United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 4, 2002 Decided January 31, 2003
No. 00-3121
United States of America,
Appellee
v.
Steven A. Graham,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 99cr00355-14)
A. J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant.
Roy W. McLeese III, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, and Timothy J.
Heaphy, Assistant U.S. Attorneys.
Before: Randolph and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Steven Graham appeals his convic-
tion by a jury of conspiracy to distribute heroin or cocaine
base, 21 U.S.C. s 846, and possession with intent to distribute
heroin, 21 U.S.C. s 841 (a)(1) & (b)(1)(C). Graham contends
that: (1) an FBI agent was improperly allowed to offer
irrelevant hearsay evidence to Graham's prejudice, (2) the
government improperly attempted to impeach his key wit-
ness, and (3) the district court essentially directed a verdict
for the government with regard to the conspiracy count. We
conclude that Graham has failed to show that the hearsay
evidence was prejudicial in light of other evidence from
conspirators or to show plain error with regard to his two
other contentions. Regarding his sentence, Graham contends
that the district court erred in: (1) determining the quantity
of drugs to be attributed to him, (2) denying a downward
adjustment as a minor participant, and (3) imposing super-
vised release in excess of the amount allowed by statute.
Although Graham's first two sentencing challenges are merit-
less, because the district court improperly sentenced Graham
under s 841(b)(1)(A), we remand the case for resentencing
under s 841(b)(1)(C). Accordingly, we affirm the judgment
of conviction except insofar as we remand the case to the
district court to impose a term of supervised release under
s 841(b)(1)(C).
I.
Graham was arrested on May 26, 1999, at the Arthur
Capers housing area in Southeast, Washington, D.C., by
Metropolitan Police Department officers. The officers' trial
testimony revealed that one of them had observed Graham
dropping an object resembling small bags of heroin on the
ground as the police had approached him. However, Graham
was almost immediately released from custody and not rear-
rested until June 18, 1999, on a parole violator warrant. The
government thereafter indicted Graham for being part of a
drug conspiracy led by Kevin Gray; his indictment was
severed from that of the other defendants and Graham went
to trial alone.
At trial, the government presented essentially three types
of evidence: (1) tape recordings of conversations obtained
from wiretaps of Gray's cellular phone; (2) testimony from
admitted conspirators Maurice Andrews and Marvin Dixon,
who provided explanations for the meaning of the words in
the taped telephone conversations and described incidents
they had observed or heard about regarding Graham's activi-
ties as part of the drug conspiracy; and (3) testimony from
the arresting officers. In his defense, Graham showed that
he was on supervised release or in prison during the time of
the conspiracy except for approximately six weeks, from May
4 to June 18, 1999. Through the testimony of Dale Harris,
Graham also disputed an officer's testimony that he dropped
the bags later confirmed to contain heroin; Harris testified
that she did not see Graham drop anything on the ground
when the police approached him on May 26, 1999. The
prosecutor attempted to impeach Harris by asking her about
a number of prior convictions, which, except for one, she
denied. The jury found Graham guilty of conspiracy to
distribute heroine or cocaine base, and possession with intent
to distribute heroin.
During sentencing, Graham objected to the draft pre-
sentence report on the ground that there was insufficient
evidence to attribute to him two to four kilograms of cocaine
and one to three kilograms of heroin; he also contested
factual conclusions in the report that connected Graham to
the Gray conspiracy. A revised report reduced the drug
quantities attributable to Graham to not more than 150 grams
of cocaine base and between one and three kilograms of
heroin. The government filed a memorandum in support of
the reduced attributions. At the sentencing hearing, Graham
reiterated that there was insufficient and contradictory evi-
dence to attribute the full amount of the reduced quantity of
drugs to him, and that the government had failed to establish
the scope of the conspiracy Graham had entered. The dis-
trict court rejected Graham's arguments, adopted the conclu-
sions of the presentence report, and sentenced Graham to the
high end of the sentencing range (168-210 months) under the
Sentencing Guidelines: two concurrent 210-month sentences
of imprisonment, followed by two concurrent sentences of five
years and three years of supervised release.
II.
On appeal, Graham's challenges a series of rulings by the
district court at trial and sentencing.
A.
