United States v. Houle

United States Court of Appeals
For the First Circuit
____________________

No. 99-1310

UNITED STATES,
Appellee,

v.

RICHARD HOULE, a/k/a Rocket
Defendant, Appellant.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

____________________

Before

Boudin and Lipez, Circuit Judges,

Casellas* District Judge.

_____________________

Lori H. Levinson, by appointment of the Court, with whom
Cain, Hibbard, Meyers & Cook, P.C. was on brief for appellant
Richard Houle.
Kirby A. Heller, Attorney, Department of Justice, with whom
Donald K. Stern, United States Attorney, and Andrew Levchuk,
Assistant U.S. Attorney, were on brief, for appellee.

____________________

January 23, 2001

____________________
____________________
* Of the District of Puerto Rico, sitting by designation.

CASELLAS, District Judge. Following a jury trial, appellant

Richard Houle1 (hereinafter “Houle”) was convicted of conspiracy to

possess with intent to distribute and to distribute cocaine. He was

sentenced to 160 months of imprisonment, followed by 5 years of

supervised release. This appeal ensued. We affirm.

I. BACKGROUND

Houle was charged with conspiracy to posses with intent to

distribute and to distribute cocaine, a violation of 18 U.S.C. § 846.

Houle’s conspiracy was part of a second superseding indictment also

charging 12 other individuals, in various combinations, with the

commission of several offenses, among them, conspiracy to commit and

actually committing racketeering, in violation of 18 U.S.C. §§ 1962(b),

(c), respectively. All the offenses charged in the indictment stemmed

from the defendants’ involvement in the Connecticut and Massachusetts

chapters of a national organization called the Diablos Motorcycle Club

(hereinafter the “Diablos,” or the “Club”).

1
Houle was tried and convicted with a number of other
defendants. Their appeals were heard at the same time, and were
addressed in separate decisions. United States v. Baltas, No.
99-1574 (1st Cir. filed April 2, 1999); United States v.
Lafreniere, No. 99-1318 (1st Cir. filed February 17, 1999).

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 The Diablos originated in San Bernardino, California in the

1960's, and from there expanded to other areas of the country. At the

times relevant to this appeal, the Diablos’s national presence extended

to Connecticut, Florida, Indiana, Massachusetts, and New Hampshire.

They were governed by a written constitution, which made membership

conditional upon, among other things, being 21 years of age, Caucasian,

and owning a firearm and a Harley-Davidson of a particular size. They

also had a governing structure which included both national and chapter

officers.

One of the prosecution’s star witnesses was William Alvis

(hereinafter “Alvis”). Before becoming a Diablo, Alvis had been

involved in another motorcycle club, the Barbarians, where he became

familiarized with the biker ethos. While associated with the

Barbarians, Alvis was charged with the commission of various offenses

unrelated to the instant indictment, and eventually began cooperating

with government authorities. He infiltrated the Diablos at the FBI’s

behest, and gained the trust and confidence of the group. Once inside

the organization, Alvis used his familiarity with biker culture to

become a full-fledged member and vice-president of the Diablos

Massachusetts chapter.

In January of 1996, several members of the Diablos, Alvis and

Houle among them, traveled to California for a national meeting of the

Club’s officers. During their stay in California, Alvis, Houle and

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other codefendants met with FBI Special Agent Mark Pecora, in his

undercover role as “Tony,” on an FBI yacht to discuss a potential

(sham) cocaine deal. Tony explained that he was expecting a shipment

of cocaine from Colombia, and that he needed security when the drugs

arrived in Los Angeles, and for their transport to Massachusetts.

Although the arrangements for the deal were not concluded, it was

agreed that Houle, together with other codefendants, would provide

security during the transaction.

A few days after this meeting, Houle accompanied one of his

codefendants to Las Vegas to meet with Tony to arrange another (sham)

drug deal, this one involving methamphetamine. While in Las Vegas,

Tony set up another phony scenario where again he claimed to need

security, this time to collect a gambling debt. Ultimately, Houle

accompanied Tony on his collection endeavor, although he played no role

in it.

The day the cocaine was supposed to arrive from Colombia,

Tony, Houle and others met at a location close to a small airport in

Los Angeles where the offload was supposed to occur. However, Houle

became suspicious while awaiting the shipment, and because of his

concerns, he decided not to participate further in the deal.

