United States v. Angle

Rehearing en banc granted by
order filed 1/17/01; published
opinion of 10/12/00 is vacated
 Filed: November 20, 2000

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 96-4662(L)
(CR-94-41-V)

United States of America,

Plaintiff - Appellee,

versus

Corey Angle, et al.,

Defendants - Appellants.

O R D E R

The court amends its opinion filed October 12, 2000, as

follows:

On page 15, second full paragraph, lines 6-7 -- the sentence

is corrected to end “and proven beyond a reasonable doubt.”

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 96-4662

COREY ANGLE,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 96-4672
JAMES EDWARD PHIFER, a/k/a Rick
Daye,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
No. 99-4187
JAMES EDWARD PHIFER, a/k/a Rick
Daye,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-94-41-V)

Argued: October 29, 1999

Decided: October 12, 2000
Before WIDENER and MURNAGHAN,* Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by published opinion.
Senior Judge Michael wrote the opinion, in which Judge Widener
joined.

_________________________________________________________________

COUNSEL

ARGUED: James Frank Wyatt, III, Robert Adams Blake, Jr., LAW
OFFICES OF JAMES F. WYATT, III, Charlotte, North Carolina, for
Appellant Phifer; Thomas Franklin Loflin, III, LOFLIN & LOFLIN,
Durham, North Carolina, for Appellant Angle. Frank DeArmon Whit-
ney, Assistant United States Attorney, Charlotte, North Carolina, for
Appellee. ON BRIEF: Mark T. Calloway, United States Attorney,
Charlotte, North Carolina, for Appellee.

_________________________________________________________________

OPINION

MICHAEL, Senior District Judge:

On December 6, 1994, a federal grand jury in the Western District
of North Carolina indicted defendant-appellant James Edward Phifer
a/k/a Rick Daye ("Phifer") and defendant-appellant Corey Eugene
Angle ("Angle"), with John Henry Angle, Smith L. Turner, and Rob-
ert Lee Smith on one count of conspiracy unlawfully to possess with
intent to distribute, and to distribute, cocaine in violation of 21 U.S.C.
§ 846. All five defendants were also indicted on one count of criminal
forfeiture in violation of 21 U.S.C. § 853. In addition, the grand jury
indicted Phifer on two counts of money laundering under 18 U.S.C.
_________________________________________________________________

* Judge Murnaghan heard oral argument in this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel pursuant to 28 U.S.C. § 46(d).

2
§ 1956 and one count of money laundering forfeiture under 18 U.S.C.
§ 981. The government subsequently moved to supersede the indict-
ment on July 12, 1995 to add an illegal gambling business count
under 18 U.S.C. § 1955 and a firearms count against Phifer. Defen-
dants Turner and Smith entered pleas of guilty to count one of the
indictment.

The jury trial of the three remaining defendants, Phifer, Angle, and
John Henry Angle, began on October 23, 1995. After the government
and the defense completed their cases, the district court ruled that the
drug conspiracy count against all three defendants, as well as the two
money laundering counts against Phifer, should go to the jury. The
forfeiture matters, i.e. the count of criminal forfeiture as to all five
defendants and the count of money laundering forfeiture under 18
U.S.C. § 981 against Phifer, were bifurcated to await the resolution of
the remaining counts by trial. The jury found both Phifer and Angle
guilty of the count of drug conspiracy, found Phifer guilty of both
counts of money laundering, and acquitted John Henry Angle of the
count of drug conspiracy. On August 19, 1996, the district court sen-
tenced Phifer to 292 months in custody and Angle to 210 months.

This court has jurisdiction to hear the appeal of this matter pursuant
to 28 U.S.C. § 1291. On appeal, the defendants make numerous chal-
lenges to their convictions and sentences. After carefully considering
the record in this case, the briefs, and the parties' arguments, this
court affirms the district court in part and vacates and remands in part,
for the reasons set out below.

I.

A. THE TRIAL

After seven days of testimony, a jury convicted Phifer and Angle
of conspiracy to possess with the intent to distribute, and to distribute,
cocaine. The jury also convicted Phifer of two counts of money laun-
dering pursuant to 18 U.S.C. § 1956 and ordered the forfeiture of his
residence for its use in facilitating drug trafficking.

