The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM, OPINION AND ORDER
This case is before the Court on the motion of Defendants Andre
Seymour, Kent Clark, Andre Lawrence and Nyroby Seymour for
sentencing under 21 U.S.C. 841(b)(1)(C). For the following
reasons, the motion is denied.
Defendants were charged under 21 U.S.C. 841(b)(1) with
participation in a narcotics conspiracy. 21 U.S.C. 841(b)(1)
contains 3 separate penalty provisions: Subsection (A) governs
distribution of more than 50 grams of cocaine base; Subsection
(B) governs distribution of between 5 and 50 grams of cocaine
base; and Subsection (C) governs distribution of less than 5
grams of cocaine base.
Defendants were found guilty of narcotics conspiracy by a jury.
The jury specifically found that the conspiracy as a whole
involved more than 50 grams of cocaine base. However, there were
no jury findings of any amount of drugs reasonably forseeable to
any specific Defendant. Absent such a finding, Defendants claim
that they should be sentenced under Subsection C, because jury
findings required for Subsections A and B were not made. Under Subsection C, there is no statutory minimum and the applicable
maximum is 20 years or 30 years if properly enhanced under § 851.
1. Mandatory Statutory Minimum Penalties
Defendants first argue that the jury should have found drug
amounts for each specific Defendant and, therefore, determined
the Defendants' mandatory minimum sentences. Defendants maintain
that the Court is precluded from calculating drug amounts for
purposes of determining each Defendant's mandatory minimum
sentence. The Supreme Court, however, has held that a judge may
find, by a preponderance of the evidence, factors that increase a
defendant's statutory mandatory minimum sentence, as long as it
does not exceed the statutory maximum penalty. McMillan v.
Pennsylvania, 477 U.S. 79 (1986). More recently in Harris v.
United States, 536 U.S. 545 (2002), the Supreme Court considered
whether McMillan was still good law and concluded that it was.
In Harris, the Supreme Court examined whether the facts
supporting a statutory mandatory minimum sentence in
18 U.S.C. § 924(c) must be alleged in the indictment and found by a jury
beyond a reasonable doubt. The Court concluded that they did not.
In so holding, the Court relied on the distinction between a fact
that authorizes a maximum penalty, which would have been
considered an element of an aggravated crime by the Framers, and
facts that support a mandatory minimum penalty, which merely
reduces the sentencing judge's discretion and does not interfere
with the historical role of the jury. Id. at 557, 563-64.
Therefore, the Court reaffirmed the holding of McMillan that
the task of finding facts supporting a mandatory minimum sentence
are within the purview of the sentencing judge. Neither the Supreme Court's decision in Blakely v.
Washington, 124 S.Ct. 2531 (2004), or in United States v.
Booker, 125 S.Ct. 738 (2005), addressed statutory mandatory
minimum penalties, nor did they purport to implicitly or
explicitly overrule Harris and its progeny. Therefore, consistent
with prior on-point Supreme Court and Seventh Circuit precedent,
at sentencing, this Court must determine the amount of drugs
reasonably foreseeable to each defendant and, after considering
the now-advisory Sentencing Guidelines, impose a sentence that is
equal to or higher than the corresponding mandatory minimum
sentence prescribed in 21 U.S.C. § 841(b).
II. Statutory Maximum Penalties
With respect to the applicable statutory maximum penalty,
Defendants ask this Court to hold that the jury needed to make
defendant-specific findings of drug amounts in order to apply
either of the enhanced statutory maximum penalties in
21 U.S.C. § 841(b). This proposition flies in the face of the case law,
beginning with the Supreme Court's decision in Edwards v. United
States, 523 U.S. 511(1998), and continuing with every decision
of a court of appeals to have interpreted Edwards.
In Edwards, the jury was instructed that it could convict a
defendant in a joint powder cocaine/crack conspiracy if it found
that the government had proven a particular defendant joined a
conspiracy that involved either powder or crack. After
conviction, the district court sentenced the defendants based
upon the crack and powder cocaine for which it found each
defendant responsible. The defendants argued on appeal that
because the jury in that case returned a general verdict, the
judge was constrained in the Sentencing Guidelines determinations
and the sentences could be based on only powder cocaine. The
Seventh Circuit disagreed, holding that the district court was correct in determining the drug amounts for both crack
and powder cocaine at sentencing by a preponderance of the
evidence, and the Supreme Court affirmed. The Supreme Court
reasoned that as long as the sentence imposed was within the
maximum penalty associated with the facts found by the jury as to
the conspiracy as a whole, there was no error. Id. at 515.
Every Court of Appeals that has interpreted Edwards in light
of Apprendi has held that, in order for the enhanced maximum
penalties found in subparagraphs (A) and (B) of 841 (b)(1) to
apply, the jury need not make defendant-specific findings, but
rather need only find the amount and type of drugs that were
involved in the conspiracy charged exactly what was done in
this case. See, e.g., United States v. Mercado Irizariy,
404 F.3d 497, 504 (1st Cir. 2005)"); United States v. Phillips,
349 Fad 138, 141-43(3rd Cir. 2003); United States v. Knight,
342 F.3d 697, 710 (7th Cir. 2003) ("We agree with the First
Circuit that Apprendi did not overrule Edwards and that its
holding does not require defendant-specific findings of drug type
and quantity in drug-conspiracy cases."); United States v.
Turner, 319 F.3d 716, 722-723 (5th Cir. 2003).
Neither the Supreme Court's decision in Blakely or Booker
addressed the requisite findings for the imposition of statutory
maximum penalties in a drug conspiracy case, and they neither
implicitly nor explicitly overruled Edwards and its progeny.
Therefore, because the jury in this case found that the
conspiracy involved more than 50 grams of cocaine base, each