F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 19 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 97-1377 and 97-1463
CARLESS JONES,
Defendant - Appellant.
OPINION ON REMAND
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 97-CR-138-S)
Jill M. Wichlens, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender, with her on the briefs), Denver, Colorado, for Defendant -
Appellant.
Thomas L. Strickland, U.S. Attorney (Sean Connelly, John M. Hutchins and
Gregory H. Rhodes, Assistant U.S. Attorneys, with him on the briefs), Denver,
Colorado, for Plaintiff - Appellee.
Before BALDOCK, EBEL and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.
This case is before us on remand. See Jones v. United States, 120 S. Ct.
2739 (2000) (“Carless Jones II”). When this case came before us initially, we
considered the question of whether the Fifth and Sixth Amendments to the United
States Constitution require the quantity of drugs involved in an offense of
conviction under 21 U.S.C. § 841 to be charged in an indictment, submitted to a
jury, and proven beyond a reasonable doubt for a defendant to be exposed to an
increased maximum statutory punishment on the basis of that drug quantity.
Expressly declining to upset our established precedent in response to the mere
“suggest[ion]” in Jones v. United States, 526 U.S. 227, 243 n.6 (1999)
(“Nathaniel Jones”), of such a constitutional requirement, we answered that
question in the negative. See Jones v. United States, 194 F.3d 1178, 1183-86
(10th Cir. 1999) (“Carless Jones I”). The constitutional principle suggested by
Nathaniel Jones has since been explicitly adopted by the Supreme Court in
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).
We have sought supplemental briefing and heard oral argument by the
parties in light of the Supreme Court’s decision in Apprendi, and with the benefit
of the analyses of those of our sister Circuits that have addressed the issue, 1 we
1
See, e.g., United States v. Angle, 230 F.3d 113, 123 (4th Cir. 2000)
(applying Apprendi to a prosecution under 21 U.S.C. § 841 and holding that drug
quantity must be presented to a jury and proven beyond a reasonable doubt to
impose a sentence greater than the twenty-year maximum authorized by 21 U.S.C.
(continued...)
-2-
conclude that Apprendi compels us to vacate Jones’s sentence and remand to the
district court for resentencing.
I
In 1997, a grand jury returned the following two-count indictment against
Jones:
Count I
On or about March 27, 1997, in the District of Colorado, the
defendant, CARLESS JONES, did knowingly and intentionally
distribute cocaine base (crack), a controlled substance listed in
Schedule II, Title 21, United States Code, Section 812.
All in violation of Title 21, United States Code, Sections
841(a)(1), 841(b)(1)(C), and Title 18, United States Code, Section 2.
Count II
On or about April 1, 1997, in the District of Colorado, the
defendant, CARLESS JONES, did knowingly and intentionally
possess with intent to distribute cocaine base (crack), a controlled
substance listed in Schedule II, Title 21, United States Code, Section
812.
All in violation of Title 21, United States Code, Sections
841(a)(1), 841(b)(1)(C), and Title 18, United States Code, Section 2.
(...continued)
1
§ 841(b)(1)(C)); United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000)
(same); United States v. Page, Nos. 99-5361, 99-5449, 99-5451, 99-5456, 2000
WL 1682523, at *6 (6th Cir. Nov. 9, 2000) (same); United States v. Aguayo-
Delgado, 220 F.3d 926, 933-34 (8th Cir. 2000) (same); United States v. Nordby,
225 F.3d 1053, 1059 (9th Cir. 2000) (same); United States v. Rogers, 228 F.3d
1318, 1327 (11th Cir. 2000) (same).
-3-
(I R. Doc. 3.) 2 The indictment did not allege the amount of cocaine base involved
in either count. Section 841(b)(1)(C), under which Jones was charged, defines
penalties for offenses involving cocaine base without reference to drug quantity
and authorizes a maximum term of imprisonment of twenty years for those who
have not previously been convicted of a felony drug offense. 3
At trial, the government presented evidence in support of the charges. With
respect to the distribution charge, police officers testified Jones sold cocaine base
to an informant during a transaction monitored by police. As to the possession
with intent to distribute charge, officers testified that a few days after the
controlled buy police conducted a search of an apartment believed to be Jones’s
residence and seized cocaine base as well as incriminating evidence of drug
manufacture and distribution. The jury found Jones guilty of both counts.