During the trial, eight eyewitness co-conspirators testified against
Phifer: Larry Reginald Cartledge, Robert Lee Smith, J. Lee Sturgis,

3
Robert "Snake" Chambers, Perry Jerome Knox, George Allen Scott
Redman, Robert Lee Griffin, and Earl Leslie Gray. Five eyewitness
co-conspirators testified against Angle: J. Lee Sturgis, Robert "Snake"
Chambers, Robert Lee Griffin, Linda Peak Walker, and Earl Leslie
Gray. In addition to the eyewitness testimony, numerous law enforce-
ment officers testified about searches and undercover operations
including: (1) the discovery of $14,000 in currency and an Uzi pistol
in Phifer's bedroom in 1987, (2) the discovery of Phifer's palmprints
on a container of cocaine in 1988, (3) a sting operation witnessed by
an undercover agent in 1990 where Phifer sold cocaine to an infor-
mant, (4) the seizure of $8500 in currency and a .38 caliber pistol
from Angle during a takedown and arrest on March 1, 1993, (5) a pen
register and long distance phone calls in 1993-94, (6) tax information
and employment security records showing that Phifer and Angle had
insufficient legitimate or reported income to support their standard of
living, (7) the discovery of marked drug money in Angle's bedroom
dresser, and (8) the seizure of assault weapons, pistols, and scanners
on December 14, 1994.

The prosecution supported this testimony regarding the drug con-
spiracy with evidence of Phifer's laundering of his drug money into
the purchase of two different vehicles in 1990, titling a red 1984 Cor-
vette in his brother's name, titling a 1955 Chevy pickup truck in his
mother's name, and switching the tags on the Chevy pickup truck.

1. Cocaine Conspiracy Evidence

Beginning as early as March of 1987 when law enforcement offi-
cers searched Phifer's bedroom, and continuing until the date of their
arrest on December 14, 1994, Phifer and Angle were central players
in a cocaine and crack conspiracy operating in both Iredell and
Rowan counties in mid-western North Carolina, particularly in and
around the city of Statesville and the town of Cleveland. Over the
eight-year period, the conspiracy involved as many as a dozen differ-
ent conspirators and as much as thirty kilograms of powder cocaine
and three kilograms of crack. Local authorities profiled Phifer as a
major cocaine conspirator sometime in 1987; authorities believed
Angle entered the conspiracy as early as 1990.

Without setting out that testimony witness by witness, consider-
ation of the record reveals eyewitness testimony and corroborating

4
evidence of actual drug transactions involving Phifer and Angle on
various occasions, in sum extending over a period of years. The
record testimony is also complete from an eyewitness seller who sold
the two vehicles to Phifer. An eyewitness testified that Phifer often
hid the cocaine in a can or similar container. There was direct evi-
dence of Phifer carrying a pistol, and evidence of seeing a pistol in
the laundry room of Phifer's residence during one of the drug deals.
In addition, there was evidence of marked money being used in a drug
deal and being found thereafter in a dresser drawer in Angle's resi-
dence.

Additionally, the prosecution introduced evidence buttressing the
testimony of the eyewitnesses, including the incriminating evidence
found in executing search warrants, palm prints of Phifer on a jar con-
taining crack cocaine, sting operations, a search of Angle and his car,
various income tax returns, pen registers, $2150 of marked money in
a sum of $8099 found in Angle's bedroom during execution of a
search warrant, and seizures of various weapons, two police scanners,
and $2000 in currency found in executing a search of Phifer's bed-
room. All this evidence tended to one degree or another to corroborate
and state in greater detail the evidence of the various eye witnesses.

2. Money Laundering Evidence

In the summer of 1990, well within the time frame of the drug con-
spiracy, Phifer purchased two vehicles from co-conspirator Larry
Cartledge - a red 1984 Corvette and a 1955 Chevy pickup truck.
Phifer titled the two cars in the names of his mother and brother,
respectively. In the case of the 1955 Chevy pickup, Phifer apparently
purchased a second 1955 Chevy pickup and switched license tags to
prevent authorities from tracing the car. The jury found that the trans-
actions were designed in part to conceal the fact that he was the true
owner of the vehicles and convicted Phifer of both counts of launder-
ing monetary instruments.

B. SUPPRESSION HEARING

During the trial, it became apparent that there was an error in the
search warrant affidavit, leading Angle's counsel to move to suppress
all evidence and the fruits thereof discovered during the search. The

5
court interrupted the trial and held an extensive suppression hearing.
That hearing revealed that the warrant named a trailer to be searched
which was not in fact the one intended to be searched, though the two
trailers were located in close proximity to one another. The intended
trailer was in fact the one that was searched, and the one in which
incriminating evidence was found.

The court found that an innocent mistake had been made in the
affidavit for the search warrant, stemming from problems associated
with communications between law enforcement agencies in States-
ville, and Cleveland, North Carolina, and the Rowan and Iredell
Counties' Sheriff's Offices, all of which agencies were attempting to
keep informed as to the search and its progress.

