UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20360
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TRAVIS RANDLE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
July 17, 2001
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit
Judges.
EDITH H. JONES, Circuit Judge:
The Supreme Court remanded this case for further
consideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348 (2000). We remand to the district court for
resentencing at the statutory maximum, 21 U.S.C. § 841(b)(1)(C),
after correcting for Apprendi error.
A grand jury indicted appellant Travis Randle for
involvement in a long-running drug conspiracy and for aiding and
abetting drug distribution. The indictment did not allege any drug
quantities involved in the charged crimes. At a November 1996
trial, the district judge did not instruct the jury to determine
the quantity of crack cocaine that Randle was responsible for, and
Randle made no request for submission of sentence-related issues to
the jury. The jury convicted Randle of both counts.
During sentencing proceedings, Randle’s attorney objected
to the presentence report’s attribution of 390 kilograms of crack
to Randle. The attorney noted that the government had actually
introduced only 699 grams of crack against Randle and his co-
defendants, and he suggested that Randle was responsible for only
part of this figure.
The district court rejected this argument and concluded
that Randle was responsible for ten kilograms of crack. It reached
this figure by calculating drug quantities that Randle had
reportedly given to a witness on specific occasions and at regular
intervals over four months. The district court also cited the
testimony of a two other witnesses. One witness testified that he
sold Randle five to seven kilograms of crack, while the other
witness’s testimony suggested that Randle was responsible for as
much as 390 kilograms of crack. Finally, the court noted the
testimony of supporting witnesses indicating that Randle was a
major supplier of crack for the Richmond, Texas area. Based on §
2D1.1(c)(1) of the sentencing guidelines, the court assigned Randle
a base offense level of 38.
2
The district court then considered a two-level
enhancement under § 2D1.1(b)(1) of the sentencing guidelines for
possession of a dangerous weapon. The proposed basis for this
enhancement was testimony that a co-conspirator had used Randle’s
car, which contained a loaded shotgun, to transport drugs on one
occasion. The court noted that little direct evidence linked the
shotgun to Randle’s drug crimes. The court found that the shotgun
was sufficiently tied to the crimes to justify the enhancement, but
acknowledged that its decision on this point was “difficult” and a
“close question.”
Based on these findings of fact, the district judge
sentenced Randle to 25 years, 4 months in prison. This sentence
exceeded the 240 month statutory maximum for Randle’s convictions
without proof of a minimum drug quantity, see 21 U.S.C. §
841(b)(1)(C).
On appeal to this court, Randle did not raise the
government’s failure to indict and prove to the jury the facts
necessary to support the drug quantity and firearms enhancements.
This court affirmed Randle’s conviction and sentence, issuing an
opinion the same day that the Supreme Court decided Apprendi.
United States v. Brown, 217 F.3d 247 (5th Cir.2000). Randle’s
attorney then raised Apprendi issues in a petition for certiorari.
In a one-sentence order, the Supreme Court remanded this case for
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further consideration in light of Apprendi. Randle v. United
States, 121 S. Ct. 1072 (2001).
DISCUSSION
Randle asserted for the first time in his certiorari
petition that the district court should have submitted the drug
quantity and weapons possession issues to the jury. We may
consider Randle’s Apprendi claims even though he did not raise them
in his original appellate brief. United States v. Miranda, 248
F.3d 434, 443-44 (5th Cir. 2001) (considering Apprendi claims even
though appellants did not raise them in their appellate briefs).
Because Randle did not previously contest the district
court’s failure to submit the sentencing issues to a jury, we
review his claim for plain error. A remand for resentencing may be
ordered only 1) if there was error; 2) the error was plain; 3) the
error affected Randle’s substantial rights; and 4) the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id. at 444-45.
1. Drug Quantity.
Randle’s sentence exceeded the statutory maximum based on
the judge’s fact findings at the sentence hearing concerning drug
quantity. Because it is settled in this court that, after
Apprendi, drug quantity is an element of a drug trafficking crime
under 21 U.S.C. § 841 that potentially enhances the statutory
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maximum and must be submitted to a jury, this court has found that
the lack of such submission can satisfy the elements of plain
error. United States v. McWaine, 243 F.3d 871, 875-75 (5th Cir.
