UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-30254
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOHNNY CLINTON,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Louisiana
June 27, 2001
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before KING, Chief Judge, DUHÉ and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
This case is on remand from the United States Supreme Court
for further consideration in light of Apprendi v. New Jersey, 120
S. Ct. 2348 (2000). Apprendi was decided after this Court affirmed
criminal defendant Johnny Clinton's drug trafficking convictions
and sentences on direct appeal, see United States v. Reliford, 210
F.3d 285 (5th Cir. 2000), and the arguments presented herein were
not presented to the district court or this Court on initial
appeal. We have, therefore, carefully considered the record in
light of Clinton's arguments on remand and the plain error standard
of review. See United States v. Fort, 248 F.3d 475, 483 (5th Cir.
2001); United States v. Green, 246 F.3d 433, 436 (5th Cir. 2001);
United States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir.), cert.
denied, 121 S. Ct. 301 (2000). Having concluded that review, we
find no remediable error and once again affirm Clinton's criminal
convictions as well as the sentences imposed by the district court.
I.
Clinton was charged in an indictment alleging one count of
conspiracy to distribute cocaine base (crack cocaine), in violation
of 21 U.S.C. § 841(a)(1) and §846, and one count of distribution of
cocaine base (crack cocaine), in violation of 21 U.S.C.
§ 841(a)(1). The matter was tried to a jury, which returned guilty
verdicts on both counts. Clinton was sentenced to 292 months
imprisonment on the conspiracy count, and to 240 months
imprisonment on the distribution count, to run concurrently.
On direct appeal, Clinton challenged the sufficiency of the
evidence to support the jury's verdict. Clinton also challenged
certain factual determinations made by the district court when
applying the sentencing guidelines. Specifically, Clinton
maintained that the district court's factual determinations that
Clinton possessed a dangerous weapon, see U.S.S.G. § 2D1.1(b)(1),
and that Clinton was a leader, manager, or supervisor of the
conspiracy, see U.S.S.G. § 3B1.1, were clearly erroneous. We
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rejected each of these arguments. See Reliford, 210 F.3d at 298-
99, 307-09.
II.
In June 2000, after this Court's mandate issued, the Supreme
Court decided Apprendi. Apprendi extended earlier Supreme Court
holdings in cases like Jones v. United States, 119 S. Ct. 1215
(1999), by holding that any fact, other than the fact of a prior
conviction, that increases the penalty for a crime beyond the
statutory maximum is an essential element of the offense, which
must be charged in the indictment, submitted to the jury, and
proved beyond a reasonable doubt. Apprendi, 120 S. Ct. at 2355;
see also Green, 246 F.3d at 436; United States v. Salazar-Flores,
238 F.3d 672, 673 (5th Cir. 2001); United States v. Doggett, 230
F.3d 160, 164 (5th Cir. 2000), cert. denied, 121 S. Ct. 1152 (2001).
While Apprendi involved a state law hate crime provision, this
Court has squarely held that Apprendi overrules this Court's prior
jurisprudence treating drug quantity as a sentencing factor rather
than as an essential element of the federal drug trafficking
statutes. See Doggett, 230 F.3d at 163-65 (drug quantity is an
essential element when quantity is used to enhance a defendant's
sentence); see also United States v. DeLeon, 247 F.3d 593, 596 (5th
Cir. 2001); Green, 246 F.3d at 436; United States v. Garcia, 242
F.3d 593, 599 (5th Cir. 2001); Salazar-Flores, 238 F.3d at 673;
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United States v. Keith, 230 F.3d 784, 786 (5th Cir. 2000), cert.
denied, 121 S. Ct. 1163 (2001).
Title 21 U.S.C. § 841, the offense provision at issue here,
sets out a list of unlawful acts in § 841(a) and then provides for
a differentiated scheme of penalties in § 841(b), which is tied to
the quantity of drugs, the type of drugs, and other factors. With
respect to the crack cocaine at issue here, § 841(b)(1)(C) provides
for a baseline sentence of up to twenty years for offenses
involving a quantity less than or in circumstances different from
those provided for in other provisions of § 841(b). Subsections
841(b)(1)(A) and (B), on the other hand, permit harsher sentences
on the basis of higher quantities. See § 841(b)(1)(A) & (B).