Ultimately, the cocaine did not arrive in California on that occasion,

but arrived in Massachusetts a few days later. Houle was not present

when the shipment arrived, but he was later arrested and indicted for

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his involvement in the conspiracy.

II. DISCUSSION

A. Joinder

Houle first contends that he was improperly joined in the

indictment because he was not charged in the RICO counts. We review

misjoinder claims under Rule 8(b) de novo, see United States v.

Chambers, 964 F.2d 1250(1st Cir. 1992), reversing “only if the

misjoinder results in actual prejudice because it ‘had substantial and

injurious effect or influence in determining the jury’s verdict,’”

United States v. Lane, 474 U.S. 438, 449 (1986) (quoting Kotteakos v.

United States, 328 U.S. 750, 776 (1946)).

We note at the outset that the facts underlying Houle’s count

of conviction, count 33, were also alleged in the second superseding

indictment as predicate act 26 of the RICO conspiracy alleged in count

1. Accordingly, both counts were properly joined in the indictment as

“two or more acts or transactions connected together or constituting

parts of a common scheme or plan.” Fed. R. Crim. P. 8(a); see also

United States v. Zannino, 895 F.2d 1, 16 (1st Cir. 1990) (“offenses

committed pursuant to the same (charged) racketeering enterprise may be

joined in a single indictment”).

Furthermore, this relatedness evidences “[a] rational basis

in fact, sufficient to warrant joinder” under Rule 8(b). Under this

rule, “[t]wo or more defendants may be charged in the same indictment

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. . . if they are alleged to have participated in the same act or

transaction constituting an offense or offenses.” Fed. R. Crim. P.

8(b). “[W]here, as here, a single RICO count ‘embrace[s] all of the

acts and transactions upon which the other . . . counts [are] based,”

joinder under Rule 8(b) is proper. See United States v. Boylan, 898

F.2d 230, 245 (1st Cir. 1990).

The fact that Houle was not charged as a RICO defendant is

of no consequence. See Zannino, 895 F.2d at 16; United States v.

Krout, 66 F.2d 1420, 1429 (5th Cir. 1995) (“If an indictment charges

RICO violations, offenses committed as part of the pattern of

racketeering activity are properly joined even if the defendant

objecting is not named in the RICO count.”); United States v. García,

848 F.2d 1324, 1333 (2d Cir. 1988) (joinder found proper even though

not all the defendants were named in the RICO count), rev’d on other

grounds Gómez v. United States, 490 U.S. 858 (1989). Therefore, we find

that the district court correctly denied Houle’s severance request.

B. Severance

Houle unsuccessfully moved to sever his trial from those of

his codefendants on various occasions both before and during trial.

Here, he assigns error to the district court’s refusal to sever, and

argues that he was prejudiced by the district court’s denial of his

motions. Under Rule 14, a district court may order separate trials of

counts or defendants “[i]f it appears that a defendant or the

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government is prejudiced by a joinder . . . or by such joinder for

trial together . . . .” Fed. R. Crim. P. 14. In making this

determination, the district court enjoys wide latitude. See United

States v. Rogers, 121 F.3d 12, 16 (1st Cir. 1997). We review a

district court’s refusal to sever for “manifest abuse of discretion,”

United States v. DeLeon, 187 F.3d 60, 63 (1st Cir. 1999), to determine

whether joinder “deprived defendant of a fair trial, resulting in a

miscarriage of justice,” United States v. Tejeda, 974 F.2d 210, 219

(1st Cir. 1992) (citations and internal quotation marks omitted). For

the reasons set forth below, we find that Houle has failed to shoulder

this burden, and therefore, affirm the district court’s ruling.

The gravamen of Houle’s complaint is spillover prejudice.

Specifically, he alleges the following: (1) that the evidentiary

disparity between him and the other defendants created a “guilty by

association” atmosphere; (2) that the jury heard evidence of violence

committed by other defendants, which unfairly prejudiced him; and (3)

that the district court’s limiting instructions were inadequate to

allow the jury to properly compartmentalize the evidence against him,

because he was a minor participant and the only non-Rico defendant.

We begin our discussion by noting a principle that guides any

severance analysis — that is, without a “serious risk that a joinder

would compromise a specific trial right . . . or prevent the jury from

making a reliable judgment about guilt or innocence,” Zafiro v. United

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States, 506 U.S. 534, 539 (1993), defendants charged in the same

indictment should be tried together. The policies supporting this

preference are that it helps to prevent inconsistent verdicts, and

conserves judicial resources. United States v. O’Bryant, 998 F.2d 21,

25 (1st Cir. 1993). As such, defendants are not routinely granted

separate trials because they feel it might improve their odds of

acquittal. Zafiro, 506 U.S. at 540. We will now address Houle’s

arguments.

