United States v. Price

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 11 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-7078

JOSHUA PRICE, JR., also known as
Lil’ June, also known as June, also
known as June Anderson,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 98-CR-10-S)

Dennis A. Fries, Assistant United States Attorney, Eastern District of Oklahoma,
(Bruce Green, United States Attorney, Eastern District of Oklahoma, with him on
the briefs), Muskogee, Oklahoma, for Plaintiff/Appellee.

John M. Butler, Tulsa, Oklahoma, for Defendant/Appellant.

Before TACHA, Chief Judge, BRORBY, Senior Circuit Judge, and MURPHY,
Circuit Judge.

MURPHY, Circuit Judge.
I. INTRODUCTION

Defendant-Appellant Joshua Price, Jr., appeals his various firearms,

narcotics, and related convictions. Jurisdiction to consider Defendant’s appeal

arises under 28 U.S.C. § 1291. Because Defendant has not demonstrated

reversible error, this court affirms his convictions.

II. FACTS AND PROCEDURAL HISTORY

On appeal this court views the evidence, and all reasonable inferences

therefrom, in the light most favorable to the government. See United States v.

Neal, 718 F.2d 1505, 1506-07 (10th Cir. 1983). In the summer of 1997, the

Federal Bureau of Investigation (“FBI”), the United State’s Marshall’s Service,

and the Muskogee Police Department were involved in a Task Force which

investigated cocaine trafficking in the Muskogee, Oklahoma area. During this

investigation, Defendant was identified as a suspect in cocaine trafficking. The

Task Force gathered information on Defendant from informant Ebon Sekou Lurks.

Lurks then assisted the Task Force by making numerous controlled drug

purchases from Defendant.

During this time, Lurks was going through a divorce. Apparently angry

that Lurks was awarded custody of their children, Lurks’ wife informed

Defendant that Lurks had been working as an informant for the FBI and that all of

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the drug transactions between Defendant and Lurks had been taped. One week

later, Lurks was murdered.

The police suspected that Defendant was involved in the murder, and

obtained a search warrant for the residence at which Defendant was believed to be

staying. Upon executing the search warrant, the police found Price, a gun

belonging to Price, and Price’s blood-stained tennis shoe. DNA testing indicated

a very high probability that the blood on Price’s tennis shoe was from Lurks.

Defendant was indicted in the United States District Court for the Eastern

District of Oklahoma for one count of conspiracy to distribute cocaine, 21 U.S.C.

§§ 846 and 841(a)(1), six counts of distributing cocaine, 21 U.S.C. § 841(a)(1),

twelve counts of the use of a communication facility in committing a felony, 21

U.S.C. § 843(b), and two counts of “possess[ing] in or affecting commerce” a

firearm after having been convicted of a crime punishable by imprisonment for a

term exceeding one year, 18 U.S.C. § 922(g). Before trial, the prosecution filed a

motion to admit the out of court statements made by Lurks to FBI agents before

Lurks was murdered. The prosecution argued that Defendant had waived any

hearsay or Confrontation Clause objections to the statements by murdering Lurks

and thus procuring Lurks’ unavailability as a witness. The district court held a

hearing on this and other pretrial motions. After the hearing, the district court

entered a written order granting the prosecution’s motion to admit Lurks’ out of

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court statements. The order stated that the government had demonstrated by a

preponderance of the evidence that Defendant had procured the unavailability of

Lurks as a witness, and in so doing had waived his hearsay and Confrontation

Clause objections to the out of court statements.

After a three day trial, the jury found Defendant guilty on all counts.

Defendant was sentenced to the following terms of imprisonment: life for his

conviction on one count of conspiracy to distribute cocaine; life for each of his

six convictions for distributing cocaine; 48 months for each of his twelve

convictions for the use of a communication facility in committing a felony; and

120 months for each of his two convictions for firearms possession. All the

sentences were to run concurrently. Defendant has appealed his convictions and

sentences to this court, advancing numerous arguments.

