United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 2, 2001 Decided March 13, 2001
No. 99-3138
United States of America,
Appellee
v.
Thomas Fields, a/k/a Woozie,
Appellant
Consolidated with
No. 99-3139
Appeals from the United States District Court
for the District of Columbia
(No. 98cr00071-01) (No. 98cr00071-06)
William Jackson Garber, appointed by the court, argued
the cause and filed the briefs for appellant Thomas Fields.
Thomas G. Corcoran, Jr. and Mary-Ellen Noone, appoint-
ed by the court, argued the cause and filed the briefs for
appellant Bernard Johnson.
Barbara J. Valliere, Assistant United States Attorney,
argued the cause for appellee. With her on the brief were
Wilma A. Lewis, United States Attorney, John R. Fisher and
James H. Dinan, Assistant United States Attorneys.
Before: Edwards, Chief Judge, Ginsburg and Tatel,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: Thomas "Woozie" Fields and Ber-
nard "Tadpole" Johnson appeal from judgments of convictions
following a jury trial in the District Court. We affirm the
convictions of both defendants. However, because we find
that plain errors in sentencing affected defendants' substan-
tial rights and undermined the fairness of the sentencing
proceedings, we vacate the sentences and remand the case to
the District Court for further proceedings consistent with this
opinion.
I. Background
This case involves the prosecution and conviction of two
members of a coterie known to the Government as the "L
Street Crew." In March 1998, a Federal Grand Jury in the
District of Columbia returned a 70-count Indictment charging
Fields, Johnson, and nine other individuals with Continuing
Criminal Enterprise, Conspiracy to Participate in a Racke-
teer Influenced Corrupt Organization ("RICO Conspiracy"),
and various drug trafficking, firearm, and violent offenses.
In October 1998, Fields, Johnson, and two other defendants
were named in a Superseding 74-count Indictment charging
virtually the same offenses. In May 1999, a 64-count Su-
perseding Re-typed Indictment named Fields and Johnson
alone.
The May 1999 Indictment charged Fields and Johnson with
narcotics conspiracy (Count 1), RICO conspiracy (Count 3),
the kidnaping, gang rape, and attempted murder of a young
woman referred to herein as K.D. (Counts 12-18), firearms
offenses in connection with that rape (Counts 37-38, and 49-
53), the attempted murder of an unknown individual in Janu-
ary 1997 (Counts 32, 33), and firearms offenses related there-
to (Counts 45 and 61). Fields was charged, in addition to the
above offenses, with continuing criminal enterprise (Count 2),
assaults with a dangerous weapon (Counts 4 and 5), assaults
with intent to kill, kidnaping, and attempted murder in aid of
racketeering activity (Counts 6-11, 19-31), related firearms
offenses (Counts 34-36, 39-44, 46-48, 54-60), and money
laundering (Counts 62-64).
During the trial, the Government presented evidence of
attempted murders, assaults, a kidnaping, and a gang rape.
According to the Government's theory of the case, these
alleged crimes were motivated by the L Street Crew's desire
to protect or expand the area in which the group sold and
distributed drugs. Fields took the stand during the trial and
admitted to selling drugs to certain individuals, but denied
that he held any leadership role with respect to the L Street
Crew. Johnson did not testify.
The jury convicted Fields on 40 counts and Johnson on 16
counts. Both Fields' and Johnson's convictions included
those for the rape and attempted murder of K.D. At the
sentencing hearing, the trial judge adopted the calculations in
the Presentence Investigation Report ("PIR"), as well as the
Government's proposed findings of fact and conclusions of
law, and sentenced Fields to life plus 120 years, and Johnson
to life plus 25 years.
II. Analysis
In this appeal, Fields and Johnson seek review of myriad
issues relating to their convictions and sentencing. They
assert challenges to venue, sufficiency of the evidence, admis-
sion of evidence, joinder of defendants, failure to sever certain
counts, the firearms and other sentence enhancements, and
calculation of their sentences in light of the Supreme Court's
holding in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).
We have considered carefully all of appellants' arguments;
most of appellants' claims require no discussion, because they
are meritless. There are two challenges, however, that have
merit. We address these claims below.