Regarding his trial, Graham first contends that he was
prejudiced as a result of the district court's error in allowing
FBI Agent Fullmer to testify as to irrelevant and hearsay
matters. Our review of the admissibility of hearsay evidence
is for abuse of discretion. United States v. Evans, 216 F.3d
80, 85 (D.C. Cir.), cert. denied 531 U.S. 971 (2000).
The government's case began with testimony from FBI
Agent Fullmer about the wiretaps that had been placed on
Kevin Gray's telephone. The prosecutor asked the Agent:
"What information specifically led the Safe Streets Task
Force to focus on Mr. Gray as the subject of investigation?"
Defense counsel objected to the question as calling for hear-
say. The district court overruled that objection, and Agent
Fullmer testified:
We had received information from numerous sources
that Mr. Gray and his organization were involved in
trafficking in large amounts of narcotics, be it co-
caine, heroin, marijuana, as well as being responsible
for numerous murders in the Washington, D.C. met-
ropolitan area.
The prosecutor then elicited from the Agent a detailed expla-
nation of the FBI's investigation of the Gray organization, the
legal process by which the FBI obtained a wiretap on Gray's
telephone, how it recorded information from that telephone,
and the process by which that information was analyzed and
stored. This included admission of the application for the
wiretap and associated affidavits (some of which defense
counsel consented to admission).
Graham contends that the admission of the Agent's answer
quoted above was error, and that all of the Agent's back-
ground testimony concerning the wiretap as well as the
affidavits and the application for the wiretap were inadmissi-
ble hearsay and prejudicial. Assuming that defense counsel's
initial objection to the first question and the Agent's answer
sufficed to preserve his objection to any later testimony that
might have been hearsay, and that the first question and
answer were inadmissible hearsay, see Evans, 216 F.3d at 84-
89, Graham's claim fails. First, most of the testimony by the
Agent was not hearsay, and, contrary to Graham's conten-
tions, was relevant to the reliability of the wiretap evidence.
Second, Graham waived any claim as to the admissibility of a
number of documents when defense counsel consented to
their introduction as evidence. Third, with respect to the
limited testimony that is arguably hearsay, Graham fails to
show how he was prejudiced. The Agent's "background"
testimony about the Gray conspiracy was duplicated by prop-
erly admitted evidence from two admitted conspirators, An-
drews and Dixon. United States v. Lampkin, 159 F.3d 607,
615 (D.C. Cir. 1998).
B.
Graham's challenge to the prosecutor's cross-examination
of the key defense witness would be more problematic had
defense counsel made a contemporaneous objection. Howev-
er, absent such objection, our review is confined to whether
there was plain error, see United States v. Olano, 507 U.S.
725, 731-37 (1993), and we find none.
The prosecutor asked Dale Harris about a series of previ-
ous convictions: for marijuana possession in Maryland, for
escape, for theft, for bail violations, for assault and battery,
for possession of a controlled substance with intent to distrib-
ute in Maryland, and for possession of cocaine and heroin in
D.C. Harris admitted the conviction for marijuana posses-
sion, but denied the other convictions, claiming that another
person had been using her name and had been arrested and
convicted. The prosecutor also asked Harris whether she
had been charged but not convicted of possession of heroin;
Harris admitted she had. At the close of the evidence,
defense counsel requested that the jury be instructed that the
government had failed to impeach Harris, except for the
conviction she admitted, and also moved for a new trial when
the district court declined to give the instruction.
Graham contends that the cross-examination of Harris was
improper because: (1) evidence of the Maryland conviction
was improperly admitted under Fed. R. Evid. 609(a) as the
conviction is neither a felony nor a crime of dishonesty or
false statement; (2) the prosecutor improperly asked Harris
whether she had been charged but not convicted of a crime
and asked about other convictions that were not felonies; (3)
the prosecutor did not have a good-faith basis for the cross-
examination; and (4) the district court never ruled in advance
that the prior-conviction evidence was admissible as more
probative than prejudicial under Fed. R. Evid. 403. Assum-
ing the Maryland conviction is not punishable by more than
one year's imprisonment, and therefore does not qualify as a
felony for purposes of Rule 609(a), as appears to be the case,
Md. Code Ann., Art. 27, s 287(e) (2000) (repealed 2002), and
assuming further that the prosecutor's questions about
whether Harris had ever been charged but not convicted of a
drug crime and about whether she had ever been convicted of
any crimes in general were improper, as they appear to be,
Jordan v. Medley, 711 F.2d 211, 218 (D.C. Cir. 1983), Graham
fails to show that the alleged error is "clear" or "obvious,"
and "prejudicial" because it "affected the outcome of the
district court proceedings," and that the error "seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings." Olano, 507 U.S. at 734, 736.