III. DISCUSSION

A. Motion to Suppress

Before trial Defendant filed a motion to suppress the evidence seized

during the residence search, which included the blood-stained tennis shoe and the

gun which was the basis of one of Defendant’s firearms convictions. The motion

was not supported by an accompanying brief, and the grounds for suppression

were simply listed as follows:

1. The Affidavit upon which the search warrant issued was
insufficient as a matter of law.

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 2. The issuing Judge incorrectly found probable cause for the
issuance of the warrant in the Affidavit.
3. The Affidavit did not contain facts sufficient as a matter of law to
establish probable cause.
4. The Search Warrant was invalid and improperly issued.
5. The Affidavit does not show or attempt to show any relationship
between the premises and the objects seized.
Authority:
6. The search of the premises pursuant to the warrant and the
issuance of the warrant violated the Defendant’s rights under the
Fourth Amendment to the United States Constitution and Rule 41 of
the Federal Rules of Criminal Procedure.
7. Statements in the Affidavit relating to the premises in which the
objects were found are mere conclusions based upon suspicions, with
the grounds for suspicion left unstated.

The district court entered an order denying Defendant’s motion to suppress,

concluding that the search warrant was supported by probable cause and that,

even if probable cause did not exist, exclusion of the evidence was not

appropriate because the officers had acted in good faith in executing the warrant.

See generally United States v. Leon, 468 U.S. 897 (1984). Unfortunately,

Defendant’s appellate briefing on this issue is as cursory as the motion to

suppress filed in the district court. This court construes Defendant’s appellate

brief as making two suppression arguments: (1) the search warrant was not

supported by probable cause, and (2) the search was invalid because of technical

deficiencies in the warrant.

We review de novo the district court’s probable cause
determination. Our review of the magistrate judge’s issuance of a
search warrant, however, is more deferential: Our duty is to ensure
that the magistrate judge had a substantial basis for concluding that

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 the affidavit in support of the warrant established probable cause.
The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set forth
in the affidavit[,] there is a fair probability that contraband or
evidence of a crime will be found in a particular place.
Because of the strong preference for searches conducted
pursuant to a warrant, the Supreme Court has instructed us to pay
great deference to a magistrate judge’s determination of probable
cause.

United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir. 1999) (quotations and

citations omitted).

The government argues that even if probable cause to issue the search

warrant was lacking, the evidence obtained during the search of the residence

should not be excluded because the police officers acted in good faith and

reasonable reliance on the warrant. In Leon, the Supreme Court held that when

police officers act in good faith and reasonable reliance on a search warrant, the

evidence obtained during the search should not be suppressed even if the warrant

was lacking in probable cause. See Leon, 468 U.S. at 913. If this court

determines that the officers acted in good faith reliance on the search warrant, it

does not need to reach the issue of whether probable cause existed for the

warrant. See United States v. McKneely, 6 F.3d 1447, 1453 (10th Cir. 1993).

There is a presumption that when an officer acts upon a search warrant the officer

is acting in good faith. See id. at 1454.

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 The affidavit filed in support of the search warrant and the actual search

warrant were sufficient to merit reasonable reliance by the police officers. The

affidavit lists the items to be recovered, gives a detailed description of the address

to be searched, briefly describes how Defendant had been identified as a suspect

based on various interviews, and explains how some of the information given

during these interviews had been verified. Similarly, the search warrant, although

not a model of clarity, indicates the items to be searched for and the address at

which the search is to take place. A police officer could reasonably rely on this

search warrant. Defendant has produced no evidence indicating that the officers

acted in bad faith or unreasonably relied on the warrant, and admitted as much

during oral argument to this court. Because the Leon good faith rule applies,

Defendant’s probable cause argument is without merit.

Defendant also makes various technical challenges to the form of the search

warrant. Because Defendant did not make these arguments to the district court,

they are waived. See United States v. Dewitt, 946 F.2d 1497, 1502 (10th Cir.

1991). This court thus reviews Defendant’s argument only for plain error

resulting in manifest injustice. See United States v. Smith, 131 F.3d 1392, 1397

(10th Cir. 1997). Under this standard, this court can correct an error only if it

“seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation omitted). Even if Defendant is correct to note a

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technical deficiency in the warrant, this deficiency could not affect the fairness,

integrity, or public reputation of judicial proceedings.

B. Hearsay and Confrontation Clause Objections

Defendant appeals the district court’s decision to admit the out of court

statements of Lurks, claiming that these statements were hearsay and that his

constitutional right to confront an adverse witness was violated. This court

accepts the district court’s conclusion that Defendant procured the absence of

Lurks unless the conclusion was clearly erroneous. See United States v. Little, 60

F.3d 708, 713 (10th Cir. 1995) This court reviews de novo the district court’s

legal conclusions concerning the Federal Rules of Evidence and the Confrontation

Clause. See United States v. Torrez-Ortega, 184 F.3d 1128, 1132 (10th Cir.