A. Determinations of drug quantity
Appellants contend that the sentences they received on
Counts 1 (Narcotics Conspiracy) and 3 (RICO Conspiracy)
were improperly enhanced beyond the statutory maximum,
because the finding as to drug quantity was not made by a
jury. The PIR, prepared after the jury trial, divided Fields'
40 counts of conviction into six groups involving substantially
the same harm, and Johnson's 16 counts of conviction into two
such groups. See U.S. Sentencing Guidelines Manual
s 3D1.2 (1998) (rules for grouping closely related counts).
Counts 1 and 3 were included in Group 1, along with Counts
62-64 (Money Laundering). The PIR listed the base offense
level for both defendants at 38; this determination was
derived from an assumption that the offenses involved more
than the equivalent of 30,000 kilograms of marijuana. The
PIR attributed 173,570 kilograms to Fields and 148,862 kilo-
grams to Johnson. In reaching these estimates, the PIR
purported to rely on testimony provided by members of the L
Street Crew at the trial.
In Apprendi, the Court held 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."
120 S. Ct. at 2362-63. It therefore follows that drug quantity
is an element of the offense where a factual determination of
the amount of drugs at issue may result in a sentence that
exceeds a maximum sentence prescribed in the applicable
statute. See, e.g., United States v. Pratt, No. 99-4424, 2001
WL 101457, at *6 (4th Cir. Feb. 7, 2001); United States v.
Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.), cert. denied,
121 S. Ct. 600 (2000); United States v. Doggett, 230 F.3d 160,
164-65 (5th Cir. 2000), cert. denied, 69 U.S.L.W. 3555 (U.S.
Feb. 20, 2001) (No. 00-7819). This court's ruling to the
contrary in United States v. Lam Kwong-Wah, 966 F.2d 682,
685-86 (D.C. Cir.), cert. denied, 506 U.S. 901 (1992), is no
longer good law. In light of Apprendi, it is now clear that, in
drug cases under 21 U.S.C. ss 841 and 846, before a defen-
dant can be sentenced to any of the progressively higher
statutory maximums that are based on progressively higher
quantities of drugs specified in subsections 841(b)(1)(A) or
(B), the Government must state the drug type and quantity in
the indictment, submit the required evidence to the jury, and
prove the relevant drug quantity beyond a reasonable doubt.
In the instant case, the Government did not come close to
satisfying the requirements of Apprendi. The Indictment
specified quantities of drugs alleged to be involved in Counts
1 and 3, but the verdict form asked only that the jury find
"detectable amount[s]" of marijuana, crack cocaine, and phen-
cyclidine ("PCP") in order to find the defendants guilty.
Therefore, it cannot be found that the jury's convictions on
those counts were based on any specific factual findings as to
drug quantity. It was only in connection with Count 2
(Continuing Criminal Enterprise) that the verdict form re-
quired specific findings that defendants distributed 1.5 kilo-
grams or more of crack cocaine and 3,000 kilograms or more
of marijuana, and the jury deadlocked on these issues.
It is undisputed that the quantity of controlled substances
involved was a decisive factor in the defendants' sentences.
The sentencing range for violations of 21 U.S.C. s 841 (1994
& Supp. IV 1998) is determined by drug quantities. Section
841(b)(1)(A) of Title 21 provides for a maximum penalty of life
where the offense involves 1,000 kilograms or more of a
mixture or substance containing a detectable amount of mari-
juana, and 21 U.S.C. s 841(b)(1)(B) provides for a maximum
sentence of 40 years where the offense involves 100 kilograms
or more of a mixture or substance containing a detectable
amount of marijuana. Default statutory maximums of five to
30 years are provided in ss 841(b)(1)(C) and (D).
In this case, there were no substantive controlled substance
act offenses charged under 21 U.S.C. s 841. However, the
Narcotics Conspiracy Count was charged under 21 U.S.C.
s 846, and alleged a conspiracy to unlawfully possess with
intent to distribute and to distribute controlled substances in
excess of 1,000 kilograms or more of marijuana, 50 grams or
more of cocaine base, and 100 grams or more of PCP, in
violation of 21 U.S.C. s 841 (a)(1) and (b)(1)(A)(ii)-(iv), (vii).
The RICO Conspiracy charged under Count 3 also alleged 21
U.S.C. s 841(a) violations.
