[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 5, 2007
No. 06-12421 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00054-CR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES LARON KNIGHT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(January 5, 2007)
Before BLACK, HULL and MARCUS, Circuit Judges.
PER CURIAM:
James Laron Knight appeals his conviction and 292-month sentence for
conspiracy to possess with intent to distribute more than 20 kilograms of cocaine,
in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). After review, we affirm.
I. BACKGROUND
The grand jury indicted Knight and a codefendant, Michael Lee, for
conspiracy to possess with intent to distribute “more than 20 kilograms of
cocaine,” in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). Under
§ 841(b)(1)(A), the maximum sentence for a drug conspiracy involving over 5
kilograms of cocaine is life imprisonment. Thus, the offense charged in Knight’s
indictment carried a statutory maximum of life. Knight pled not guilty and went to
trial.
During the jury trial, several government witnesses testified that Knight
supplied cocaine and crack cocaine to individuals in Mobile, Alabama, between
1996 and 2001, often using his codefendant Lee to transport the drugs.1 For
example, Roderick Packer testified that he had purchased between 50 and 75
kilograms of cocaine from Knight, a lot of which Packer then converted to crack
cocaine, sometimes with Knight’s help. Three of Packer’s street dealers, Michael
Jefferson, Roderick Johnson and Paul Johnson, testified that Packer obtained his
drugs from Knight. Each witness recounted particular transactions in which
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Knight was charged with possessing cocaine, that is, cocaine in powder form. However,
during the trial, evidence was presented that Knight also trafficked in cocaine base, commonly
known as crack. In this opinion, we refer to cocaine powder as cocaine and cocaine base as
crack cocaine.
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Knight supplied Packer with cocaine, which was then converted to crack cocaine.
Jefferson also testified that Knight once had Lee deliver two kilograms of crack
cocaine to Jefferson in Mobile.
At the conclusion of the evidence, the district court gave the jury a special
verdict form. The district court instructed the jury that, if it found Knight guilty, it
should also find beyond a reasonable doubt the amount of cocaine and crack
cocaine that was the object of the conspiracy. The jury returned a guilty verdict,
finding that the conspiracy involved 50 kilograms of cocaine and 20 kilograms of
crack cocaine.
The presentence investigation report (“PSI”) noted the jury’s findings
regarding the quantity of cocaine and crack cocaine. The guidelines assign a base
offense level of 36 for 50 kilograms of cocaine and a base offense level of 38 for
more than 1.5 kilograms of crack cocaine. See U.S.S.G. § 2D1.1(c)(1), (c)(2). The
PSI used the relevant conduct guideline, U.S.S.G. § 1B1.3, and assigned Knight a
base offense level of 38 based on the jury finding as to the crack cocaine. With a
total offense level of 38 and a criminal history category of III, Knight’s guidelines
range was 292 to 365 months.
On November 23, 2004, the district court sentenced Knight to a 292-month
sentence under the then-mandatory guidelines scheme. Knight appealed, and this
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Court scheduled his case for oral argument. Prior to oral argument, however, the
parties jointly moved to remand for resentencing and for waiver of oral argument.
This Court granted the parties’ motion.
On remand, the district court held a sentencing hearing on April 12, 2006.
Knight objected to the district court’s use of the jury’s findings regarding the crack
cocaine to calculate his guidelines range. Specifically, Knight argued that, because
these facts about the crack cocaine were not charged in his indictment, the jury’s
special verdict findings were an improper variance from the indictment. Knight
also argued that his original 292-month sentence was disparate from sentences
received by his co-conspirators.
The district court overruled Knight’s objections, concluding that the jury’s
drug quantity findings were advisory and were consistent with the court’s own
recollection of the evidence at trial. The district court calculated Knight’s offense
level as 38 based on a drug quantity of more than 1.5 kilograms of crack cocaine.
See U.S.S.G. § 2D1.1(c)(1). With a total offense level of 38 and a criminal history
category of III, Knight’s advisory guidelines range was 292 to 365 months. The
district court also noted that, even with an offense level of 36 based on the cocaine
only, Knight’s guidelines range was 235 to 293 months and that the prior sentence
of 292 months is still within the guidelines range for cocaine alone.