The court concluded that the mistaken identity of the trailer was an
honest error, that the affidavit had been prepared and tendered in good
faith, that the trailer intended to be searched was in fact the trailer
which was searched, was the trailer occupied by Corey Angle, the
intended target of the search, and was the trailer in which incriminat-
ing evidence was found.

The court concluded that the suppression motion should not be
granted.

C. SENTENCINGS

Both Phifer and Angle were sentenced on August 19, 1996, and the
district court filed their judgment and commitment orders on Septem-
ber 23, 1996. At both sentencing proceedings, the government relied
on a thorough and detailed presentence report ("PSR") prepared by
Probation Officer Christine S. Nickel. The presentence reports' esti-
mates of the drug quantities and drug types reasonably foreseeable to
both Angle and Phifer were based on systematic analyses of the testi-
mony of the witnesses and the admitted evidence.

At Phifer's sentencing, the district court accepted the PSR's total
offense level of 40 (a base offense level of 38 for the drug quantity
with a two-point enhancement for possession of a firearm). The dis-
trict court reduced the criminal history category to Category I from

6
the PSR's recommendation of Category II. Phifer faced an adjusted
sentencing range of 292 to 365 months and the district court sen-
tenced him to 292 months.

At Angle's sentencing, the district court reduced the recommended
base offense level from 38 to 34. With a two-point enhancement for
the possession of a firearm, Angle's total offense level was 36. The
government conceded to a criminal history category reduction from
Category III to Category II because of confusion over Angle's crimi-
nal record. This reduced Angle's sentencing range from 360 months
to life to 210 to 262 months. The district court sentenced Angle to 210
months.

On August 26 and 27, 1996, Angle and Phifer, respectively, filed
timely notices of appeal of their convictions and sentences. On March
20, 1998 and again on March 3, 1999, the district court denied
Phifer's motions for a new trial. Also on March 3, 1999, Phifer noted
his appeal of the district court's denial of his new trial motions.

On appeal, the defendants make various challenges to their convic-
tions and sentences. First, Phifer alleges that the district court abused
its discretion in failing to instruct the jury on the statute of limitations
issue regarding the drug conspiracy. Second, Angle alleges that the
district court committed reversible error in denying his motion to sup-
press evidence derived from a search of his residence. Third, Angle
contends that the district court erred in admitting into evidence photo-
copies of marked currency. Fourth, Phifer argues that the district court
was clearly erroneous when it failed to make specific findings in
determining the drug quantity and drug type attributed to Phifer at his
sentencing. Finally, Angle also alleges that the district court erred in
determining the drug quantity and drug type attributed to Angle at his
sentencing. Again, after carefully considering the record in this case,
the briefs, and the parties' argument, this court affirms the district
court's rulings in part but vacates and remands in part with respect to
Phifer and Angle's sentencings.

II.

Defendant Phifer first contends that the district court erred in fail-
ing to instruct the jury on the statute of limitations on the drug con-

7
spiracy charge. A district court's refusal to charge the jury on an
instruction requested by a defendant constitutes reversible error only
when the requested instruction: (1) is correct, (2) is not substantially
covered by the court's charge to the jury, and (3) deals with some
point in the trial so important that failure to give the requested instruc-
tion seriously impairs the defendant's ability to conduct his defense.
See United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995). Further,
for a court's refusal to give an instruction that involves a theory of
defense to be reversible error, there has to be a foundation in the evi-
dence for that theory. See Matthews v. United States, 485 U.S. 58, 63
(1988); United States v. Hicks, 748 F.2d 854, 857 (4th Cir. 1984).

Phifer argues that the issue of whether an offense occurred within
the statute of limitations period is an issue for the jury to decide. By
failing to instruct the jury on the statute of limitations, Phifer argues,
he was deprived of his ability to argue a key theory of his defense -
that if the drug conspiracy existed at all, it had terminated more than
five years before December 6, 1994.

The statute of limitations for a conspiracy charged pursuant to 21
U.S.C. § 846 is five years. See 18 U.S.C. § 3282. The government,
however, is not required to prove an overt act to demonstrate the exis-
tence of a § 846 conspiracy. See United States v. Shabani, 513 U.S.
10, 15 (1994). "A conspiracy is deemed to continue as long as its pur-
poses have neither been abandoned nor accomplished, and no affirma-
tive showing has been made that it has terminated." United States v.
Arnold, 117 F.3d 1308, 1313 (11th Cir. 1997).

