United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed June 12, 2001
No. 99-3138
United States of America,
Appellee
v.
Thomas Fields, a/k/a Woozie,
Appellant
Consolidated with
No. 99-3139
On Appellee's Petition for Rehearing
---------
Before: Edwards, Chief Judge, Ginsburg and Tatel,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: In United States v. Fields, 242 F.3d
393 (D.C. Cir. 2001) ("Fields I"), issued on March 13, 2001,
the sentences of defendants Thomas "Woozie" Fields and
Bernard "Tadpole" Johnson were vacated and the case was
remanded to the District Court for resentencing. The Gov-
ernment now petitions for rehearing, claiming that Fields I
misapplied Apprendi v. New Jersey, 530 U.S. 466 (2000), in
holding "the jury was required to find beyond a reasonable
doubt that defendants were responsible for the quantity of
drugs attributed to them for purposes of determining their
base offense level under the Sentencing Guidelines." Govern-
ment's Pet. for Reh'g at 1. We agree that there is some loose
language in Fields I which can be read to exceed the bounds
of the Supreme Court's holding in Apprendi. We therefore
grant the Government's petition for rehearing so that we may
clarify the court's holdings in Fields I.
* * * *
In Apprendi, the Supreme 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 maxi-
mum must be submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490. Therefore, as we held in
Fields I, it "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." 242 F.3d at
395 (emphasis in original). Apprendi therefore applies to
sentences predicated on drug quantity where progressively
higher statutory maximums are triggered by findings of
progressively higher quantities of drugs. Id. at 396; In re
Sealed Case, No. 00-3057, 2001 WL 409116, at *2 (D.C. Cir.
Apr. 24, 2001). Thus, as noted in Fields I, in drug cases
charged under 21 U.S.C. ss 841 and 846, where the pre-
scribed statutory maximum depends upon the amount of
drugs involved, before a defendant can be sentenced to a
higher statutory maximum, "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." 242 F.3d at 396.
Fields I goes awry in suggesting that Apprendi also applies
to a Sentencing Guidelines enhancement that results in a
sentence within the statutory range. For example, Fields I
states that "[t]he 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," id. at 397, and that
"the issue of leadership [role] must be charged in an indict-
ment, submitted to a jury, and proved beyond a reasonable
doubt." Id. at 398. These passages overstate the holding of
Apprendi. As this court recently has held, Apprendi does
not apply to sentencing findings that elevate a defendant's
sentence within the applicable statutory limits. See In re:
Sealed Case, 2001 WL 409116, at *2-*3. In other words,
Apprendi does not apply to enhancements under the Sentenc-
ing Guidelines when the resulting sentence remains within
the statutory maximum. This understanding of Apprendi is
shared by our sister circuits. See, e.g., United States v. Caba,
241 F.3d 98, 101 (1st Cir. 2001); United States v. Jackson,
240 F.3d 1245, 1249 (10th Cir. 2001); United States v. Garcia,
240 F.3d 180, 182-84 (2d Cir. 2001); United States v.
Williams, 235 F.3d 858, 862-63 (3d Cir. 2000); United States
v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000), cert. denied, 121
S. Ct. 1152 (2001); Talbott v. Indiana, 226 F.3d 866, 869-70
(7th Cir. 2000). Any language to the contrary in Fields I is in
error and is not the law of this circuit.
With these legal principles in mind, we will now reconsider
our application of the law to the facts in Fields I.
* * * *
The Government concedes that, under Apprendi, the Dis-
trict Court committed plain error in this case in imposing life
sentences on the drug conspiracy count in the absence of jury
findings as to drug quantity. The Government claims, howev-
er, that in assessing whether this constituted reversible error
under the plain error doctrine,"[t]he right question" is wheth-
er there was "overwhelming proof" that defendants' crimes
involved 50 or more grams of cocaine base, or 1 kilogram or
more of phencyclidine ("PCP") mixture, or at least 1,000
kilograms of marijuana. Government's Pet. at 10. The
Government is right as to the amounts of drugs required by
statute to authorize a life sentence, but wrong in its claim that
the District Court relied on "overwhelming proof" that the
conspiracy involved these amounts.
