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United States v. Gori

April 08, 2003

UNITED STATES OF AMERICA
v.
VINCENT LOUIS GORI, APPELLANT



Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action No. 00-cr-00247-5) District Judge: Honorable Joel A. Pisano

Before: Becker, Chief Judge, Rendell and Ambro, Circuit Judges

The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) March 14, 2003

OPINION OF THE COURT

Vincent Gori challenges the sentence imposed for his involvement in a conspiracy to distribute a controlled substance. We affirm the District Court.

I.

The Government charged Gori, under 21 U.S.C. § 846, with one count of conspiracy to violate 21 U.S.C. § 841(a)(1), which makes it illegal "to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." *fn1 Although the indictment did not allege the precise weight of drugs involved in the conspiracy, it charged Gori with "intent to distribute more than 500 grams of methamphetamine." 21 U.S.C. § 841(b)(1)(A)(viii) mandates a minimum ten-year sentence for distributing more than 500 grams of a "mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers."

Gori pled guilty, but specifically refused to stipulate to the amount of drugs involved. He waived his right to a jury trial on this issue and agreed that the District Court should determine, beyond a reasonable doubt, the amount of methamphetamine he distributed. Based on the Government's evidence of eight transactions, in which Gori sold a total of 969.8 grams of a mixture containing methamphetamine to an undercover law-enforcement officer, the Court found that more than 500 grams of a mixture containing methamphetamine were involved in the conspiracy. Therefore, it sentenced Gori to the statutory minimum of ten years under § 841(b)(1)(A)(viii). In addition, the Court refused to grant Gori's motion for a downward departure from the United States Sentencing Guidelines ("U.S.S.G.") based on his claim that the average purity of the mixtures he sold in those eight transactions was only 2.7 percent. This appeal followed.

II.

A. Due process

Gori contends that his indictment did not specifically allege the amount of methamphetamine involved in the conspiracy, thereby denying him due process. He argues that "the amount of drugs allegedly involved should be held to constitute an element of the offense" and thus the Government's "failure to allege the specific amount of drugs involved constitutes a failure to charge a crime." Gori further argues that the Government's failure to mention in its indictment the specific amount of drugs involved violates Apprendi v. New Jersey, 530 U.S. 466 (2000). He reasons that the U.S.S.G.'s guideline ranges are essentially statutory maximum punishments for distribution of various amounts of drugs. Moving from one sentencing range to a higher range is, in Gori's view, equivalent to increasing the punishment for a crime beyond a statutory maximum, requiring that the factors responsible for the increase in range (here, the amount of drugs involved) be alleged in the indictment and proved to a factfinder beyond a reasonable doubt.

We discern no due process violation. The indictment stated clearly the crime charged against Gori. Moreover, the indictment's allegation that the conspiracy involved "more than 500 grams of methamphetamine" put Gori on notice that, if convicted, he would receive a sentence of at least ten years under § 841(b)(1)(A)(viii).

Moreover, this case does not offend Apprendi. It holds that sentence enhancements, other than a prior conviction, that increase a criminal defendant's punishment beyond the statutory maximum for the crime charged must also be included in the indictment and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490. Gori's sentence -- the statutory minimum -- logically cannot exceed the statutory maximum. Hence Apprendi is not brought into play. See United States v. Williams, 235 F.3d 858, 863 (3d Cir. 2000) (holding that Apprendi is not implicated ...


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