Houle first argues that the disparity in evidence created a

guilty by association atmosphere, which unfairly prejudiced him at

trial. Although Houle correctly contends that portions of the evidence

introduced at trial were not related to the charges levied against him,

it is well settled in this Circuit that “[e]ven where large amounts of

testimony are irrelevant to one defendant, or where one defendant’s

involvement in an overall agreement is far less than the involvement of

others,” we should be “reluctant to second guess severance denials.”

O’Bryant, 998 F.2d at 26 (citing Boylan, 898 F.2d at 246). We find

Houle’s case fits within this framework, and therefore, will not second

guess the district court’s decision on this issue.

Next, Houle contends that the jury heard testimony concerning

violent acts of co-defendants, which unfairly prejudiced him. However,

we agree with the government that testimony introduced against Houle is

no less violent than the evidence he complains unfairly prejudiced him.

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At trial, the government introduced evidence concerning Houle’s conduct

during the drug deal, where he allegedly said “put one in their

lookers,” if anyone “looks at you cross-eyed.” Even without this

evidence of Houle’s own violent propensities, we rejected a similar

claim of spillover prejudice based on a co-defendant’s violent acts in

DeLeon. 187 F.3d at 63 (holding that repeated inquiries about third-

party fear based on co-defendant’s violent nature did not warrant

severance).

Finally, Houle claims that the district court’s limiting

instructions were inadequate because no jury could properly

compartmentalize the evidence against him. He maintains that because

his role in the conspiracy was so minor, the jury should not have been

forced to assess his innocence or guilt alongside the other defendants.

The difficulty in this “argument is the case law holding to the

contrary.” DeLeon, 187 F.3d at 63 (citing United States v. Rawwad, 807

F.3d 294, 295 (1st Cir. 1986).

We begin by noting that despite Houle’s assertion to the

contrary, the district court took adequate measures to safeguard

against the possibility of spillover prejudice by repeatedly

instructing the jury to consider the evidence separately as to each

defendant. In fact, the district court instructed the jury at the

outset of the trial, several times throughout the trial, and during the

final charge that it must consider the evidence against each defendant

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individually. Moreover, the court emphasized that the jury must not

apply the evidence relevant to the RICO counts against Houle. In sum,

we find the court’s cautionary measures proper under prior case law of

this circuit. See DeLeon, 187 F.3d at 64; Rogers, 121 F.3d at 16;

Boylan, 898 F.2d at 246, United States v. Cresta, 825 F.2d 538, 555

(1st Cir. 1987).

With regard to the jury’s ability to segregate the evidence

and understand the judge’s instructions, the verdict itself is often

quite telling. In this case, the jury acquitted co-defendant

Lafreniere of the RICO offenses, and co-defendant Moore of all charges.

This discriminating verdict shows that the jury was able to

compartmentalize evidence and apply it to each defendant, and gives us

“no basis to suppose that the jurors disregarded the trial judge’s

admonitions and departed on a frolic of their own.” United States v.

Pierro, 32 F.3d 611, 616 (1st Cir. 1994); see also DeLeon, 187 F.3d at

64; Boylan, 898 F.2d at 246; Cresta, 825 F.2d at 555; United States v.

Tashijan, 600 F.2d 829, 834 (1st Cir. 1981).

In sum, we find that the level of prejudice suffered by Houle

to be no greater than the type or degree customarily suffered by

defendants in multiple defendant and multiple charge cases; and “[a]t

bottom, this is simply a disagreement with the district court’s

exercise of its considerable discretion.” DeLeon, 187 F.3d at 246.

C. Evidentiary Issues

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 Houle believes the district court erroneously admitted

evidence concerning the “protection” he provided for Tony during a trip

to Las Vegas. As noted above, Houle had gone to Las Vegas to set up

another drug deal, and while there, Tony asked him to provide security

while he collected a gambling debt. Houle agreed to accompany Tony on

his collection endeavor, although he played no role in it.

