In fact, until Congress amended 21 U.S.C. § 841(b) specifically to allow sentence enhancements based on prior state law drug convictions, courts had held that the statute did not apply to those state drug convictions. See, e.g., United States v. Gates, 807 F.2d 1075, 1082 (D.C. Cir. 1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987); United States v. Johnson, 506 F.2d 305, 307 (7th Cir. 1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d 763 (1975). However, the language used in the earlier version of § 841(b) is different from the "described in" language of § 994(h).
It follows that there was no error on the part of the trial judge in refusing the requested instruction. In the case of U.S. v. Johnson, 7 Cir., 506 F.2d 305, it was held that an instruction on a lesser included offense is proper only when the charged greater offense requires that the jury find a disputed factual element which is not a requisite for conviction of the lesser included offense. See also the cases of Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882; United States v.Hephner, 7 Cir., 410 F.2d 930.
When the CSA was first enacted in 1970, the prior convictions that triggered enhanced punishment for repeat offenders were limited to convictions for federal drug offenses, namely, "convictions . . . punishable under this paragraph" (i.e., a conviction for manufacturing or trafficking a controlled substance) or felonies "under any other provision of this title [i.e., title II] or title III or other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances." See Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, § 401, 84 Stat. 1236, 1261 (1970); see also United States v. Gates, 807 F.2d 1075, 1082 (D.C. Cir. 1986); United States v. Johnson, 506 F.2d 305, 307 (7th Cir. 1974). These offenses all involved actual narcotic drugs.
But the courts held the section applicable only to past convictions for the specified federal offenses. See United States v. Johnson, 506 F.2d 305, 307 (7th Cir. 1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d 763 (1975); United States v. Gates, 807 F.2d 1075, 1081-82 (D.C.Cir. 1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987). State convictions were not counted, even if they involved the same conduct prohibited under the federal statutes.
The language of the statute, its legislative history and case law construing it, clearly established that these enhancement provisions applied only where a defendant had a prior drug conviction under ch. 13 of Title 21, United States Code, or under some other federal law. See Joint House-Senate Explanation of Senate Amendment, 95th Cong., 2d Sess. 124 Cong. Rec. 36947 (1978); Comprehensive Drug Abuse Prevention and Control Act of 1970, H.Rep. No. 91-1444, 91st Cong., 2d Sess., 47, reprinted in 1970 U.S. Code Cong. Admin. News 4566, 4614; United States v. Johnson, 506 F.2d 305, 307 (7th Cir. 1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d 763 (1975); United States v. Gaertner, 705 F.2d 210, 218, n. 2 (7th Cir. 1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 979, 79 L.Ed.2d 216 (1984). Despite this fact, an Assistant United States Attorney on December 19, 1984, filed a notice of additional penalties pursuant to 21 U.S.C. § 851, informing the court "that the defendant in this case, Daniel Lampkins, was convicted in Maryland in Prince Georges County Circuit Court, of the offense of possession with intent to distribute a controlled dangerous substance on or about June 20, 1984."
In determining whether an offense is included in a greater offense, a court should not be limited to consideration of only the language of the statute under which the defendant was charged because a statute may be violated in different ways. Stavros, 597 F.2d at 112. Accordingly, this circuit has also considered the facts alleged in the indictment, Stavros, 597 F.2d at 112, and the evidence presented at trial, United States v. Johnson, 506 F.2d 305 (7th Cir. 1974) (per curiam), cert. denied, 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d 763 (1975), in determining whether a lesser included offense instruction was proper. A similar approach has been adopted by the Second, Ninth, Tenth, and D.C. Circuits.
We affirm. Our holding in this case does not conflict with this court's decision in United States v. Johnson, 506 F.2d 305 (7th Cir. 1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d 763 (1975), where the court remanded for resentencing because the district judge improperly relied upon the defendant's prior state conviction for drug violations when enhancing the defendant's sentence under section 841 rather than limiting his inquiry to federal drug convictions. In the instant case, the defendant's previous convictions were in the federal courts for the violation of federal drug laws, and these convictions were undisputed.
The key is the maximum prison term the defendant faces under the indictment; the risk to the defendant under the enhancement provision is unmistakably clear to all concerned. In its petition for rehearing, the government belatedly claims that United States v. Johnson, 506 F.2d 305, 307 (7th Cir. 1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1579, 43 L.Ed.2d 784 (1975), and internal Justice Department policy limit the enhancement provisions of 21 U.S.C. § 841(b)(1)(B), 851 to defendants with prior federal convictions. Since Motley's prior conviction was on a state charge, the government now argues that the superseding indictment did not expose Motley to greater punishment, and thus created no appearance of vindictiveness.
This argument is without merit. In support of his argument, Hudson cites to United States v. Gates, 807 F.2d 1075, 1082 (D.C. Cir. 1986), and United States v. Johnson, 506 F.2d 305, 307 (1974), however, both cases applied the pre-amendment version of section 841. See United States v. Beasley, 12 F.3d 280, 284 (1st Cir. 1993) (stating "until Congress amended § 841(b) specifically to allow sentence enhancements based on prior state law drug convictions, courts had held that the statute did not apply to those state drug convictions" and citing Gates and Johnson as examples of pre-amendment cases).
The Court notes that as originally enacted in 1970, whether a prior conviction for violation of a State (as opposed to a federal) law triggered the quoted enhanced sentence provisions of Section 841(b)(1)(B) were ambiguous and, as such, several appeals were predicated on this issue. See, e.g., United States v. Gates, 807 F.2d 1075 (D.C. Cir. 1986); United States v. Gaertner, 705 F.2d 210 (7th Cir. 1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 979, 79 L.Ed.2d 216 (1984); United States v. Johnson, 506 F.2d 305 (7th Cir. 1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d 763 (1975). Until 1986, Section 841(b)(1)(B), in pertinent part, read as follows: