IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20783
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ROY WHITE, also known as Pumpkin, also known as Derrick
Gilford,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(99-CR-628)
October 17, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
James White appeals the sentence imposed following his
conviction for possession with intent to distribute more than 50
grams of cocaine base and conspiracy to possess with intent to
distribute more than 50 grams of cocaine base in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). He argues that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
district court, in light of Apprendi v. New Jersey,1 erred in
refusing to instruct the jury to find that a specific quantity of
drugs was involved that would support his sentence. Finding the
Apprendi error, however plain, to be harmless, we AFFIRM.
I
White’s arrest and conviction results from an undercover
operation during which law enforcement officers infiltrated a crack
cocaine trafficking ring that involved White, Anthony Wayne Clark,
and Shawn Allen Glover. Houston Police made undercover purchases
of crack on several occasions from these individuals for several
months leading up to October 1998. On October 7, 1998, Clark
agreed to sell 18 “cookies” of crack to an officer for $11,000.2
White supplied 14 of these “cookies” for the October 7 sale. White
was arrested at the scene of the sale along with Clark (Glover
escaped). A bag of crack was thrown by Glover under Clark’s car,
but it was retrieved by the police. The bag contained 387.6 grams
of crack.
White was convicted on both counts after a three-day trial
that began on March 6, 2000. Owing to his prior convictions, White
1
530 U.S. 466 (2000).
2
Each “cookie” weighed between 20 and 28 grams.
2
received concurrent life sentences followed by 10 years of
supervised release.
II
Since White’s sentence is within the permitted range of the
statute under which he was indicted,3 the only Apprendi error in
this case (and the only Apprendi error White argues on appeal)
arises from the district court’s failure to instruct the jury on
the issue of drug quantity. “[I]f the government seeks enhanced
penalties based on the amount of drugs under 21 U.S.C. §
841(b)(1)(A) or (B), the quantity must be stated in the indictment
and submitted to a jury for a finding of proof beyond a reasonable
doubt.”4 The specification of a drug quantity range in the
indictment is sufficient to satisfy Apprendi.5
Since White did not object to the jury instruction at trial,
our review here is for plain error.6 In order for us to reverse we
must find “(1) an error; (2) that is clear or plain; (3) that
affects the defendant’s substantial rights; and (4) that seriously
affects the fairness, integrity, or public reputation of judicial
3
21 U.S.C. § 841(b)(1)(A).
4
United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000).
5
United States v. DeLeon, 247 F.3d 593, 597 (5th Cir. 2001).
6
United States v. Delgado, 256 F.3d 264, 280 (5th Cir. 2001).
3
proceedings.”7 The failure to instruct the jury on drug quantity
was erroneous,8 as the Government admits.
We have consistently found the Apprendi error present here to
require that the defendant’s sentence be vacated unless the error
is harmless.9 While a failure to allege a drug quantity in the
indictment will usually require reversal,10 the mere failure to
properly instruct the jury regarding drug quantity is subject to
harmless error analysis.11 This distinction apparently arises from
the fact that a failure to allege drug quantity in the indictment,
in contrast to a failure to properly instruct the jury when they
have a proper indictment, will provide us with “no way to infer
from the record that such a [quantity] determination was made by
the jury.”12
While justification for the distinction between defects in the
indictment and erroneous jury instructions in our jurisprudence is
7
United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000).
8
Doggett, 230 F.3d at 164-65.
9
United States v. Randle, 259 F.3d 319, 321 (5th Cir. 2001).
10
Id at 322 n. 1. See also United States v. Baptiste, No. 99-31027, 2001
WL 1006712 at *12-13 (5th Cir. Aug. 31, 2001).
11
United States v. Green, 246 F.3d 433, 437 (5th Cir. 2001); United States
v. Slaughter, 238 F.3d 580, 583-84 (5th Cir. 2001). See also United States v.
Gonzalez, 259 F.3d 355, 359 (5th Cir. 2001) (distinguishing omission from the
indictment from failure to instruct jury on quantity).
12
Baptiste, 2001 WL 1006712 at *13.
4
perhaps questionable,13 Supreme Court precedent requires that we
apply the harmless error test to the erroneous instruction of the
jury.14 We have previously applied the harmless error test when
reviewing the district court’s Apprendi error in failing to
instruct the jury on the issue of drug quantity entirely.15
In this case, the district court instructed the jury as to
quantity, but gave an instruction that misstated the law, only
requiring the jury to find whether there was a “detectable amount
of cocaine base.” Harmless error applies here as well, and we
conclude from our review of the record that no rational jury could
have found that White’s involvement in both the conspiracy and the
distribution of the crack in this case related to a quantity less
than 50 grams, when the overwhelming evidence is that the October
7, 1998 sale involved some quantity in excess that amount,
considering that each “cookie” of crack weighed between 20 and 28
grams, and at least fourteen were involved. White himself
confessed that he supplied the crack. The Apprendi error in this
case, therefore, was harmless.
13
Id. (“Several circuits have, by contrast, applied the plain error
standard in similar cases [where the indictment is silent on drug quantity] and
affirmed enhanced sentences.”) (citing United States v. Promise, 255 F.3d 150,
161 (4th Cir. 2001) (en banc) (opinion of four judges); United States v. Pease,
240 F.3d 938, 943-44 (11th Cir. 2001); United States v. Mojica-Baez, 229 F.3d
292, 310-12 (1st Cir. 2000)).
14
See Neder v. United States, 527 U.S. 1 (1999) (holding that omission of
element of offense from jury instruction subject to harmless error review);
Illinois v. Pope, 481 U.S. 497, 504 (1987) (holding that erroneous instruction
of jury as to offense element is subject to harmless error review).
15
Green, 246 F.3d at 436-37; Slaughter 238 F.3d at 583-84.
5
III
For the foregoing reasons, White’s sentence is AFFIRMED.
6