (5th Cir. 1998) (drug quantity); United States v. Stone, 139 F.3d 822, 826 (11th Cir. 1998) (drug type); United States v. Lewis, 113 F.3d 487, 490 (3d Cir. 1997) (drug type); United States v. Dorlouis, 107 F.3d 248, 252 (4th Cir. 1997) (drug quantity); United States v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996) (drug quantity); United States v. Ruiz, 43 F.3d 985, 989 (5th Cir. 1995) (drug quantity); United States v. Coy, 19 F.3d 629, 636 (11th Cir. 1994) (drug quantity); United States v. Perez, 960 F.2d 1569, 1574-76 (11th Cir. 1992) (drug quantity); United States v. Patrick, 959 F.2d 991, 995 n. 5 (D.C. Cir. 1992) (drug quantity); United States v. Valencia, 957 F.2d 1189, 1197 (5th Cir. 1992) (drug quantity); United States v. Sotelo-Rivera, 931 F.2d 1317, 1319 (9th Cir. 1991) (drug quantity); United States v. Cross, 916 F.2d 622, 623 (11th Cir. 1990) (drug quantity); United States v. Delario, 912 F.2d 766, 769 (5th Cir. 1990) (drug quantity); United States v. Campuzano, 905 F.2d 677, 679 (2d Cir. 1990) (drug quantity); United States v. Moreno, 899 F.2d 465, 473 (6th Cir. 1990) (drug quantity); United States v. Ocampo, 890 F.2d 1363, 1372 (7th Cir. 1989) (drug quantity); United States v. Barnes, 890 F.2d 545, 551 n. 6 (1st Cir. 1989) (drug quantity); United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989) (drug quantity); United States v. Williams, 876 F.2d 1521, 1525 (11th Cir. 1989) (drug type); United States v. Jenkins, 866 F.2d 331, 334 (10th Cir. 1989) (drug quantity); United States v. Wood, 834 F.2d 1382, 1
A barrage of similar arguments raged throughout the circuits in the late 1980s and early 1990s. See, e.g., United States v. Mergerson, 4 F.3d 337, 344 (5th Cir. 1993); United States v. Underwood, 982 F.2d 426, 429 (10th Cir. 1992); United States v. Lam Kwong-Wah, 966 F.2d 682, 685 (D.C. Cir. 1992); United States v. Perez, 960 F.2d 1569, 1574 (11th Cir. 1992); United States v. Trujillo, 959 F.2d 1377, 1381 (7th Cir. 1992); United States v. Lowden, 955 F.2d 128, 130 (1st Cir. 1992); United States v. Restrepo, 946 F.2d 654, 655 (9th Cir. 1991); United States v. Rigsby, 943 F.2d 631, 639-43 (6th Cir. 1991); United States v. Campuzano, 905 F.2d 677, 678-79 (2d Cir. 1990); United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989); United States v. Gibbs, 813 F.2d 596, 599 (3d Cir. 1987). The circuits, however, unanimously rejected the notion that drug quantity is an element of the offense.
Our holding in Hester was a reaffirmation of precedent in this circuit that pre-dated the Supreme Court's holding in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). See, e.g., United States v. Perez, 960 F.2d 1569, 1574-76 (11th Cir. 1992); United States v. Cross, 916 F.2d 622, 623 (11th Cir. 1990); United States v. Williams, 876 F.2d 1521, 1524-25 (11th Cir. 1989). Hester interpreted Jones v. United States, 526 U.S. at 243 n. 6, 119 S. Ct. at 1224 n. 6, to mean that "when a court finds a statute and its legislative history unclear, the court should err in favor of the defendant and consider an element of the offense any factor which increases the maximum penalty for the offense."