At sentencing, the court concluded that the amount of cocaine base
involved in the two offenses was 165.5 grams and that Jones should be sentenced
under 21 U.S.C. § 841 (b)(1)(A), which authorizes a maximum term of life
imprisonment for offenses based on fifty grams or more of cocaine base. That
quantity dictated a base offense level of 34 under the United States Sentencing
2
The district court dismissed the charges brought pursuant to 18 U.S.C.
§ 2 before submitting the case to the jury.
3
Because Jones had no prior felony drug offenses, he was not eligible for
a sentence enhancement on that basis.
-4-
Guidelines. See U.S.S.G. § 2D1.1(c)(3). After various adjustments, the court
calculated an offense level of 38 and a criminal history category of III, resulting
in a sentencing range of 292 to 365 months. Jones was sentenced to concurrent
terms of 360 months imprisonment and five years supervised release on each
count.
In his objection to the presentence report, during the sentencing hearing,
and in his opening and reply briefs on appeal, Jones argued his sentence was
invalid because both counts of the indictment charged that his acts were in
violation of, inter alia, 21 U.S.C. § 841(b)(1)(C), and the sentence he received
exceeded the maximum penalty of twenty years permitted under that section.
Subsequent to oral argument in Carless Jones I, the Supreme Court handed down
its decision in Nathaniel Jones, and we directed the parties to submit
supplemental briefs addressing the impact of that opinion on Jones’s sentencing
argument. Conceding “the government presented sufficient evidence to prove
beyond a reasonable doubt that the alleged offenses involved at least 5 grams of
cocaine base,” Jones nonetheless argued he could not be sentenced in excess of
twenty years on any single count because “the 5-gram amount was neither
charged in the indictment nor submitted to the jury.” (Appellant’s Supp. Br. at
2.)
-5-
We rejected that argument. See Carless Jones I, 194 F.3d at 1183-86 . Our
precedent at the time interpreted § 841(a) as setting forth the elements of the
substantive offenses of which Jones was convicted and § 841(b)(1) as setting
forth applicable sentencing ranges based on factors such as the quantity of drugs
involved. See id. at 1183-84. Because § 841(b)(1) was viewed as a sentencing
provision independent of the substantive offense to which it applies and because
the finding of facts relevant to sentencing is within the exclusive province of the
sentencing judge, we held that “any quantity term in an information or
indictment, or a specific quantity proven at trial, does not dictate the statutory
sentencing directive that applies, be it a permitted maximum, mandatory
minimum, or both.” Id. at 1183-84. We also rejected the argument that
Nathaniel Jones dictated a different result. Although we recognized that case
“opens the door to the question of whether § 841’s unambiguous classification of
quantity as a sentencing factor violates the Fifth and Sixth Amendments,” we
concluded Nathaniel Jones did not resolve that question. Id. at 1186. Abiding by
the doctrine that “[w]e are bound by the precedents of prior panels [of this Court]
absent en banc reconsideration or a superseding contrary decision by the Supreme
Court,” we declined to speculate as to what the proper answer might be. Id.
(quoting In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam)).
-6-
II
At issue in Apprendi was the constitutionality of a New Jersey hate crime
law providing that a crime was punishable by an extended term of imprisonment
if the trial judge found, by a preponderance of the evidence, that the crime was
racially motivated. See 120 S. Ct. at 2351. Under the New Jersey statute, such a
finding meant that a crime otherwise punishable by a term of five to ten years
was punishable by a term of ten to twenty years. See id. The Court framed the
question presented as “whether the Due Process Clause of the Fourteenth
Amendment requires that a factual determination authorizing an increase in the
maximum prison sentence for an offense from 10 to 20 years be made by a jury on
the basis of proof beyond a reasonable doubt.” Id.
