UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-31027
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFORD BAPTISTE, CHRISTOPHER FRANK, LeSHAWN PARKER, GARION McCOY,
BRIAN ANTHONY JONES, PERCY FRANKLIN and RICO SCHEXNAYDER,
Defendant-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Eastern district of Louisiana
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ON PETITION FOR REHEARING
October 2, 2002
Before KING, Chief Judge, REAVLEY and JONES, Circuit Judges.
BY THE COURT:
The panel issued an opinion in this case in August 2001.
United States v. Baptiste, et al., 264 F.3d 578 (5th Cir. 2001).
Under Fifth Circuit precedent at the time, we were required to
vacate the defendants’ life sentences and remand the case for re-
sentencing because drug quantity had not been included in the
indictment. The United States filed a petition for rehearing and
requested that the mandate be held until the United States Supreme
Court and the Fifth Circuit sitting en banc resolved similar
Apprendi issues in pending cases. These cases have been decided,
and all parties have submitted supplemental briefs. United States
v. Cotton, 122 S.Ct. 1781 (2002); United States v. Longoria, 2002
WL 1491784, (5th Cir. (Tex.), July 12, 2002).
The petition for panel rehearing is GRANTED.
IT IS ORDERED that the introductory paragraph and
sections II(E), II(F), and III of the original opinion be WITHDRAWN
and that the following be substituted:
EDITH H. JONES, Circuit Judge:
Appellants Clifford Baptiste, Christopher Frank, Percy
Franklin, Brian Jones, LeShawn Parker, Garion McCoy, and Rico
Schexnayder challenge their convictions for firearm and
drug-related crimes. For the following reasons, we affirm their
convictions and sentences on the drug conspiracy counts but vacate
and remand three appellants’ sentences for firearms offenses.
* * * * *
II. DISCUSSION
E. Apprendi issues
By hook and crook,1 all of the appellants contend that
their sentences, which, with the exception of Franklin’s, call for
1
Some of the appellants have raised the issue by adoption of
the others’ briefs.
2
life imprisonment, exceed the statutory maximum of the drug
conspiracy crime of which they were convicted. Their arguments
rely on this court’s interpretation of Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348 (2000), the Supreme Court decision holding
that, “other than 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.” 530
U.S. at 490, 120 S.Ct. at 2362-63.
In this court, drug trafficking crimes defined in 21
U.S.C. § 841 are governed by Apprendi analysis on the theory that
the dramatically tiered sentences for increasing quantities of
illegal drugs enhance the “core” statutory maximum of
§ 841(b)(1)(C). United States v. Doggett, 230 F.3d 160, 163 (5th
Cir. 2000). Consequently, the quantity of drugs should be alleged
in the indictment and proved to the jury beyond a reasonable doubt
if, as here, the government seeks enhanced penalties under
§ 841(b)(1)(A) or (b)(1)(B). Id. at 164-65.
The Fifth Circuit’s early Apprendi decisions had held
that an enhanced sentence under § 841(b) must necessarily be
vacated where the indictment failed to allege drug quantity.
Evidence of drug quantity was not considered relevant to our plain-
error analysis because the defect in the indictment was in some
sense a “jurisdictional error”. This rule has since been
abrogated.
3
The Supreme Court granted certiorari in United States v.
Cotton to resolve “whether the omission from a federal indictment
of a fact that enhances the statutory maximum sentences justifies
a court of appeals’ vacating the enhanced sentence, even though the
defendant did not object in the trial court.” 122 S.Ct. 1781, 1783
(2002). The Court held that indictment omissions are not
“jurisdictional” and that appellate courts should apply plain error
review. Moreover, as is relevant to this case, Cotton makes it
very clear that appellate courts must assess the evidence of drug
quantity in order to determine whether the error “seriously
affect[ed] the integrity, fairness, or public reputation of
judicial proceedings.” Id. at 1785. The Court’s decision in
Cotton fundamentally changed this circuit’s Apprendi jurisprudence.
See United States v. Longoria, --- F.3d --- (5th Cir. 2002)(en
banc).
We turn now to the facts of this case. The indictment
alleges defendants’ involvement in a conspiracy to traffic in
cocaine and cocaine base, but it does not allege the quantity of
drugs. The other counts of the indictment involve serious federal
firearms offenses, but none of them alleges a quantity of drugs
involved in the appellants’ trafficking. Further, while the
evidence at trial abundantly demonstrated that conspiracy members
were selling an ounce of crack cocaine or more every week for
several years, the jury was never asked to find a particular
quantity of drugs. None of the appellants sought jury instructions
4
on drug quantity. Several appellants objected at sentencing that
the element of drug quantity had been neither alleged in the
indictment nor specifically submitted to the jury in their case.
The other appellants did not preserve Apprendi error in the trial
court.
The primary question is whether the life sentences of six
of the defendants – Baptiste, Frank, Schexnayder, Jones, Parker,
and McCoy – must be vacated under Apprendi.2
For the appellants who did not object at trial, Cotton
requires us to apply plain-error analysis and, more specifically,
to assess the evidence of drug quantity to determine whether the
sentencing error seriously affects the integrity, fairness, or
public reputation of the judicial proceedings. If the evidence
supporting the omitted fact is “overwhelming” and “essentially
uncontroverted,” then the error cannot be said to seriously affect
the integrity of the proceedings. Cotton, 122 S.Ct. at 1786.