As noted in Fields I, defendants Fields and Johnson were
convicted on 40 and 16 counts, respectively, including convic-
tions for Narcotics Conspiracy (Count 1), RICO Conspiracy
(Count 3), and kidnaping, gang rape, and attempted murder
(Counts 12-18). At defendants' sentencing hearing, the Dis-
trict Court adopted the calculations in the Presentence Inves-
tigation Report ("PIR"), as well as the Government's pro-
posed findings of fact and conclusions of law, and found that
"well above" a preponderance of the evidence demonstrated
that 1,670 grams of crack cocaine, 11,388 grams of PCP, and
3,490 kilograms of marijuana were "directly attributable to
defendant Thomas Fields." United States v. Fields, Crim.
No. 98-071-01, Mem. Op. at 16 (D.D.C. Oct. 8, 1999). The
District Court also found that 1,670 grams of crack, 11,328
grams of PCP, and 2,182 kilograms of marijuana were "rea-
sonably foreseeable and part of jointly undertaken activity by
defendant Johnson, and therefore are appropriately attribut-
able to him." United States v. Johnson, Crim. No.
98-071-06, Mem. Op. at 8 (D.D.C. Oct. 13, 1999). The life
sentences imposed on defendants were predicated on these
calculations. It is undisputed, however, that these drug
quantities were never proven to a jury beyond a reasonable
doubt; indeed, most of the asserted quantities are not based
on any concrete proof. While the jury verdict form required
specified findings that defendants distributed specific quanti-
ties of controlled substance in connection with Count 2 (Con-
tinuing Criminal Enterprise), the jury deadlocked on this
count in the case of both defendants. In short, the jury did
not make any finding at all as to the amount of drugs
involved, let alone a finding that defendants possessed, be-
yond a reasonable doubt, enough of a controlled substance to
impose a life sentence under 21 U.S.C. s 841. The life
sentences therefore contravened Apprendi.
Though the District Court erred in imposing the life sen-
tences based on drug quantity, neither defendant objected at
trial to the failure to submit drug quantity to the jury. At
sentencing, defendants objected only on the grounds that the
calculations were speculative and based on trial testimony of
various individuals who had entered into agreements with the
Government. Hence, as noted in Fields I, our review is for
plain error. Fed. R. Crim. P. 52(b); United States v. Wolff,
195 F.3d 37, 40 (D.C. Cir. 1999). 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 proceedings. John-
son v. United States, 520 U.S. 461, 466-67 (1997); United
States v. Olano, 507 U.S. 725, 731-35 (1993).
The Government argues that, although the life sentences
imposed on defendants based on drug quantities resulted in
plain error, no relief is warranted because the error did not
affect defendants' substantial rights. We disagree. The
Government maintains that the District Court correctly de-
termined that the quantity of drugs involved exceeded the
amount required under the applicable provision of
s 841(b)(1). However, the Government has no good basis
upon which to rest such a claim. The District Court relied
heavily on the imprecise testimony of various witnesses who
were cooperating with the Government. In its petition for
rehearing, the Government once again points to this testimo-
ny as well as admissions from Fields that he "made a living
selling crack," sold or supplied marijuana to ten named
individuals, "worked selling marijuana four to five days a
week," and "had no idea how much marijuana he had sold."
Government's Pet. at 10 n.4. Apart from this vague testimo-
nial evidence, the only other "evidence" to which the Govern-
ment can point is that provided by a DEA chemist who
testified to the chemical analysis of approximately 7 grams
(i.e., .007 kilograms) of cocaine base and over twenty kilo-
grams of marijuana that had been seized in the case. Id.
This evidence is far from "overwhelming proof" that defen-
dants' crimes involved the drug quantities necessary to trig-
ger a life sentence under 21 U.S.C. s 841(b)(1)(A). And
given the gravity of the sentence and the lack of any "over-
whelming" evidence to support it, we have no basis for
concluding that the error did not "seriously affect[ ] the
fairness, integrity or public reputation of judicial proceed-
ings." Johnson, 520 U.S. at 469-70.
