In this article, we address two concerns about federal drug sentencing following the decision in Apprendi v. New Jersey. First, we suggest that the United States Sentencing Commission add an Application Note to the Commentary that accompanies the acceptance of responsibility section of the Guidelines, to clarify that acceptance points are appropriate not only for defendants who plead guilty to the charged offense, but for defendants whose unambiguous offers to plead guilty to a lesser-included offense are rejected by the prosecution, and who are acquitted of the greater offense. Second, we suggest that Congress consider amending the federal drug conspiracy statute, 21 U.S.C. Section 841, to add a mens rea requirement for drug quantity and type. This will retain pre-Apprendi conspiracy sentencing practice, which was unintentionally modified by the interaction between Apprendi, the conspiracy statute, and Section 1B1.3 (a)(1)(B) of the Guidelines.
Susan R. Klein, Acceptance of Responsibility and Conspiracy Sentences in Drug Prosecutions After Apprendi, 14 Federal Sentencing Reporter 165 (2002) (with Nancy J. King).