Applying Apprendi to these provisions, this court has held
that the government may not seek enhanced penalties based upon drug
quantity under 21 U.S.C. § 841(b)(1)(A) or (B) unless that quantity
is charged in the indictment, submitted to the jury, and proved
beyond a reasonable doubt. See Green, 246 F.3d at 436; Doggett,
230 F.3d at 164-65. The Court has tempered that rule, however, by
holding that “when a defendant's sentence does not exceed the
statutory maximum authorized by the jury's findings, Apprendi does
not affect the sentence.” United States v. Garcia, 242 F.3d 593,
599 (5th Cir. 2001); see also Salazar-Flores, 238 F.3d at 673-74;
United States v. Meshack, 225 F.3d 556, 575-76 (5th Cir. 2000),
cert. denied, 121 S. Ct. 834 (2001). The Court has further
tempered that rule by holding that Apprendi does not apply to cases
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“in which a sentence is enhanced within a statutory range based
upon a finding of drug quantity.” United States v. Keith, 230 F.3d
784, 787 (5th Cir. 2000) (emphasis added). Thus, the Court has
expressly rejected the argument that Apprendi applies to
enhancements based upon the sentencing guidelines, whether tied to
quantity or some other relevant fact, which do not cause the
sentence to exceed the statutory range authorized by the jury's
verdict. See Doggett, 230 F.3d at 166. We now turn to an
application of these principles in this case.
III.
Clinton was convicted on two counts; a conspiracy count and a
substantive count of distribution. With respect to the
distribution count, Clinton was charged with distributing “a
quantity of a mixture and substance containing a detectable amount
of cocaine base (crack cocaine).” The jury was not instructed to
find any particular quantity. With respect to the distribution
count, then, the jury's determination of guilt will not support a
sentence in excess of the twenty-year statutory maximum authorized
by 21 U.S.C. § 841(b)(1)(C). Given that Clinton was sentenced to
240 months (20 years) imprisonment on this count, there is no
Apprendi error, plain or otherwise, with respect to the
distribution count of conviction.
With respect to the conspiracy count, Clinton’s
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indictment charged conspiracy “to distribute fifty (50) grams or
more of cocaine base (crack cocaine).” 21 U.S.C.
§ 841(b)(1)(A)(iii) provides that the sentencing range for “50
grams or more” of cocaine base is ten years to life. Clinton was
sentenced to 292 months for conspiracy, which is clearly within the
statutory maximum of life. See DeLeon, 247 F.3d at 597 (“An
indictment’s allegation of a drug-quantity range, as opposed to a
precise drug quantity, is sufficient to satisfy Apprendi and its
progeny.”). There is, therefore, no defect in the indictment.
Clinton's jury was instructed that each defendant was “charged
with conspiracy to distribute fifty (50) grams or more of cocaine
base.” Shortly thereafter, and in the same context, Clinton's jury
was further charged that it could not find Clinton guilty of the
conspiracy unless it found that “[t]wo or more persons, directly or
indirectly, reached an agreement to distribute the controlled
substances described above” (emphasis added). Thus, Clinton's jury
was at least arguably asked to directly find that the conspiracy
involved at least 50 grams or more of cocaine base. When read in
context, we find it likely, even probable, that the jury understood
that it was required to find, and indeed, that it made a finding,
that the conspiracy involved at least 50 grams of cocaine base
(crack cocaine). Apprendi, however, imposes a higher standard.
When drug quantity “is an essential element of the offense,” on the
basis of which the government will seek an enhanced penalty, we
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have stated that the district court should expressly identify drug
quantity as an essential element in its instructions to the jury.
See United States v. Slaughter, 238 F.3d 580, 583 (5th Cir.), cert.
denied, 121 S. Ct. 2015 (2001). We, therefore, find Apprendi error
infecting Clinton's conspiracy conviction on the basis that his
jury, while it may have understood the fact, was not expressly
directed to find beyond a reasonable doubt that the conspiracy
involved 50 grams or more of cocaine base (crack cocaine).