The challenged cross-examination involved Harris, not the
defendant, and hence any error is likely to have been less
prejudicial. United States v. Logan, 998 F.2d 1025, 1032
(D.C. Cir. 1993). Further, the prosecutor never directly
discussed the convictions in his closing arguments to the jury,
referring instead to the question of whether Harris had "any
motive to say something that's not true after the police ran up
in her apartment several times" in searches of her apartment
by the FBI and local police. See id. at 1032. Although
Harris provided key eyewitness testimony in Graham's de-
fense, and the evidence whether Graham had dropped the
drugs at Arthur Capers was hardly overwhelming (as only
one of the two police officers at the scene testified that he had
seen Graham drop the bags of heroin), more telling is the
government's evidence through co-conspirator Andrews that
Graham himself told Gray that he had left the bags in the
area at the time. Overall, then, the circumstances fail to
indicate an error sufficiently prejudicial to warrant a new
trial; whether Graham dropped the drugs at the site or not
was only relevant for one of the two charges, and the error
only involved one of the multiple grounds on which the
prosecutor sought to impeach the defense witness. Graham's
contention that the prosecutor's other questions were improp-
er is without merit because he fails to show that the convic-
tions are not felonies. Moreover, the district court instructed
the jury that a lawyer's question is not evidence, and thereby
mitigated prejudice that might arise from any juror confu-
sion. See, e.g., United States v. Clarke, 24 F.3d 257, 270
(D.C. Cir. 1994).
Graham's other contentions challenging Harris's cross ex-
amination also fail. First, Graham fails to show that the
prosecutor did not have a good-faith basis for the cross-
examination of Harris. The prosecutor stated in advance that
the government had a criminal history record for Dale Harris
that it intended to rely upon. Even assuming it would be
preferable for the prosecutor, prior to cross-examination of a
key defense witness, to ascertain that the witness is the
person named in the criminal history, Graham does not
proffer evidence to suggest that, as a result of the FBI
searches, the government should have known that Dale Har-
ris was not the person identified in much of the criminal
history. Second, there is no evidence that Graham ever
sought a Rule 403 analysis by the district court. Third,
although defense counsel requested a special instruction that
Harris had not been impeached except as to the conviction
she admitted, the requested instruction is different from an
instruction advising the jury how it could permissibly use the
evidence of Harris' prior conviction; the proposed instruction
would not have cured any prejudice that resulted from the
government's improper questioning about the prior non-
felony conviction.
C.
Graham's further contends, for the first time on appeal,
that the district court erroneously instructed the jury by
"essentially directing a verdict for the government by telling
the jury that [Graham] was involved in the conspiracy and
what his role was." Appellant's Br. 39. The district court
instructed the jury that:
The government has presented evidence that De-
fendant Graham was involved in the conspiracy for
several months in the spring and summer of 1999.
The government has also presented evidence that
Defendant Graham's role in the conspiracy involved
the purchasing of heroin and cocaine from Kevin L.
Gray, the alleged leader of the charged conspiracy,
and the redistribution of that heroin and cocaine to
various purchasers in and around Washington, D.C.
Whatever its defects, the instruction falls short of directing a
verdict for the government on an element of the crime. See
United States v. Defries, 129 F.3d 1293, 1310-12 (D.C. Cir.
1997). The instruction only summarized the type of evidence
presented by the government and was not "so restrictive as
to remove from the jury any of its factfinding authority."
United States v. Breedlove, 204 F.3d 267, 271 (D.C. Cir. 2000).
This point was made clear to the jury by other instructions:
one shortly after the instruction quoted above, that the
government must "prove each of the following elements [of
conspiracy] beyond a reasonable doubt," listing the elements
of conspiracy, and one earlier instruction, that the jury should
disregard any expression or opinion by the district court
regarding the facts. Under the circumstances, inasmuch as
defense counsel did not object in the district court, we find no
plain error.
D.