For the appellants who objected at sentencing, we apply
harmless error analysis.3 The Eleventh Circuit recently decided a
case where the indictment charged the defendant with possession
2
Defendant Franklin’s imprisonment sentence of 240 months
is within the primary statutory limit for his offense and so raises
no Apprendi issue. His enhanced sentence of supervised release
will be discussed below.
3
See Fed. R. Crim. Proc. 52(a)(error must affect
“substantial rights” to cause reversal). In most cases, “the error
must have been prejudicial: It must have affected the outcome of
the district court proceedings.” United States v. Olano, 507 U.S.
725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993).
5
with intent to distribute an unspecified amount of crack cocaine.
The defendant was convicted and sentenced to life imprisonment. At
sentencing, the defendant objected that Apprendi (which had been
decided six days after he was convicted) prevented the district
court from sentencing him to more than the 20-year statutory
maximum imposed by 21 U.S.C. § 841(b)(1)(c). See United States v.
Anderson, 289 F.3d 1321, 1323-25 (11th Cir. 2002). The Eleventh
Circuit held that Apprendi errors are subject to harmless error
analysis because they “do not fall within the limited class of
‘fundamental constitutional errors that defy analysis by harmless
error standards.’” Id. at 1326 (quoting Neder v. United States, 527
U.S. 1, 7, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999)). Anderson
then articulated the harmless error question in this way:
Simply put, the failure to charge or submit to the jury
a specific drug quantity is harmless error under Apprendi
if, by finding the defendant guilty, the jury necessarily
must have found, beyond a reasonable doubt, that a
certain quantity of drugs was involved in the offense.
Put differently, if no reasonable juror could have found
the defendant guilty without also finding that the
specific quantity of drugs was involved, then the
defendant is not entitled to a resentencing.
Anderson, 289 F.3d at 1327.
Whether analyzed under plain error or harmless error
review, the validity of the sentences in this case rests on the
weight of the evidence regarding drug quantity.
For Baptiste, Frank, and Schexnayder to be sentenced to
life imprisonment, the statute required proof that their drug
trafficking crimes involved only five grams or more of cocaine or
6
cocaine base, because the government filed bills of information
alleging their prior drug distribution convictions.4 Jones, Parker
and McCoy, on the other hand, had no history of prior drug
trafficking offenses, and the government had to prove that the
instant crimes involved 50 grams or more of cocaine or cocaine
base.5
With respect to all of the defendants, the evidence
showed that the crack distributed during the period of the
conspiracy far exceeded the quantities necessary to justify their
sentences. Government witnesses Womack and Thompkins provided
evidence of the quantity of the drugs involved. Their testimony
was apparently found credible by the jury, because the jury relied
on their testimony to convict the appellants for using firearms
during and in relation to drug trafficking crimes. Finally,
because the appellants chose as their defense strategy to challenge
the existence of any conspiracy, they did not seriously contest the
testimony concerning the quantity of drugs distributed.
4
Baptiste had personally been arrested by the police twice
and found to possess more than five grams on his person. For the
first time on appeal, Schexnayder asserts that the government erred
in charging that he had been convicted twice before of drug crimes,
thus triggering a life sentence at the level of 5 grams of cocaine
or cocaine base in the instant offense. We review this point under
the plain error standard and find it obviated, at a minimum, by the
fact that 50 grams or more of cocaine or cocaine base were
implicated in the conspiracy.
5
The court made detailed findings substantiating 50 grams
or more in the sentencing hearing by a preponderance of the
evidence, but in light of Apprendi, this procedure was incorrect.
7
In sum, the chances are virtually nil that the jury,
confronted with this testimony about appellants’ long-lasting
conspiracy, would have found that the appellants distributed less
than 50 grams of cocaine or cocaine base. The omission of drug
quantity from the indictment is harmless error (with respect to the
appellants who objected at sentencing) and is not reversible plain
error (with respect to the appellants who did not object). The
life sentences for Baptiste, Frank, Schexnayder, Jones, Parker, and
McCoy are therefore affirmed.
All seven appellants assert Apprendi challenges to their
supervised release terms. The foregoing discussion renders those
challenges meritless.
F. Other sentencing issues
The appellants have raised other sentencing issues as
well. The only issue left unresolved by our discussion of Cotton
concerns the convictions for using or carrying a firearm in the
commission of a drug crime, in violation of 18 U.S.C. § 924(c)(1).
Jones and Parker expressly challenged, and Baptiste
raised the issue by adoption, whether the district court should
have sentenced them to consecutive sentences for multiple uses of
firearms to advance a single drug conspiracy. These three
appellants were convicted of one drug trafficking offense –
conspiracy to distribute crack – but two to four counts of carrying
firearms offenses. As noted in Section I(E), Baptiste, Jones, and
Parker received consecutive sentences for their separate 924(c)
8
violations. Imposing consecutive sentences in these circumstances
is inconsistent with the rule in this circuit that “each firearms
offense [under § 924(c)] must be sufficiently linked to a separate
drug trafficking offense” in order to avoid violating double
jeopardy principles. United States v. Privette, 947 F.2d 1259,
1262-63 (5th Cir. 1991). Accordingly, we vacate the sentences with
respect to the § 924(c) counts and remand for resentencing. See
United States v. Tolliver, 61 F.3d 1189, 1222 (5th Cir. 1995).
* * * * *
III. CONCLUSION
We AFFIRM the appellants’ convictions and their sentences
for the drug conspiracy offenses. We VACATE the sentences of
Jones, Baptiste and Parker for firearms violations and REMAND for
resentencing them on those offenses.
9