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Knight then addressed the district court, apologizing to his family and
friends. Knight asked the district court for a reduced sentence so that he could
return to his home and be a positive influence in his community. In response, the
district court noted the significant amount of cocaine involved in Knight’s offense
and the damage this amount of drugs had inflicted on Knight’s community. The
district court also stated that Knight was not a “small-time dope dealer” and that
Knight had not shown any remorse for his crime. The district court indicated that
it had considered the 18 U.S.C. § 3553(a) factors, as well as letters it had received
in support of Knight and determined that a guidelines sentence would be
reasonable and justified by all the facts and circumstances. The district court then
sentenced Knight to 292 months’ imprisonment. The district court stated that “the
sentence imposed addresses the seriousness of the offense and the sentencing
objectives of punishment, deterrence, and incapacitation.” This appeal followed.
II. DISCUSSION
A. Constructive Amendment
Knight argues that the district court’s jury instructions relating to drug
quantities and types constructively amended the indictment. The Fifth Amendment
guarantees a defendant the right to be tried for only those offenses presented in an
indictment and returned by a grand jury. United States v. Cancelliere, 69 F.3d
5
1116, 1121 (11th Cir. 1995). An impermissible amendment to an indictment
occurs “when the essential elements of the offense are altered to broaden the
possible bases for conviction beyond what is contained in the indictment.” Id.
(quotation marks omitted).
“A jury instruction that constructively amends a grand jury indictment
constitutes per se reversible error because such an instruction violates a
defendant’s constitutional right to be tried on only those charges presented in a
grand jury indictment and creates the possibility that the defendant may have been
convicted on grounds not alleged in the indictment.” Id. However, where, as here,
the defendant raises the constructive amendment argument for the first time on
appeal, we review only for plain error. See United States v. Rutherford, 175 F.3d
899, 906 (11th Cir. 1999). Plain error is an “(1) error, (2) that is plain, and (3) that
affects substantial rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
Cir.) (quotation marks omitted), cert. denied, 545 U.S. 1127 (2005). If all three
conditions are met, we may exercise our discretion to recognize the forfeited error
if “(4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (quotation marks omitted).
Knight complains that the district court twice constructively amended the
indictment. First, Knight argues that the district court amended the indictment
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when it instructed the jury that the government was required to prove only that “a
measurable amount of the controlled substance” was the object of the conspiracy
and that the jury could find Knight guilty even if it found that the conspiracy
involved a quantity of the controlled substance that was “less than the amount or
weight charged.” In other words, according to Knight, the district court’s jury
instructions changed the term “more than 20 kilograms of cocaine” charged in the
indictment to any measurable amount of a controlled substance. Second, Knight
contends that the district court amended the indictment when it instructed the jury
to find amounts for crack cocaine should it return a guilty verdict because the
indictment charged only cocaine.
We need not address these issues because Knight has so clearly failed to
show that any alleged errors affected his substantial rights. Knight’s indictment
charged a drug quantity of “more than 20 kilograms of cocaine.” The government
presented evidence that Knight’s drug conspiracy involved amounts of cocaine
well in excess of 20 kilograms. Through the special verdict form, the jury found
beyond a reasonable doubt that Knight’s conspiracy involved 50 kilograms of
cocaine powder. In short, there is no doubt here that Knight was convicted of the
offense charged in the indictment.
For this reason, Knight’s reliance on United States v. Narog, 372 F.3d 1243
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(11th Cir. 2004) is misplaced. First, Narog was a preserved-error case, meaning
that any impermissible amendment required reversal without a showing of
prejudice by the defendant. Id. at 1250. Second, under the facts and circumstances
of the trial in Narog, it was not possible to tell whether the jury’s verdict was based
on “a controlled substance other than the one specified” in the indictment. Id. at
1249.
In contrast, the jury’s special verdict form in Knight’s case here makes it
clear that the jury’s verdict was completely consistent with the indictment. In any
event, Knight’s case is subject to only plain error review, and Knight clearly has
shown no effect on his substantial rights.
The only alleged prejudice Knight points to with regard to the crack cocaine
is the guidelines calculation of his sentence. It is well-settled that the district court
may hold a defendant accountable for additional amounts of drugs involved in the
conspiracy, but not charged in the indictment, as relevant conduct. See United
States v. Ignancio Munio, 909 F.2d 436, 438-39 (11th Cir. 1990); U.S.S.G.
