IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
No. 99-50380
_________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODNEY SLOAN DOGGETT; DUNOIS “DEE” T. BEMAN,
Defendants - Appellants.
---------------------------------
Appeal from the United States District Court
for the Western District of Texas
---------------------------------
October 6, 2000
Before WIENER, BENAVIDES and PARKER, Circuit Judges.
BENAVIDES, Circuit Judge:
Defendants Rodney Sloan Doggett and Dunois “Dee” T. Beman
challenge their convictions and sentences for possession of
methamphetamine with intent to distribute and conspiracy, in
particular the constitutionality of treating drug quantities as a
sentencing factor rather than an element of the underlying crime.
Their appeal requires us to apply the Supreme Court’s recent
decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000).
Apprendi 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.” Id. at 262-63. We hold,
consistent with our sister circuits that have considered the
issue, that for purposes of § 841(b)(1), the quantity of drugs is
such a fact.1 Accordingly, Beman’s sentence is vacated and his
case is remanded to the district court for further proceedings.
Since Doggett’s sentence was not impermissibly enhanced by the
court’s finding of the quantity of drugs, his sentence, with the
modified term of supervised release, is affirmed.
I. Facts and Procedural History
Rodney Sloan Doggett and Dunois “Dee” T. Beman were indicted
for conspiracy to manufacture an unspecified quantity of
methamphetamine in violation of 18 U.S.C. §§ 841(a) and 846
(Count 1), and for aiding and abetting the manufacture of
methamphetamine in violation of 21 U.S.C. § 841(a) and 18 U.S.C.
§ 2 (Count 2). The Government notified both Doggett and Beman of
its intent to seek an enhanced penalty against them based on the
quantity of drugs, and against Beman based on his two prior
felony drug convictions for possession with intent to distribute
methamphetamine.
At trial, Doggett’s defense concentrated on the theory that
the person who had tipped off the police to the methamphetamine
laboratory in Doggett’s garage was actually responsible for the
drugs. In November 1998, a jury convicted Doggett and Beman on
1
United States v. Lewis, 2000 WL 1390065 (4th Cir. 2000);
United States v. Nordby, 2000 WL 1277211 (9th Cir. 2000); United
States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000).
2
both counts. At sentencing, Doggett and Beman filed a joint
objection to the presentence report (“PSR”), arguing in pertinent
part that the Supreme Court’s recent holding in Jones v. United
States, 526 U.S. 227 (1999), indicated that the amount of drugs
was an element of the offense which must be presented to the jury
and not merely a sentencing factor. The district court overruled
the objection.
The district court sentenced Doggett to 235 months’
imprisonment on each count, followed by five years’ supervised
release on each count, with the sentences to run concurrently.
The court sentenced Beman to life imprisonment on each count,
followed by eight years’ supervised release, with the sentences
to run concurrently. Both defendants filed timely notices of
appeal. Following briefing and oral argument in this case, the
Supreme Court issued its opinion Apprendi v. New Jersey, 120
S.Ct. 2348 (2000).
II. Analysis
Doggett and Beman contest the constitutionality of their
sentences, arguing that the amount of drugs in question should
have been proven to the jury beyond a reasonable doubt. They
also challenge the district court’s decision to exclude the
testimony of a defense witness, its admission of Beman’s prior
convictions for possession of methamphetamine with intent to
distribute, and its calculation of the amount of methamphetamine
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attributable to the conspiracy.
A. Constitutional Challenge
1. Review of Supreme Court Precedent
Prior to Apprendi, the Supreme Court’s most recent decision
in this area was Jones v. United States, 526 U.S. 227 (1999). In
Jones, the Court considered a challenge to a conviction under the
federal car jacking statute (18 U.S.C. § 2119). The Court
determined that, given the structural uncertainty as to whether
the injury or death of a victim was a sentencing factor or an
element of an independent crime, the doctrine of constitutional
doubt required that the courts interpret the provisions as
establishing separate crimes, all elements of which had to be
proven to a jury beyond a reasonable doubt. Similarly, in
Castillo v. United States, 120 S.Ct. 2090 (2000), the Court
construed an ambiguous statute as setting out separate offenses
rather than a single offense with sentencing factors. The
Court’s analysis in these cases looks to the structure of the
statute in issue, the legislative history, and whether courts
historically considered a particular fact during the sentencing
phase. Compare Almendarez-Torres v. United States, 523 U.S. 224,
230 (1998) (finding that recidivism’s typical status as a
sentencing factor weighed against construing statute provision as
creating a separate element of the crime rather than a sentencing
factor) and Castillo v. United States, 120 S.Ct. at 2093-94 (use
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of a machine gun not a typical sentencing factor).
