ON PETITION FOR REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4943
PATRICK FURMAN BROWN,
Defendant-Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 00-6846)
Submitted: June 27, 2002
Decided: August 1, 2002
Before WIDENER, WILKINS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Andrew D. Grimes, Summerville, South Carolina, for Appellant.
Scott N. Schools, United States Attorney, William K. Witherspoon,
Assistant United States Attorney, Ann Agnew Cupp, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BROWN
OPINION
PER CURIAM:
This case is on remand from the United States Supreme Court for
further consideration in light of Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (holding that "[o]ther than the fact of a prior convic-
tion, any fact that increases the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt"). A jury convicted Patrick Furman Brown
of conspiracy to distribute and possess with intent to distribute crack
cocaine, in violation of 21 U.S.C. § 846 (1994) (Count 1); three
counts of distribution and possession with intent to distribute crack,
in violation of 21 U.S.C.A. § 841 (West 1999 & Supp. 2002) (Counts
2, 4, and 5); and using and carrying a firearm during and in relation
to a drug trafficking crime, in violation of 18 U.S.C.A. § 924(c)(West
2000) (Count 3). Brown was sentenced to life imprisonment on the
conspiracy count (Count 1); to three concurrent 480-month terms on
the distribution counts (Counts 2, 4, and 5); and a consecutive 60-
month term on the firearms count (Count 3). The sentencing order
was silent as to the guideline application, but the transcript of the sen-
tencing hearing indicates that the district court arrived at the life sen-
tence on the conspiracy count by applying the cross-reference in U.S.
Sentencing Guidelines Manual § 2D1.1(d)(1) (1998), to the first-
degree murder guideline in USSG § 2A1.1. The district court rea-
soned that the murder occurred during the course of a drug trafficking
conspiracy and fell within 18 U.S.C.A. § 1111 (West 2000).1
On April 24, 2002, we issued our opinion on remand holding that,
based upon Apprendi and our decision in United States v. Cotton, 261
F.3d 397, 404-05 (4th Cir. 2001), rev’d, 122 S. Ct. 1781 (2002),2
Brown’s life sentence was plain error, that the error affected Brown’s
substantial rights, and that we should recognize the error. United
States v. Brown, No. 99-4943, 2002 WL 704651, at *3-*4 (4th Cir.
Apr. 24, 2002) (unpublished). Thus, we vacated Brown’s life sentence
1
The murder guideline, USSG § 2A1.1, sets a base offense level of
forty-three, resulting in a presumptive life sentence in all cases. See
USSG Ch. 5, Pt. A (sentencing table).
2
The Supreme Court’s decision in Cotton issued on May 20, 2002.
UNITED STATES v. BROWN 3
and remanded for resentencing but affirmed the judgment in all other
respects. Id. at *4.
After receiving our April 24 decision, Brown filed a timely pro se
petition for panel rehearing and rehearing en banc. Brown’s counsel
has filed a motion to withdraw the petition for rehearing. We deny the
motion to withdraw the pro se petition for rehearing, grant the petition
for panel rehearing, and deny the petition for rehearing en banc. After
reviewing Brown’s convictions and sentences for plain error in light
of Apprendi and the Supreme Court’s decision in Cotton, we affirm.
See United States v. Promise, 255 F.3d 150, 154 (4th Cir. 2001) (en
banc) (discussing plain error standard of review), cert. denied, ___
U.S. ___, 2002 WL 1050009 (May 28, 2002) (No. 01-6398); see
United States v. Johnson, 457 U.S. 537, 562 (1982) (holding that law
in effect at time of decision by appellate court is law that should be
applied in criminal case on direct appeal).
Brown argues four issues on remand. First, he argues that § 841 is
unconstitutional after Apprendi. The case on which Brown relies for
support was vacated and the Ninth Circuit, sitting en banc, concluded
that § 841 was not facially unconstitutional. United States v. Buck-
land, 259 F.3d 1157, 1159 (9th Cir. 2001), rev’d on reh’g en banc,
277 F.3d 1173 (9th Cir.), amended by 289 F.3d 558 (9th Cir.), cert.
denied, ___ U.S. ___, 2002 WL 764233 (May 28, 2002) (No. 01-
9813). Moreover, we recently held that "§ 841 is not facially uncon-
stitutional." United States v. McAllister, 272 F.3d 228, 232 (4th Cir.
2001). We hold that Brown is not entitled to relief on this claim.
Second, Brown challenges the district court’s jurisdiction as to
Counts 2, 4, and 5. He contends that, in light of Apprendi, the indict-
ment is defective because it failed to charge the quantity of crack
cocaine as an element of the offense in Counts 2, 4, and 5, thereby
depriving the district court of jurisdiction. We hold that the indict-
ment properly charged the offenses for which Brown was convicted.
See Promise, 255 F.3d at 160 (finding indictment sufficient where it
charged defendant with conspiracy to possess with intent to distribute
"a quantity of cocaine and cocaine base"). There is no constitutional
or like rule forbidding Congress from making unlawful the possession
or distribution of a controlled substance without reference to quantity.
