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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 11, 2003 Decided April 11, 2003
No. 01-3141
& No. 01-3142
UNITED STATES OF AMERICA,
APPELLEE
v.
THOMAS FIELDS, A/K/A WOOZIE, AND
BERNARD JOHNSON, A/K/A TADPOLE,
APPELLANTS
–————
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., appointed by the court, argued
the cause for appellant Bernard Johnson. With him on the
brief was Mary-Ellen Noone.
Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese
III and James H. Dinan, Assistant U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: For the third time in two
years, this court considers the case of Thomas ‘‘Woozie’’
Fields and Bernard ‘‘Tadpole’’ Johnson. Fields and Johnson
were each convicted of multiple offenses, including narcotics
conspiracy, RICO conspiracy, armed kidnapping, gang rape,
and attempted murder. On their first appeal, we upheld the
convictions but found that their sentences for narcotics con-
spiracy violated the Supreme Court’s holding in Apprendi v.
New Jersey, 530 U.S. 466 (2000). See United States v.
Fields, 242 F.3d 393 (D.C. Cir. 2001) (‘‘Fields I’’). The
government sought rehearing, citing some language that ap-
peared to exceed the Apprendi rule. On rehearing, we made
clear that Apprendi applies to findings triggering a higher
statutory maximum but not to ones that merely affect a
sentence below a statutory maximum; we directed the dis-
trict court to resentence the defendants in accordance with
our opinions. See United States v. Fields, 251 F.3d 1041,
1043–44 (D.C. Cir. 2001) (‘‘Fields II’’).
Fields and Johnson now appeal from their resentencing by
the district court. We have carefully considered and now
reject all of their arguments; only one, a new Apprendi
claim, requires a written opinion. Johnson argues (as does
Fields, but the facts involved in the latter’s case add nothing
material, so we focus on Johnson) that the district court
engaged in an improper ‘‘borrowing’’ or melding of statutory
and Sentencing Guidelines provisions for different offenses.
Specifically, the court combined (a) Guidelines provisions
bumping his sentence up on the basis of drug quantities that
it found, rather than a jury (and by a preponderance rather
than beyond a reasonable doubt), with (b) a statutory maxi-
mum of life imprisonment derived from his RICO conviction
for armed kidnapping. The result, a sentence of 292 months,
was longer than was available to the court for Johnson’s drug
offenses alone (because of the statute and Apprendi) or for
3
his kidnapping conviction alone (because of the Guidelines).
He reasons that because the drug quantities could not have
resulted in a sentence exceeding the statutory maximum of 20
years on the narcotics conspiracy count—as Fields I and
Fields II make clear—those drug quantities also cannot
increase his sentence on the RICO kidnapping count beyond
20 years. The district court rejected this logic and so do we.
* * *
Johnson was convicted of a total of 16 counts, of which the
two most relevant for our purposes are Count 1, narcotics
conspiracy, and Count 3, RICO conspiracy (including, among
other acts, narcotics conspiracy, attempted murder, and
armed kidnapping). At trial the jury had not been charged to
decide drug quantities. At sentencing, however, the judge
found by a preponderance of the evidence that large quanti-
ties should be attributed to Johnson, including more than
2,000 kilograms of marijuana, more than 1,600 grams of crack
cocaine, and more than 11,000 grams of PCP. Based on these
findings and the statutory maxima for such amounts under 21
U.S.C. §§ 841 and 846, the judge initially sentenced Johnson
to life in prison on the drug conspiracy count.
We reversed the sentence in a straightforward application
of Apprendi. ‘‘[I]n drug cases under 21 U.S.C. §§ 841 and
846, before a defendant can be sentenced to any of the
progressively higher statutory maximums that are based on
progressively higher quantities of drugs specified in subsec-
tions 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.’’ Fields I, 242 F.3d at 396.
In defense of the district court’s sentencing, the govern-
ment argued, among other things, that a life sentence was
available for the RICO convictions, under 18 U.S.C. § 1963(a),
which provides that RICO violations shall be punishable by
imprisonment for ‘‘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.
4
§ 1963(a). Because the jury found defendants guilty of
armed kidnapping, which can carry a maximum sentence of
life imprisonment under D.C. law, D.C. Code Ann. § 22–2101
(1996), the government urged that the life sentence did not
violate Apprendi. Fields I, 242 F.3d at 397.
We rejected the government’s RICO argument. As we
explained in Fields II, upholding the sentence on that theory
would have required us to speculate about the district court’s
intentions. See Fields II, 251 F.3d at 1046. But we made
clear that ‘‘[o]n remand, the Government will be free to argue
to the District Court that life sentences should be imposed on
the RICO conspiracy count’’ for the act of kidnapping. Id.
On remand, the district court sentenced Johnson to a
prison term of 292 months for armed kidnapping and the
RICO conspiracy act of armed kidnapping. Following the
Sentencing Guidelines (as defendants do not dispute), the
court divided Johnson’s 16 convicted offenses into two groups.
