UNITED STATES of America, Plaintiff-Appellee,
v.
Miguel CAMACHO, Defendant-Appellant.
No. 99-14833
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
April 23, 2001.
Appeal from the United States District Court for the Southern District of Florida. (No. 99-00428-CR-DMM),
Donald M. Middlebrooks, Judge.
ON PETITION FOR REHEARING
Before TJOFLAT, BARKETT and HILL, Circuit Judges.
TJOFLAT, Circuit Judge:
Appellant Miguel Camacho filed a petition for rehearing in this case, arguing that under Apprendi
v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), this court should reconsider its opinion
affirming his conviction and either grant him a new trial or vacate his sentence and remand his case for
re-sentencing. Both Camacho and the Government were instructed to file supplemental briefings on the
Apprendi issue. We have reheard the case insofar as that issue is involved.
Camacho was convicted of possession with the intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. At trial, Camacho stipulated that the seized cocaine was 89% pure and in total
weighed 39.77 kilograms. Camacho objected at sentencing (and in supplemental objections to the Pre-
Sentence Investigation Report ("PSI")) that the quantity of drugs attributable to him was an element of the
offense, relying upon Jones v. United States 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 1224 n. 6, 143 L.Ed.2d
311 (1999). The district court found Jones to be inapplicable and sentenced Camacho under the mandatory
minimum sentence provisions of 21 U.S.C. § 841(b)(1)(A)1 to 120 months' imprisonment. Because Camacho
raised a constitutional objection in a timely fashion, he preserved the Apprendi issue for appeal and thus
receives the benefit of preserved error review. See United States v. Candelario, 240 F.3d 1300, 1306 (11th
1
Section 841(b)(1)(A) provides, in pertinent part: "In the case of a violation of [section 841(a)]
involving ... 5 kilograms or more of a mixture or substance containing a detectable amount of ... cocaine
... such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more
than life...."
Cir.2001). Preserved error review under Apprendi looks first to whether there was error and, if so, undertakes
a harmless error analysis. Id. at 1307.
In his petition for rehearing, Camacho argues that, under Apprendi, because there was no jury
determination of drug quantity and because the indictment simply charged him with possession of a
"detectable amount" of cocaine, he could not be convicted and sentenced pursuant to the provisions of section
841(b)(1)(A)—which was applied by the district court. Rather, Camacho contends that 21 U.S.C. §
841(b)(1)(C),2 which provides the maximum sentence established for possession with intent to distribute any
discernable amount of cocaine, regardless of quantity, is the only possible section under which he could be
sentenced.3
In Apprendi, the Supreme Court held that "[o]ther than the fact of 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." 120 S.Ct. at 2362-63. As the indictment in this case failed to allege drug
quantity, Camacho's sentence would be proper only if it met the requirements of section 841(b)(1)(C).
Normally, a defendant may obtain re-sentencing under Apprendi only if the sentence he actually receives
exceeds the maximum allowable sentence he should have received under section 841(b)(1)(C), i.e., twenty
years' imprisonment, without regard to quantity. United States v. Gerrow, 232 F.3d 831, 834 (11th Cir.2000)
("[T]here is no error, plain or otherwise, under Apprendi where the term of imprisonment is within the
statutory maximum set forth in § 841(b)(1)(C) for a cocaine offense without regard to drug quantity."). The
reason that Gerrow states that there is "no error ... under Apprendi" for sentences less than twenty years'
imprisonment is because we construe the sentence as a section 841(b)(1)(C) sentence (notwithstanding what
the district court may have called it). Because Camacho's sentence of 120 months' imprisonment was less
than the twenty year maximum prescribed by section 841(b)(1)(C),4 there is arguably no Apprendi error, even
2
21 U.S.C. § 841(b)(1)(C) provides, in pertinent part: "In the case of a controlled substance in
schedule I or II ... such person shall be sentenced to a term of imprisonment of not more than 20 years."
Cocaine is a schedule II drug. 21 U.S.C. § 812, Schedule II.
3
Camacho also claims that Apprendi requires that his sentencing range should have been 37-46
months—the low end of the Sentencing Guidelines. We reject this claim because we have held that
Apprendi does not affect determinations under the Sentencing Guidelines. See United States v. Gallego, -
-- F.3d ----, No. 97-5293 (11th Cir.2001).