Turning to Graham's sentencing challenges, Graham first
contends that, in light of the near ten-fold increase in his
sentence as a result of the quantity of attributed drugs, the
government must prove the facts underlying the attribution
by clear and convincing evidence. Because Graham did not
object in the district court to the standard of proof for
attribution, our review is for plain error, and we find none.
This circuit has never applied the "clear and convincing"
standard at sentencing. United States v. Jackson, 161 F.3d
24, 26-27 (D.C. Cir. 1998); United States v. Toms, 136 F.3d
176, 186-87 (D.C. Cir. 1998); United States v. Kwong-Wah,
966 F.2d 682, 688 (D.C. Cir. 1992). Other circuits have
rejected a heightened burden of proof. United States v.
Thompson, 51 F.3d 122, 125 (8th Cir. 1995); United States v.
Johnson, 32 F.3d 265, 268 n.1 (7th Cir. 1994). But see, e.g.,
United States v. Jordan, 256 F.3d 922, 927-29 (9th Cir. 2001);
United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999).
The Third Circuit, which pioneered the heightened standard,
see United States v. Kikumura, 918 F.2d 1084, 1098-102 (3d
Cir. 1990), has refused to apply it in cases similar to Graham's
case, see United States v. Paulino, 996 F.2d 1541, 1545 & n.4
(3d Cir. 1993); see also United States v. Mack, 229 F.3d 226,
234 (3d Cir. 2000) (listing cases). Indeed, where the in-
creased punishment is based solely on the charged and con-
victed conduct, such as in drug cases (like the instant case)
where drug quantity determines the offense level and there-
fore the guidelines range, and where no upward departure
from the guidelines range is contemplated, courts have been
less likely to apply a heightened standard. See, e.g., Toms,
136 F.3d at 187; Kwong-Wah, 966 F.2d at 688; see also
Jordan, 256 F.3d at 928; United States v. Behler, 14 F.3d
1264, 1272 (8th Cir. 1994); Paulino, 996 F.2d at 1545 & n.4.
Given the lack of clarity concerning the standard, even as-
suming error by the district court in applying the preponder-
ance of evidence standard, any error was neither a "clear" nor
"obvious" error.
Graham further contends that the district court failed to
determine the scope of his involvement in the conspiracy.
See United States v. Childress, 58 F.3d 693, 722 (D.C. Cir.
1995). Graham had argued that the evidence showed he was
simply a small-time drug dealer who only had a direct rela-
tionship with Gray and was not part of the larger conspiracy:
"[T]here is no indication that Mr. Graham assisted Mr. Gray
in any way other than the distribution of these piddling
amount of drugs; that is, the 40 grams or so of heroin." The
district court ruled that even accepting Graham's argument
that he should only be held responsible for the drugs that he
personally distributed, Graham was nonetheless responsible
for 62 grams of cocaine base and more than a kilogram of
heroin.
In so ruling, the district court rejected defense counsel's
challenge to the factual conclusion in the presentence report
regarding the amount of drugs that Graham personally dis-
tributed. Moreover, contrary to Graham's position on appeal,
the record shows that the district court understood that the
attributable drugs had to be reasonably foreseeable to Gra-
ham and within the scope of his agreement to join the Gray
conspiracy. Cf. Childress, 58 F.3d at 723. That the district
court's analysis was sparse is not determinative; the district
court focused on Graham's arguments contesting factual con-
clusions and rejected them, and referred to the 62 grams of
cocaine base that the evidence indicated was given to Gra-
ham. The district court thus made more than a generalized
or conclusory finding of Graham's involvement. United
States v. Badru, 97 F.3d 1471, 1478 (D.C. Cir. 1996); see
United States v. Thomas, 114 F.3d 228, 256-57, 259-61 (D.C.
Cir. 1997).