1999).

The district court found by a preponderance of the evidence that Defendant

procured the unavailability of Lurks as a witness. The preponderance of the

evidence standard was the correct standard for the district court to use. See

United States v. Cherry, 217 F.3d 811, 820-21 (10th Cir. 2000). This finding was

not clearly erroneous.

Much of Defendant’s argument on appeal focuses on whether there was

sufficient evidence linking Defendant to Lurks’ murder besides the blood-stained

tennis shoe found during the residence search. As noted above, however, this

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court concludes that, even if problems existed in regard to the search warrant,

exclusion of the evidence found during the search (the blood stained tennis shoe)

is not appropriate because the officers acted reasonably and in good faith in

executing the warrant. DNA testing indicated a very high probability that the

blood on Price’s tennis shoe was from Lurks. Defendant argues that police

officers who investigated the Lurks murder scene might have had some blood on

their shoes from the investigation, and that this blood was then transferred to

Lurks shoe during the investigation. Defendant’s argument, while possible, is

unlikely, and does not demonstrate that the district court’s conclusion was clearly

erroneous. Viewing all the evidence in the record, this court determines that the

district court’s finding that Defendant more likely than not procured the absence

of Lurks as a witness was not clearly erroneous.

Because Defendant procured the absence of Lurks, Defendant has waived

his hearsay and Confrontation Clause objections. See id. at 820 (“A defendant

may be deemed to have waived his or her Confrontation Clause rights (and, a

fortiori, hearsay objections) if a preponderance of the evidence establishes he or

she participated directly in planning or procuring the declarant’s unavailability

through wrongdoing.”); see also Fed. R. Evid. 804(b)(6) (recognizing an

exception to the hearsay exclusionary rule when the party against whom the

statement is offered has engaged in wrongdoing which procures the unavailability

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of the declarant). Thus, the decision of the district court to admit Lurks’ out of

court statements is affirmed.

C. Chain of Custody

Defendant argues on appeal that “the Government never presented any

witness that was able to validate the Chain of Custody from any of the Defendants

to the officer that took the drugs into possession” and thus “moves this Honorable

Court to dismiss all drug-related cases for lack of establishing a ‘Chain of

Custody.’” This court fails to comprehend Defendant’s argument. To the extent

that Defendant is making an authentication argument under Federal Rule of

Evidence 901, the argument is off-target because the actual drugs recovered were

never admitted into evidence. See United States v. Grant, 967 F.2d 81, 83 (2d

Cir. 1992) (“In this case we need not determine whether the drugs were properly

authenticated since the government did not offer the drugs themselves into

evidence.”). In any event, the prosecution did establish an adequate chain of

custody of the drugs from Defendant to the Oklahoma State Bureau of

Investigation. Defendant’s argument is rejected.

D. Automobile Search

Defendant challenges his conviction under count twenty-one of the

indictment for possession of a firearm in commerce after having been previously

convicted of a crime punishable by a term of imprisonment exceeding one year.

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The facts underlying this conviction arise from a traffic stop of Defendant.

Defendant filed a motion to suppress the firearm seized as a result of the stop,

which the district court denied. In reviewing the denial of a motion to suppress,

this court accepts the factual findings of the district court unless clearly erroneous

and views the evidence in the light most favorable to the government. See United

States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir. 1995) (en banc). The district

court’s legal conclusions as to whether the stop complied with the Fourth

Amendment are reviewed de novo. See id.

Viewing the evidence in the light most favorable to the government, the

following facts gave rise to Defendant’s conviction on count twenty-one. On the

date in question, Defendant was driving ten miles per hour over the speed limit.

Defendant was pulled over by a Muskogee County law enforcement officer. As

the officer approached Price’s vehicle, he saw and heard a “scanner,” which was

“picking up Muskogee County frequency.” Defendant was removed from the

vehicle and arrested for violating the following Oklahoma statute:

It shall be unlawful for any person to operate a mobile radio
capable of receiving transmissions made by any law enforcement
agency for illegal purposes or while in the commission of a crime
and not otherwise and any person violating the provisions hereof
shall be guilty of a felony and upon conviction thereof shall be
punished by imprisonment in the State Penitentiary for not more than
three (3) years, or fined by not more than Five Thousand Dollars
($5,000.00), or by both such imprisonment and fine.

