Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, Chief District Judge, Presiding D.C. No. 3:04-cr-00026- RRB-1
The opinion of the court was delivered by: Paez, Circuit Judge:
Argued and Submitted December 1, 2010-Seattle, Washington
Before: Robert R. Beezer, Diarmuid F. O'Scannlain, and Richard A. Paez, Circuit Judges.
Dissent by Judge O'Scannlain
The district court sentenced Appellant Stacy Hunt to 180 months in prison after he pled guilty to attempting to possess a controlled substance with the intent to distribute in violation of 21 U.S.C. §§ 841(a), 846. Hunt appeals his sentence but not his conviction. He alleges that the district court erred under Apprendi v. New Jersey, 530 U.S. 466 (2000), by sentencing him for attempted possession with intent to distribute an unspecified amount of cocaine even though he never admitted that he attempted to possess cocaine. We conclude that the district court erred under Apprendi and that the error was not harmless. Accordingly, we reverse and remand for resentencing.*fn1
Acting on a tip, police intercepted a suspicious Federal Express package at the airport in Anchorage, Alaska, on January 26, 2004. The police brought in a drug-sniffing dog that alerted to the package. After obtaining a search warrant, the police opened the package and discovered it contained approximately one kilogram of cocaine hidden in candles. The police removed most of the cocaine and resealed the package with a nominal amount of the drug inside.
A few days later, an undercover officer delivered the package to an apartment in Anchorage. A woman signed for the package, and police investigators conducting surveillance watched her put it in the trunk of a car. Sometime later, the investigators observed Stacy Hunt take the package from the car and carry it towards the apartment. Shortly thereafter, Hunt left in a white Ford Explorer driven by another man.
While several officers followed the Ford Explorer, others searched the apartment and spoke to the woman who signed for the package. She told police that she had agreed to receive the package for a man named "Sterling," who paid her approximately $400 for accepting delivery of three separate packages. She claimed she did not know what was inside the package.
The officers tailing the Explorer conducted a traffic stop and saw the Federal Express package inside the vehicle. They arrested the driver and Hunt, who carried Oregon identification with the name "Mario McCoy." The police interrogated the driver, who told them that he had driven Hunt, whom he knew as "Buddy Walker," to pick up a package on two occasions. He also told them that Hunt had given him five or six thousand dollars to deposit into a checking account in order to obtain a cashier's check.
With Hunt's counsel present, the police interviewed Hunt as well. Still using the name Mario McCoy, Hunt signed a written statement detailing the drug transaction. Hunt wrote that he had ordered drugs from a person in California. He wrote that the person who received the package was supposed to be paid $400 and that a "package of 1 kilo of coke was to be put in a burgundy Mercedes S.U.V." parked outside a restaurant. Immediately below Hunt's statement, his lawyer wrote that Hunt would cooperate with the government if the government allowed the case to proceed in state court, rather than federal court. Hunt was released. His lawyer, however, lost contact with him.
On February 17, 2004, a federal grand jury indicted Hunt, alleging that he "did knowingly and intentionally attempt to possess with intent to distribute a controlled substance, to wit: 500 grams or more of a mixture and substance containing cocaine" in violation of 21 U.S.C. §§ 846, 841(b)(1)(A). On December 13, 2007, Hunt was arrested in California, and officers learned that he was the subject of a federal arrest warrant. Hunt was taken to Alaska to face the federal drug distribution charges.
Hunt ultimately decided to plead guilty without a plea agreement. At the change of plea hearing, there were several references to Hunt's attempt to possess cocaine. First, in response to the court's inquiry regarding the elements of the offense, the Assistant United States Attorney (AUSA) stated that the government would need to prove at trial that Hunt "attempted to possess a parcel that contained a little over a kilogram of cocaine . . . and that he did so knowingly." Hunt stated that he understood those elements. After a few moments passed, the AUSA stated that he forgot to include the element that "Mr. Hunt attempted to possess that cocaine with the intent to distribute it thereafter." Hunt responded that he understood that additional element.