Graham's challenge to the sufficiency of the evidence for
the drug quantities attributed to him fares no better. The
presentence report, in setting the quantity of attributable
drugs, relied on: (1) Andrews' testimony that Gray gave
Graham thirty-one grams of cocaine base on two occasions;
(2) the intercepted telephone conversations between Graham
and Gray indicating that "Graham was involved in several
transactions of reselling of heroin for Kevin Gray," and that
after Graham was initially taken into custody on May 26, he
requested help from Gray by telephone; (3) Dixon's testimo-
ny that he observed Gray handing to Graham fourteen grams
of heroin wrapped in tissue paper, that Graham had given
Gray money for the heroin after Gray told Graham that
$1,400 was owed, and that Graham regularly called Gray; and
(4) Andrews' testimony that Graham regularly asked Gray for
heroin and cocaine to sell because Graham needed money,
that Gray regularly gave Graham drugs to resell, involving
sixty to seventy bags of pre-cut heroin initially, and later un-
cut heroin, and that Graham sold drugs regularly at Arthur
Capers. As noted, the final presentence report concluded
that the proper amount of drugs attributable to Graham was
one to three kilograms of heroin, and 50 to 150 grams of
cocaine base.
Graham challenged whether there were any telephone con-
versations that supported the report's conclusion that he was
involved in reselling heroin on a daily basis, as well as Dixon's
testimony regarding the heroin transferred to Graham, noting
that Dixon had only testified that he saw Gray hand some-
thing wrapped in tissue paper to Graham and that it was
unclear from the testimony how many times Gray gave heroin
to Graham. Graham also challenged whether the testimony
supported the conclusion that Gray gave Graham thirty-one
grams of cocaine base on two occasions; on appeal, Graham
points to the contrary trial testimony that there was no
cocaine available in the District of Columbia at the relevant
time. Finally, Graham questioned how the report had devel-
oped its final drug amounts. In response, the government
pointed to Andrews' testimony on the amount of cocaine base
that Gray had given Graham and testimony from Andrews
and Dixon regarding transfers of heroin to Graham. The
district court adopted the drug quantity conclusions in the
presentence report, specifically referring to sixty-two grams
of cocaine base.
Federal Rule of Criminal Procedure 32 requires that when
a defendant alleges any factual inaccuracy in the presentence
report, the district court should either make a finding resolv-
ing the controverted matter or determine that it will not
consider the controverted matter in sentencing the defendant.
United States v. Graham, 83 F.3d 1466, 1477 (D.C. Cir. 1996).
While the government maintains that Graham waived any
claim of error because he never asked the district court to
make specific findings, referencing waivers under Fed. R.
Crim. P. 12, see United States v. Caballero, 936 F.2d 1292,
1296 (D.C. Cir. 1991), and under 18 U.S.C. s 3553(c), see
United States v. McCabe, 270 F.3d 588, 590 (8th Cir. 2001),
cert. denied 122 S. Ct. 1588 (2002), it is unnecessary to decide
whether Graham made sufficient objection to the specificity of
the district court's factual findings on the sufficiency and
quality of the evidence supporting drug quantity. Compare
United States v. Edmond, 52 F.3d 1080, 1103-04 (D.C. Cir.
1995) with United States v. Yeh, 278 F.3d 9, 14 (D.C. Cir.
2002); In re Sealed Case, 246 F.3d 696, 702 (D.C. Cir. 2001);
United States v. Sobin, 56 F.3d 1423, 1428 (D.C. Cir. 1995).
Assuming no waiver, the record shows that the district court
sufficiently addressed Graham's challenges to the factual
basis for the conclusions in the presentence report. Although
the evidence as to the amount of heroin is sparse, Andrews'
testimony that Gray gave Graham cocaine base on at least
two occasions was specific as to quantity, and that amount,
from sixty-two to ninety-three grams, was sufficient to justify
the offense level of thirty-two, U.S. Sentencing Guidelines
s 2D1.1(c) (1998), at which Graham was sentenced. With
respect to the contrary testimony regarding the availability of
cocaine base in the District during the summer of 1999, the
district court referred Andrews' testimony in making its
ruling, implicitly indicating that it was crediting Andrews'
testimony. Moreover, the record allowed the district court to
resolve any contradiction in a number of alternative ways, by
concluding, for example, that the contrary testimony was
limited in either geographic or temporal scope. Inasmuch as
Graham never objected in the district court on the basis of
the contrary trial testimony, the district court's factual find-
ings were sufficient. Cf. United States v. Pinnick, 47 F.3d
434, 437-38 (D.C. Cir. 1995).
E.
Graham also contends that the district court erred by
denying his request for a downward adjustment. Section
3B1.2 of the Sentencing Guidelines provides for a two-level
adjustment if "the defendant was a minor participant in any
criminal activity." The corresponding application note states
that this adjustment is appropriate for "any participant who
is less culpable than most other participants, but whose role
could not be described as minimal." U.S. Sentencing Guide-
lines Manual s 3B1.2, cmt. 3 (1998).
