United States v. Robert O'Neal

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 19, 2004
No. 03-10559
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 01-06244 CR-WDF

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT O'NEAL,
LEONARD SAPP,
JEFFREY SAPP,

Defendants-Appellants.

________________________

Appeals from the United States District Court
for the Southern District of Florida
_________________________

(March 19, 2004)

Before DUBINA, BARKETT and COX, Circuit Judges.

PER CURIAM:
 This appeal presents two issues: (1) whether the district court committed

reversible error in failing to properly present the question of drug type and quantity

to the jury; and (2) whether the district court committed reversible error in failing to

find that the quantity of cocaine that triggered mandatory sentences for two

defendants was reasonably foreseeable to each defendant. We affirm.

I. BACKGROUND & PROCEDURAL HISTORY

Defendants Leonard Sapp and Jeffery Sapp occupied a house owned by their

parents in Fort Lauderdale, Florida. Co-defendant Robert O’Neal lived nearby and

frequented the Sapps’ house to play video games, socialize and sell drugs. The Sapp

residence was known as a “crack house” where others from the neighborhood could

purchase drugs.

In July 2001, the Sapp residence became the target of a police investigation.

After initial surveillance, narcotics agents apprehended Patrick Tranchida

immediately after he left the Sapps’ premises, finding crack cocaine in his vehicle.

Tranchida, a habitual offender, admitted he had purchased the crack cocaine at the

Sapps’ house and agreed to serve as a confidential informant for the agents. Over the

next month, Tranchida returned to the Sapp residence six times to make controlled

buys of crack cocaine. On October 23, 2001, the police executed a search warrant for

the Sapps’ house, arresting Jeffery Sapp on the premises and recovering both crack

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and powder cocaine from stashes within the house. Leonard Sapp and O’Neal were

arrested two days later off the premises.

The Defendants were charged with the following, in violation of 21 U.S.C. §§

846 and 841(a)(1).

Count 1 (Leonard Sapp, Jeffery Sapp, O’Neal): conspiring to possess with

intent to distribute at least fifty grams of a mixture and substance containing a

detectable amount of cocaine base, commonly known as crack cocaine;

Count 2 (Leonard Sapp, O’Neal): possessing with intent to distribute at least

five grams of crack cocaine on August 5, 2001;

Count 3 (O’Neal): possessing with intent to distribute at least 5 grams of crack

cocaine on August 10, 2001;

Count 4 (Leonard Sapp, Jeffery Sapp): possessing with intent to distribute at

least 5 grams of crack cocaine on August 15, 2001;

Count 5 (Leonard Sapp): possessing with intent to distribute at least 5 grams

of crack cocaine on August 22, 2001;

Count 6 (Leonard Sapp, Jeffery Sapp): possessing with intent to distribute at

least 5 grams of crack cocaine on August 28, 2001; and

Count 7 (Leonard Sapp): possessing with intent to distribute at least 5 grams

of crack cocaine on August 29, 2001.

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 The jury found all three Defendants guilty on Count 1, the conspiracy charge.

By special verdict, the jury found that the conspiracy involved at least 50 grams of

crack cocaine. The jury also convicted O’Neal on Counts 2 and 3, Jeffery Sapp on

Count 6, and Leonard Sapp on Counts 2, 5, 6, and 7. On each substantive count, the

jury returned a special verdict that the offense involved at least 5 grams of crack

cocaine. The jury acquitted Leonard Sapp and Jeffery Sapp on Count 4.

On Count 1, the conspiracy count, each of these defendants were subject to a

statutory mandatory minimum sentence of 20 years’ imprisonment and a maximum

sentence of life imprisonment. This sentencing range, fixed by § 841(b)(1)(A), was

the result of a determination that the conspiracy involved at least 50 grams of crack

cocaine and the Defendants’ prior felony drug convictions. Each of the substantive

counts subjected each defendant to a mandatory minimum sentence of 10 years and

a maximum sentence of life imprisonment on each count, all pursuant to §

841(b)(1)(B). The district court sentenced O’Neal under § 841(b)(1)(A) to the

statutory mandatory minimum of 240 months’ imprisonment on Count 1, the

conspiracy count, and to the statutory mandatory minimum of 120 months’

imprisonment under § 841 (b)(1)(B) on Counts 2 and 3; those sentences are to run

concurrently. The court sentenced Jeffery Sapp under § 841(b)(1)(A) to the statutory

mandatory minimum of 240 month’s imprisonment on Count 1, and to the statutory

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mandatory minimum of 120 months’ imprisonment under § 841(b)(1)(B) on Count

6; those sentences are to run concurrently. The court sentenced Leonard Sapp to

concurrent sentences of 360 months’ imprisonment on Counts 1, 2, 5, 6, and 7. No

mandatory minimum sentence was imposed in Sapp’s case.