At the sentencing hearing, the District Court adopted the
calculations in the PIR, as well as the Government's proposed
findings of fact and conclusions of law, and found "well above"
the preponderance standard that 1,670 grams of crack co-
caine, 11,388 grams of PCP, and 3,490 kilograms of marijuana
were "directly attributable to defendant Thomas Fields" dur-
ing the course of the charged conspiracy. With respect to
Johnson, the District Court found that 1,670 grams of crack,
11,328 grams of PCP, and 2,182 kilograms of marijuana were
"reasonably foreseeable and part of jointly undertaken activi-
ty by defendant Johnson, and therefore are appropriately
attributable to him." The life sentences imposed on appel-
lants were predicated in part on these calculations.
The District Court's sentence enhancements contravene
Apprendi. However, neither defendant objected at trial to
the District Court's determination of drug quantities, so our
review is for plain error. See United States v. Wolff, 195
F.3d 37, 40 (D.C. Cir. 1999); Fed. R. Crim. P. 52(b). And we
may exercise our discretion to correct an error pursuant to
Rule 52(b) only when an "error" is "plain" or "obvious" under
current law, affects substantial rights, and seriously affects
the fairness, integrity, or public reputation of judicial pro-
ceedings. Johnson v. United States, 520 U.S. 461, 466-67
(1997).
The Government concedes that the imposition of life sen-
tences based on drug quantities determined by the trial judge
at sentencing was plain error. The Government argues,
however, that appellants are not entitled to relief, because
they cannot show that the error affected their substantial
rights. We disagree.
The Government first asserts that substantial rights were
not affected, because the District Court correctly determined
that the quantity of drugs far exceeded the amount required
under the applicable provision of s 841(b)(1). However, in
calculating the quantities at issue, the PIR relied heavily on
the imprecise testimony of various cooperating witnesses, and
the District Court simply adopted the PIR estimates. The
only concrete evidence of drug quantity offered at the trial
was from the seizures in this case and the testimony of Mr.
Joseph Bono, a forensic chemist with the Drug Enforcement
Administration. Government counsel acknowledged that this
evidence did not establish that either defendant possessed
more than 30,000 kilograms of marijuana. The Government
nevertheless urges us to extrapolate from the concrete evi-
dence and attribute a higher quantity of drugs to each
defendant. Obviously, under Apprendi, we have no authority
to do this. The Government was required to convince the
jury, beyond a reasonable doubt, that the defendants pos-
sessed enough of a controlled substance for the District Court
to adjust the base offense level to 38. They failed to do that
in this case.
The Government next suggests that we should ignore drug
quantity altogether and rely instead on the s 1963(a) RICO
penalty provision. Section 1963 states that "[w]hoever vio-
lates any provision of section 1962 of this chapter shall be ...
imprisoned not more than 20 years (or for life if the violation
is based on a racketeering activity for which the maximum
penalty includes life imprisonment)." 18 U.S.C. s 1963
(1994). The Government maintains that appellants were
charged with, and convicted of, Racketeering Act 21, the
kidnaping of K.D. Kidnaping, under the D.C. Code, carries a
maximum sentence of life imprisonment. D.C. Code Ann.
s 22-2101 (1996). Because the jury specifically found that
appellants committed Racketeering Act 21, the Government
asserts, the jury found facts justifying imposition of the
statutory maximum sentence of life totally apart from drug
quantity. The error in this reasoning is that neither the PIR
nor the trial judge relied on this rationale in imposing the life
sentences. Rather, the District Court, in raising the base
offense level to 38 for the Group 1 offenses, relied on the
PIR's findings on the marijuana equivalency amounts. We
therefore reject the Government's arguments.
The District Court's failure to rely on concrete evidence to
determine the base offense level for the Group 1 Counts
undermined the fairness of the sentencing proceedings, be-
cause the error clearly affected the outcome of the case by
substantially increasing defendants' sentences. We cannot
ignore this plain error.
B. The leadership enhancement
Appellant Fields argues that the four-level increase that he
received for his leadership role in various offenses was im-
proper in light of Apprendi. He further maintains that the
testimony of the various cooperating witnesses showed that
they had their own businesses, kept their own money, and
that Fields was not their boss. As noted above, the PIR
divided the counts of conviction into six groups. In each of
these groups, the report recommended a four-level increase in
the guideline range based on U.S.S.G. s 3B1.1(a), because
Fields was an organizer or leader of criminal activity that
involved five or more participants.