4
Camacho's sentence fell below the statutory maximum under any of the subsections of section 841(b)
[ten years to life; five to forty years; or zero to twenty years], regardless of the quantity of drugs for
which he was held responsible.
though the court utilized a mandatory minimum when sentencing Camacho.5
Regardless of whether there is Apprendi error, there is error in Camacho's sentence under United
States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.2000). Rogers, decided prior to Gerrow, went beyond
Apprendi to hold that "drug quantity in section 841(b)(1)(A) and section 841(b)(1)(B) cases must be charged
in the indictment and proven to a jury beyond a reasonable doubt." This principle of Rogers is violated by
Camacho's sentence in a way that Gerrow does not contemplate. By sentencing Camacho to the mandatory
minimum sentence (through narrowing the Guideline range),6 the district court necessarily used section
841(b)(1)(A) for sentencing; we cannot employ any legal fiction to think otherwise. Rather, we must say
that there is no doubt that the district court applied the regime of section 841(b)(1)(A) when sentencing
Camacho. This is error under this circuit's precedent in Rogers, because quantity was not charged in the
indictment and proven to the jury.
Because Camacho objected to the imposition of a sentence based upon section 841(b)(1)(A), he
preserved the error for our review. See Candelario, 240 F.3d at 1306. This means that, under Candelario
and Fed.R.Crim.P. 52(a), we must determine whether the error was harmless. An error is harmless unless the
record "contains evidence that could rationally lead to a contrary finding." Candelario, 240 F.3d at 1308
(quoting Neder v. United States, 527 U.S. 1, 18-19, 119 S.Ct. 1827, 1838-39, 144 L.Ed.2d 35 (1999)). For
example, in United States v. Nealy, 232 F.3d 825, 830 (11th Cir.2000), we held that a preserved Apprendi
5
The reason that there may not be error under Apprendi is that Apprendi expressly retained McMillan
v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which lends approval to mandatory
minimum sentences. 120 S.Ct. at 2361 n. 13 ("We do not overrule McMillan."). Other circuits have split
on whether imposition of a mandatory minimum sentence violates Apprendi. Compare United States v.
Ramirez, 242 F.3d 348, 351-52 (6th Cir.2001) (holding in a section 841 case that, in light of Apprendi,
"[a]ggravating factors ... that increase the penalty from a nonmandatory minimum sentence to a
mandatory minimum sentence, or from a lesser to a greater minimum sentence, are now elements of the
crime to be charged and proved") with United States v. Rodgers, --- F.3d ----, No. 00-1030 (7th Cir.2001)
(holding in a section 841 case that Apprendi does not apply to mandatory minimum sentences because
McMillan is still good law), United States v. Harris, 243 F.3d 806 (4th Cir.2001) (holding that mandatory
minimums do not violate Apprendi ), United States v. Robinson, 241 F.3d 115, 122 (1st Cir.2001) (same),
United States v. Keith, 230 F.3d 784, 787 (5th Cir.2000) (per curiam) (same), and United States v.
Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir.2000) (same). While this circuit has intimated that
mandatory minimums are not violative of Apprendi, see United States v. Pounds, 230 F.3d 1317, 1319
(11th Cir.2000), we have not explicitly ruled on the issue. We decline to do so now based on the fact that
Camacho's sentence runs afoul of United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.2000).
6
Camacho was sentenced according to a base offense level of 30 and a criminal history category of II.
Had Camacho been sentenced under section 841(b)(1)(C), the applicable Guideline range would have
been 108-135 months. However, because the district court employed the mandatory minimum of section
841(b)(1)(A), the court reduced Camacho's Guideline range to 120-135 months. The district court then
sentenced Camacho to the bottom end of that reduced range.
error was harmless where the evidence about drug quantity was "undisputed," such that "no reasonable jury
could have rationally concluded that Defendant was guilty of the substantive offense ... but that the amount
of [crack] cocaine possessed" was less than the five grams necessary for sentencing under section
841(b)(1)(B). See also United States v. Gallego, --- F.3d ----, No. 97-5293 (11th Cir.2001) (finding, on plain
error review, no effect on substantial rights because of overwhelming evidence about drug quantity); United
States v. Wims, --- F.3d ----, No. 98-3684 (11th Cir.2001) (same); Candelario, 240 F.3d at 1311-1312 (same);
United States v. Pease, 240 F.3d 938 (11th Cir.2001) (same); United States v. Swatzie, 228 F.3d 1278 (11th
Cir.2000) (same).