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Okla. Stat. tit. 21, § 1214. The officer then performed an inventory search of the

vehicle. During this inventory, the officer found the firearm in question “between

the seats there by the hump on kind of towards–more towards the driver on the

driver’s side of the hump.”

The district court concluded that the search was valid both as a search

incident to a lawful arrest and as an inventory search prior to towing. This court

concludes that the recovery of the gun in the interior of the car was lawful as a

search incident to a lawful arrest.

In New York v. Belton, a New York state policeman pulled over a speeding

vehicle. See 453 U.S. 454, 455 (1981). As the policeman walked up to the

vehicle and conversed with the occupants, he smelled marihuana and saw an item

on the floor of the car associated with marihuana. See id. at 455-56. The officer

removed the occupants from the vehicle and arrested them for possession of

marihuana. See id. at 456. The officer then searched the interior of the vehicle;

during this search he found cocaine. See id. On appeal to the Supreme Court, the

defendant charged with possession of cocaine argued that the cocaine had been

seized in violation of the Fourth and Fourteenth Amendments. See id. at 456-57.

The Supreme Court held that when a police officer makes a lawful custodial arrest

of the occupant of a vehicle, the interior of that vehicle may be

contemporaneously searched. See id. at 460.

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 The incident involving Defendant’s arrest is not distinguishable in any

relevant manner from Belton. Defendant notes that the Muskogee County officer

did not know that the scanner was in use when the officer pulled him over. In

Belton, however, the officer was not aware of the marihuana possession, the

offense for which the occupants were arrested, until the officer walked up to the

car and conversed with the occupants. See id. at 455-56.

Defendant also argues that the search was invalid pursuant to the recent

Supreme Court case of Knowles v. Iowa, 525 U.S. 113 (1998). In Knowles, the

Court held that a search of an automobile conducted after a traffic stop resulting

in a traffic citation violated the Fourth Amendment. See 525 U.S. at 114-17.

Defendant, however, was not merely issued a citation in this case, he was arrested

for violating the Oklahoma statute prohibiting the use of a scanner while

committing a crime. Thus, Belton controls rather than Knowles. The decision of

the district court denying Defendant’s motion to suppress is affirmed.

E. Joinder/Severance

Defendant filed a motion in the district court challenging the joinder of his

firearms charges with his drug charges and also arguing that, even if joinder was

proper, the district court should have severed the firearms charges because of

possible prejudice to Defendant. After a pretrial hearing, the district court denied

Defendant’s motion. Whether multiple offenses have been properly joined under

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Rule 8(a) of the Federal Rules of Criminal Procedure is a question of law this

court reviews de novo. See United States v. Janus Indus., 48 F.3d 1548, 1557

(10th Cir. 1995). The decision under Rule 14 of the Federal Rules of Criminal

Procedure to grant or deny severance of claims properly joined under Rule 8(a) is

reviewed for an abuse of discretion. See id.

Joinder of offenses under Rule 8(a) is appropriate if the offenses “are of the

same or similar character or are based on the same act or transaction or on two or

more acts or transactions connected together or constituting parts of a common

scheme or plan.” Fed. R. Crim. P. 8(a). “Rule 8 is construed broadly to allow

liberal joinder to enhance the efficiency of the judicial system.” Janus, 48 F.3d at

1557 (quotation omitted). This court has previously affirmed the joinder of

firearms and narcotics offenses under the theory “that the firearms and the drugs

were being used in pursuit of a common unlawful activity.” See United States v.

Valentine, 706 F.2d 282, 289 (10th Cir. 1983). There was testimony at the

pretrial hearing concerning how Defendant’s possession of firearms was related to

his drug trafficking. Although Valentine can be distinguished from the present

case because in Valentine the firearms and narcotics were discovered during the

same search, that distinction is not relevant when there is specific testimony

concerning the relationship of Defendant’s firearms and narcotics violations.

Joinder of the firearms and drug offenses was proper under Rule 8(a).