The Defendants appeal.

II. ISSUES ON APPEAL

We discuss two of the issues presented by this appeal. Robert O’Neal and

Leonard Sapp raise the first sentencing issue: whether the district court erred by not

instructing the jury that both the quantity and type of the controlled substance charged

in the indictment (crack cocaine) were elements of the offense that must be found

beyond a reasonable doubt, as required by Apprendi v. New Jersey, 530 U.S. 466, 120

S. Ct. 2348 (2000).

All three Defendants raise the second sentencing issue: whether the district

court erred by not considering the quantity of crack cocaine that was reasonably

foreseeable to each Defendant before concluding that these statutory mandatory

minimum sentences were required.1

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The Defendants also raise the following issues: (1) whether the Government
committed a discovery violation with regard to evidence seized on October 23, 2001; (2) whether
the district court abused its discretion by admitting several audiotapes into evidence; (3) whether the
testimony of a confidential informant was so unbelievable as to be incredible as a matter of law; (4)
whether the evidence was insufficient to convict O’Neal of conspiracy; (5) whether the evidence
presented was insufficient to prove that the cocaine base was crack cocaine; and, (6) whether the

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 III. STANDARD OF REVIEW

Both sentencing issues raised by the Defendants present questions of law that

we review de novo. United States v. Pla, 345 F.3d 1312, 1313 (11th Cir. 2003). But

because Robert O’Neal and Leonard Sapp did not preserve their Apprendi issue by

appropriate objection in the district court, our review of their contention is for plain

error. United States v. Miller, 255 F.3d 1282, 1287 (11th Cir. 2001); Fed. R. Crim.

P. 52(b). Likewise, because Leonard Sapp failed to preserve his reasonable

foreseeability claim in the district court, we review it also for plain error.

IV. DISCUSSION

A. The Apprendi Argument

O’Neal and Leonard Sapp argue that the jury’s verdict form insufficiently

appraised the jury that it was required to find drug quantity and type beyond a

reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348 (2000). The Government responds that the district court properly instructed the

jury and thus complied with Apprendi’s requirements. We reject the Defendants’

contentions for the following reasons.

district court improperly sentenced the Defendants. After careful review, we find the Defendants’
contentions relative to these issues meritless, and reject them without further discussion. See 11th
Cir. R. 36-1.

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 The verdict form must be considered in the context of the jury instructions as

a whole. See United States v. Taggart, 944 F.2d 837, 839 (11th Cir. 1991). After

careful review, we conclude that the district court’s instructions amply informed the

jury that the “beyond a reasonable doubt” standard applied to the jury’s determination

of drug quantity and type as well as to their determination of the Defendants’ guilt.

The only standard of proof included in the court’s instructions was proof beyond a

reasonable doubt, and there is no reason to think that the jury did not understand that

this standard applied to all its determinations. The law does not require that the

standard of proof be included in the verdict form. See United States v. Clay, 355 F.3d

1281, 1285 (11th Cir. 2004) (holding that a district court did not err by submitting a

special verdict form to the jury; this particular verdict form did not specify a standard

of proof).

But even if the district court did err in instructing the jury, examination of the

Defendants’ sentences in light of United States v. Sanchez, 269 F.3d 1250 (11th Cir.

2001) (en banc) reveals that any error was harmless. In Sanchez, we stated, “in a §

841 case, when a defendant’s sentence falls at or below the statutory maximum

penalty in § 841 (b)(1)(C), there is no Apprendi error and there is no need for drug

quantity to be submitted to a jury and proven beyond a reasonable doubt.” 269 F.3d

at 1269. Similarly, “drug type . . . do[es] not have to be charged in the indictment or

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submitted to the jury for proof beyond a reasonable doubt, except when the finding

of drug type . . . causes the sentence actually imposed upon the defendant to rise

above the prescribed statutory maximum.” United States v. Tinoco, 304 F.3d 1088,

1100 (11th Cir. 2002). None of the sentences imposed in this case exceeded the 30

year statutory penalty for cocaine cases involving a defendant with a prior felony drug

conviction, without reference to the quantity involved, fixed by § 841(b)(1)(C), and

thus there was no Apprendi error. And, a statutory mandatory minimum may be

imposed based on judge-decided facts and need not be submitted to a jury for proof

beyond a reasonable doubt. McMillan v. Pennsylvania, 477 U.S. 79, 86-88, 106 S.