The government basically concedes such error in this case and
argues instead that the error was neither plain nor harmful and,
thus, is not remediable. Without regard to the plainness of the
error, we agree that the error is harmless. The test for
“determining harmlessness when a jury is not instructed as to an
element of an offense is ‘whether the record contains evidence that
could rationally lead to a contrary finding with respect to the
omitted element.'” Green, 246 F.3d at 437 (quoting Neder v. United
States, 119 S. Ct. 1827, 1833-34 (1999)). We have already held and
here reinstate our conclusion that the evidence presented at trial
was sufficient to tie Clinton individually to the conspiracy found
by the jury. The jury convicted Clinton and his co-defendants on
all counts. The quantities involved in the various transactions
alleged by the government to be included in the conspiracy, and
found beyond a reasonable by the jury, far exceeded the fifty-gram
threshold for application of the penalties provided for in
§ 841(b)(1)(A)(iii). There was no testimony at trial and there is
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no evidence in the record tending to exclude sufficient quantities
to bring the quantity involved in the conspiracy to fewer than 50
grams of crack cocaine. To the contrary, the defendants stipulated
that the government had seized more than two hundred grams of
cocaine base (crack cocaine), and the transaction specific
stipulation was not further challenged at trial. Similarly,
although Clinton made other objections to the jury charge, he did
not make any quantity-based objection to the instructions. While
Clinton did make quantity-based objections to the 1,071.63 grams
attributed to the conspiracy in the Presentence Report, none of
those objections would have reduced the drug quantity to less than
fifty grams. Having reviewed the record, we are convinced that it
does not contain any evidence from which a rational juror could
conclude that the conspiracy found by the jury involved less than
50 grams of crack cocaine. For that reason, any Apprendi error
premised upon the jury instructions on the conspiracy count is
harmless.
IV.
Clinton makes several other arguments which are plainly
foreclosed by this Court's precedent. We address these only
briefly, for the purpose of noting that Clinton has preserved the
issue for further review.
Clinton points out that the district court's determination of
quantity and the district court's determinations that Clinton
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possessed a dangerous weapon and occupied a leadership role in the
conspiracy all supported a significant increase in the minimum
sentence to which he was exposed. Clinton then argues that
Apprendi should be construed to apply when facts not charged in the
indictment and found by the jury increase the minimum applicable
sentence, whether by reference to a statutory range or by reference
to the sentencing guidelines.
Clinton finds support for this argument in Justice Thomas's
concurring opinion in Apprendi. See Apprendi, 120 S. Ct. at 2379-
80 (Thomas, J., concurring) (“Those courts, in holding that such a
fact was an element, did not bother with any distinction between
changes in the maximum and the minimum. What mattered was simply
the overall increase in the punishment provided by law.”). With
respect to drug quantity, this is both a statutory and a guideline
based argument because § 841(b)(1)(A) provides a mandatory minimum
of ten years, while § 841(b)(1)(C) provides only for a sentence of
up to twenty years. Clinton emphasizes the broad range of
sentencing discretion vested with the trial judge by the federal
drug trafficking statutes, arguing that this circumstance presents
exactly the evil that a majority of the Apprendi Court found
unlikely to arise in light of political checks against legislative
action designed to give trial judges such unbridled discretion.
See Apprendi, 120 S. Ct. at 2362 n.16. Clinton makes the same
argument with respect to the sentencing guidelines, pointing out
that the district court's factual determinations that he possessed
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a dangerous weapon and that he occupied a leadership role in the
conspiracy significantly increased the minimum sentence to which he
was exposed. Whatever the merits of these arguments, they are
plainly foreclosed by this Court's precedent, which limits Apprendi
error to the situation where proof of a fact, other than the fact
of a prior conviction, increases the penalty for a crime beyond the
statutory maximum penalty otherwise allowed. See, e.g., Doggett,
230 F.3d at 166. Clinton has, however, preserved the arguments for
further Supreme Court review.
CONCLUSION
Defendant Johnny Clinton's convictions for conspiracy to
distribute 50 grams or more of cocaine base (crack cocaine) and for
distribution of crack cocaine and the sentences imposed for those
offenses are in all respects AFFIRMED.
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