IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50692
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAMONT E. KEITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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October 17, 2000
Before POLITZ, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:
Defendant-Appellant Lamont E. Keith appealed his conviction
and sentence for possession of cocaine base (crack) with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). We affirmed
Keith’s conviction, rejecting his claims of evidentiary
insufficiency and failure to give a requested instruction on
nervousness. United States v. Keith, 99-50692 (5th Cir. Mar. 9,
2000) (unpublished). Reviewing for plain error, we also rejected
Keith’s argument that drug quantity is an element of the offense
and must be alleged in the indictment and proved to the jury beyond
a reasonable doubt. Id. Keith petitioned for rehearing, urging
inter alia that he had preserved error on the question of drug
quantity, making plain error review inappropriate. Concluding that
Keith did preserve error on that issue, we now grant his petition
for panel rehearing, withdraw the final paragraph of our prior
unpublished opinion, in which paragraph we addressed the issue of
drug quantity, substitute in its place the discussion below, and
affirm his conviction and sentence. We do not disturb our analysis
of Keith’s “sufficiency of the evidence” or jury instruction
claims.
Following Keith’s conviction by a jury, the district court
sentenced him to the twenty-year minimum sentence mandated by
subsection (A) of 21 U.S.C. § 841(a)(1). The court did so based on
its finding, by a preponderance of the evidence, that Keith’s
offense involved more than fifty grams of cocaine base. Initially
Keith argued on appeal that, pursuant to Jones v. United States,
526 U.S. 227 (1999), drug quantity must be alleged in the
indictment and proved to a jury beyond a reasonable doubt because
drug quantity is an element of the offense charged.
Jones dealt with a conviction under the federal carjacking
statute, 18 U.S.C. § 2119, which provides that anyone who possesses
a firearm while taking or attempting to take a motor vehicle by
force shall “(1) be fined under this title or imprisoned not more
than 15 years, or both, (2) if serious bodily injury . . . results,
be fined under this title or imprisoned not more than 25 years, or
both, and (3) if death results, be fined under this title or
imprisoned for any number of years up to life, or both.” Id. at
230. Neither the indictment nor the jury instructions made
reference to any bodily injury. Id. At sentencing, the district
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court found by a preponderance of the evidence that serious bodily
injury had resulted, then imposed a sentence of twenty-five years,
rejecting the defendant’s contention that because bodily injury had
neither been alleged nor proved to the jury, it could not support
the sentence. Id.
In Jones, the Supreme Court expressed “constitutional doubt”
as to whether a judge could determine by a preponderance of the
evidence facts that increase the penalty for a “variant of a given
crime.” Id. Accordingly, the Court determined that reading the
statute to create three separate offenses would eliminate any
constitutional due process concerns raised by reading the statute
as merely setting out one offense with three different penalties.
Id. The Court concluded that, as punishment turns on the type of
injury to the victim, injury forms an element of the offense and
thus is required to be alleged in the indictment and proved to the
jury beyond a reasonable doubt. Id. at 252.
In seeking this rehearing initially, Keith argued that the
Jones rationale should be extended to offenses under subsection (A)
of § 841(b)(1); that if drug quantity is to be used to determine a
sentence under that subsection, it must be alleged in the
indictment and proved to a jury beyond a reasonable doubt. As this
was not done, contended Keith, his sentence must be determined not
under subsection (A) of § 841(b)(1) but under subsection (C), which
contains no reference to drug quantity. Because of his prior
felony conviction, Keith’s maximum sentence under subsection (C)
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would be thirty years. Subsection (C) of § 841(b)(1) does not,
however, prescribe a minimum sentence that would apply to Keith.
Prior to Jones, we consistently held that drug quantity is a
sentencing factor and not an element of a drug offense. See, e.g.,
United States v. Deisch, 20 F.3d 139, 146 (5th Cir. 1994); United
States v. Valencia, 957 F.2d 1189, 1197 (5th Cir. 1992). Earlier
this year, in United States v. Rios-Quintero, 204 F.3d 214, 217-19
(5th Cir. 2000), we addressed the issue whether Jones overruled our
pre-Jones jurisprudence. Inasmuch as our review in Rios-Quintero
was for plain error, and considering the lack of certainty
regarding Jones’s constitutional scope, we held that Jones
constituted “too thin a reed upon which to hang a wholesale
abandonment” of our pre-Jones jurisprudence. Id.
