How have the courts dealt with the issue of sentencing under section 841(b)(1)(A)(v) of the Federal Drug Code?

Rogers next contends that he was improperly sentenced under the penalty provision of 21 U.S.C. Sec. 841(b)(1)(A)(v). ³ The indictment charged him with possessing over 10 grams of LSD but at trial it was determined that he actually possessed over 10 grams of a substance or mixture containing LSD. His argument is that the indictment controls the range of sentencing. United States v. Crockett, 812 F.2d 626 (10th Cir.1987). Since the government failed to

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The government responds that it need not allege in the indictment the quantity of contraband required to trigger the enhanced penalty provisions, since the amount of LSD involved is not an element of the offense and the penalty provisions are wholly separate from the definition of unlawful acts included in 21 U.S.C. Sec. 841(a). United States v. Normandeau, 800 F.2d 953, 956 (9th Cir.1986). In the alternative, the government argues that even if notice of the enhancement is required, the indictment in the instant case did give Rogers sufficient notice of the possibility of an enhanced sentence if convicted.