Unpublished Disposition, 894 F.2d 410 (9th Cir. 1990)

MEMORANDUM^** 

Appellant Johnny Vera appealed his conviction and his ten-year sentence, following a guilty plea, to a charge of possession with intent to distribute approximately five kilograms of cocaine. Vera contended that he received inadequate notice that his plea could result in a mandatory minimum sentence of ten years. We find that Vera received adequate notice and affirm the district court.

We find that Vera received notice in at least three ways. First, Vera received notice from the indictment which read:

Defendant herein, did knowingly and intentionally possess with intent to distribute approximately five kilograms of a substance containing cocaine, a Schedule II controlled substance.

All in violation of Title 21, United States Code, Section 841(a) (1).

Vera contends that the phrase "approximately five kilograms" was vague and ambiguous and, therefore, insufficient to provide him with adequate notice of the Government's intention to seek application of the ten-year mandatory minimum under 21 U.S.C. § 841(b) (1) (A) (ii). Under the penalty section of the statute, the mandatory minimum sentence of ten years applies when the violation involves the possession with intent to distribute "5 kilograms or more" of cocaine. The word "approximately" does not obviate the words "five kilograms." The weight of "five kilograms" triggers the ten-year mandatory minimum sentence and by using the weight in the indictment, Vera was warned.

Moreover, when determining if a person receives adequate notice, the indictment is not examined in isolation. To provide sufficient notice, an indictment "must 'apprise a defendant of the charge against him, primarily so that he can defend himself against the charge and plead double jeopardy in appropriate cases.' " United States v. Johnson, 804 F.2d 1078, 1084 (9th Cir. 1986) (quoting United States v. Normandeau, 800 F.2d 953, 958 (9th Cir. 1986)). In United States v. Anderson, 532 F.2d 1218 (9th Cir.), cert. denied, 429 U.S. 839 (1976), defendants challenged the sufficiency of an indictment on grounds of inadequate notice. In upholding the indictment, this court observed that defendants were provided with adequate notice in part because of the discovery provided by the Government. Id. at 1222-23. In United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983), this court held that the defendant receives adequate notice for due process purposes when "the indictment and all other disclosures made by the government" provide sufficient information to apprise the defendant of the charges against him.

Therefore, when determining if Vera received adequate notice, we looked at not only the indictment, but also the information obtained in discovery and all other information disclosed to a defendant before he pled guilty. Here, a review of the record indicates that Vera was provided with adequate notice before pleading guilty through the judge's warning and the discovery process.

Before pleading guilty to count 1, the district court judge said to Vera:

And do you understand that pursuant to these guidelines, the maximum penalty for this offense, possession with intent to distribute cocaine, a controlled substance, five kilos or more, is a mandatory of 121 months to 151 months, and under the Antidrug Abuse Act, there is a mandatory ten-to-life for possession with intent to distribute five kilograms or more of cocaine.

Do you understand that?

Vera affirmatively responded to the judge's question. Vera added that he intended to show the court that the mandatory minimum should not apply. The district court judge responded by making it clear that although Vera intended to challenge the mandatory minimum of ten years, the Government had not agreed to this and would have a right to argue for sentencing enhancement application. Thus, with full knowledge that the ten-year minimum sentence could be applied, Vera continued to plead guilty.

In addition, Vera was aware of the fact the government had weighed the cocaine and determined it was more than five kilograms. In fact, Vera also had an independent expert weigh the cocaine at over five kilograms as well. It was only after Vera's independent expert weighed the cocaine that he pled guilty.

We hold that Vera received reasonable notice through the indictment, the judge's warning, and the discovery process. Moreover, Vera had an opportunity to be heard relative to the sentencing enhancement.

Therefore, the district court was not clearly erroneous in finding that Vera had adequate notice; thus, it should be affirmed.

Vera's second argument is that the quantity of cocaine is an element of the crime charged in count 1, and the grand jury was required to specify that the quantity of cocaine involved was five kilograms or more. However, we have held that the provisions of 21 U.S.C. § 841(b) at issue here constitute penalty enhancements, rather than elements of a separate crime. United States v. Kinsey, 843 F.2d 383, 391-92 (9th Cir.), cert. denied, 109 S. Ct. 99 (1988) and 108 S. Ct. 2882 (1988).

The Eighth Circuit, in United States v. Wood, 834 F.2d 1382, 1388 (8th Cir. 1987), made it clear that the enhanced penalty provisions of 21 U.S.C. § 841(b) do not create an offense separate from the "prohibited acts" defined in 21 U.S.C. § 841(a). The court in Wood stated:

Because we decide that the quantity of cocaine is not an element of a "separate offense" under 21 U.S.C. § 841(b) (1) (A) (ii), we do not pass upon Wood's sufficiency of the indictment and jury determination arguments.

Offenses involving domestic trafficking in controlled substances are governed by 21 U.S.C. § 841. Subsection (a) of section 841 defines the "prohibited acts." The penalties for these offenses, set out in subsection (b) of section 841, provided for a twenty-year sentence and a $250,000 fine for offenses involving a kilogram or more of cocaine....

Both the plain language and the structure of 21 U.S.C. § 841(b) (1) (A) (ii) indicate that it is a sentencing provision. The subsection is titled as a "penalties" provision. Standing alone, Sec. 841(b) (1) (A) (ii) is insufficient to state a criminal offense because it contains no other elements; rather, it depends on elements listed as "prohibited acts" in section 841(a).

We have endorsed this Eighth Circuit view in Kinsey, 843 F.2d at 391, and Normandeau, 800 F.2d at 956. In Normandeau, we stated that section 841(b) (6) is merely a penalty provision, and its provisions are "wholly separate" from the definition of unlawful acts included in 21 U.S.C. § 841(a). Id. (quoting United States v. Alvarez, 735 F.2d 461, 467 (11th Cir. 1984)). This same reasoning applies to the provision of section 841(b) here in issue.

Vera depends heavily on the case of Alvarez, 735 F.2d at 468. This Eleventh Circuit decision held that the quantity of the substance constitutes a "critical element of the offense under 21 U.S.C. § 841(b) (6)." Alvarez is distinguishable from the instant case. In Alvarez, no quantity of marijuana was specifically alleged in the indictment; therefore, the sentencing enhancement may have come as a surprise to the defendant. In contrast, the indictment here asserted that "approximately 5 kilograms" were at issue. Five kilograms is the cut-off quantity for sentence enhancement and Vera was aware of this.

AFFIRMED.