At trial, the government successfully argued that Houle put

the element of intent at issue by claiming that he was entrapped into

providing security for the offload of a cocaine shipment in California.2

With Houle’s intent at issue, the government argued, and the district

court agreed, that there was a sufficient similarity between Houle’s

acting as a bodyguard in Las Vegas, and his participation as security

for the cocaine shipment in California, to admit the evidence under the

“intent” exception to Rule 404(b). Houle contends that evidence of his

participation in a phony debt collection scheme should not have been

admitted under Rule 404(b) because it was not relevant to any material

issue at his trial for conspiracy to possess with intent to distribute

cocaine.

2
Houle placed his intent at issue in his opening statement
by claiming that the cocaine deal was “written, produced, and
directed by the United States Government . . . [a]nd if it
wasn’t for the United States Government making up this so-called
crime, Rick Houle would not be sitting there today.”
Moreover, “[i]n every conspiracy case . . . a not guilty
plea renders the defendant’s intent a material issue and imposes
a difficult burden on the government.” United States v. Zeuli,
725 F.2d 813, 816 (1st Cir. 1984).

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 Rule 404(b) provides that evidence of a defendant’s prior bad

acts may not be admitted to prove his criminal character or propensity

to commit similar crimes.3 We review the district court’s decision

whether to admit evidence pursuant to Rule 404(b) for an abuse of

discretion, and will reverse the district court’s balancing under Rule

403 only in exceptional circumstances. United States v. Manning, 79

F.3d 212, 217 (1st Cir. 1996). Further, the court will treat any error

in admitting 404(b) evidence as harmless if it determines that the

disputed evidence did not contribute to the verdict. United States v.

Levy-Cordero, 156 F.3d 244 (1st Cir. 1998).

In reviewing such cases, we utilize a two-pronged test.

First, the evidence must be “specially probative of an issue in the

case—such as intent or knowledge—without including bad character or

propensity as a necessary link in the inferential chain.” United

States v. Frankhauser, 80 F.3d 641, 648 (1st Cir. 1996). The probative

value of the evidence “must be considered in light of the remoteness in

time of the other act and the degree of resemblance to the crime

3
Rule 404(b) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible
for other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake
ot accident . . . .
Fed. R. Evid. 404(b).

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charged.” Id. (quoting United States v. Fields, 871 F.2d 188, 197 (1st

Cir. 1989)). Second, if the “proffered evidence has ‘special

relevance,’ it is nonetheless inadmissible if its probative value is

‘substantially outweighed by the danger of,’ inter alia, ‘unfair

prejudice, confusion of the issues, or misleading the jury’.”

Frankhauser, 80 F.3d at 648; Fed. R. Evid. 403.

Immediately following the testimony about the security detail

in Las Vegas, the district court instructed the jury on the permissible

and impermissible uses of the evidence. The court instructed the jury

that they could not use the evidence to infer propensity, but that

they could use it in determining Houle’s intent in connection with the

charged crime. The court then explained its rationale for the ruling

outside the presence of the jury by pointing out that the evidence was

relevant to intent and the absence of mistake, and that the incident

took place soon after Houle agreed to provide similar security in

connection with the cocaine deal. The court discounted the fact that

Houle agreed to provide security for a drug deal in one instance, and

for the collection of a gambling debt in the other instance by finding

that Houle’s intent to provide physical protection was at issue in the

cocaine conspiracy. As such, the court concluded: (1) that the Las

Vegas incident was relevant to Houle’s intent to provide protection,

and (2) that the probative value of such evidence outweighed any unfair

prejudice.

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 We begin our discussion by noting that other acts that bear on a

defendant’s predisposition to commit a crime are highly probative when,

like here, the defendant claims entrapment. See United States v. Mazza,

792 F.2d 1210, 1223 (1st Cir. 1986) (evidence of a prior cocaine

purchase was material in light of the defendant’s entrapment defense);

see also United States v. Russell, 411 U.S. 423, 429 (1973) (“if the

defendant seeks acquittal by reason of entrapment he cannot complain of

an appropriate and searching inquiry into his own conduct and

predisposition as bearing upon that issue.”) (quoting Sorrells v.

United States, 287 U.S. 435, 451 (1932)).

