512
Opinion of the Court
have had to determine the total amount of drugs, whether they consisted of cocaine, crack, or both, and the total amount of each—regardless of whether he believed that petitioners' crack-related conduct was part of the "offense of conviction" or "part of the same course of conduct or common scheme or plan." The Guidelines sentencing range—on either belief—is identical. Petitioners' statutory and constitutional claims could make a difference if they could argue that their sentences exceeded the statutory maximum for a cocaine-only conspiracy, or that their crack-related activities did not constitute part of the "same course of conduct," etc., but the record indicates that such arguments could not succeed. Their argument, made for the first time on appeal, that the judge might have made different factual findings had he known that the law required him to assume the jury had found a cocaine-only conspiracy is unpersuasive. Pp. 513-516.
105 F. 3d 1179, affirmed.
Breyer, J., delivered the opinion for a unanimous Court.
Steven Shobat, by appointment of the Court, 522 U. S. 993, argued the cause for petitioners. With him on the briefs were Carleton K. Montgomery, David Zlotnick, Mark D. DeBofsky, by appointment of the Court, 522 U. S. 1013, Robert Handelsman, by appointment of the Court, 522 U. S. 1013, J. Michael McGuinness, by appointment of the Court, 522 U. S. 965, and Donald Sullivan, by appointment of the Court, 522 U. S. 1043.
Edward C. DuMont argued the cause for the United States. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben.*
Justice Breyer delivered the opinion of the Court. The statutes at issue in this case make it a crime to "conspir[e]" to "possess with intent to . . . distribute . . . a controlled substance." 21 U. S. C. §§ 841 and 846. The Government charged petitioners with violating these statutes by conspiring "to possess with intent to distribute . . .
*Jeffrey J. Pokorak, David Porter, and Kyle O'Dowd filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae.
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