Based on this reasoning that says that an Apprendi error is harmless (or has no effect on substantial
rights) when there is undisputed testimony about drug quantity, it necessarily follows that a Rogers error7 is
harmless in a case where the defendant stipulated to drug quantity. At trial, Camacho stipulated to the
quantity of drugs involved in his crime—39.77 kilograms.8 The stipulation took the issue away from the jury,
and the jury's guilty verdict on the substantive offense rested upon the quantity to which Camacho stipulated.
The stipulation thus acts as the equivalent of a jury finding on drug quantity. Therefore, due to the effect of
the stipulation, the imposition of Camacho's sentence under section 841(b)(1)(A) was error—but harmless
error. See United States v. Jackson, 240 F.3d 1245, 1249 (10th Cir.2001) ("Having been read the stipulation
... no reasonable jury could have rationally concluded [the defendant] was guilty of the charged offenses ...
but that the amount of cocaine possessed was less than [that required for an increased sentence]."); United
States v. White, 240 F.3d 127, 134 (2d Cir.2001) (holding that a stipulation as to drug quantity, combined
with a failure to object at trial to the court's failure to submit quantity to the jury, is harmless error); United
States v. Champion, 234 F.3d 106, 110 (2d Cir.2000) ("[E]ven if the district court erred by arrogating to itself
the quantity-determining function [rather than submitting the issue to the jury], any such error was surely
7
A "Rogers error" occurs when a defendant in a section 841 case is sentenced on the basis of drug
quantity and the sentence cannot logically be construed as a section 841(b)(1)(C) sentence.
8
Camacho's stipulation as the quantity and purity of cocaine reads as follows:
The United States of America by and through its undersigned assistant United
States Attorney and the defendant Miguel Camacho stipulate to the following:
The substance admitted into evidence as government's exhibit 3 is a mixture or
substance containing a detectible amount of cocaine hydrochloride. The net weight of
the substance is 39.77 kilograms, and the concentration or strength of the cocaine
hydrochloride is 89 percent.
harmless [as,] [u]nder the stipulation, a jury could not have found differently."); cf. United States v. Poulack,
236 F.3d 932, 938 (8th Cir.2001) (holding that a stipulation waives a right to a jury determination on drug
quantity, but stating that even if it was error it would not have affected the defendant's substantial rights
because the jury would have found the stipulated amount).
Based on the foregoing, the court adheres to our original judgment. Camacho's conviction and
sentence are
AFFIRMED.
HILL, Circuit Judge, concurring specially:
I concur in the judgment; the conviction and sentence are affirmed.
As I see it, there was no error under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), and I conclude that there is, in any case, no institutional reason for the court to devote
its time and talent to find out if there was error.
I acknowledge that the indictment did not charge a quantity of drugs sufficient to the provisions of
21 U.S.C. § 841(b)(1)(A). But it did not make a contrary charge. As was the practice before Apprendi, it
charged merely the violation of § 841(a)(1), without specifying one of the subparagraphs (A), (B), or (C), of
§ 841(b)(1). Therefore, at trial before the jury, Camacho could have—successfully, I apprehend—objected
to an attempt by the prosecutor to prove any quantity beyond a "detectable amount." Large quantity would
have been immaterial and obviously prejudicial.
But Camacho did not object. Indeed, he assisted the government by entering into—and consenting
to the publication to the jury of—a stipulation that the quantity of cocaine involved was large—39.77
kilograms. This stipulation was not entered into at sentencing, after conviction, and presented to the judge.