* * * *
The Government argues, in the alternative, that defendants
should not prevail under the plain error standard, because the
life sentence on the RICO conspiracy count was a "statutorily
available sentence" under Apprendi. In support of this claim,
the Government cites United States v. Meshack, 225 F.3d 556,
577 (5th Cir. 2000), cert. denied sub nom. Parker v. United
States, 121 S. Ct. 834 (2001), amended on reh'g, 244 F.3d 367
(5th Cir. 2001), in which the court held that even if a 10-year
sentence on a marijuana count was unlawful under Apprendi,
there was no plain error warranting reversal where the
defendant was not challenging a greater 324-month concur-
rent sentence on another count. The decision in Meshack
was based on the court's conclusion that the defendant would
receive no meaningful benefit from having his infirm sentence
vacated, because he would not serve less time as a result of
resentencing, and no collateral consequences would flow from
the court's failure to correct the sentence. 244 F.3d at 368.
The "concurrent sentence" thesis enunciated in Meshack is
premised on the fact that, quite apart from the infirm sen-
tence, there was an unchallenged and longer concurrent
sentence on a different count. In this case, the Government
asserts that, because the District Court could have sentenced
defendants to life based on the jury conviction for armed
kidnaping, defendants' challenges to the life sentences im-
posed on the drug conspiracy count do not warrant reversal
for plain error. In other words, the Government says that,
by finding defendants guilty of Racketeering Act 21, which
alleged an armed kidnaping under the D.C. Code, the jury
found all of the facts needed to make life a statutorily
available sentence as to the RICO conspiracy count.
The problem with the Government's argument is that,
although it is true that the District Court imposed concurrent
life sentences on the RICO conspiracy count, there is no clear
finding by the trial court that it intended to impose life
sentences under RICO for Racketeering Act 21 (i.e., armed
kidnaping). Indeed, the Government does not suggest other-
wise. The Government's entire argument rests on the claim
that there is a possibility of a life sentence on the RICO
conspiracy count, because of the defendants' convictions for
armed kidnaping.
The Government may be correct that life is a "statutorily
available sentence" on the RICO conspiracy count; but this is
a far cry from Meshack, which involved a concurrent sentence
based on known and uncontested grounds. In this case, we
cannot comprehend the District Court's basis for the life
sentences on the RICO conspiracy count and "[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." United States v. Jones, 235 F.3d 1231, 1238 (10th
Cir. 2000); see also United States v. Bradford, No. 99-3018,
2001 WL 363912 (8th Cir. Apr. 13, 2001). Accordingly, we
remand to afford the District Court the opportunity in the
first instance to recalculate the defendants' sentences in a
manner consistent with our decision here and in Fields I. On
remand, the Government will be free to argue to the District
Court that life sentences should be imposed on the RICO
conspiracy count premised on the defendants' convictions for
armed kidnaping.
* * * *
With respect to leadership enhancement, the Government
is correct that Fields I incorrectly holds that Apprendi
applies to enhancements based on role-in-offense findings
under the Guidelines. A finding of leadership role can raise a
defendant's offense level under the Guidelines and the result-
ing sentence; it cannot, however, elevate that sentence above
the applicable statutory maximum. Indeed, the Guidelines
themselves recognize as much. See U.S. Sentencing Guide-
lines Manual s 5G1.1 (1998). Thus, a leadership enhance-
ment based on a role-in-offense finding is not a "fact that
increases the penalty for a crime beyond the prescribed
statutory maximum." See, e.g., United States v. Gallego, No.
97-5293, 2001 WL 369783, at *4 (11th Cir. Apr. 13, 2001);
Caba, 241 F.3d at 101; Jackson, 240 F.3d at 1249.
* * * *
In sum, Fields I is clarified as indicated above. The case is
hereby remanded to the District Court for resentencing
consistent with this opinion.