§ 1B1.3(a)(1) & cmt. n.2. Additionally, the district court may find these drug
amounts by a preponderance of the evidence at sentencing so long as the
defendant’s sentence does not exceed the statutory maximum authorized by the
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jury’s verdict.2 See United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.)
(affirming district court’s drug quantity finding based in part on even acquitted
conduct), cert. denied, __ U.S. __, 126 S. Ct. 432 (2005). Therefore, Knight
cannot demonstrate prejudice by pointing to the effect the amount of crack cocaine
had on his guidelines calculations. Because Knight has not shown that any error
affected his substantial rights, he has not met his burden to demonstrate plain error.
B. Extra-verdict Enhancements
Citing United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), Knight
also argues that the district court violated his Fifth and Sixth Amendment rights
when it enhanced his sentence based on drug quantities and type not alleged in the
indictment.3 The district court resentenced Knight under the advisory guidelines.
Knight’s 292-month sentence does not exceed his statutory maximum of life
imprisonment. Therefore, the district court’s findings relating to drug quantity and
2
As noted earlier, a § 841(a) drug offense that involved 5 kilograms or more of cocaine is
subject to a maximum life sentence. See 21 U.S.C. § 841(b)(1)(A). Therefore, Knight’s
statutory maximum sentence – life imprisonment – was authorized by the amount and type of
drugs charged in his indictment (more than 20 kilograms of cocaine) and found by the jury at
trial (50 kilograms of cocaine). If anything, the district court’s having the jury determine the
amount of crack cocaine used in the relevant conduct guidelines calculation afforded Knight
more process than was required.
3
The government argues that, because Knight failed to raise his Booker argument at the
resentencing hearing, we should review only for plain error. Knight argues that he is entitled to
de novo review because he raised the Booker issue in a position statement filed at the district
court’s instruction prior to the sentencing hearing. We need not resolve this issue because we
find no reversible error under either standard of review.
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type and the corresponding guidelines enhancements did not violate Knight’s Fifth
and Sixth Amendment rights. See United States v. Chau, 426 F.3d 1318, 1323-24
(11th Cir. 2005); Rodriguez, 398 F.3d at 1301.
C. Reasonableness
Finally, Knight argues that his 292-month sentence is unreasonable and
contends that the district court erred by not making particularized findings as to
each of the § 3553(a) factors.
After Booker, a district court, in determining a reasonable sentence, must
consider the correctly calculated advisory guidelines range and the § 3553(a)
factors. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Although the
district court must consider the § 3553(a) factors, “nothing in Booker or elsewhere
requires the district court to state on the record that it has explicitly considered
each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.” United
States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
We review the defendant’s ultimate sentence for reasonableness in light of
the § 3553(a) factors. United States v. Williams, 435 F.3d 1350, 1353 (11th Cir.
2006). This “[r]eview for reasonableness is deferential. . . . [a]nd when the district
court imposes a sentence within the advisory Guidelines range, we ordinarily will
expect that choice to be a reasonable one.” Talley, 431 F.3d at 788. “[T]he party
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who challenges the sentence bears the burden of establishing that the sentence is
unreasonable in . . . light of both [the] record and the factors in section 3553(a).”
United States v. Bonilla, 463 F.3d 1176, 1180 (11th Cir. 2006) (quotation marks
omitted).
After review, nothing in the record convinces us that Knight’s 292-month
sentence was unreasonable. The district court correctly calculated Knight’s
guidelines range as 292 to 365 months, and Knight’s sentence falls at the bottom of
that range. The district court indicated that it had considered the § 3553(a) factors.
Furthermore, although the district court was not required to do so, it discussed
several factors, including the characteristics of the defendant, the need for the
sentence to reflect the seriousness of the offense and to provide a just punishment
for the offense and the need for deterrence. Perhaps most significant to the district
court was the substantial amount of drugs Knight trafficked and Knight’s lack of
remorse. Under the facts and circumstances of this case, Knight has failed to show
that his 292-month sentence is unreasonable.
AFFIRMED.
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