Our review of the district court's application of the Sentenc-
ing Guidelines to the facts of the case is for clear error,
United States v. Washington, 106 F.3d 983, 1015 (D.C. Cir.
1997), according "due deference to the district court's applica-
tion of the guidelines to the facts," United States v. Edwards,
98 F.3d 1364, 1371 (D.C. Cir. 1996) (quotation omitted). In
applying the minor offender provision of the Guidelines, the
court has pointed out that:
Before it may find that a defendant was a minor
participant in the offense, however, the evidence
available to the [district] court at sentencing must,
at a minimum, show (i) that the "relevant conduct"
for which defendant would, within the meaning of
section 1B1.3(a)(1), be otherwise accountable in-
volved more than one participant ... and (ii) that
the defendant's culpability for such conduct was
relatively minor compared to that of the other par-
ticipant(s).
Caballero, 936 F.2d at 1299. The district court may not rely
solely on the "status" of a defendant within a criminal organi-
zation, such as a courier or a salesman. Caballero, 936 F.2d
at 1299; see also Edwards, 98 F.3d at 1370. It is clear error
for a district court not to consider a downward adjustment
where the district court has found that the defendant had a
lower level of culpability than other participants in the con-
spiracy. United States v. Mitchell, 49 F.3d 769, 784-85 (D.C.
Cir. 1995). On appeal this court looks at the entire record.
Edwards, 98 F.3d at 1370-71. In determining whether there
is error, the court examines the defendant's culpability rela-
tive to others in the context of the relevant conduct that is
being considered for sentencing purposes. United States v.
Olibrices, 979 F.2d 1557, 1560-61 (D.C. Cir. 1992).
The determination of whether a defendant is eligible for a
downward adjustment under Section 3B1.2 depends in large
part on a determination of the amount of relevant conduct for
which the defendant is being held responsible; this relevant
conduct is the denominator for purposes of the Section 3B1.2
analysis. To the extent that Graham contends that this
denominator should be the totality of the conspiracy and not
his particular activity, as is reflected in Graham's position
that he was merely a low-level drug dealer and therefore
should be eligible for this downward adjustment, he makes a
flawed assumption about the proper denominator. As Gra-
ham would have it, his culpability for purposes of Section
3B1.2 would not depend on the relevant conduct for which he
is being held responsible, but on the unrelated conduct of
others in the conspiracy. Graham's interpretation of the
appropriate denominator is not reflected in the Sentencing
Guidelines or the application notes, and he cites no source of
authority to support his interpretation. Thus, while the
district court acknowledged that Graham "might have been a
lesser participant in the overarching conspiracy," it conclud-
ed, with respect to the relevant conduct for which Graham
was held responsible, that in view of "the kilo of heroin and
the 62 grams of crack, [Graham] didn't have a minor or
minimal role."
Graham faces an uphill battle challenging the deference
that this court owes to the district court's findings of fact. To
the extent that Graham's challenge attacks the district court's
conclusion that he was not a minor participant with respect to
the relevant conduct for which he was held responsible,
contrary to Graham's view, there is evidence that he was an
integral part of the Gray drug conspiracy. The wiretaps
revealed that he regularly sold drugs for Gray during a six-
week period in the summer of 1999. There was evidence that
Graham visited locations where Gray stored drugs, and that
Graham asked Gray for protection from another individual
who threatened him when they were competing for drug
sales. This evidence supports the district court's conclusion
that Graham was not less culpable than other individuals who
worked as retail drug salesmen for the Gray organization.
Contrary to Graham's view, it would not be inconsistent for
the district court to view the evidence, as does the govern-
ment, as showing that Graham is not a minor figure with
respect to his relevant conduct in the Gray conspiracy but
also showing increased attributed drug quantities with regard
to the scope of the conspiracy that Graham entered. The
district court could properly conclude from the evidence,
summarized above, that Graham was a significant cog in the
Gray machine, and not a minor participant, even taking into
account the substantial scope of the conspiracy in which he
was involved. To the extent that Graham contends that
"[t]he problem with the district court's reasoning ... is that
[he] was held responsible for far more drugs than the conduct
in which he participated," Appellant's Br. at 54, he is again
raising an unavailing challenge to the sufficiency of the
evidence for drug quantity attribution.
