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Managing with Legal Ambiguity: Policy and Institutional Goals on the U.S. Court of Appeals
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Olano prong, the issue dividing the Promise court. A hearing panel of Judges Widener, Williams, and Motz (per Motz) followed Stewart in United States v. Montgomery (2001, 252).
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Cotton was not authored—or joined, for that matter—by any of the judges in the Motz bloc in
Promise. Instead, it was authored by Judge Luttig (G.H.W. Bush) and joined by Judge Gregory (Clinton), both of whom took the position in Promise that Apprendi did not apply to drug quantity under § 841. In Cotton, however, Judge Luttig agreed with Judge Motz’s opinion in Promise that if drug quantity is to be treated as an element of an aggravated drug offense, then the district court exceeded its jurisdiction in sentencing a defendant for a crime other than that charged (404). In holding that “sentencing a defendant for an unindicted crime . . . seriously affects the fairness, integrity or public reputation of judicial proceedings” (406), the Cottonmajority also held that “the quantum of evidence [in the record] is not a relevant consideration when the error stems from a defect in the indictment” (407). The Chief Judge wrote a lengthy dissent arguing that the “overwhelming evidence presented” precluded relief under Olano (410).
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This is not to say that the courts of appeals will never grant relief in an Apprendi case after
Cotton. But it does mean that, with respect to sentences imposed prior to the decision inApprendi, relief will be limited to cases (1) where the defendant managed to preserve the Apprendi issue for harmless error review by objecting to the error (see, e.g., United States v. Jordan 2002), or (2) where the government did not present overwhelming evidence at trial that the defendant failed to contest (see, e.g., United States v. Bartholomew 2002).
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73
Olano prong, the issue dividing the Promise court. A hearing panel of Judges Widener,
Williams, and Motz (per Motz) followed Stewart in United States v. Montgomery (2001, 252).
34
Cotton was not authored—or joined, for that matter—by any of the judges in the Motz bloc in
Promise. Instead, it was authored by Judge Luttig (G.H.W. Bush) and joined by Judge Gregory
(Clinton), both of whom took the position in Promise that Apprendi did not apply to drug
quantity under § 841. In Cotton, however, Judge Luttig agreed with Judge Motz’s opinion in
Promise that if drug quantity is to be treated as an element of an aggravated drug offense, then
the district court exceeded its jurisdiction in sentencing a defendant for a crime other than that
charged (404). In holding that “sentencing a defendant for an unindicted crime . . . seriously
affects the fairness, integrity or public reputation of judicial proceedings” (406), the Cotton
majority also held that “the quantum of evidence [in the record] is not a relevant consideration
when the error stems from a defect in the indictment” (407). The Chief Judge wrote a lengthy
dissent arguing that the “overwhelming evidence presented” precluded relief under Olano (410).
35
This is not to say that the courts of appeals will never grant relief in an Apprendi case after
Cotton. But it does mean that, with respect to sentences imposed prior to the decision in
Apprendi, relief will be limited to cases (1) where the defendant managed to preserve the
Apprendi issue for harmless error review by objecting to the error (see, e.g., United States v.
Jordan 2002), or (2) where the government did not present overwhelming evidence at trial that
the defendant failed to contest (see, e.g., United States v. Bartholomew 2002).
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