On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 95-00492)
BEFORE: GREENBERG, ALITO, and SEITZ, Circuit Judges
GREENBERG, Circuit Judge.
Appellant, Anthony Lewis, appeals from a judgment of conviction and sentence entered in the district court on an indictment charging him with distribution of at least five grams of a mixture or substance containing a detectible amount of cocaine base, which, as a matter of convenience, we will call simply cocaine base. A jury found Lewis guilty under 21 U.S.C. Section(s) 841(a)(1) ("section 841(a)(1)") which prohibits the distribution of a controlled substance. The court subsequently sentenced Lewis to 120 months in prison under 21 U.S.C. Section(s) 841(b) ("section 841(b)") for distribution of at least five grams of cocaine base. Lewis contends that he is entitled to a new trial because, notwithstanding his indictment for distribution of at least five grams of cocaine base, the district court instructed the jury that it could find him guilty whether he had distributed cocaine powder or cocaine base. He argues that this instruction infringed upon the jury's fact-finding function. He also contends that because the court instructed the jury that it could find him guilty whether he distributed cocaine powder or cocaine base, the basis for its finding of guilt cannot be determined. He thus asserts that the district court erred because it sentenced him for distribution of cocaine base rather than powder cocaine. He claims that this error prejudiced him as the mandatory minimum penalties for distribution of cocaine base in section 841(b) are more severe than those for the distribution of powder cocaine. Finally, Lewis argues that even if we uphold his conviction he is entitled to a remand for resentencing because the government failed to prove by a preponderance of the evidence that the controlled substance he distributed was cocaine base.
The government counters that to prove that Lewis violated section 841(a) it needed to prove only that he knew he was distributing a controlled substance even if he did not know its identity. It also asserts that a jury need not determine which controlled substance a defendant charged under section 841(a)(1) distributed, provided it determines that the defendant distributed a controlled substance. It further argues that the district court was correct in determining for sentencing purposes the identity of the controlled substance that Lewis distributed, for the "type and quantity of the controlled substance in an offense is an issue of fact to be decided by the court at sentencing." Br. at 4. Finally, the government argues that the district court's finding that Lewis distributed cocaine base was not clearly erroneous.
We have jurisdiction pursuant to 28 U.S.C. Section(s) 1291 and 18 U.S.C. Section(s) 3742(a). The district court had jurisdiction pursuant to 18 U.S.C. Section(s) 3231. We exercise plenary review over the questions before us, except that we review the court's finding that Lewis distributed cocaine base to determine if the finding was clearly erroneous.
I. FACTUAL AND PROCEDURAL HISTORY
On February 17, 1995, Edward Jones, a confidential informant for the Drug Enforcement Administration (the "DEA"), went to Bristol Township, Pennsylvania, as instructed by DEA agents, to purchase $2,000 worth of crack cocaine from a particular person. App. at 219-21. While unsuccessfully seeking that person, Jones met Lewis who offered to sell him crack cocaine. App. at 222. After obtaining permission from the DEA agents, Jones initiated a purchase of cocaine from Lewis. Lewis informed Jones that he had 25 dime bags with him, which he gave to Jones, and then suggested that Jones drive him to a residence belonging to a third person to obtain more. Lewis then procured an additional 50 dime bags of cocaine, which he also gave to Jones. Jones, in turn, paid Lewis for the cocaine. Laboratory analysis showed that Jones purchased 7.5 grams of cocaine base from Lewis. App. at 35. Based on these events, a grand jury returned a two-count indictment charging Lewis with distribution of cocaine base in violation of 21 U.S.C. Section(s) 841(a)(1) and distribution of cocaine base within 1,000 feet of a public housing project in violation of 21 U.S.C. Section(s) 860. App. at 15-16.
Jones testified at the trial, but during his cross-examination the district court barred any inquiry into the difference between cocaine base and cocaine powder, explaining that the difference was not relevant. App. at 300-04. Lewis also testified, denying that he distributed crack, and contending that he had sold cocaine powder to Jones. App. at 171-73. App. at 172-73. The district court, over Lewis's objection, instructed the jury that it could find Lewis guilty regardless of whether he distributed cocaine powder or cocaine base. App. at 348-49, 361, 393-94, 396.
The jury found Lewis guilty of distribution of cocaine but found him not guilty of distribution of cocaine within 1,000 feet of a public housing project. We cannot ascertain from the verdict whether it concluded that Lewis distributed cocaine base or powder cocaine or, indeed, even whether it reached a unanimous conclusion on this point. On May 30, 1996, the district court sentenced Lewis to a custodial term of 120 months, a $500 fine, eight years of supervised release and a $50 special assessment, the sentence being predicated on its finding that Lewis distributed cocaine base. As we have indicated, this finding was significant for it is undisputed that the sentence for distributing powder cocaine would have been less than the sentence the court imposed. App. at 10-14.