Count 1 (Narcotics Conspiracy) of the Indictment alleged
that the conspiracy operated as an organization controlled
and directed by Fields. Count 3 (RICO Conspiracy) alleged
that Fields was the leader of the organization. The issue of
leadership role, however, was not submitted to the jury with
respect to Counts 1 and 3. Instead, it was submitted in
conjunction with Count 2 (Continuing Criminal Enterprise)
and the jury was deadlocked as to this count.
Because the fact of leadership role may increase a defen-
dant's sentence beyond the prescribed statutory maximum,
Apprendi applies. Accordingly, the issue of leadership must
be charged in an indictment, submitted to a jury, and proved
beyond a reasonable doubt. Because Fields did not argue at
trial that leadership should have been submitted to the jury,
however, we review the record for plain error.
Though we have exercised our discretion to notice plain
error with regard to the issue of drug quantity, we decline to
do so with regard to leadership enhancement. On the issue
of leadership, the record evidence overwhelmingly demon-
strates that Fields managed and masterminded various of-
fenses committed by the L Street Crew. Fields enlisted
members of the L Street Crew to assist him in distributing
controlled substances, including marijuana, crack cocaine, and
PCP, directed, procured, and participated in acts of violence
against rival drug groups, and orchestrated the kidnaping,
sexual assault, and shooting of K.D. Based on the sheer
volume of largely uncontested evidence offered at trial, there
is proof beyond a reasonable doubt that Fields held a leader-
ship role in the criminal activities for which he was convicted.
C. The sentence enhancements for the Group 2 offenses
Appellants contend that the sentence enhancement for
their Group 2 offenses was improper. We agree. The Group
2 offenses related to the kidnaping and attempted murder of
K.D. The applicable sentencing guideline for Count 12,
armed kidnaping, is U.S.S.G. s 2A4.1(a), which provides for a
base offense level of 24. The PIR computed an adjusted
offense level of 43, pursuant to U.S.S.G. s 2A4.1(b)(7)(B) and
Application Note 5, with the rationale that the object of the
kidnaping was to commit first degree murder, and the Dis-
trict Court adopted the finding that the attempted murder of
K.D. would have constituted first degree murder had she
died. The offense of first degree murder was not submitted
to the jury, however, and the jury made no finding beyond a
reasonable doubt that the object of the kidnaping was to
commit first degree murder.
Application Note 5 to s 2A4.1 of the U.S. Sentencing
Guidelines suggests that if an offense involved conspiracy to
kidnap for the purpose of committing murder, or if an offense
involved a kidnaping during which a participant attempted to
murder the victim under circumstances that would have
constituted first degree murder, subsection (b)(7) would refer-
ence first degree murder and result in an offense level of 43.
We reject this commentary, and the District Court's reliance
on it, because it is flatly at odds with the controlling Sentenc-
ing Guideline. As the Fifth Circuit correctly noted in United
States v. Smith, 184 F.3d 415 (5th Cir. 1999), Application
Note 5 "violate[s] the dictates of s 2A4.1(b)(7)(B)." Id. at
418.
Section 2A4.1(b)(7)(B) of the U.S. Sentencing Guidelines
explicitly directs the court to cross-reference the guideline
applicable to the crime actually committed. In this case, that
crime was attempted murder. In Stinson v. United States,
508 U.S. 36 (1993), the Supreme Court held that, if the
"commentary and the guideline it interprets are inconsistent
in that following one will result in violating the dictates of the
other, the Sentencing Reform Act itself commands compli-
ance with the guideline." Id. at 43. Because the Guideline
and not the commentary controls, we find that the District
Court erred in enhancing appellants' Group 2 offenses by
cross-referencing the guideline applicable to first degree mur-
der.
III. Conclusion
In light of the above determinations, we vacate appellants'
sentences, and remand the case to the District Court. With
respect to the drug calculations, we instruct the District
Court to re-sentence the defendants based on the amount of
drugs as to which there can be no doubt, i.e., where drug
quantity is established by proof beyond a reasonable doubt.
On the kidnaping charge, we reverse and remand with in-
structions to sentence with reference to the Guideline, not
Application Note 5.