In the present case, the district court expressly instructed the jury
that to convict Phifer of Count I, the drug conspiracy charge, it
"should first determine whether or not the conspiracy existed as
alleged." (J.A. 632.) Because Count I alleged that the conspiracy
existed from 1987 through "the present" - or the date of the original
indictment, December 6, 1994 - and because the prosecution occurred
within the five year period following December 6, 1994, it is not
barred by any statutory limitation. The district court's instructions,
taken as a whole, covered the point of law which Phifer complains the
district court misinstructed. Phifer's allegation of error is without
merit.

8
III.

Defendant Corey Angle contends that the district court erred in
failing to suppress the evidence discovered during a search of his
home pursuant to a search warrant. Specifically, he sought to suppress
the photocopy of the money seized which had been found in his
dresser drawer. Angle contends that the officer knowingly made
materially false representations to the issuing magistrate regarding the
mobile home to be searched.

As set forth above, at the suppression hearing during the middle of
trial, the district court denied Angle's motion to suppress and was cor-
rect in doing so. In United States v. Leon, 468 U.S. 897 (1984), the
United States Supreme Court established the good faith exception to
the exclusionary rule. The Supreme Court held that"the marginal or
nonexistent benefits produced by suppressing evidence obtained in
objectively reasonable reliance on a subsequently invalidated search
warrant cannot justify the substantial costs of exclusion." Id. at 922.
Nevertheless, the Court found that an "officer's reliance on the magis-
trate's probable-cause determination and on the technical sufficiency
of the warrant he issues must be objectively reasonable, and it is clear
that in some circumstances the officer will have no reasonable
grounds for believing that the warrant was properly issued." Id. at
922-23 (citations omitted).

None of the four situations outlined in Leon which would cause an
officer's reliance on the validity of a search warrant to be unreason-
able is applicable under the facts of this case. See id. at 923.

Under Leon, the proper test of an officer's good faith is "whether
a reasonably well trained officer would have known that the search
was illegal despite the magistrate's authorization." Id. at 922 n.23.
This objective test requires a determination of the knowledge of a rea-
sonable officer, not an examination of an officer's subjective motives.
See United States v. Clutchette, 24 F.3d 577, 582 (4th Cir. 1994);
United States v. George, 971 F.2d 1113, 1123 (4th Cir. 1992). Here,
the officer's actions in applying for and executing the challenged
search warrant fall under Leon's good faith exception to the exclu-
sionary rule.

9
As the district court found, it was objectively reasonable under the
circumstances for the officer to have believed he had described the
correct mobile home to search, and he did in fact search the correct
mobile home. The officer knew that Angle was the target of the sting,
and knew where Angle's mobile home was located. The district
court's denial of Angle's motion to suppress is affirmed.

IV.

Corey Angle also contends that the district court erroneously
admitted into evidence photocopies of marked money given to the
undercover agent and of the seized money from the dresser drawer in
Angle's residence under the best evidence rule. This court reviews the
district court's evidentiary rulings for abuse of discretion. See Super-
market of Marlinton, Inc. v. Meadow Gold Dairies, Inc., 71 F.3d 119,
126 (4th Cir. 1995).

The best evidence rule requires the admission of the"original" of
a "writing" or "recording" to prove the content of the writing or
recording. See Fed. R. Evid. 1002. The best evidence rule, however,
also permits the admission of duplicates "unless (1) a genuine ques-
tion is raised as to the authenticity or continuing effectiveness of the
original or (2) in the circumstances it would be unfair to admit the
duplicate in lieu of the original." Fed. R. Evid. 1003.

The photocopy of the marked money that the detective made before
she turned the money over to the undercover officer for use in the
sting operation was the actual piece of evidence that she kept in her
custody. She photocopied the $2400 and, in her own handwriting,
wrote the date of July 15, 1994, on the photocopy. After she gave the
money to the undercover officer, she faxed her photocopy to the
Rowan County Sheriff's Office, and also gave to that office another
copy of the original photocopy.

Both the fax and the extra copy were used to compare the serial
numbers of the money seized from Corey Angle's dresser drawer with
the serial numbers of the money that was turned over to the under-
cover officer for use in the sting operation. On $2150 of the $2400,
the serial numbers were identical. Before the seized money was trans-

10
ferred, a photocopy of the seized money was made to keep for the
records of the transferring office.

The photocopy identified and introduced at trial as Exhibit 30 was
in fact the "original" document that the detective used to convey the
serial numbers of the marked money. Thus, the original writing as
prepared by the detective, the photocopy of the marked money with
the date written on the photocopy, was properly introduced into evi-
dence and the trial court did not abuse its discretion.