Ct. 2411, 2416-17 (1986); Apprendi, 530 U.S. at 487 n.13, 120 S. Ct. 2361 n.13.

B. The Reasonable Foreseeability Requirement in 21 U.S.C. §§ 841 and 846

The Defendants contend that the district court erred by imposing a sentence

under § 841(b) triggered by the jury’s special verdict without considering whether

the amount of crack cocaine the jury found to be within the scope of the conspiracy

was “reasonably foreseeable” to each Defendant, as required by United States v.

Chitty, 15 F.3d 159 (11th Cir. 1994). The Defendants also argue that the district court

failed to make individualized findings relative to foreseeability as to each Defendant

and each transaction. The Government disagrees, arguing that Chitty does not control

this case, and that the issue is one of first impression in this circuit. The Government

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also argues, alternatively, that because the district court made a reasonable

foreseeability finding under the Sentencing Guidelines, the Defendants’ sentences

should be affirmed.

1. United States v. Chitty

All three Defendants argue that in Chitty, we adopted the reasonable

foreseeability principles of Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180

(1946) in regard to sentencing in drug conspiracy cases. The Defendants also argue

that the district court should have made individualized findings as to the quantities

of drugs that were reasonably foreseeable to each Defendant based on their respective

level of participation, as required by United States v. Beasley, 2 F.3d 1551, 1552

(11th Cir. 1993).2

2
In Beasley, we addressed individualized findings in the context of a guidelines
sentence. We adopt Beasley’s reasoning in regard to statutorily mandated sentences as well.

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 In Chitty,3 we held that the same principles of reasonable foreseeability that

apply in United States Sentencing Guideline § 1B1.34 also apply to a statutory

sentence for a conspiracy charged under 21 U.S.C. § 846, which is subject to the

penalty provisions of 21 U.S.C. 841(b). 15 F.3d at 162. We stated that a conspirator

is only “responsible for conspiracy activities in which he is involved, and for drugs

involved in those activities, and for subsequent acts and conduct of co-conspirators,

and drugs involved in those acts or conduct, that are in furtherance of the conspiracy

and are reasonably foreseeable to him.” Id.

Chitty is consistent with the decisions of our sister circuits that have considered

this issue. See United States v. Martinez, 987 F.2d 920 (2d Cir. 1993); United States

v. Irvin, 2 F.3d 72 (4th Cir. 1993); United States v. Ruiz, 43 F.3d 985 (5th Cir. 1995);

United States v. Swiney, 203 F.3d 397 (6th Cir. 2000); United States v. Young, 997

3
In Chitty, the defendant was convicted of conspiring to import and possess with intent
to distribute 1000 kilograms or more of marijuana. 15 F.3d at 160. But the only evidence of the
defendant’s involvement in the conspiracy was his presence on one occasion at an off-loading site.
Id. After being convicted, the defendant was sentenced to the mandatory minimum term of 120
months’ imprisonment based on the total amount of drugs involved in the conspiracy. Id. at 161.
On appeal, he argued that there was insufficient evidence to establish that the criminal acts of his co-
conspirators were reasonably foreseeable to him. Id. at 161-62. We agreed, but upheld his
conviction because there was sufficient evidence as to his conspiratorical participation in one
transaction. Id. We remanded the case for resentencing so that the district court could consider the
Pinkerton standards of reasonable foreseeability to determine his sentence. Id.
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U.S.S.G. § 1B1.3(a)(1)(B) directs courts to consider “all reasonably foreseeable acts
and omissions of others in furtherance of the jointly undertaken criminal activity.” We have held
“that the standards embodied in section 1B1.3 roughly approximate those detailed . . . in Pinkerton.”
United States v. LaFraugh, 893 F.2d 314, 317 (11th Cir. 1990).