Here, Houle claims that he was not predisposed to traffic in

drugs, and only involved himself in the cocaine conspiracy at the

behest of the government. However, the evidence demonstrates that only

four days after agreeing to provide security for the cocaine shipment,

Houle volunteered to provide security for the collection of the

gambling debt. This evidence therefore, is relevant as to the ultimate

issue in the case; whether Houle intended to participate in the cocaine

conspiracy or whether the government ensnared him in its plot. We

conclude that Houle’s participation and involvement in the gambling

debt collection — serving an identical role with the same undercover

agent, only four days apart — “had sufficient similar elements with his

participation and involvement in the conspiracy charged to make it

relevant and highly probative of his criminal knowledge and intent.”

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United States v. Crocker, 788 F.2d 802, 804 (1st Cir. 1986) (citing

United States v. Indelicato, 611 F.2d 376, 386-87 (1st Cir. 1979)).

Finally, if we accept Houle’s argument, we would allow him to allege

that the government had induced him to commit the crime, but preclude

the government from replying by “showing that [Houle’s] criminal

conduct was due to his own readiness and not to the persuasion of the

government.” Sherman v. United States, 356 U.S. 369, 376-77 (1958).

Since the evidence relating to the Las Vegas trip was

introduced for a legitimate purpose, we find no error under Fed. R.

Evid. 404(b). Moreover, pursuant to Fed. R. Evid. 403, the district

court properly weighed the probative value of the evidence against its

potential for unfair prejudice and attempted to minimize any prejudice

by providing a limiting instruction. Based on this analysis, we find

that the district court did not abuse its discretion by admitting the

evidence complained of by Houle.

D. Sentencing

After oral argument was held, a letter was transmitted to the

court under Fed. R. App. P. 28(j) calling our attention to the recent

Supreme Court decision in Apprendi v. New Jersey, - U.S.- (2000), 120

S.Ct. 2348 (2000). We granted both Houle and the government time to

submit supplementary memoranda addressing the possible relevance of

Apprendi, and, assuming that Apprendi applies, addressing the issue of

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prejudice. Such memoranda having been filed, the matter is properly

submitted for disposition.

The Supreme Court in Apprendi held as a matter of

constitutional law 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. Invoking this rule, Houle seeks to have his sentence

vacated because the amount of the heroin attributed to him was

never submitted to the jury and proved beyond a reasonable

doubt. Because Houle did not raise this issue below, we review

for plain error. See United States v. Mojica-Báez, 229 F.3d

292, 307 (1st Cir. 2000).

Houle makes two arguments on appeal: first, that the

district court imposed a sentence above the lowest statutory

maximum provided by 21 U.S.C. § 841(b)(1)(B); and second, that

the district court erroneously imposed a sentence in excess of

the lowest statutory mandatory minimum.

Houle was convicted of conspiracy to possess with

intention to distribute and to distribute cocaine, in violation

of 21 U.S.C. § 846. The amount of cocaine attributed to him was

not found by the jury beyond a reasonable doubt. Instead, it

was determined by the district court under a preponderance of

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evidence standard at the sentencing hearing. Under this

standard, the district court determined that the transaction

involved from 15 to 50 kilograms of cocaine. Based on its

findings the court sentenced Houle to a term of 160 months of

imprisonment under 841(b)(1)(A). The statutory

framework involved in this case begins with Section 846, which

provides that the penalty for an attempt or conspiracy to commit

a drug trafficking offense shall be the same as the penalty for

the offense that was the object of the attempt or conspiracy.

21 U.S.C. § 846. The underlying offense is set out in section

841(a)(1), which makes it unlawful to “manufacture, distribute,

or dispense, or possess with intent to manufacture, distribute,

or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1).

Section 841(b)(1)(A)-(D), in turn, establishes the penalties

applicable to a violation of section 841(a)(1). Section

841(b)(1)(C), the statutory catchall authorizes a term of

imprisonment for a schedule I or II narcotic, such as cocaine,

without reference to drug quantity, of “not more than 20 years.”

21 U.S.C. § 841(b)(1)(C).

Houle first argues that the district court imposed a

sentence above the lowest statutory maximum provided in Section

841. In support of his argument he relies on the Ninth Circuit

case of United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000).

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In that case, the jury made no finding as to the specific amount

of marijuana that the defendant possessed with the intent to

distribute. Similarly, the judge determined the quantity of

drugs using the preponderance of evidence standard. The error

occurred when the district court’s finding imposed a sentence

that went beyond the five year maximum for an undetermined

amount of marijuana. Nordby was sentenced to the ten years

under 21 U.S.C. § 841(b)(1)(A)(vii). However, 21 U.S.C. §

841(b)(1)(D) states that “in the case of less than 50 kilograms

of marijuana, except in the case of 50 or more marijuana plants

regardless of weight . . . [the defendant shall] be sentenced to

a term of imprisonment of not more than 5 years.” Id. at 1056-

57. Therefore, the Ninth Circuit found the ten year sentence

exceeded the maximum allowed for a marijuana conviction under 21

U.S.C. § 841 (b)(1)(D).