While Keith’s petition for rehearing was pending, the Supreme
Court, during its last term, decided Apprendi v. United States, 120
S. Ct. 2348 (2000), expanding on the constitutional concerns voiced
in Jones. Keith now urges us to consider his petition in light of
this new precedent. Apprendi involved a state “hate crime” law
which allowed a judge to determine by a preponderance of the
evidence that a second-degree offense was motivated by bias and
consequently impose punishment equal to that for a first-degree
offense. Id. at 2363. After examining Jones and the historical
treatment of sentencing issues, the Court determined that, with the
exception of recidivism, 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
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exposed.’” Id. (quoting Jones, 526 U.S. at 252-53 (Stevens, J.,
concurring)). The Court then 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 2362-63.
Earlier this month we squarely held that Apprendi overruled
our pre-Jones jurisprudence that treated drug quantity as a
sentencing factor rather than as an element of the offense under §
841. See United States v. Doggett, No. 99-50380 at 9 (5th Cir.
Oct. 6, 2000). Consequently, to the extent that drug quantity
increases a sentence beyond the statutory maximum, it must be
alleged in the indictment and proved to the jury beyond a
reasonable doubt. Id. The defendant in Doggett insisted that
Apprendi prohibited the trial court from determining the quantity
of drugs for purposes of the Sentencing Guidelines. Id. at 12. We
rejected this argument as overbroad, finding that Apprendi is
“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.” Id.
at 12-13. In reaching this result, we relied on our decision in
United States v. Meshack, 2000 WL 1218437 *12 (5th Cir.), in which
we determined that Apprendi should be applied only to cases in
which a sentence exceeds the statutory maximum, not to cases in
which a sentence is enhanced within the statutory range based on a
finding of drug quantity.
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Reading Apprendi in the framework established by Meshack and
Doggett, we hold that a fact used in sentencing that does not
increase a penalty beyond the statutory maximum need not be alleged
in the indictment and proved to a jury beyond a reasonable doubt.
Keith’s sentence of twenty years obviously does not exceed the
statutory maximum sentence of thirty years under § 841(b)(1)(C).
On its face then, Apprendi is not authority for invalidating
Keith’s sentence. See Doggett, No. 99-50380 at 12-13.
Keith nevertheless argues that because subsection (C) of §
841(b)(1) applies in the absence of an allegation and jury finding
of drug quantity, the district court could not impose the statutory
minimum sentence of twenty years under § 841(b)(1)(A) based on a
non-jury determination of drug quantity. We disagree. Although
Doggett involved a Sentencing Guidelines enhancement, its reasoning
and its holding apply with equal force to a statutory minimum
sentence.
In McMillan v. Pennsylvania, 477 U.S. 79, 81 (1986), the Court
found constitutional a statute that imposed a mandatory minimum
sentence for a defendant who is convicted of specified felonies
when a judge finds by a preponderance of the evidence that the
defendant “‘visibly possessed a firearm.’” The Court reasoned that
the statute neither increased the maximum penalty nor created a
separate offense calling for a separate penalty. Id. at 87-88.
Rather, reasoned the Court, the statute limited the sentencing
court’s “discretion in selecting a penalty within the range already
available to it without the special finding of visible possession
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of a firearm.” Id. at 88. The statute merely raised the minimum
sentence that could be imposed within the statutory range; it was
not “tailored to permit the visible possession finding to be a tail
which wags the dog of the substantive offense.” Id. In Apprendi,
the Court emphasized that McMillan remains good law but limited it
to cases “that do not involve the imposition of a sentence more
severe than the statutory maximum for the offense established by
the jury’s verdict — a limitation identified in the McMillan
opinion itself.” 120 S. Ct. at 2361 n.13 (emphasis added).
Our examination of Apprendi in light of McMillan and Doggett
leads inexorably to the conclusion that, as Keith’s sentence did
not exceed the maximum sentence of thirty years under §
841(b)(1)(C), the offense established by the jury’s verdict, it
does not run afoul of Apprendi’s constitutional limitations.1 For
the foregoing reasons, we affirm the judgment of the district court
in all respects, including both conviction and sentence.
AFFIRMED.
1
The Eighth Circuit reached a similar conclusion on nearly
identical facts. United States v. Aguayo-Delgado, 220 F.3d 926,
933-34 (8th Cir. 2000).
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