Pattern Jury Instruction 2.95 
Notes- Addendum
The 2015 edition of the Instructions amended the elements of the jury instruction for 21 U.S.C. § 846 offenses to require two jury findings as to the types and quantities of the controlled substances involved.  The first finding, as to the types and quantities involved in the overall scope of the conspiracy, was required to set the maximum penalty under the doctrine set out in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). The second finding, as to the types and quantities that each defendant knew or reasonably should have known was involved, was necessary to set the applicable minimum mandatory penalty under the doctrine set out in Alleyne v. United States, 133 S. Ct. 2151 (2013). Prior to Alleyne, a jury finding as to the overall conspiracy set the maximum statutory penalty available, but judge-made findings set the applicable minimum for each defendant in the conspiracy. See United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000); United States v. Clinton, 256 F.3d 311, 314 (5th Cir. 2001). 

The need for these two separate findings to be made by the jury was confirmed by the Fifth Circuit in United States v. Haines, 803 F. 3d 713, 741 (5th Cir. 2015) (Apprendi and Alleyne require the jury (rather than the court) to determine the amount which each defendant knew or should have known was involved in the conspiracy.).  Although Haines addresses the issue of drug quantity rather than drug type, the type of controlled substance likewise can affect the minimum penalty available. Accordingly, an individualized jury finding as to drug type is also recommended, at least in those conspiracies involving multiple drug types.

At least one well respected judge in this circuit has expressed reservations about our new Instruction.  The Committee shares concerns about the state of the law in this area.  That said, Haines has now been reaffirmed in two published cases (U.S. v. Benitez, 809 F.3d 243, 250 (5th Cir. 2015), and U.S. v. Koss, 812 F.3d 460, 465 n.3 (5th Cir. 2016) (finding plain error)), and it was the basis for a joint motion for remand in another unpublished case (U.S. v. Haynes, 2016 WL 1729235 (5th Cir. April 29, 2016)).

It should be noted, however, that notwithstanding Alleyne, a sentencing judge may still conduct fact-finding by calculating a greater drug quantity solely for purposes of determining a defendant's Guideline range without requiring proof beyond a reasonable doubt or a jury finding or admission, as long as the fact-finding does not increase the statutory mandatory minimum sentence.  See United States v. Hinojosa, 749 F.3d 407, 412 (5th Cir. 2014)(“The foundational opinion was Apprendi, where the Court held that a statutory sentencing enhancement which increased a potential criminal penalty beyond the maximum sentence provided by the statute of conviction is to be considered an element of the crime itself and accordingly must be found beyond a reasonable doubt by a jury. 530 U.S. at 490, 120 S. Ct. 2348. In Alleyne, the Supreme Court expanded this principle to include any statutory provision which, by its operation, increases the mandatory minimum sentence. 133 S. Ct. at 2155.  Applicable here, the Alleyne opinion did not imply that the traditional fact-finding on relevant conduct, to the extent it increases the discretionary sentencing range for a district judge under the Guidelines, must now be made by jurors.”).