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 Defendant argues that even if joinder was proper under Rule 8(a), the drug

and weapons offenses should have been severed under Rule 14. Defendant has

the burden of showing real prejudice from the joinder of the two counts. See

United States v. Muniz, 1 F.3d 1018, 1023 (10th Cir. 1993). “The burden of the

defendant to show an abuse of discretion in this context is a difficult one.”

Janus, 48 F.3d at 1557 (quotation omitted).

The extent of Defendant’s attempt on appeal to show prejudice is the

following statement: “[The weapons and drug charges] were two isolated and

separate offenses and distinct from all of the other charges, which resulted in

prejudiced [sic] into the Defendant.” This court has previously noted, however,

that prejudice is more likely to occur when the offenses are of the exact same

character. See Muniz, 1 F.3d at 1023. Defendant has not met his burden to

identify prejudice from the joinder; the district court’s refusal to sever the drug

and firearms offenses is therefore affirmed. 1

F. Interstate Commerce Issues

1
Defendant’s appellate brief can also be construed to argue that the failure
of the district court to sever the firearms and drug charges violated his due
process rights. To the extent that Defendant does make this claim on appeal, and
to the extent that this claim is different than Defendant’s claim under Rule 14, it
is waived because it was not presented to the district court. In any event, for
those reasons set out above, we conclude that the joinder of the narcotics and
firearms counts did not deny Defendant a fundamentally fair trial on any of the
counts.

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 Defendant challenges the constitutionality of all three of the statutes under

which he was convicted and also asserts that the government failed to meet its

burden of proof with respect to the firearms charges. Constitutional challenges to

a statute are reviewed de novo. See United States v. Morris, 247 F.3d 1080, 1085

(10th Cir. 2001). “[I]n reviewing the sufficiency of the evidence to support a jury

verdict, this court must review the record de novo and ask only whether taking the

evidence—both direct and circumstantial, together with the reasonable inferences

to be drawn therefrom—in the light most favorable to the government, a

reasonable jury could find the defendant guilty beyond a reasonable doubt.”

United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir.1996) (quotations

omitted).

1. Sufficiency of the Evidence

Section 922(g) makes it a crime for a person convicted of a crime

punishable by imprisonment for a term exceeding one year “to ship or transport in

interstate or foreign commerce, or possess in or affecting commerce, any firearm

or ammunition; or to receive any firearm or ammunition which has been shipped

or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g). There was

testimony at trial that the two weapons found in the possession of Defendant were

manufactured outside of Oklahoma. A reasonable jury could have found beyond a

reasonable doubt that this testimony established the effect on interstate commerce

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required for a conviction under § 922(g); Defendant’s sufficiency of the evidence

challenge is therefore rejected.

2. Constitutional Challenges

Defendant also challenges the constitutionality of all three statutes under

which he was convicted, arguing that they exceed Congress’ ability to regulate

interstate commerce. The Supreme Court has “identified three broad categories of

activity that Congress may regulate under its commerce power.” United States v.

Lopez, 514 U.S. 549, 558 (1995). First, Congress can regulate the use of the

channels of interstate commerce. Second, Congress can regulate the

instrumentalities of interstate commerce and persons or things in interstate

commerce. Finally, Congress can regulate those activities that substantially affect

interstate commerce. See id. at 558-59.

In United States v. Wacker this court rejected a constitutional challenge to

§ 841(a)(1) and § 846. See 72 F.3d 1453, 1475 & n.18 (10th Cir. 1996). In

Wacker we noted that “the conduct regulated by [§ 841(a)(1) and § 846] clearly

implicates interstate commerce, and Congress made explicit findings explaining

the conduct’s substantial and direct effect upon interstate commerce.” Id. at 1475

(quotation omitted). Defendant argues that Wacker must be reexamined in light

of the Supreme Court’s recent decision in United States v. Morrison, 529 U.S.

598 (2000). In Morrison, the Supreme Court held that Congress did not have

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power under the Commerce Clause to enact 42 U.S.C. § 13981, which provided a

federal civil remedy for victims of gender-motivated violence. See id. at 601-02,

617-19. In both Morrison and Lopez, which involved a statute making it a federal

crime to knowingly possess a firearm in a school zone, the Supreme Court struck

down laws which criminalized non-economic behavior. See id. at 610-11

(discussing non-economic nature of the criminal statute struck down in Lopez); id.

at 613 (discussing how gender-motivated violence is not an economic activity).