Angle has not raised any question of doubt about the authenticity
or accuracy of the photocopy of the seized money, labeled Exhibit 35
at trial, but rather has claimed that its use at trial was "unfair" because
the jury was not able to view the actual money. The actual seized cur-
rency was not available for admission at Angle's trial because it had
been returned to the Iredell County Sheriff in the normal course of
business six months after the seizure. There was never any dispute
about whether the money was handled correctly or any dispute about
a chain of custody on any of the photocopies. After the money was
back in the hands of the Iredell County Sheriff's Department, months
after the sting operation was complete, the money was placed back
into official use in other undercover operations and therefore was not
available for display at trial. Angle did not identify any prejudice that
resulted from the district court's admission of Exhibit 35, other than
the blanket assertion that the admission was "unfair." Exhibit 35 was
properly introduced into evidence and the trial court did not abuse its
discretion. The evidentiary rulings of the district court are affirmed.

V.

Both Phifer and Angle challenge the district court's findings in
determining the drug quantity and drug type attributed to each of
them at sentencing. Angle invokes the new Supreme Court case of
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), as authority for the
proposition that the judicial finding at sentencing of Angle's base
offense level of 34 is inappropriate because corresponding facts nec-
essary to support such a finding were not alleged in the indictment.
Apprendi governs this case as to both defendants because Apprendi
was decided while this case was on direct review. See Teague v. Lane,
489 U.S. 288, 303-04 (1989).

11
The Court announced as a constitutional rule in Apprendi a princi-
ple that had been suggested as one in Jones v. United States, 526 U.S.
227, 243 n.6 (1999) [hereinafter Jones I] (questioning constitutional-
ity of enhancing penalties through judicial findings by a preponder-
ance of the evidence). In Apprendi, the Supreme Court held, "Other
than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be sub-
mitted to a jury, and proved beyond a reasonable doubt." 120 S. Ct.
at 2362. Under Apprendi, sentencing factors that support a specific
sentence within the statutorily prescribed penalty range are still prop-
erly submitted to a judge to be found by a preponderance of the evi-
dence. See id. at 2359 n.11.

In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the Court first
coined the term "sentencing factor" as distinct from an element of a
crime: the former being something not found by a jury but affecting
the sentence imposed by the judge. See Apprendi, 120 S. Ct. at 2360.
Every element of a crime must be proven to a jury beyond a reason-
able doubt. See United States v. Gaudin, 515 U.S. 506, 510 (1995),
cited in Apprendi, 120 S. Ct. at 2356. In announcing the rule in
Apprendi, the Court specifically noted that Apprendi neither overrules
McMillan, see 120 S.Ct. at 2361 n.13, nor makes the term "sentencing
factor" devoid of meaning, see id. at 2365 n.19. Ultimately, a court
may still consider aggravating and mitigating factors that support a
specific sentence within the statutorily prescribed range when sen-
tencing a defendant, so long as the sentence imposed is not greater
than the maximum statutory penalty for the statutory offense estab-
lished by the jury's verdict. See id.

Turning to the present matter, the issue presented is whether the
different drug quantities attributed to Phifer and Angle at sentencing
were elements that should have been proven to a jury beyond a rea-
sonable doubt, or sentencing factors that were properly found by the
district court judge by a preponderance of the evidence. In order to
put the inquiry into perspective, a brief review of the relevant federal
drug statutes is appropriate.

Phifer and Angle were convicted of The Attempt and Conspiracy
statute, 21 U.S.C. § 846, which makes the penalty for conspiring to
commit certain offenses the same as the penalty for those offenses.

12
Generally, 21 U.S.C. § 841(a) defines the crime that was the object
of the conspiracy: namely, making it unlawful for any person, know-
ingly or intentionally, to manufacture, distribute, or dispense con-
trolled or counterfeit substances. The penalties for violating § 841(a)
are set forth in 21 U.S.C. § 841(b), which lists terms of imprisonment
in § 841(b)(1)(A)-(D). The fallback imprisonment penalty for certain
drug types is § 841(b)(1)(C), which states that "In the case of a con-
trolled substance in schedule I or II . . . except as provided in subpara-
graphs (A), (B), and (D), such person shall be sentenced to a term of
imprisonment of not more than 20 years. . . ." Thus, under
§ 841(b)(1)(C), regardless of the quantity of schedule I or II drug, a
defendant convicted of a violation of § 841(a) is eligible for a term
of imprisonment ranging from zero to twenty years. 1 In the other pen-
alty sections of § 841(b)(1), the term of imprisonment is linked to
quantity of drugs. For example, in § 841(b)(1)(A), based on a finding
of a particular amount of drugs, the term of imprisonment ranges from
ten years to life.