Apprendi enunciates the following rule of constitutional law: “Other than
the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Id. at 2362-63. Applying that rule, the
Court struck down the New Jersey statutory scheme authorizing a judge to
impose a punishment greater than that otherwise permitted by the jury’s verdict
-7-
based on the judge’s finding, by a preponderance of the evidence, of a racial
motivation for the crime.
While Apprendi involved the constitutionality of a state statute under the
Fourteenth Amendment’s Due Process Clause, its underlying constitutional
principle—criminal defendants’ right to a jury determination that they are guilty
beyond a reasonable doubt of every element of the crime with which they are
charged—is equally applicable to criminal proceedings in federal court. See
United States v. Gaudin, 515 U.S. 506, 510 (1995). The rule derived from that
principle thus applies to the statute and conviction at bar. Griffith v. Kentucky,
479 U.S. 314, 328 (1987), mandates that “a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or federal, pending
on direct review or not yet final.” Because Jones challenges his conviction and
sentence on direct appeal, Griffith requires the application of Apprendi to the
instant case.
III
We review the legality of an appellant’s sentence de novo. See United
States v. Price , 75 F.3d 1440, 1446 (10th Cir. 1996). The district court sentenced
Jones to a term in excess of the statutory maximum applicable to the offense
alleged in the grand jury’s indictment. In Apprendi , 120 S. Ct. at 2355 n.3 , the
Court expressly left open the question of whether any fact that increases the
-8-
penalty for a crime beyond the prescribed statutory maximum, such as drug
quantity under § 841(b), is an “essential element” of the offense that must be
alleged in the indictment. We answer that question in the affirmative and
conclude Jones’s sentence impermissibly exceeded the statutory maximum term
applicable to the offense charged by the grand jury. Furthermore, that error was
not harmless.
A
Section 841 is the primary federal statute concerning the criminal use of
controlled substances. Subsection (a), entitled “Unlawful acts,” makes it
“unlawful for any person knowingly or intentionally . . . to manufacture,
distribute, or dispense, or possess with the intent to manufacture, distribute, or
dispense, a controlled substance.” 21 U.S.C. § 841(a), (a)(1). Subsection (b)
establishes the penalties for violations of § 841(a). See 21 U.S.C. § 841(b). As
applicable to this case, § 841(b)(1)(C) states that “[i]n the case of a controlled
substance in schedule I or II, . . . except as provided in subparagraphs (A), (B),
and (D), such person shall be sentenced to a term of imprisonment of not more
that 20 years.” Subparagraphs (A) and (B) provide for enhanced sentences based
on the quantity of controlled substance involved in the violation. For cocaine
base, a Schedule II controlled substance, these subparagraphs prescribe a
minimum of ten years and a maximum of life for fifty grams or more and a
-9-
minimum of five years and a maximum of forty years for five grams or more,
respectively. See 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii). 4
Although expressly reserving the issue for another day, Apprendi strongly
suggests that a given fact may not increase the penalty for a crime beyond the
prescribed statutory maximum unless it has been alleged in the indictment. 5 At
the outset of its analysis, the Court endorses the view that “under the Due Process
Clause of the Fifth Amendment and the notice and jury trial guarantees of the
Sixth Amendment, any fact (other than prior conviction) that increases the
maximum penalty for a crime must be charged in an indictment, submitted to a
jury, and proven beyond a reasonable doubt.” Apprendi, 120 S. Ct. at 2355
(quoting Nathaniel Jones, 526 U.S. at 243 n.6) (emphasis added). Then, while
4
Subparagraph (D) by its terms does not apply to offenses involving
cocaine base. See 21 U.S.C. § 841(b)(1)(D). Also inapplicable to this case are
the provisions of subparagraphs (A), (B), and (C) that condition the applicable
sentencing range on facts in addition to the quantity of controlled substances
involved in the offense. Those provisions authorize an increased sentence if
death or serious bodily injury results from the unlawful act or if the unlawful act
was committed after a prior conviction for a felony drug offense became final.
See 21 U.S.C. § 841(b)(1)(A)-(C). Our discussion of the applicable sentencing
ranges thus assumes the absence of any factor relevant to sentencing under the
statute other than quantity.