In contrast, § 841(a)(1) makes it illegal to “manufacturer, distribute, or dispense,

or possess with intent to manufacturer, distribute, or dispense a controlled

substance.” 21 U.S.C. § 841(a)(1). 2 These activities are, by their nature,

economic in character. See United States v. Meienberg, No. 00-1390, 2001 WL

967841, at *3 (10th Cir. Aug. 27, 2001). Because Morrison involved the

regulation of non-economic activities, while § 841(a)(1) deals with the regulation

of economic activities, Morrison does not require a different conclusion than the

one reached in Wacker. Thus, § 841(a)(1) and § 846 are within Congress’ power

to regulate interstate commerce.

2
Section 846 makes it a crime to conspire to commit a violation of §
841(a)(1). See 21 U.S.C. § 846. As we did in Wacker, this court holds that if the
underlying substantive provision is constitutional, a provision which criminalizes
conspiracy to commit the underlying crime is also constitutional. See United
States v. Wacker, 72 F.3d 1453, 1475 n.18 (10th Cir. 1996).

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 Section 843(b) makes it a crime to “knowingly or intentionally [] use any

communication facility in committing or in causing or facilitating the commission

of any act or acts constituting a felony under any provision of this subchapter.”

21 U.S.C. § 843(b). When, as in this case, a defendant violates § 843(b) by using

a communication facility to facilitate a violation of § 841(a)(1), the substantial

affect on interstate commerce is obvious. As previously explained, violations of §

841(a)(1) substantially effect interstate commerce. See Wacker, 72 F.3d at 1475.

Thus, the use of a communication facility in connection with a violation of §

841(a)(1) also substantially affects interstate commerce. See United States v.

Tisor, 96 F.3d 370, 373-75 (9th Cir. 1996). Defendant’s constitutional challenge

to his convictions under § 843(b) is rejected.

Finally, this court has repeatedly affirmed the constitutionality of § 922(g).

See e.g. United States v. Dorris, 236 F.3d 582, 584-86 (10th Cir. 2000); United

States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995). Thus, the constitutionality of

§ 922(g) is controlled by circuit precedent, and Defendant’s argument is without

merit.

G. Apprendi Claims

Defendant challenges the life sentences imposed for each violation of §§

846 and 841(a)(1), arguing that these sentences run afoul of Apprendi v. New

Jersey, 530 U.S. 466 (2000). Because this objection was not made in the district

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court, this court reviews only for plain error. See Jones v. United States, 527 U.S.

373, 388 (1999). Plain error occurs when there is (1) error, (2) that is plain,

which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings. See id. at 389.

In Apprendi the Supreme Court held that any fact other than a prior

conviction which increases the prescribed statutory maximum penalty must be

submitted to a jury and proved beyond a reasonable doubt. See 530 U.S. at 490.

In this case, the district court determined that the total amount of drugs involved

in Defendant’s convictions was over fifty grams of cocaine base, and that the

statutory maximum term of imprisonment was, pursuant to 21 U.S.C. §

841(b)(1)(A), life. The district court also determined that the proper sentence

under the United States Sentencing Guidelines (“Guidelines”) was life

imprisonment. The district court thus sentenced Defendant to life imprisonment

for each violation of §§ 846 and 841(a)(1).

The quantity of drugs was not listed in the indictment nor submitted to the

jury as a fact to be proved beyond a reasonable doubt. Thus, the life sentences

imposed pursuant to § 841(b)(1)(A) were “error” that was “plain.” See United

States v. Jones, 235 F.3d 1231, 1236-37 (10th Cir. 2000). Defendant should have

been sentenced under § 841(b)(1)(C), which provides for a maximum sentence of

twenty years for each of Defendant’s seven narcotics convictions.

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 The government, however, argues that Defendant’s “substantial rights”

were not affected. The government reasons that the district court, if it had

properly sentenced Defendant under § 841(b)(1)(C), would have been required

under § 5G1.2(d) of the Guidelines to impose the maximum sentence for

Defendant’s drug convictions and to run these sentences consecutively in order to

approximate the life sentence required by the Guidelines. Section 5G1.2(d) of the

Guidelines states:

If the sentence imposed on the count carrying the highest statutory
maximum is less than the total punishment, then the sentence
imposed on one or more of the other counts shall run consecutively,
but only to the extent necessary to produce a combined sentence
equal to the total punishment. In all other respects, sentences on all
counts shall run concurrently, except to the extent otherwise required
by law.