Based on the Ninth Circuit’s holding, Houle argues that

his sentence must be vacated because it exceeds the statutory

maximum provided in 21 U.S.C. § 841(b)(1)(A). However, his

reliance is misplaced. First, unlike Nordby, Houle was

convicted of a cocaine offense and not a marijuana offense.

Therefore, the five year statutory maximum provision of Section

841(b)(1)(D), that was exceeded in Nordby, is inapplicable to

the case at bar. As such, the correct “statutory maximum” for

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a schedule II substance, like cocaine, is found in the catchall

provision of Section 841(b)(1)(C). This section states that “in

the case of a controlled substance in schedule I or II . . .

except as provided in subparagraphs (A),(B), and (D), such

person shall be sentenced to a term of imprisonment of not more

than 20 years.” 21 U.S.C. § 841(b)(1)(C). Therefore, since the

district court sentenced Houle to a term of 15 years, well below

the maximum of twenty years, his reliance on Nordby is

incorrect.

Houle also argues that the district court erroneously

imposed a sentence in excess of the lowest statutory mandatory

minimum, and invites the court to read Apprendi more broadly to

include mandatory minimums. Under Houle’s proposed reading, any

factor that would increase the mandatory minimum penalty

associated with an offense, albeit within the statutory maximum,

would also have to be submitted to the jury and proved beyond a

reasonable doubt.

Houle’s argument is misplaced for two reasons: first,

Houle was sentenced by the district court to a term of 160

months. The court determined the length of his sentence based

on the sentencing guidelines, and not by referring to the

minimum sentence of 120 months provided by the statute. Under

these circumstances the result in our case would not be any

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different even if the Supreme Court were to overrule McMillan v.

Pennsylvania, 477 U.S. 79 (1965), which authorizes legislatures

to increase minimum penalties based upon non-jury factual

determinations, as long as the penalty imposed does not exceed

the maximum range.

Second, even if the statutory minimum played a role in

Houle’s sentence, his main obstacle would be Apprendi itself.

This is true because the majority in Apprendi declined to

overrule their previous decision in McMillan. 120 S. Ct. at

2361 n.13. Moreover, as the Eighth Circuit explained in Aguayo-

Delgado:

If the non-jury factual determination only narrows the
sentencing judge’s discretion within the range already
authorized by the offense of conviction . . ., then
the governing constitutional standard is provided by
McMillan. As we have said, McMillan allows the
legislature to raise the minimum penalty associated
with a crime based on non-jury factual findings, as
long as the penalty is within the range specified for
the crime for which the defendant was convicted by the
jury. Apprendi expressly states that McMillan is
still good law . . . .

220 F.3d 926, 933-34 (5th Cir. 2000); see also United States v.

Meshack, 225 F.3d 556, 576-77 (5th Cir. 2000) (approving of a

more limited reading of Apprendi). We believe that this is the

proper construction under existing precedent and therefore,

refuse to apply Apprendi in cases concerning mandatory minimums.

Our holding today is that no Apprendi violation occurs

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when the district court sentences the defendant within the

statutory maximum, regardless that drug quantity was never

determined by the jury beyond a reasonable doubt. This holding

is consistent with our decision in United States v. Lafreniere,

99-1318 (1st Cir. filed Feb. 17, 1999)4, and those of our sister

circuits which have had the opportunity to address challenges

similar to the ones presented by Houle. See, e.g., Meshack, 225

F.3d at 576-77; Aguayo-Delgado, 220 F.3d at 926; United States

v. Gerrow, 2000 WL 1675594, at *2 (11th Cir. Nov. 8, 2000);

United States v. Angle, 230 F.3d 113, 123 (4th Cir. 2000);

United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir. 2000).

III. CONCLUSION

For the foregoing reasons, we affirm the conviction and

sentence.

4
Lafreniere was Houle’s co-defendant. He was convicted of a
similar charge, only involving a heroin (and not cocaine)
conspiracy. On appeal, he made the same Apprendi arguments.

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