4 UNITED STATES v. BROWN
Third, Brown contends that his life and concurrent forty-year sen-
tences are invalid after Apprendi.3 In Promise, we applied Apprendi
to drug offenses in §§ 841 and 846 and held that "the specific thresh-
old [drug] quantity must be treated as an element of an aggravated
drug trafficking offense, i.e., charged in the indictment and proved to
the jury beyond a reasonable doubt." Id. at 156-57 (footnotes omit-
ted). Here, drug quantity was not charged in the indictment or submit-
ted to the jury.
Brown received a life sentence on Count 1. The district court
applied the murder cross-reference in USSG § 2A1.1, which sets a
base offense level of forty-three, resulting in a presumptive life sen-
tence in all cases. Because the murder occurred during the course of
the conspiracy, the district court properly included the murder as rele-
vant conduct. Relying on drug quantity in the presentence report, the
district court, however, improperly assumed that the maximum sen-
tence under § 846 was life imprisonment. Under Apprendi, since drug
quantity was not included in the indictment, the maximum sentence
for Count 1 is twenty years under § 841(b)(1)(C).4 Promise, 255 F.3d
at 156-57; United States v. Angle, 254 F.3d 514, 518 (4th Cir.) (en
banc), cert. denied, 122 S. Ct. 309 (2001). The maximum sentence for
Counts 2, 4, and 5 also is twenty years.
Where a defendant—like Brown—is convicted of multiple counts,
USSG § 5G1.2(d) provides that "[i]f the sentence imposed on the
count carrying the highest statutory maximum is less than the total
3
Brown urges us to reconsider our decision in United States v. Kinter,
235 F.3d 192 (4th Cir. 2000) (holding that Apprendi does not apply to
judge’s exercise of sentencing discretion within statutory range, so long
as defendant’s sentence is not set beyond maximum term specified in
substantive statute), cert. denied, 532 U.S. 937 (2001). We decline to do
so. See Mentavlos v. Anderson, 249 F.3d 301, 312 n.4 (4th Cir.) ("[A]
panel of this court cannot overrule, explicitly or implicitly, the precedent
set by a prior panel of this court[;] [o]nly the Supreme Court or this court
sitting en banc can do that"), cert. denied, 122 S. Ct. 349 (2001).
4
Section 846 requires the same penalty as that prescribed for the under-
lying offense, the commission of which was the object of the conspiracy.
Since no drug amount was alleged in the indictment or presented to the
jury for any count, the maximum allowable sentence is twenty years.
UNITED STATES v. BROWN 5
punishment, then the sentence imposed on one or more of the other
counts shall run consecutively, but only to the extent necessary to pro-
duce a combined sentence equal to the total punishment." Under the
sentencing guidelines, the four twenty-year terms and one five-year
must be imposed consecutively for a total of eighty-five years. Thus,
since drug quantity was not charged in the indictment, the maximum
prison term for Brown’s multiple convictions is eighty-five years.
Angle, 514 F.3d at 518-19; United States v. White, 238 F.3d 537, 542-
43 (4th Cir.), cert. denied, 532 U.S. 1074 (2001).
Imposing a life sentence on the conspiracy count by using the mur-
der cross-reference violated the guidelines, which state: "Where the
statutorily authorized maximum sentence is less than the minimum of
the applicable guideline range, the statutorily authorized maximum
sentence shall be the guideline range." USSG § 5G1.1(a).5 We there-
fore find that there is error and that the error is plain. Cotton, 122
S. Ct. at 1785; Promise, 255 F.3d at 156-57, 160. We also hold that,
because Brown’s life sentence exceeds the total statutory maximum
prison term of eighty-five years for multiple convictions involving an
unspecified amount of drugs, the error in Brown’s life sentence
affects his substantial rights.6 Angle, 254 F.3d at 518-19; White, 238
F.3d at 542-43. However, we decline to exercise our discretion to
notice the error in Brown’s life sentence because the error "did not
seriously affect the fairness, integrity, or public reputation of judicial
proceedings" where, as here, the evidence was "overwhelming" and
"essentially uncontroverted" that the conspiracy involved a threshold
drug quantity sufficient to support an enhanced sentence under 21
5
We agree with the Seventh Circuit which recently addressed this
guideline provision in United States v. Westmoreland, 240 F.3d 618 (7th
Cir. 2001). The court stated, "it is not possible to apply the cross-
reference in a manner that produces a sentence greater than the statutory
maximum applicable to the charged crime . . . . Therefore, even though
the murder cross-reference will always allow for a life sentence, the
Guidelines require that the cross-reference only increase the defendant’s
sentence at most to the statutory maximum associated with the charge on
which the defendant was convicted." Id. at 636.
6
With regard to Brown’s concurrent forty-year sentences on Counts 2,
4, and 5, we find that Brown’s substantial rights are not affected because
these sentences are less than the eighty-five-year statutory maximum.
6 UNITED STATES v. BROWN
U.S.C. § 841(b)(1)(A). Cotton, 122 S. Ct. at 1786; see also Johnson
v. United States, 520 U.S. 461, 470 (1997) (declining to notice error
where evidence as to element not submitted to jury was overwhelm-
ing and essentially uncontroverted).
Accordingly, we affirm Brown’s convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court, and argu-
ment would not aid the decisional process.
AFFIRMED