5
In Apprendi, the petitioner challenged a state prosecution and thus did
not raise the question of whether sentencing is constrained by facts alleged in the
indictment. See 120 S. Ct. at 2352, 2356 n.3. Because the Fifth Amendment
right to indictment by a grand jury has been held to extend only to prosecutions
brought by the United States, not to those brought by a state, the Court did not
address the issue. See id. at 2356 n.3.
-10-
reviewing the common-law basis for the constitutional rule it announces, the
Court asserts the historical evidence
point[s] to a single, consistent conclusion: The judge’s role in
sentencing is constrained at its outer limits by the facts alleged in the
indictment and found by the jury. Put simply, facts that expose a
defendant to a punishment greater than that otherwise legally
prescribed were by definition “elements” of a separate legal offense.
Id. at 2359 n.10 (emphasis added). Imposing an enhanced penalty based on facts
not alleged in the indictment would impermissibly allow a defendant to be
sentenced “on a charge the grand jury never made against him.” Stirone v.
United States, 361 U.S. 212, 219 (1960); see also Russell v. United States, 369
U.S. 749, 770 (1962) (holding that to permit defendants to “be convicted on the
basis of facts not found by, and perhaps not even presented to, the grand jury
which indicted [them],” would deprive them “of a basic protection which the
guaranty of the intervention of the grand jury was designed to secure”).
We conclude the quantity of drugs involved in a violation of § 841 is an
essential element of the offense if that fact exposes the defendant to a heightened
maximum sentence under § 841(b)(1)(A) or (B). A district court may not impose
a sentence in excess of the maximum set forth in 21 U.S.C. § 841(b)(1)(C)
unless the benchmark quantity of cocaine base for an enhanced penalty is alleged
in the indictment in addition to being submitted to the jury and proven beyond a
reasonable doubt. See United States v. Kovach, 208 F.3d 1215, 1218 (10th Cir.
-11-
2000) (“To pass constitutional muster, an indictment must contain all the
essential elements of the charged offense.”).
That rule represents a return to the holding of United States v. Crockett,
812 F.2d 626, 628-29 (10th Cir. 1987). Prior to the inception of the federal
Sentencing Guidelines, Crockett established that drug quantity is an essential
element of an offense under the enhanced penalty provisions of § 841(b)(1) that
must be alleged in the indictment. See Crockett, 812 F.2d at 628-29. Crockett
was later held inapplicable to post-Sentencing Guidelines cases by United States
v. Ware, 897 F.2d 1538 (10th Cir. 1990), in which this Court upheld a sentence
exceeding the statutory maximum under § 841(b)(1)(C) where the indictment did
not allege the amount of drugs involved. Cf. United States v. McCann, 940 F.2d
1352, 1358 (10th Cir. 1991) (“[T]he . . . holding in Crockett, a pre-guideline
case, is inapposite to post-guideline cases.”). To the extent our post-Sentencing
Guidelines cases departed from Crockett, see, e.g., United States v. Santos , 195
F.3d 549, 553 (10th Cir. 1999); United States v. Reyes , 40 F.3d 1148, 1150-51;
United States v. Underwood , 982 F.2d 426, 429 (10th Cir. 1992); Ware, 897 F.2d
at 1542-43 ; United States v. Jenkins , 866 F.2d 331, 333-34 (10th Cir. 1989) ,
Apprendi strips them of their precedential value, see Weitz v. Lovelace Health
Sys. , 214 F.3d 1175, 1180 (10th Cir. 2000) (“In the case of an intervening
Supreme Court ruling, a single panel is permitted to reconsider a previous Tenth
-12-
Circuit decision to the extent the new case law invalidates our previous analysis.”
(quoting Hurd v. Pittsburgh State Univ. , 109 F.3d 1540, 1542 (10th Cir. 1997))).
