Whether a special verdict is required to have confidence that the jury has made the finding of drug quantity that allows a sentence beyond the default statutory maximum and that the Sixth Amendment right to jury trial is protected

QUESTIONS PRESENTED FOR REVIEW This Court has made clear that any fact, other than prior conviction, that increases the statutory range of punishment, must be found by a jury to have been proved beyond a reasonable doubt (or admitted by the defendant). Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In a prosecution for drug trafficking, this means that an increased statutory range of punishment and a term of imprisonment beyond the default statutory maximum is allowed only when a jury makes a finding of drug quantity based on proof beyond a reasonable doubt. 21 U.S.C. § 841(b)(1)(A), (B). As a practical matter, this means the jury must be instructed that it has the responsibility to determine drug quantity beyond a reasonable doubt and that it clearly demonstrate that it made a finding of a specific drug quantity base on that standard of proof. The circuit courts have differing views on what is required to have confidence that the jury has indeed made a drug quantity finding that permits a sentence in excess of the default statutory maximum consistent with the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment. The Fourth and Tenth Circuits require a special verdict in which the jury reports the specific drug quantity for which it has found the defendant guilty beyond a reasonable doubt. United States v. Ellis., 868 F.3d 1155 (10" Cir. 2017). This is the clearest method for determining the jury’s findings and protecting the jury trial right. But the Sixth Circuit does not require a special verdict, see United States v. Grooms, 194 Fed. Appx. 355, 363 (6" Cir. 2006), and application of Sixth Circuit case law has allowed a life sentence in this case in which there can be little to no confidence that the jury made a drug quantity finding beyond a reasonable doubt. In this case, the jury was not instructed to make any drug quantity finding. While the jury was instructed that the government was required to prove the elements of the offenses beyond a reasonable doubt, it was not instructed that drug quantity was an element, and it was not otherwise instructed that a drug-quantity finding needed to be made under any standard of proof. The jury did not return a special verdict. It returned a general verdict that referenced the indictment but did not make any mention of drug quantity. Yet Petitioner was sentenced to a term of life in prison based on drug quantity (not based on any prior conviction). The first question for the Court is whether a special verdict is required to have confidence that the jury has made the finding of drug quantity that allows a sentence beyond the default statutory maximum and that the Sixth Amendment right to jury trial is protected. If the Court does not wish to follow the Tenth Circuit with a bright line rule requiring use of a special verdict, the second question would be whether the Sixth Circuit case law undermines Apprendi and violates the Sixth Amendment by allowing a sentence in excess of the default statutory maximum when the jury was not instructed to make a drug quantity finding and returned a general verdict. i