U.S.S.G. §§ 3D1.1, 3D1.2; Re-sentencing Memo (‘‘R.M.’’) at
6, 7. Group 1 included the narcotics conspiracy and the drug-
related RICO racketeering acts. R.M. at 6. Group 2 includ-
ed the non-drug offenses, namely armed kidnapping and
attempted murder, both in their own right and as RICO
racketeering acts. R.M. at 7.
Still following the Guidelines, the district court computed
the offense level for each group. Based on the drug quanti-
ties found by the court, Group 1 had a base offense level of
40, and Group 2 (the non-drug offenses) a level of 30. R.M.
at 6–7. It then correctly selected ‘‘the offense level applicable
to the Group with the highest offense level’’—in this case,
Group 1’s level of 40—as the ‘‘combined offense level.’’
U.S.S.G. § 3D1.4; R.M. at 8. Level 40 results in a sentence
range between 292–365 months, or roughly 24–30 years,
before other adjustments that are irrelevant here.
Because 292 months would exceed the twenty-year statuto-
ry maximum under 21 U.S.C. §§ 841(b)(1)(C) and 846 for
narcotics offenses where the drug quantity is not found by
the jury, the court reduced Johnson’s sentence on the drug
counts to 240 months, or 20 years, consistent with Fields I
5
and Fields II. But for the armed kidnapping and the RICO
charge, it imposed sentence terms of 292 months, well within
the life maximum. (The sentences were to be served concur-
rently, as were all of the sentences other than certain gun
adjustments.)
Johnson argues that the district court’s calculation violates
Apprendi because the drug quantities found by the court—
not the jury—significantly increased his armed kidnapping
and RICO offense levels, and thus his sentence. His theory
is simply another effort to apply Apprendi to sentence-raising
Guidelines decisions within a statutory maximum, the proposi-
tion that Fields II clearly rejected. Fields II, 251 F.3d at
1043–44.
Had Johnson been convicted of only the narcotics offense,
without the RICO and armed kidnapping charges, then he
would have a claim to be sentenced under the statutory
maximum for narcotics only. And had he been convicted of
the RICO offense only, then he would have a claim to be
sentenced under the Guidelines provisions for the RICO
offense only. But Johnson was convicted of both offenses
(and plenty of others). The Guidelines section for multiple-
offense convictions plainly states that it ‘‘provides rules for
determining a single offense level that encompasses all the
counts of which the defendant is convicted.’’ U.S.S.G. § 3D
(Introductory Comment) (emphasis added). This is the de-
vice by which the Guidelines supply an integrated solution for
a defendant found guilty of multiple crimes.
Sentence maximums depend on convictions, and convictions
depend on findings by a jury (unless waived) of the elements
of an offense. Apprendi, 530 U.S. at 476–77. Where the
drug quantity alters the substantive offense, as it can under
21 U.S.C. §§ 841 and 846, Apprendi applies. See United
States v. Webb, 255 F.3d 890, 896 (D.C. Cir. 2001). But there
is no reason to apply Apprendi to drug quantities affecting
the RICO armed kidnapping sentence, as they are not an
element of that offense. Rather, such quantities may be
proven, like all sentence-affecting facts that are not elements
of the offense of conviction, by a preponderance of the
6
evidence. See, e.g., In re Sealed Case, 246 F.3d 696, 699
(D.C. Cir. 2001) (upholding use of preponderance standard for
drug quantity determination not exceeding statutory maxi-
mum); see also United States v. Watts, 519 U.S. 148, 157
(1997) (allowing even acquitted conduct to trigger enhance-
ments if supported by a preponderance of the evidence). In
this sense, the drug quantities are treated like any other
‘‘relevant conduct’’ under U.S.S.G. § 1B1.3, which can be
found by the court under a preponderance standard. See
United States v. Smith, 267 F.3d 1154, 1165 (D.C. Cir. 2001).
Both sides invoke United States v. Rivera, 282 F.3d 74 (2d
Cir. 2000). It is not altogether clear that it helps the
government, but the government doesn’t need help. Johnson
appears to rely on it for its ‘‘count-by-count’’ approach, see,
e.g., id. at 77 n.3. But Rivera speaks only of ‘‘Apprendi’s
count-by-count approach,’’ alluding to the Apprendi Court’s
insistence that the sentence on a count not exceed the maxi-
mum permissible, based on a jury finding of the elements for
that count; thus it did the government no good in Apprendi
that the total of the defendant’s sentences on three counts did
not exceed the total permissible if he’d received the legal
maximum on each. See Apprendi, 530 U.S. at 474; Rivera,
282 F.3d at 77 n.3; United States v. White, 240 F.3d 127, 135
(2d Cir. 2001). No such problem is presented here as the
court sentenced defendants within the statutory maximum on
each count.
* * *
Before the Guidelines, Johnson’s sentence would have been
equally permissible; faced with an array of convictions, in-
cluding one that authorizes a life sentence, a district court
could constitutionally have exercised its discretion to sentence
the defendant to life in prison based on facts found by the
court. Apprendi itself recognized this. See Apprendi, 530
U.S. at 481–82. The formulaic quality of the Guidelines may
make the innumerable necessary fact findings look like of-
fense elements, but they are not. That is the message of
such cases as Watts and Fields II.
7
The judgments of the district court are
Affirmed.