F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 30 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-8054
(D.C. No. 99-CR-136-3)
JOHNNY TODD ALLEN, (D. Wyo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR , BRORBY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Johnny Todd Allen appeals his conviction and sentence based
on the United States Supreme Court’s recent decision in Apprendi v. New Jersey ,
530 U.S. 466 (2000). We affirm defendant’s conviction and remand the case
with directions to vacate defendant’s sentence and to resentence him pursuant to
21 U.S.C. § 841(b)(1)(C).
Defendant was charged in a multi-count indictment with conspiring to
possess with intent to distribute methamphetamine, marijuana, and cocaine.
Although the counts themselves did not identify the precise amount of drugs
attributed to defendant, the “MANNER AND MEANS” section of the indictment
stated that defendant and his coconspirators “possessed with intent to distribute,
and distributed, in excess of one-half kilogram of methamphetamine, one
kilogram of cocaine, and hundreds of pounds of marijuana.” R., Vol. I, doc. 26
at 5. The jury was instructed that the government need not prove the actual
amount of drugs alleged in the indictment. Defendant was convicted and was
sentenced to 268 months’ incarceration.
After defendant’s conviction, the Supreme Court issued its decision in
Apprendi , holding that “[o]ther 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.” 530 U.S. at 490.
In United States v. Jones , 235 F.3d 1231, 1236 (10th Cir. 2000), we held that in
-2-
a drug prosecution under 21 U.S.C. § 841, the quantity of drugs is an essential
element of the crime which must be specified in the indictment and determined
by a jury in order to sentence a defendant under § 841(b)(1)(A) or (B). Further,
if a specific quantity of drugs is not charged in the indictment and determined by
a jury, the defendant can only be sentenced to a maximum of twenty years
pursuant to § 841(b)(1)(C). Id. at 1236-37.
Defendant argues that because he is challenging both his conviction and his
sentence, unlike the defendant in Jones , his conviction must be reversed based on
the indictment’s failure to allege an essential element of the offense. In response,
the government argues that the indictment did set forth the amount of drugs
attributable to defendant, and that in any event the indictment was sufficient to
charge an offense punishable by § 841(b)(1)(C).
We review a challenge to the sufficiency of an indictment de novo . United
States v. Thompson , 237 F.3d 1258, 1261 (10th Cir. 2000). Here, the government
argues that the grand jury’s identification of specific quantities in the “MANNER
AND MEANS” section of the indictment sufficiently described the quantity
element so as to support a conviction punishable by § 841(b)(1)(A) or (B). There
is no reason to decide this issue, however, because the jury did not determine the
amount of drugs attributable to defendant, and therefore a conviction for the
quantities identified in § 841(b)(1)(A) or (B) cannot be upheld under Apprendi .
-3-
As the indictment was clearly sufficient to allege a violation punishable by
§ 841(b)(1)(C), defendant’s conviction itself is not infirm. See United States v.
Heckard , 238 F.3d 1222, 1236 (10th Cir. 2001) (holding failure of indictment to
cite the correct penalty subparagraph was harmless error).
Defendant argues, and the government concedes, that his sentence must be
vacated under Apprendi . Because the jury did not determine the quantity of drugs
attributable to defendant beyond a reasonable doubt, the district court erred in
sentencing him beyond the twenty-year maximum authorized by § 841(b)(1)(C)
for offenses involving an unspecified amount of drugs. See Jones , 235 F.3d
at 1238. Therefore, the case must be remanded to allow the district court to
resentence defendant within the statutory range authorized by § 841(b)(1)(C). 2
2
Citing the Ninth Circuit decision in United States v. Nordby , 225 F.3d
1053, 1062 (9th Cir. 2000), the government argues that the appropriate remedy is
to allow the government “a brief period of time to elect whether it accepts a
resentencing of the defendant to the lesser term permitted by the jury’s findings,”
or whether it wishes to retry defendant. Because we have held that defendant’s
conviction itself is not infirm, we see no reason to offer the government this
choice. Cf. id. (stating the choice was not available when defendant’s conviction
had been accepted as final). In any event, the government has informed us
several times that if it were given the choice, it would choose to accept
resentencing of defendant. See Appellee’s Br. at 3 n.1, 4, 14 n.4.
-4-
For the reasons stated, defendant’s conviction is AFFIRMED, and the case
is REMANDED with directions to vacate defendant’s sentence and to resentence
him within the statutory range authorized by 21 U.S.C. § 841(b)(1)(C).
Entered for the Court
Wade Brorby
Circuit Judge
-5-