It was entered into during trial, when the jury was present to determine facts. In short it was put to the jury
by agreement. When the jury convicted Camacho, they convicted him of violating § 841(a)(1), and of
unlawful conduct involving the quantity provided for in § 841(b)(1)(A).1
Although § 841(b)(1)(A) was not alleged in the indictment, the element of the crime for which it
provides, was, as Apprendi requires, proven beyond a reasonable doubt to the jury. No error.
1
If there been no stipulation, and the prosecution had presented evidence of quantity, including chain
of custody from seizure to testing, qualifications of those involved in testing, accuracy of the scales used
to determine quantity, etc., and Camacho had, without objection, disputed credibility of these witnesses,
offered evidence of little weight, etc., a special verdict by the jury that the material was cocaine weighing
39.77 kilograms would have been no more than the equivalent of the stipulation.
At the point in the trial when the stipulation was proposed to be published to the jury, Camacho could
have, but did not, object. Thus, this element of the crime—quantity—was tried by consent before the jury.
Without further elaboration, I feel that this implied clarification—not a change from one charge to
a different one—of the indictment would not rise to the level of an unlawful amendment of the indictment,
but was a mere variance of which we may take notice without condemnation. See generally 3 Charles Alan
Wright, Federal Practice and Procedure § 516.
I feel that, by consent and agreement, the parties treated the indictment as having charged the
elements necessary and suffered the proof of them.
Even so, I cannot see why we are debating whether there was error under these circumstances. What
Camacho asserts as error, two of us conclude was harmless error and one of us opines that it was not error
at all. The reason we all agree to affirm is not dependent upon error vel non. We affirm because, whatever
label we place on the occurrence, Camacho is not entitled to any relief.2
We assume that district judges apprehend, via Apprendi, the need of indictment and proof to the jury,
and therefore our need to investigate this sort of claimed error will soon end. We are not undertaking to
crystalize a body of law for future guidance. We should instead just decide cases.3
2
Nearly two decades ago, the Supreme Court dealt with this sort of issue in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), when it reversed this circuit's en banc decision in
Washington v. Strickland, 693 F.2d 1243 (11th Cir.1982). Strickland was a death penalty habeas corpus
case in which the petitioner alleged that his trial counsel had been inadequate in certain particulars. Our
majority en banc opinion wrestled with the issue of whether counsel had been ineffective for having
failed in the stated particulars. Id. A dissent found the district judge's approach better; finding that the
claimed defective performances by trial counsel to have had no harmful effect upon petitioner's trial, the
district judge found no reason to "grade the paper" of the lawyer. There was no reason to analyze
adequacy or inadequacy vel non. Id. at 1288. The Supreme Court found this approach preferable stating
"[i]n particular, a court need not determine whether counsel's performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged deficiencies ... If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed."
Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
The same reasoning applies here. The panel majority and this separate concurring
opinion debate error vel non. Both agree that it makes no difference as Camacho suffered no
prejudice. Id. Then, why have I written to support my opinion that there was no error? Hard to
say.
3
Were we to undertake a cyclopaedia analysis of Apprendi and this case, we might as an academic
exercise elaborate on the claimed error, itself. The sentence here does not exceed the maximum available,
regardless of quantity of contraband, under § 841(b)(1)(C), however § 841(b)(1)(A) provides for a
mandatory minimum sentence not included in (C). So far it appears that six circuits have held that this
doesn't implicate Apprendi at all. See United States v. Robinson, 241 F.3d 115 (1st Cir.2001); United
States v. Harris, 243 F.3d 806 (4th Cir.2001); United States v. Keith, 230 F.3d 784 (5th Cir.2000);
United States v. Williams, 238 F.3d 871 (7th Cir.2001); United States v. Rodgers, --- F.3d ----, No. 00-
1030 (7th Cir. Apr. 5, 2001); United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.2000); United
The panel majority's finding of harmlessness brings us all together in the correct judgment. The
sentence is affirmed.
States v. Rios-Araiza, No. 00-50132 (9th Cir. Feb. 15, 2001) (unpublished decision). One circuit is to the
contrary. See United States v. Ramirez, 242 F.3d 348 (6th Cir.2001); United States v. Flowal, 234 F.3d
932 (6th Cir.2000).
In this case the circuit split is of academic interest. Whether error or not, Camacho's
sentence is affirmed.