F.
Finally, Graham contends that the district court improperly
sentenced him under s 841(b)(1)(A) contrary to the holding of
the Supreme Court's decision in Apprendi v. New Jersey, 530
U.S. 466 (2000). Because the presentence report referred to
his maximum sentence under s 841(b)(1)(A), and the district
court stated that it was adopting the recommendations of the
presentence report, Graham maintains that "in sentencing
[him] to the top of the [Guideline] range of 168-210 months,
the district court may well have been influenced by the wrong
belief that [he] faced a life maximum sentence" pursuant to
s 841(b)(1)(A). Appellant's Br. at 43. Graham further main-
tains, in light of his sentence to a five-year period of super-
vised release, that this portion of his sentence was based on
the mandatory minimum sentence under s 841(b)(1)(A), and
that he could not have been convicted of that offense because
the question of drug quantity was never submitted to the jury
as required by Apprendi. Because Graham's only claims in
the district court of sentencing error were a request for a
new trial and an objection to the term of imprisonment on the
ground that drug quantity had to be submitted to the jury
under Apprendi, our review of his challenge to the period of
supervised release is for plain error. See United States v.
Saro, 24 F.3d 283, 286-88 (D.C. Cir. 1994).
Under s 841(b)(1)(C), a defendant faces a maximum prison
sentence of twenty years and a mandatory minimum super-
vised release sentence of three years. By contrast,
s 841(b)(1)(A) sets a maximum term of imprisonment of life
and a mandatory minimum term of supervised release of five
years. Drug quantity amounts determine which of the two
provisions apply. The issue of drug quantity was not submit-
ted to the jury at Graham's trial, despite Graham's arguments
that Apprendi required it, because the district court agreed
with the government that drug quantity under s 841(b)
should only be a jury question where the government is
seeking a prison sentence of more than twenty years.
With respect to Graham's challenge to his term of impris-
onment, the district court sentenced Graham to less than the
maximum term of imprisonment allowable under
s 841(b)(1)(C). Hence, Graham cannot show Apprendi error,
for, in this circuit, "where the defendant was charged with
and convicted of ... an unspecified s 841(b) offense" without
a jury determination of drug quantity, as occurred in Gra-
ham's case, it "seems appropriate" that "because the defen-
dant was sentenced below (C)'s maximum, there was no
'Apprendi error' at all." United States v. Webb, 255 F.3d 890,
898 (D.C. Cir. 2001); see also United States v. Fields, 251
F.3d 1041, 1043-44 (D.C. Cir. 2001); In re Sealed Case, 246
F.3d at 698-99. Moreover, assuming Apprendi error, the
fact that Graham's sentence was less than the twenty years'
maximum under s 841(b)(1)(C) eliminates prejudice from the
error. See United States v. Samuel, 296 F.3d 1169, 1176
(D.C. Cir. 2002); Webb, 255 F.3d at 898.
With respect to Graham's supervised release sentence, this
circuit, in light of McMillian v. Pennsylvania, 477 U.S. 79
(1986), has held that Apprendi does not apply to mandatory
minimum sentencing. United States v. Agramonte, 276 F.3d
594, 597-98 (D.C. Cir. 2001). Graham has not claimed that
there is any inconsistency between the sentencing provisions
of s 841(a)(1)(C) and the Sentencing Guidelines s 5D1.2,
which, given the classification of the drug offense as a Class C
felony, 18 U.S.C. s 3559(a), requires a supervised release
sentence between two and three years, 18 U.S.C. s 3559(a).
The question, therefore, is whether Graham's supervised re-
lease sentence was proper under s 841. However, because
neither the government nor the district court was specific
about the provision of s 841 under which Graham was con-
victed, the question becomes whether drug quantity is an
element of the offense defined in s 841, such that it must be
submitted to the jury to be determined beyond a reasonable
doubt, and a defendant must be convicted of violating a
particular subparagraph of s 841, as argued by Graham.
The alternative position, adopted by the government at sen-
tencing and on appeal, see Appellee's Br. at 48-51, is that
drug quantity is merely a sentencing factor, to be determined
by the district court at sentencing based on a preponderance
of the evidence, and that a defendant need only be convicted
of distributing some indeterminate amount of drugs under
s 841.