2001) (finding plain error where the government failed to indict or
prove at trial drug quantity); United States v. Thomas, 246 F.3d
438, 439 (5th Cir. 2001); United States v. Meshack, 225 F.3d 556,
578 (5th Cir.2000) (same); United States v. Burton, 237 F.3d 490,
490-91 (5th Cir.2000) (same).1 The error in this case, in failing
to submit the quantity of drugs to the jury, was plain.
The difficult questions here are whether the error was
harmless, i.e. whether it affected Randle’s substantial rights, and
whether the error, left uncorrected, seriously affects the
fairness, integrity or public reputation of the proceedings. As
the district court observed, Randle would have received a base
offense level of 38 even if he was responsible for just 1.5
kilograms of crack. Three witnesses testified that Randle
personally engaged in transactions involving far larger quantities.
This testimony, combined with other testimony that Randle was one
1
One could read those decisions as suggesting that this type of error
is always reversible plain error. This is inaccurate. In other cases, this
court has refused to resentence defendants because errors were harmless, when the
jury had effectively ruled on drug quantities or the evidence of quantity at
trial was overwhelming or uncontested. United States v. Green, 246 F.3d 433, 437
(5th Cir.2001) (finding harmless error because a jury could not reasonably have
found a lesser drug quantity); United States v. Miranda, 2001 U.S. App. Lexis
____ F.3d ____, 6473, *22-24 (5th Cir.2001); United States v. Slaughter, 238 F.3d
580, 584 (5th Cir.2000). The precise trial procedure in each case determined the
reversibility of an Apprendi error.
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of the Richmond area’s major drug suppliers, is very strong
evidence that Randle is responsible for at least 1.5 kilograms.
Randle is responsible not only for the drugs that he was
personally involved with, moreover, but for the drugs that he
reasonably should have known were involved in the conspiracy.
United States v. Medina, 161 F.3d 867, 876 (5th Cir.1998)
(affirming a drug quantity finding based on the activities of the
conspiracy). There was abundant evidence that Randle’s co-
conspirators purchased and sold far larger quantities of drugs.
Given this evidence and the evidence of Randle’s own transactions,
a jury could not reasonably have found Randle responsible for less
than 1.5 kilograms of crack.
Notwithstanding our belief that no reasonable jury could
have found Randle responsible for less than 1.5 kilos of crack, the
fact is, they did not so find and were not even inferentially asked
to make any such finding. Confronted with similar patterns
following Apprendi, this court has, in the cases cited above,
reversed the sentences and remanded for resentencing. Consistency,
fairness, and protecting the reputation of the proceedings demands
that we do likewise here.
2. Weapons possession.
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Randle also argues that Apprendi applies to the district
court’s failure to submit the two-level sentencing enhancement for
weapons possession issue to the jury. Section 2D1.1(b)(1) of the
guidelines mandates a two-level enhancement for possession of a
firearm “unless it is clearly improbable that the weapon was
connected with the offense.” U.S.S.G. § 2D1.1, cmt. 3 (2000).
Here, little evidence connected Randle’s shotgun to drug activity.
While acknowledging that it was a close call, the district judge
found by a preponderance of the evidence that a connection between
Randle’s shotgun and his drug crimes was not clearly improbable.
The enhancement poses no Apprendi problem, however.
Application of enhancements called for by the guidelines may not be
used to impose any sentence beyond the statutory maximum prescribed
by an offense. Thus, in U.S. v. Doggett, 230 F.3d 160, 166 (5th
Cir. 2000), this court excluded from the ambit of Apprendi a
court’s factual findings under the guidelines. Most circuit courts
have adopted this approach. See, e.g., U.S. v. Jones, 245 F.3d
645, 651 (7th Cir. 2001); U.S. v. Sanchez, 242 F.3d 1294, 1299-1300
(11th Cir. 2001); U.S. v. Kinter, 235 F.3d 192, 201-02 (4th Cir.
2000).
CONCLUSION
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Based on the above discussion, we conclude that the
district court’s failure to submit the drug quantity issue to the
jury resulted in reversible plain error, and we REVERSE and REMAND
only for resentencing Travis Randle.
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