The opinion of the court was delivered by: Nickerson, District Judge:
Defendant Glen Norris pleaded guilty to Count One of the indictment in
this case charging that between June 17 and June 23, 1999, he and others
conspired to distribute and possess with intent to distribute five or
more kilograms of cocaine, in violation of 21 U.S.C. § 846 and 841
(b)(1)(A). A second count remains pending. The statutory penalty is
imprisonment for a minimum of ten years and a maximum of life.
The presentence report prepared by the Probation Department sets forth
a summary of the "offense conduct" as follows. On June 21, 1999, Norris
and an informant agreed that the informant would sell Norris six
kilograms of cocaine at $18,000 per kilogram. On June 25, 1999, Norris
and two of his alleged partners met with the informant in Norris's
kitchen. According to a count made by the informant and one of the
"partners," $90,000 in cash was on the kitchen table. The informant
departed, pretending he would return with the cocaine.
One of the partners made post-arrest statements to the agents to the
effect that on three prior occasions he had assisted Norris in counting
money for cocaine purchases. Once he counted about $60,000, a second time
about $90,000, and a third time about $100,000. These incidents were not
alleged in the indictment but were said to have occurred some time prior
to the June dates stated in the indictment.
The probation report added the $115,000 seized in Norris' residence to
the total $250,000 that the partner stated he had previously counted. The
report concluded that this entire amount was attributable to Norris and
was sufficient to buy 20.27 kilograms of cocaine at $18,000 a kilogram.
The Base Offense Level of the offense charged in the indictment was
32, providing for a crime involving at least 5 kilograms and less than 15
kilograms of cocaine, and requiring a sentence of 135 to 168 months
imprisonment for a defendant such as Norris who had a record of three
prior convictions for harassment of his estranged wife.
The Probation Department added two levels, making the Base Offense
Level 34, based on 20.27 kilograms. This was some 14.7 more kilograms
than the 6 kilograms allegedly involved on the two dates of June 21 and
June 25, 1998 stated in the indictment.
To the level 34 the report then added a further two level "enhancement"
pursuant to guideline 2D1.1(b)(1) because the loaded weapon was "likely"
connected with the offense, so as to reach a level 36 calling for
imprisonment of 210-262 months.
The above calculations show the substantial difference in the time
Norris will have to serve in prison depending on whether or not the
enhancements adopted by the probation report are applied.
Defense counsel argued to the court that Norris should not receive a
two level enhancement for the possession of a gun, contending that it was
"clearly improbable" that possession of the gun was connected to the
offense. Counsel also objected to the increase of a further two levels
attributable to the addition of fourteen kilograms based on the alleged
three prior drug transactions.
The court requested the parties to address the questions (1) whether
the United States Constitution prohibits a court from increasing Norris's
sentence beyond the maximum fixed by the sentencing guidelines for the
elements of the crime alleged in the indictment to which he pleaded
guilty and (2) whether under the Constitution the court may deprive
Norris of a jury trial and by ...