B
Applying the Crockett rule to the instant case, we conclude that the
sentence imposed by the district court impermissibly exceeds the statutory
maximum applicable to the offense alleged in the indictment. We note that Jones
has not challenged the sufficiency of the indictment itself, but only the validity of
his sentence. The government asserts, and Jones does not deny, that “the
indictment indisputably stated an offense under 21 U.S.C. § 841(a).” (Appellee’s
Corrected Supp. Br. On Remand at 7.) The indictment also adequately alleged a
violation of 21 U.S.C. § 841(b)(1)(C), and Jones’s conviction under § 841(a) and
(b)(1)(C) was sound. Rather, it is the sentence that was erroneous because it
exceeded the statutory maximum for the offenses alleged in the indictment. In
short, Jones was indicted and convicted of the offenses of distributing and
possessing with intent to distribute an unspecified quantity of cocaine base,
see 21 U.S.C. § 841(b)(1)(C), but sentenced for the different offenses of
distributing and possessing with intent to distribute at least fifty grams of
cocaine base, see 21 U.S.C. § 841(b)(1)(A)(iii). Thus, each of the two
concurrent terms of 360 months imprisonment was erroneously imposed by
the court below.
-13-
Although the government argues Jones’s sentence should be reviewed
only for plain error and does not require correction under that standard, it
concedes “the error would not be harmless if defendant’s claim were held to
be properly preserved,” and “the proper result would be for the Court to
vacate the sentences and remand the case for resentencing.” (Appellee’s
Corrected Supp. Br. On Remand at 14.) Because Jones argued both in his
objections to the presentence report and at his sentencing hearing that his
sentence exceeded the statutory maximum permitted by the indictment, he
properly preserved the issue. Thus , by the government’s admission, Jones’s
erroneous thirty-year sentence is not harmless and requires reversal. See
Fed. R. Crim. P. 52(a).
The government nonetheless contends Jones suffered no prejudice because
his thirty-year sentence falls well below the upper limit of forty years
imprisonment (i.e., twenty years on each count to run consecutively) to which he
was exposed in the indictment. The government notes the district court
demonstrated its desire to impose a total sentence of 360 months as recommended
by the presentence report and could have achieved that result by imposing
consecutive terms of ten and twenty years or partially concurrent twenty-year
terms.
-14-
However, in Apprendi the Supreme Court rejects a similar argument,
stating that the relevant inquiry is the constitutionality of the sentence imposed on
each individual count charged in the indictment, irrespective of the potential total
sentence achievable through the imposition of valid consecutive sentences. See
120 S. Ct. at 2354; cf. Price , 75 F.3d at 1446 (holding that where an erroneous
twenty-year sentence runs concurrently with a valid life sentence, it is within the
discretion of the court of appeals to address the error). We are concerned with
the legality of the sentences actually imposed, regardless of whether in the
aggregate they are less severe than the sentences that could have been imposed.
We will not permit our result to be guided by idle speculation as to the sentence
that might be imposed by the district court on remand.
This Circuit regularly has found reversible error when the sentence imposed
by the district court exceeded the statutory maximum penalty applicable to the
offense of conviction. See, e.g. , United States v. Johnson , 4 F.3d 904, 918 (10th
Cir. 1993); United States v. Wainwright , 938 F.2d 1096, 1098-99 (10th Cir.
1991). The district court in the instant case sentenced Jones outside the statutory
range for the offenses set forth in the indictment: It imposed terms of
imprisonment appropriate for offenses involving at least fifty grams of cocaine
base, even though Jones had been indicted and convicted for committing distinct
offenses involving an unspecified quantity of drugs. Because § 841(b)(1)(C) does
-15-
not permit sentences greater than twenty years for the offenses of conviction, the
sentence imposed by the district court was not authorized by the jury’s guilty
verdict. Under our precedent, such unauthorized sentences warrant reversal. We
therefore conclude that the error here was not harmless, and we remand with
instructions that the district court vacate the sentences for distribution and for
possession with intent to distribute, and that the district court resentence the
defendant for those two convictions pursuant to § 841(b)(1)(C). See Price , 75
F.3d at 1446.
IV
This matter is REMANDED to the district court for sentencing within the
statutory range for the offenses of which Jones was convicted.
BALDOCK, Circuit Judge, concurs in the result only.
-16-