This court rejected a similar argument in Jones. In Jones, the government

argued that the defendant suffered no prejudice from an Apprendi error because

“the district court demonstrated its desire to impose a total sentence [beyond the

statutory maximum] 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.” 235 F.3d at 1238. This court rejected

the argument, explaining that “[w]e 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.” Id.

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 The government’s argument in this case, while similar, is different than the

one advanced in Jones because the government here claims that § 5G1.2(d) is a

mandatory provision that must be applied. A plethora of recent circuit court cases

have addressed this issue, and most have concluded that application of § 5G1.2(d)

is mandatory and thus renders moot any Apprendi error. See United States v.

Roberts, 2001 WL 929847, at *3 (4th Cir. Aug. 16, 2001) (although Apprendi

error was plain, the defendant’s substantial rights were not affected because of

the mandatory application of § 5G1.2(d));United States v. Angle, 254 F.3d 514,

518-19 (4th Cir. 2001) (same); United States v. Sturgis, 238 F.3d 956, 960-61 (8th

Cir. 2001) (same); United States v. Page, 232 F.3d 536, 543-45 (6th Cir. 2000)

(same); United States v. Gallego, 247 F.3d 1191, 1200 n.19 (11th Cir. 2001)

(same (dicta)); United States v. Kentz, 251 F.3d 835, 842 (9th Cir. 2001) (any

Apprendi error in district court’s sentencing did not affect Defendant’s substantial

rights because of mandatory application of § 5G1.2(d)); United States v. White,

238 F.3d 537, 542-43 (4th Cir. 2001) (same); see also United States v. Caldwell,

255 F.3d 532, 533-34 (8th Cir. 2001) (reasoning that although Apprendi error was

plain, the defendant’s substantial rights were not affected because the district

court could have applied § 5G1.2(d) and run the sentences consecutively); United

States v. White, 240 F.3d 127, 135-36 (2nd Cir. 2001) (affirming the district

court’s use of § 5G1.2(d) to run sentences consecutively); United States v.

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Parolin, 239 F.3d 922, 929-30 (7th Cir. 2001) (same). But see United States v.

Alvarez, 254 F.3d 725, 728 (8th Cir. 2001) (remanding to the district court in

light of Apprendi error for determination of whether to run sentences

consecutively pursuant to § 5G1.2(d)); United States v. Vasquez-Zamora, 253

F.3d 211, 213-14 (5th Cir. 2001) (remanding to district court for resentencing in

light of Apprendi error and suggesting that application of § 5G1.2(d) is

discretionary rather than mandatory); United States v. Bradford, 246 F.3d 1107,

1113-15 (8th Cir. 2001) (stating that “pruden[ce]” requires remand to district

court for resentencing in light of Apprendi error and noting the district court’s

“fairly broad discretion to impose either concurrent or consecutive sentences”).

The conflict among the circuits is whether § 5G1.2(d) is a mandatory or

discretionary provision; those courts holding that § 5G1.2(d) is mandatory have

routinely concluded that an Apprendi error did not affect the defendant’s

substantial rights, while those courts holding that § 5G1.2(d) is discretionary have

generally remanded to the district court for resentencing. But see Caldwell, 255

F.3d at 533-34 (reasoning that although Apprendi error was plain, the defendant’s

substantial rights were not affected because the district court could have applied §

5G1.2(d) and run the sentences consecutively). This court agrees with those

circuits which have concluded that § 5G1.2(d) is a mandatory provision. Section

5G1.2(d) speaks in terms of “shall” rather than “may.” Because § 5G1.2(d) is a

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mandatory provision, there is no “idle speculation” as to the sentence the district

court could impose upon remand. Jones, 235 F.3d at 1238. The district court

would be required to impose twenty-year terms on Defendant’s seven drug

convictions and to run these sentences, as well as Defendant’s sentences on the

other convictions, consecutively, resulting in a total consecutive sentence of 208

years. Under these circumstances, the Defendant’s substantial rights were not

affected by the Apprendi error. Thus, Defendant has failed to demonstrate plain

error and the district court’s sentence is affirmed.

IV. CONCLUSION

For the reasons stated above, this court AFFIRMS Defendant’s convictions

and sentences.

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