[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2573
UNITED STATES OF AMERICA,
Appellee,
v.
NATHAN WADE CONLEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Torruella and Selya, Circuit Judges,
and Lisi,* District Judge.
George H. Murphy, by appointment of the court, on brief for
appellant.
Paula D. Silsby, United States Attorney, and Margaret D.
McGaughey, Appellate Chief, on brief for appellee.
September 21, 2001
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*Of the District of Rhode Island, sitting by designation.
Per Curiam. A federal grand jury, sitting in Maine,
indicted defendant-appellant Nathan Wade Conley on two drug-
trafficking counts. Specifically, the indictment alleged that
the appellant twice had distributed cocaine in violation of 21
U.S.C. § 841(a)(1). Both counts invoked the penalty provision
of 21 U.S.C. § 841(b)(1)(C) — a penalty provision that embodies
what we have called "the default statutory maximum" for cocaine
trafficking. United States v. Eirby, ___ F.3d ___, ___ (1st
Cir. 2001) [No. 00-1945, slip op. at 10]. The government then
filed an information pursuant to 21 U.S.C. § 851, pointing out
that the appellant had three prior felony drug convictions — a
fact which, if true, would trigger an enhancement provision
built into 21 U.S.C. § 841(b)(1)(C) and boost his potential
maximum sentence from twenty to thirty years.
The appellant eventually pled guilty to both counts of
the indictment, acknowledging in the plea agreement and during
the change-of-plea colloquy that, due to the built-in
enhancement for prior drug felonies, he faced a potential
maximum sentence of thirty years. The sentencing court
subsequently found that the appellant had committed, and had
been convicted for, the three prior drug felonies; that the
career offender guideline, USSG §4B1.1, therefore applied; that
the offenses charged in the indictment involved a total of 196.3
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grams of cocaine; and that the guideline sentencing range was
188-235 months (offense level 34; criminal history category VI).
The court then departed downward on the government's motion, see
USSG §5K1.1, and sentenced the appellant to a 150-month
incarcerative term. This appeal ensued.
The appellant argues that the district court had no
right to use his prior convictions to increase the statutory
maximum because those convictions were neither charged in the
indictment nor proved to a jury beyond a reasonable doubt. This
argument derives from the Supreme Court's recent decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000), but it misconceives
the thrust of that decision. In holding that "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," the Court specifically exempted "the fact
of a prior conviction." Id. at 490. This was no accident: by
phrasing its holding in that manner, the Apprendi Court left
intact the Court's earlier holding in United States v.
Almendarez-Torres, 523 U.S. 224 (1998). There, the Court ruled
that the fact of a prior conviction could be treated as a
sentencing factor rather than an element of a later offense
(and, accordingly, did not need to be charged in the indictment,
submitted to the jury, or proven beyond a reasonable doubt).
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Id. at 235. Almendarez-Torres governs this case and
conclusively refutes the appellant's argument. See United
States v. Patrick, 248 F.3d 11, 28 (1st Cir. 2001); United
States v. Terry, 240 F.3d 65, 73-74 (1st Cir. 2001).
We add a coda. In this instance, the prior convictions
did, as the appellant asseverates, serve to increase the maximum
possible punishment, but the sentence actually imposed did not
exceed the unenhanced statutory maximum. That is, the guideline
sentencing range (188-235 months), as computed by the district
court, fell wholly within the statutory maximum (240 months),
and the sentence actually imposed (150 months) was well below
that maximum. We have held before, and today reaffirm, that
"[t]heoretical exposure to a higher maximum punishment, in and
of itself, is not enough [to work a violation of the Apprendi
principle]." United States v. Robinson, 241 F.3d 115, 122 (1st
Cir. 2001). The triggering event needed to animate Apprendi is
the imposition of a sentence in excess of the default statutory
maximum — and the district court imposed no such sentence here.
The fact that the prior convictions served to increase
the appellant's criminal history score (and, thus, the guideline
sentencing range) is of no moment. The Apprendi principle does
not apply to guideline computations simpliciter, even when those
computations result in a higher sentence — so long as the
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sentence actually imposed does not outstrip the default
statutory maximum. E.g., Eirby, ___ F.3d at ___ [slip op. at
10]; United States v. Caba, 241 F.3d 98, 101 (1st Cir. 2001).
Consequently, no cognizable Apprendi error transpired here.
We need go no further. The district court did not go
astray in the imposition of sentence.
Affirmed.
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