In a footnote to Jones, the Court foreshadowed its eventual
holding in Apprendi by noting that “under the Due Process Clause
of the Fifth Amendment and the notice and jury trial guarantees
of the Sixth Amendment, any fact (other than prior conviction)
that increases the maximum penalty for a crime must be charged in
the indictment, submitted to a jury, and proven beyond a
reasonable doubt.” Jones, 526 U.S. at 227 n.6. The Supreme
Court, however, then explicitly stated that its opinion “does not
announce any new principle of constitutional law, but merely
interprets a particular federal statute in light of a set of
constitutional concerns that have emerged through a series of our
decisions over the past quarter century.” Jones, 526 U.S. at 252
n.11. Given the clear congressional intent in § 841 and the
uncertain mandate of Jones, we would have been hesitant to
overturn our well-established precedent that the quantity of
drugs is a sentencing factor and not an element of the offense.
See United States v. Hare, 150 F.3d 419, 428 n.2 (5th Cir. 1998);
United States v. Ruiz, 43 F.3d 985, 989 (5th Cir. 1995).
Apprendi compels us to take this step.
In Apprendi, the Supreme Court overturned a sentencing
scheme that allowed a state judge, by a preponderance of the
evidence, to enhance a defendant’s penalty beyond the prescribed
statutory maximum. Apprendi had been indicted on 23 counts,
5
relating to four separate shootings and the unlawful possession
of various firearms. As part of a plea agreement, Apprendi pled
guilty to two counts of unlawful possession in the second degree
(Counts 3 and 18) and one count of unlawful possession in the
third degree (Count 22). Under New Jersey law, a conviction for
a second degree crime carries a penalty of 5-10 years.
The state moved to enhance Apprendi’s sentence on Count 18
under New Jersey’s “hate crime” statute. The trial judge, by a
preponderance of the evidence, found Apprendi had “acted with a
purpose to intimidate an individual or group of individuals
because of race, color, gender, handicap, religion, sexual
orientation, or ethnicity,” Apprendi, 120 S.Ct. at 2351 (quoting
N.J.S.A. § 2C:44-3(e)), a finding which enhanced his sentence to
10-20 years. Apprendi was then sentenced to twelve years on
Count 18 with the sentences on the other two counts to run
concurrently. The Supreme Court of New Jersey affirmed
Apprendi’s sentence. The Supreme Court reversed, holding that
“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.” Id. at 2363-64.
2. 21 U.S.C. Section 841
This case presents the question recently left unanswered in
United States v. Meshack, 2000 WL 1218437 (5th Cir. 2000),
whether drug quantities under § 841(b) are sentencing factors or
6
elements of the offense. We conclude that there is no reasonable
construction of § 841 that would allow us to avoid the broad
constitutional rule of Apprendi. Notwithstanding prior precedent
of this circuit and the Supreme Court that Congress did not
intend drug quantity to be an element of the crime under 21
U.S.C. §§ 841 and 846, we are constrained by Apprendi to find in
the opposite. In a departure from its previous analysis, the
Apprendi Court, quoting Jones, 526 U.S. at 252-53 (STEVENS, J.
concurring), held that “it is unconstitutional for a legislature
to remove from the jury the assessment of facts that increase the
prescribed range of penalties to which a criminal defendant is
exposed.” Appendi, 120 S.Ct. at 2363. The relevant inquiry is
now whether a factual determination is involved, and whether that
determination increases the sentence beyond the maximum statutory
penalty.
The drug quantity determination is critical to the statutory
sentencing provisions in 21 U.S.C. § 841. Section 841 consists
of two relevant subsections. Section 841(a) makes it unlawful
for any person to manufacture or distribute a controlled
substance. Section 841(b) defines the applicable penalties for
violations of § 841(a) based on the type and quantity of drug,
previous convictions, and whether death or serious bodily injury
resulted from use of the drug. The structure of § 841 is similar
to that described by Justice Thomas in his concurrence to
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Apprendi, “if the legislature defines some core crime and then
provides for increasing the punishment of that crime upon a
finding of some aggravating fact--of whatever sort--the core
crime and the aggravating fact together constitute an aggravated
crime, just as much as grand larceny is an aggravated form of
petit larceny. The aggravating fact is an element of the
aggravating crime.” Apprendi, 120 S.Ct. at 2368.
Section 841 clearly calls for a factual determination
regarding the quantity of the controlled substance, and that
factual determination significantly increases the maximum penalty
from 20 years under § 841(b)(1)(C) to life imprisonment under §
841(b)(1)(A). Therefore, we hold that if 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. To the extent our prior precedent is
inconsistent with this holding and Appendi, it is overruled.