Historically, this court and all of her sister circuits have held that
drug quantity is a sentencing factor, not an element of the crime. See
United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989); United
States v. Thomas, 204 F.3d 381, 384 (2d Cir. 2000); United States v.
Hester, 199 F.3d 1287, 1291 (11th Cir. 2000); United States v. Wil-
liams, 194 F.3d 100, 107 (D.C. Cir. 1999); United States v. Mabry,
3 F.3d 244, 250 (8th Cir. 1993); United States v. Underwood, 982
F.2d 426, 429 (10th Cir. 1992); United States v. Moreno, 899 F.2d
465, 472-73 (6th Cir. 1990); United States v. Barnes, 890 F.2d 545,
551 n.6 (1st Cir. 1989); United States v. Gibbs, 813 F.2d 596, 599-
600 (3d Cir. 1987); United States v. Morgan, 835 F.2d 79, 81 (5th
Cir. 1987); United States v. Normandeau, 800 F.2d 953, 956 (9th Cir.
1986). After the Supreme Court noted in Jones I that precedent sug-
gested that any fact, other than prior conviction, that could increase
the penalty beyond the statutory maximum penalty, must be charged
_________________________________________________________________

1 The court notes that, although § 841(b)(1)(C) authorizes imprison-
ment for not more than thirty years where death or serious bodily injury
occurs and in particular cases of recidivism, these are not issues in the
present case and the court does not address how Apprendi may apply in
such cases. Accordingly, in this opinion the court refers to the statutory
maximum of § 841(b)(1)(C) as not more than twenty years.

13
in the indictment, submitted to a jury, and proven beyond a reason-
able doubt, see 526 U.S. at 243 n.6, circuit courts applying Jones I
interpreted this opinion as a suggestion rather than an absolute rule.
Thus, they continued to view drug quantity as a sentencing factor.
See, e.g., United States v. Thomas, 204 F.3d 381, 384 (2d Cir. 2000)
(holding that notwithstanding Jones I, drug quantity remains a sen-
tencing factor); United States v. Williams, 194 F.3d 100, 107 (D.C.
Cir. 1999) (maintaining precedent that drug quantity is a sentencing
factor because "Jones [I] never ultimately resolved the constitutional
doubts it raised"). Of particular interest is the Tenth Circuit case of
United States v. Jones [hereinafter "Circuit Jones"], which analyzed
the issue of drug quantity in light of the Supreme Court Jones I, hold-
ing "Because Jones [I] `suggests' rather than establishes a new princi-
ple of constitutional law, 119 S.Ct. at 1224 n.6, we adhere to the
doctrine of stare decisis and decline to reexamine whether the penalty
provisions of § 841(b)(1) violate the Fifth and Sixth Amendments."
Circuit Jones, 194 F.3d 1178, 1186 (10th Cir. 1999), vacated, Jones
v. United States, 120 S. Ct. at 2739 (2000)[hereinafter Jones II]. In
Jones II, the Supreme Court vacated the judgment of Circuit Jones
and remanded for further consideration in light of Apprendi. See
Jones II, 120 S.Ct. 2739. The Supreme Court's remand of Circuit
Jones indicates the possible or even likely view of the Court that
Apprendi does change the traditional interpretation that drug quantity
is always a sentencing factor.

One of the traditional reasons for refusing to consider quantity as
an element of a drug offense was based on the determination that, by
listing the quantities in 21 U.S.C. § 841(b), labeled "penalties," rather
than in 21 U.S.C. § 841(a), entitled "unlawful acts," Congress
intended quantity to be a sentencing factor, not an element of the
crime. However, the Court in Apprendi made clear that labels are an
unacceptable solution to making the "constitutionally novel and elu-
sive distinction between `elements' and `sentencing factors.'" 120
S.Ct. at 2365 (citations omitted); see also Jones I, 526 U.S. at 233
("The `look' of the statute . . . is not a reasonable guide to congressio-
nal intentions."). The Court further explained, "the relevant inquiry is
one not of form, but of effect--does the required finding expose the
defendant to a greater punishment than that authorized by the jury's
guilty verdict?" Apprendi, 120 S.Ct. at 2365. Accordingly, for the
present matter, if the findings of particular drug quantities expose the

14
defendants to sentences greater than authorized by the jury's verdict
of guilty under 21 U.S.C. § 846, then the requirement of Apprendi has
not been satisfied.

