Drug Quantity Must Be Alleged in Indictment for Defendant to Be Sentenced to More than 20 Years, even if Defendant Allocutes to Specific Quantity

United States v. Cordoba-Murgas et al., Docket No. 04-3131-cr (L) (2d Cir. Sep. 7, 2005) (Op. by Cabranes): A great decision by the Circuit, and a hard-fought win by Ed Zas of this Office. In this opinion by Judge Cabranes, the Circuit rules that in light of drug quantity's status as an element of the § 841(a) offense, a defendant cannot be sentenced to more than 20 years' imprisonment when the indictment (charging an offense under 21 U.S.C. § 841 et seq.) does not allege a particular quantity, even where the defendant specifically allocuted to distributing a quantity of drugs sufficient to trigger one of the aggravated offenses under § 841(b). Although such an allocution effectively waives the 6th Amendment requirement of submitting the quantity decision to the jury, e.g., United States v. Yu, 285 F.3d 192, 198 (2d Cir. 2002), it does not waive the 5th Amendment grand jury / indictment right. Cordoba's sentence of 262 months, exceeding the 240-month maximum for drug offenses not involving a specific quantity, was thus unlawful.

The decision rests primarily on the rule that "the absence of an indictment constitutes a jurisdictional defect and cannot be waived by a guilty plea," Op. at 7, a principle long established in the Circuit. See United States v. Macklin, 523 F.2d 193, 196 (2d Cir. 1975). Here, although there was an indictment, "there [was] no valid indictment for the crime for which Corboba was convicted" and sentenced, since it did not allege a specific quantity of drugs. Op. at 9 (emphasis in original). As the Court explains,

"[A] violation of 21 U.S.C. § 841(a) with no specified quantity of drugs constitutes a different crime than 21 U.S.C. § 841(a) with a specified quantity of drugs, and the applicable statutory penalties vary accordingly. By sentencing Cordoba to a term of imprisonment longer than twenty years, the District Court effectively convicted him of a crime for which he had not been indicted. [And] pursuant to Macklin, the guilty plea settling the issue of quantity cannot serve as a waiver."

Op. at 9. The Court thus concludes that "when a defendant is indicted for a violation of 21 U.S.C. § 841 without a specified quantity of drugs, the defendant's allocution to a particular quantity cannot serve to waive the failure to indict him for the separate crime of violation of § 841 with a particular quantity of drugs. Accordingly, the defendant cannot be sentenced to a term of imprisonment greater than the statutory maximum set forth in § 841(b)(1)(C) for violation of § 841(a) without a specified quantity." Op. at 7.