3. Application to Doggett and Beman
As had been the practice in this circuit, no specified
amount of drugs were charged in the indictment or submitted to
the jury in this case. Following the jury’s guilty verdict, the
judge determined, by a preponderance of the evidence, the
quantity of drugs attributable to each defendant. Doggett and
Beman raised their constitutional objections to their sentences
8
during the sentencing hearing. Therefore, they have adequately
preserved error on this issue and it is squarely before us on a
de novo standard of review. See United States v. Ocana, 204 F.3d
585, 588-89 (5th Cir. 2000) (error is preserved for de novo
review where objections made in the sentencing process).
a. Rodney Sloan Doggett
As we explained to a similarly situated defendant in
Meshack, the Supreme Court’s decision in Apprendi does not effect
Doggett’s term of imprisonment because it does not exceed the
statutory maximum authorized by the jury’s findings. See
Meshack, 2000 WL 1218437, *12. Doggett was charged under § 846
for conspiracy to manufacture a quantity of methamphetamine
(Count 1) and under § 841(a)(1) and 18 U.S.C. § 2 with aiding and
abetting and manufacture of a quantity of methamphetamine (Count
2). The jury found him guilty beyond a reasonable doubt on both
counts. The court, based on the PSR, concluded Doggett was
responsible for 575 grams of a mixture or substance containing
methamphetamine. The enhanced penalty under § 841(b)(1)(A) for
this quantity of methamphetamine is 10 years to life on each
count.
The jury in this case made no finding concerning the
quantity of methamphetamine that Doggett manufactured, conspired
to manufacture, or aided and abetted in manufacturing. The
jury’s verdict only represents a finding that he conspired and
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possessed methamphetamine for these purposes or with the intent
to achieve these purposes in violation of § 841(a)(1). Thus,
Doggett can only be sentenced using the statutory range contained
in § 841(b)(1)(C), which provides a maximum penalty of twenty
years for the manufacture of Schedule II controlled substances,
such as methamphetamine. As Doggett’s sentence of 235 months
falls short of this statutory maximum, his claim fails.
Doggett’s sentence was not enhanced beyond the statutory maximum
by a factor not contained in the indictment or submitted to the
jury.2
As instructed by U.S.S.G. § 1B1.3(a)(1)(A), (B), and (2),
the district court determined Doggett’s base offense level on the
basis of all acts and omissions that were part of the same course
of conduct or common scheme or plan as the offense of the
conviction. In controlled substance cases, this involves
aggregating the drug quantities manufactured, distributed, or
possessed by the defendant and any co-conspirators. The district
court determined a base level of 34, which applies when the total
amount of methamphetamine is between 300 grams and one kilogram.
2
Since the elements found by the jury satisfied only a
conviction under § 841(b)(1)(C), a Class C felony, Doggett’s term
of supervised release could not exceed three years. See §
3583(b)(2) (authorizing a term of supervised release of “not more
than three years” for a Class C felony); United States v. Kelly,
974 F.2d 22, 24-25 (5th Cir. 1992). Accordingly, we modify
Doggett’s supervised release to the statutorily mandated three-year
term. United States v. Gracia, 983 F.2d 625, 630 (5th Cir. 1993).
10
U.S.S.G § 2D1.1(a)(3)(c)(3). The base level was increased two
levels for obstruction of justice for a total offense level of
36. Doggett had no criminal history points and therefore he was
placed in the Criminal History Category of I. Under the
Guidelines’ Sentencing Table these findings translate into a
range of 188-235 months. U.S.S.G. § 5A.
To the extent that Doggett argues Apprendi prohibits the
trial court from determining the amount of drugs for relevant
conduct purposes under the Sentencing Guidelines, this argument
is rejected. See Meshack, 2000 WL 1218437, *12. The decision in
Apprendi was specifically limited to facts which increase the
penalty beyond the statutory maximum, and does not invalidate a
court’s factual finding for the purposes of determining the
applicable Sentencing Guidelines. Apprendi, 120 S.Ct. 2363-64.
Apprendi did not affect the Supreme Court’s prior holding in
Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475 (1998),
that the judge determines the kinds and amounts of the controlled
substances when imposing sentences within the statutory range.
This limited reading of Apprendi is in line with the approach
taken by this Circuit. See Meshack, 2000 WL 1218437, *12 (noting
“the Apprendi majority expressly declined to reverse an earlier
opinion allowing a judge to determine by a preponderance whether
an enhancement should apply, instead limiting the case’s ‘holding
to cases that do not involve the imposition of a sentence more
11
severe than the statutory maximum for the offense established by
the jury’s verdict.’ Id. at 2361. n.13 (discussing McMillan v.
Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411 (1986))”). Doggett’s
sentence does not violate the Sixth Amendment or his due process
rights under the Fifth Amendment, as the district judge’s finding
of the amount of drugs merely aided him in rendering the proper
sentence within the statutory range authorized by the jury’s
verdict.
b. Dunois “Dee” T. Beman
Beman, as opposed to Doggett, does benefit from Apprendi.
As aforementioned in the discussion of Doggett’s sentence, the
baseline statutory penalty for any quantity of methamphetamine is
in § 841(b)(1)(C). This subsection provides for an increase in
the statutory penalty for individuals, such as Beman, who have a
prior felony conviction. Since the Supreme Court in Apprendi did
not overrule its decision in Almendarez-Torres, the sentencing
court did not err by using Beman’s prior convictions to enhance
his sentence, even though the prior convictions were not
submitted to the jury. See Apprendi, 120 S.Ct. at 2362-63;
Almendarez-Torres v. United States, 523 U.S. 224, 230 (1998).
Nevertheless, even considering the proper enhancement, the
maximum penalty for Beman under § 841(b)(1)(C) is 30 years on
each count. Because the district court sentenced Beman to two
concurrent life sentences, we remand Beman’s case for
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resentencing consistent with this opinion.3
B. Defendants-Appellants’ Evidentiary and Sentencing Claims
Defendants-Appellants’ remaining claims are not meritorious
and require only summary treatment.
Defendant Doggett complains of the district court’s denial
of admission of a defense witness’ testimony. The witness is the
former landlord of an acquaintance of Doggett’s named Robert
Greer. One of Doggett’s defense theories at trial was that the
methamphetamine laboratory discovered in his garage was in fact
controlled by Greer. The proposed witness would have testified
to the slovenly state of Greer’s apartment. We review a district
court’s decision to admit or deny testimony for abuse of
discretion. See United States v. Townsend, 31 F.3d 262, 267-68
(5th Cir. 1994). The proposed witness’ information would not
have been probative of Greer’s involvement in the methamphetamine
laboratory in Doggett’s garage or in the drug manufacture or
3
Similar to Doggett, Beman’s base offense level was
calculated at 34. Beman received a three-level enhancement because
of his two prior felony controlled substance convictions, for a
total offense level of 37. Pursuant to U.S.S.G. § 4B1.1, Beman is
a career offender and his Criminal History Category must be VI.
Given these findings, the Guidelines’ Sentencing Table proscribes
a range of 360 months to life imprisonment. U.S.S.G. §5A. Because
Apprendi does not affect a judge’s ability to determine the
quantity of drugs in formulating the appropriate sentencing range
under the Guidelines, the range of 360 months to life is still
applicable on remand. However, as discussed in the body of the
opinion, the sentencing judge is limited, in that the jury did not
find a quantity of drugs, to a maximum sentence of 30 years on each
count.
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distribution trade in general. It was not an abuse of discretion
for the district court to refuse admission of the witness’
testimony.
Next, Beman contends that the district court should not have
admitted evidence of his prior convictions for possession with
intent to distribute methamphetamine. Again, we review this
evidentiary ruling for abuse of discretion. Because Beman pled
not guilty to the conspiracy charge, his motive, intent,
knowledge, and absence of mistake were in issue and the admission
of evidence of extrinsic acts could therefore be warranted. See
United States v. Bermea, 30 F.3d 1539, 1562 (5th Cir. 1994). The
district court made a sufficient Fed.R.Evid. 404(b) finding, see,
e.g. United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir.
1996), and provided adequate limiting instructions to the jury
regarding the prior convictions. The district court did not
abuse its discretion in admitting the evidence of Beman’s prior
convictions.
Finally, Beman and Doggett contend that the district court
erred in its calculation of the quantity of methamphetamine in
determining the appropriate offense level under the Sentencing
Guidelines. This Court reviews the trial court’s interpretation
of the Sentencing Guidelines de novo and its factual findings for
clear error. See United States v. Huerta, 182 F.3d 361, 364 (5th
Cir. 1999). The district court did not clearly err in crediting
14
one expert’s analysis over the other’s or in accepting an
eyewitness’ testimony as to the amount of component material
shipped to the defendants.
III. Conclusion
For the above reasons, Doggett’s sentence is AFFIRMED and
his term of supervised release is AFFIRMED AS MODIFIED. Beman’s
sentence is VACATED and REMANDED to the district court for
further proceedings.
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