Phifer and Angle's convictions for violating § 846 make the penal-
ties listed in § 841(b) applicable to them. There was no drug quantity
charged in the indictment (J.A. 52) or submitted to the jury (J.A. 626-
27). Accordingly, applying Apprendi, the jury's finding of a violation
of § 846 authorizes sentences for the defendants under § 841(b)(1)(C)
to terms of not more than twenty years.

Pursuant to Apprendi, in order for imprisonment penalties under
§ 841(b)(1)(A) or (B) to apply to the defendants, such that findings
of particular drug quantities could expose them to imprisonment
terms greater than § 841(b)(1)(C)'s catch-all statutory maximum of
twenty years, the drug quantity must be treated as an element: charged
in the indictment, submitted to a jury, and proven beyond a reason-
able doubt. Where no drug quantity is charged in the indictment or
found by a jury, but a jury has found a violation of § 841(a), the stan-
dard statutory term of imprisonment is not more than twenty years.
See § 841(b)(1)(C). In these cases, where the quantity is not charged,
the drug amount is still a proper aggravating or mitigating factor to
be considered by the judge in determining a sentence at or below the
statutory maximum sentence. See Apprendi, 120 S. Ct. at 2359 n.11.
Thus, the judge still may determine the amount of drugs by a prepon-
derance of the evidence for the purposes of calculating the offense
level and relevant conduct under the United States Sentencing Guide-
lines. However, if the determination of the judge with respect to quan-
tity leads to a suggested sentence range under the Sentencing
Guidelines that is greater than the twenty year statutory maximum,
the judge only may sentence at or below the statutory maximum pen-
alty, i.e. not more than twenty years. See U.S.S.G. § 5G1.1(a).

Angle received a sentence of 210 months for his violation of § 846.
(J.A. 512.) Because Angle's sentence is not more than twenty years,
the sentence comports with § 841(b)(1)(C), which is the applicable
penalty for this case, as explained above. Contrary to Angle's position
on appeal, consideration by the district court judge of the quantity of
drugs in determining the appropriate sentence at or below the statu-
tory maximum was proper under Apprendi, also explained above.

15
However, notwithstanding the finding that the district court was in
compliance with Apprendi when it sentenced Angle, as detailed in the
following section of the opinion, the district court must make addi-
tional findings with respect to Angle's sentence. See infra Part VI.

Phifer received a sentence of 292 months for his violation of § 846.2 2
(J.A. 504-05.) The court rejects Phifer's challenge to the district
court's attribution of drug quantities, finding that the district court's
attribution of quantities meriting a base offense level of 38 was
proper. Thus, with respect to Phifer, the district court properly found
a quantity of drugs that directed a sentence under the guidelines in the
range of 292 to 365 months. However, by sentencing Phifer to 292
months, it is clear that the district court did not sentence Phifer in
accordance with the applicable statutory penalty of § 841(b)(1)(C), as
explained above, which authorizes a term of imprisonment not more
than twenty years. Rather, the district court's findings with respect to
quantity make it likely that the defendant was sentenced under
§ 841(b)(1)(A), which authorizes a maximum term of life imprison-
ment. This court notes that, because the district court did not have
benefit of Apprendi, the district court was reasonable, and followed
this court's precedent, when the district court considered its findings
of drug quantities attributable to Phifer a sentencing factor, thereby
sentencing Phifer under § 841(b)(1)(A). However, this court's rule of
Powell, 886 F.2d at 85, and its progeny, that drug quantity is a sen-
tencing factor that may be proven by a preponderance of the evidence,
must be abandoned to the extent that the rule is inconsistent with
Apprendi. See, e.g., United States v. Aguayo-Delgado, 220 F.3d 926
(8th Cir. 2000) (abandoning Eighth Circuit law upholding drug quan-
tity as sentencing factor to the extent it does not comport with
Apprendi). In light of Apprendi, drug quantity is an element of
§ 841(b)(1)(A), because § 841(b)(1)(A) allows findings of quantity to
expose defendants to greater penalties than the maximum penalties
authorized in the fallback penalty provision for schedule I and II drug
offenses, § 841(b)(1)(C).
_________________________________________________________________

2 Phifer also was sentenced to 240 months on each count under 18
U.S.C. § 1956 (a)(1)(B)(i), to run concurrently with one another and with
the sentence for the drug count. (J.A. 504-05.) These sentences are unaf-
fected by this decision.