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F.2d 1204 (7th Cir. 1993); United States v. Jones, 965 F.2d 1507 (8th Cir. 1992);

United States v. Castaneda, 9 F.3d 761 (9th Cir. 1993); United States v. Robertson,

45 F.3d 1423 (10th Cir. 1995).

The rule under Chitty is that, in determining a defendant’s penalty under 21

U.S.C. § 841(b) for a violation of 21 U.S.C. § 846, the drug quantity must be

reasonably foreseeable to that defendant where the effect of the quantity is to require

the imposition of statutory mandatory minimum sentence. See Irvin, 2 F.3d at 77-78

(comparing the Sentencing Guidelines with the statutory sentencing scheme, and

reconciling the difference between the two by concluding that Sections 846 and

841(b) contain a requirement that courts apply the Pinkerton principles of reasonable

foreseeability); Martinez, 987 F.2d at 925-26 (surveying the legislative history of §

846 and determining that the Guidelines, as amended in 1988, incorporated the

Pinkerton standards of reasonable foreseeability; such incorporation is not

inconsistent with § 846, which only requires that a conspirator be sentenced to the

same penalty applicable to the underlying conduct).

In relation to O’Neal’s statutory sentence, the district court made a

determination “that this defendant should be held and is responsible for . . . fifty

grams of crack cocaine, since it is and was reasonably foreseeable that crack cocaine

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in that amount was being distributed.” (R.21 at 15.) By making this individualized

finding, the district court satisfied Chitty’s requirement.

Regarding Jeffery Sapp’s sentence, the district court adopted the factual

findings found in his presentence report. (R.22 at 9.) In the presentence report,

Jeffery Sapp’s probation officer discussed reasonable foreseeability in relation to §

1B1.3 and concluded that all of the drugs within the scope of the conspiracy were

reasonably foreseeable to Jeffery Sapp. As Chitty requires a reasonable foreseeability

finding identical to that in § 1B1.3, we are satisfied that the district court made a

proper individualized finding on Jeffery Sapp’s culpability within the scope of the

conspiracy.

2. Plain Error Review of Leonard Sapp’s Sentence

Leonard Sapp makes his reasonable foreseeability argument for the first time

on appeal. Before the district court, he neither raised this issue nor voiced any

objection to the sentencing court’s findings. We therefore subject his claim to plain

error review. United States v. Maurice, 69 F.3d 1553, 1557 (11th Cir. 1995). “We

will find plain error only where (1) there is an error; (2) the error is plain or obvious;

(3) the error affects the defendant’s substantial rights in that it was prejudicial and not

harmless; and (4) the error seriously affects the fairness, integrity, or public reputation

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of a judicial proceeding.” United States v. Cromartie, 267 F.3d 1293, 1294-95 (11th

Cir. 2001).

After reviewing the record on appeal and the presentence report, we determine

that the district court did not make a factual finding on the quantity of crack cocaine

within the conspiracy that was reasonably foreseeable to Leonard Sapp. Because the

district court did not make a reasonable foreseeability finding as to Leonard Sapp, as

required by USSG § 1B1.3, this was error; in light of Chitty, it was plain.

We must then determine if the error affected Leonard Sapp’s substantial rights.

The district court adopted the factual findings contained in Leonard Sapp’s

presentence report. (R.23 at 8.) The facts found by the district court support the

conclusion that at least 50 grams of crack cocaine were reasonably foreseeable to

Leonard Sapp. Leonard Sapp was present at five of the six controlled purchases of

crack cocaine; the amount sold by Leonard Sapp in the controlled buys was 48.7

grams. See Presentence Investigation Report, ¶ 10-17, 21. In addition, while

executing the search warrant for the house where Leonard Sapp resided, the

Government seized 20.8 more grams of crack cocaine. Presentence Investigation

Report, ¶ 21. We conclude that it was reasonably foreseeable to Leonard Sapp that

the conspiracy encompassed sales of crack cocaine of at least 50 grams. Because the

district court’s factual findings support reasonable foreseeability, the error committed

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by the district court did not prejudice Leonard Sapp’s substantial rights and the

district court did not plainly err. See United States v. Novaton, 271 F.3d 968, 1015

(11th Cir. 2001) (holding that the defendants’ substantial rights were not affected by

a Sentencing Guidelines enhancement, even in the absence of a specific finding by

the district court, because the evidence amply supported the enhancement).

V. CONCLUSION

The convictions and sentences of Robert O’Neal, Leonard Sapp, and Jeffery

Sapp are

AFFIRMED.

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