Is Drug Quantity an Element of 21 USC § 841(b)? Determining the Apprendi Statutory Maximum

Over twenty-seven thousand defendants are charged with federal drug trafficking offenses each year. The principal trafficking statute, 21 USC § 841, sets out a schedule of imprisonment and fines based on the amount of drugs that was manufactured, distributed, or possessed. Currently, there is a circuit split over whether drug quantity in § 841 is a sentencing factor, and therefore may be found by a judge by a preponderance of the evidence, or whether drug quantity is an offense element that must be charged in the indictment, submitted to a jury, and proved beyond a reasonable doubt.

Historically, the distinction between sentencing factors and offense elements has been difficult for courts to draw. Congress and state legislatures did not always specify which components of an offense they intended to imbue with additional trial rights. For example, if a statute assigns a fifteen-year maximum penalty for carjacking with a firearm, but assigns a twenty-five-year maximum penalty for that same offense if serious bodily injury occurred, does the prosecutor need to prove beyond a reasonable doubt that serious injury occurred? Or can a judge find that fact at sentencing? Courts have struggled to determine the answer. In Apprendi v New Jersey, the Supreme Court set out the bright-line rule that any fact other than a prior conviction that increased the penalty for a crime beyond the statutory maximum had to be submitted to a jury and proved beyond a reasonable doubt.

Circuit courts’ interpretations of § 841 indicate that the Apprendi “rule” is far from clear, however. Six circuits have held that drug quantity is an element of § 841(b), because the maximum potential sentence to which a defendant is exposed increases as the amount of drugs in question does. In contrast, five circuits have held that drug quantity is not an element of § 841, for two primary reasons. First, they state that no Apprendi violation has occurred unless a defendant’s actual sentence exceeds the statutory maximum. Second, they explain that drug quantities in § 841 trigger mandatory minimums, rather than higher statutory maximums only. The Eleventh Circuit, concurring in the conclusion that drug quantity is not an element, bypassed the question of statutory minimums and held that drug quantity is an element only when the actual sentence imposed is above the statutory maximum set out in the applicable portion of § 841(b). 

This circuit split implicates the central holding in Apprendi, a landmark case in federal sentencing. A resolution in favor of the first cluster of circuits would expand the scope of Apprendi, while a resolution favoring the second cluster would substantially limit Apprendi’s applicability. While much has been written about Apprendi, the two ways of interpreting the rule have never been noted or examined. It is important to reconcile the circuit split, as Apprendi controls fundamental aspects of criminal procedure, including defendants’ constitutional rights. This Comment argues that drug quantity should be treated as an element of § 841 for three reasons.