16
The district court's finding of the quantity of drugs attributable to
Phifer suggested a term of imprisonment under the Sentencing Guide-
lines that increased Phifer's term of imprisonment beyond the appli-
cable statutory maximum. Under Apprendi, such factor must be found
by a jury beyond a reasonable doubt if it is to be acted upon, or, pur-
suant to U.S.S.G. § 5G1.1(a), the statutory maximum shall be consid-
ered the guideline sentence. Although the district court judge did not
have the benefit of Apprendi at the time of sentencing, the error of
exceeding the twenty year statutory maximum is not harmless and
must be corrected on re-sentencing. Phifer's sentence for the convic-
tion of § 846 is vacated in light of Apprendi and the case is remanded
for re-sentencing consistent with this opinion.

VI.

Finally, defendant Angle contends that his sentence should be
vacated and his case remanded for re-sentencing with instructions that
the district court make specific findings of fact proved by a prepon-
derance of the evidence as to the type and amounts of cocaine attrib-
utable to him. The PSR recommended that Angle be held responsible
for at least 6.5 kilograms of cocaine powder and 3 kilograms of
cocaine base, having a marijuana equivalency of 61,300 kilograms.
Angle's PSR contains the exact same factual findings as the PSR
compiled for Phifer, including reference to "several individuals previ-
ously prosecuted for illegal drug distribution" who named Phifer as
their source of cocaine, a description of how their testimony resulted
in the number of grams of cocaine attributed to Phifer by Special
Agent Boone, and specific references to the testimony of Earl Gray.
(J.A. 664.) The PSR determined that Angle's base offense level is 38.

Angle objected to the findings in the PSR with respect to its drug
quantity determination, arguing that the testimony by the govern-
ment's witnesses was unreliable. At his sentencing hearing, the dis-
trict court heard argument from Angle challenging the drug quantity
determination and the evidence relied upon by the probation officer
in making those determinations. After hearing the response of the
government, the district court stated that "on examination of the evi-
dence and the preponderance thereof, the Court finds the amount of
drugs attributable to the Defendant in this matter would give him a
Level 34 base level instead of 38. Consequently, that changes the

17
Guidelines." (J.A. 456.) In its "Statement of Reasons" form attached
to Angle's criminal judgment, the district court stated it adopted the
factual findings and guideline application in Angle's PSR except that
it sustained "defendant's objection to drug quantity and finds a base
offense level of 34 rather than 38; finds criminal history category III
overstates defendant's history and finds appropriate Criminal History
to be II." (J.A. 517-18.)

Unlike at Phifer's sentencing, the district court did not impliedly
adopt the factual findings in the Angle's PSR regarding attributable
drug weight, but instead determined that Angle deserved a lower base
offense level than recommended in the PSR. However, the court did
not specify the exact quantity nor the identity of the drugs involved,
nor how it came to the conclusion that the defendant should have a
base offense level of 34. Thus, with respect to defendant Angle, this
court cannot conduct an effective appellate review of the district
court's drug quantity determinations according to the proper stan-
dards. See, e.g., United States v. Cook, 76 F.3d 596, 604 (4th Cir.
1996) (holding government has burden of proof at sentencing to
establish drug quantities attributed to a defendant by a preponderance
of the evidence); United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.
1996) (base offense level in a drug conspiracy case is determined by
the amount of drugs "reasonably foreseeable . . . within the scope of
[the] unlawful agreement"); United States v. Uwaeme, 975 F.2d 1016,
1018-19 (4th Cir. 1992) (holding accuracy is important but mathemat-
ical precision is not required when determining reasonable approxi-
mation of drug quantity for sentencing). This court remands the case
so that the district court can make the required factual findings with
respect to defendant Angle and the drug types and quantities attribut-
able to him.

VII.

Upon review of the record in this case, the briefs, and the parties'
argument, this court concludes that the district court did not abuse its
discretion in failing to instruct the jury on the statute of limitations
issue regarding the drug conspiracy. Second, the district court did not
commit reversible error in denying defendant Angle's motion to sup-
press evidence derived from a search of his residence. Third, the dis-
trict court did not err in admitting into evidence photocopies of

18
marked currency and seized currency. Fourth, although the district
court properly attributed drug quantities to Phifer establishing a base
offense level of 38, it is error under Apprendi to allow judicial find-
ings of quantity to cause the penalty to exceed the applicable statutory
maximum penalty. Accordingly, Phifer's sentence with respect to the
§ 846 conviction must be vacated and remanded for re-sentencing in
light of Apprendi and in accordance with this opinion. Finally, the
district court failed to determine the drug quantity and drug type attri-
buted to Angle at his sentencing. Defendant Angle's case is remanded
to the district court to make the necessary findings as to drug quantity
and type.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED

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