Prior to Apprendi, the circuit courts, including this circuit,
held that the various provisions of s 841(b) established sen-
tencing factors based on drug quantity. See Kwong-Wah,
966 F.2d at 685. After Apprendi, and after Graham was
sentenced, this court interpreted s 841 as a tripartite statute
establishing three separate offenses, with different maximum
sentences based on drug quantity, and not a unitary statute
with drug quantity as a sentencing factor. Webb, 255 F.3d at
895-96 (citing Fields, 242 F.3d at 396); accord In re Sealed
Case, 246 F.3d at 699. The defendant in Webb, a career
offender whose sentence had been enhanced on recidivism
grounds, had challenged his thirty-year sentence under s 841
on the grounds that drug quantity and the question of his
prior conviction had not been submitted to the jury. Webb,
255 F.3d at 893. In the course of rejecting defendant's
Apprendi challenge, the court also had to address the role of
a Sentencing Guidelines provision whose application depended
on whether the defendant had been convicted of
s 841(b)(1)(A), (B), or (C). Id. at 899. In addressing that
question, the court read this circuit's opinion in Fields as
having implicitly treated s 841 as a tripartite statute in light
of the government's concession in Fields that the issue of
drug quantity had to be submitted to the jury in order to
increase the maximum sentence that could be imposed under
s 841. Id. at 896. The court concluded in Webb that the
district court erred in ruling that Webb could be guilty of a
violation of s 841(b)(1)(A) and (B) when the issue of drug
quantity had not been decided by the jury. Id. at 900. "[A]
conviction for the (A) or (B) offense is not proper unless the
relevant drug threshold has been stated in the indictment,
submitted to the jury, and proven beyond a reasonable
doubt." Id.
Consequently, in light of Webb, and perhaps even in light of
Fields, the district court, in sentencing Graham, could not
treat subparagraphs (A) and (C) of s 841 as mere sentencing
factors, and to the extent it did it erred. The question
remains whether the error was "plain." As noted, prior to
Webb and Fields, "well-established precedent in this circuit
held that" s 841 was a unitary statute, Webb, 255 F.3d at 894,
and therefore the government did not need to prove drug
quantity in order to establish a conviction with a maximum
prison sentence of life. See Kwong-Wah, 966 F.2d at 685.
Apprendi itself, while decided prior to Graham's trial and
prompting Graham to raise objections to the failure to submit
drug quantity to the jury, "did not address the interpretation
or constitutionality of s 841" nor predetermine whether s 841
was a unitary or tripartite statute. See Webb, 255 F.3d at
895-96. "In evaluating whether an error is 'plain,' ... where
the law has changed since the time of trial, 'it is enough that
an error be "plain" at the time of appellate consideration.' "
Webb, 255 F.3d at 897 (quoting Johnson v. United States, 520
U.S. 461, 468 (1997)). Thus, even though Webb and Fields
were decided after Graham's sentencing, the error of law is
plain.
Under the circumstances, we conclude that Graham's sub-
stantial rights were affected and a remand is required. It is
true that even if Graham had been convicted only of violations
of s 841(b)(1)(C), the five-year supervised release sentence
could have been imposed, because (C) only sets a three-year
mandatory minimum requirement for supervised release.
However, the presentence report and the district court judg-
ment indicate that Graham was to receive a five-year super-
vised release sentence under Count 1 of the indictment, under
which Graham was to be sentenced pursuant to
s 841(b)(1)(A), and a three-year supervised release under
Count 14 of the indictment, under which Graham was to be
sentenced pursuant to s 841(b)(1)(C). In other words, the
district court in sentencing Graham appears to have tracked
the mandatory minimum sentencing provisions of s 841, and
thus may have applied s 841(b)(1)(A), which increased Gra-
ham's supervised release period by two years. In such a
situation, "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." Fields, 251 F.3d at 1046 (quoting
United States v. Jones, 235 F.3d 1231, 1238 (10th Cir. 2000)).
Consequently, a remand is appropriate for resentencing of
the term of supervised release under s 841(b)(1)(C). See
Saro, 24 F.3d at 288, 291-92.
Accordingly, we affirm the judgment of conviction except
we remand the case for resentencing under s 841(b)(1)(C)
with respect to the term of Graham's supervised release.