The court then restated the elements of the offense as follows: "So you attempted to possess cocaine, you knew it was cocaine or some illegal drug, and you did it with the intent to distribute. I guess those are the three elements, okay?" (emphasis added). Hunt replied, "To those elements, yes, I agree." Hunt then asked that the government state the elements one last time. The AUSA responded that the government would have to prove that "Mr. Hunt attempted to possess a parcel which contained a little over a kilogram of cocaine [and] . . . [w]e'd have to prove that Mr. Hunt's attempt to possess that cocaine was done knowingly and then we'd have to prove that he intended to distribute that cocaine after coming into possession of it." Hunt replied, "Yes I understand those elements. As far as the specific amount, I don't have personal knowledge of it . . . as I never opened the package and weighed it, but I do accept responsibility for whatever it was."
After the government stated the facts it expected to prove if the case were to proceed to trial-including that Hunt was found in possession of a package of over 500 grams of cocaine and later admitted that he had ordered the drugs in a written statement-Hunt said, "For the most part, the facts are true. I admit all the elements of 841(a)(1), and also as I said, I did not receive the package and open it, so I have no specific knowledge of what it contained other than it did contain a controlled substance, that I do know, and I did attempt to possess that controlled substance." Hunt also confirmed that he had intended to sell or give away the controlled substance. The court then asked the government, "That sounds sufficient, doesn't it, counsel?" The AUSA agreed that Hunt's admission was sufficient to supply a factual basis for the offense, and the court accepted Hunt's plea.
Hunt's sentencing hearing stretched out over a number of months because of several controversies. First, Hunt argued that he should not be sentenced under 21 U.S.C. § 841(b)(1)(A), the penalty provision for possession with intent to distribute more than 500 grams of cocaine, because he did not admit to a specific amount of drugs during the change of plea hearing. After both parties filed several com-
peting motions on the issue, the court decided, "in an abundance of caution, giving defendant every benefit of the doubt," that it would accept Hunt's argument and sentence him as if he had attempted to possess an unspecified amount of cocaine under 21 U.S.C. § 841(b)(1)(C).
In the sentencing memoranda contesting the applicability of section 841(b)(1)(A), Hunt never raised the issue of whether he had admitted at the plea colloquy that he attempted to possess cocaine. When the court heard oral argument on Hunt's objections to the presentence report at the initial sentencing hearing, however, Hunt expressly denied that he had admitted to attempting to possess cocaine when he and the court engaged in the following exchange:
HUNT: Also, when I made my objections, which has been overlooked, I also objected on the grounds that I did not at plea colloquy admit to a specific type of controlled substance, and I only agreed that I attempted to possess a controlled substance.
HUNT: Not crack, cocaine, or marijuana, or anything like that. I only agree to a Schedule II - not even a Schedule II. I only agree to a controlled substance. So are you also making a finding for the type of drug also?
HUNT: So I'd like to make sure that my (indiscernible) objection is in for not just quantity but also as to type of drugs. And my position is that I should fall back to marijuana for no remuneration, with a statutory max of five years, up - under (b)(1)(D).
THE COURT: Very well. Boy, you're smart.
You've made your record, but I - you haven't changed my mind.
At a subsequent sentencing hearing, the government called Detective Elizer Feliciano of the Anchorage Police Department. Detective Feliciano was present when Hunt signed the statement in which he admitted to ordering and receiving drugs from California. Through the detective's testimony, the government introduced a Drug Enforcement Agency laboratory report showing that the substance in the Federal Express package was 1,102 grams of a mixture containing cocaine. Further analysis showed that the mixture was 72 percent pure cocaine.
The detective testified that, in his training and experience, a person receiving a large quantity of cocaine, such as a kilogram, would specify the amount he wished to purchase and would agree on a price with the seller. He estimated that the cocaine Hunt received was worth approximately $25,000.
On cross-examination, Detective Feliciano testified that the type and amount of drugs contained in the Federal Express package were known to the police before Hunt gave his statement, and that the police likely communicated this information to Hunt's attorney before the interview took place. He also confirmed that the interview occurred after Hunt and the government had entered into a cooperation agreement contingent upon Hunt's ability to provide reliable information.
On the basis of Detective Feliciano's testimony, the court found that Hunt was responsible for more than 500 grams of cocaine for the purpose of calculating Hunt's applicable advisory sentencing guidelines range. Pursuant to the United States Sentencing Guidelines § 2D1.1(c)(7), the court determined that Hunt's base offense level was 26. To this level, the court applied a two point enhancement for obstruction of justice as a result of Hunt absconding after his arrest, see id. at § 3C1.1, ...