United States Court of Appeals
For the First Circuit
No. 00-1674
UNITED STATES OF AMERICA,
Appellee,
v.
CAROLYN A. ROBINSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Selya, Lynch and Lipez,
Circuit Judges.
Darla J. Mondou, by appointment of the court, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Richard W.
Rose, Assistant United States Attorney, were on brief, for
appellee.
March 6, 2001
SELYA, Circuit Judge. A petit jury convicted
defendant-appellant Carolyn A. Robinson of trafficking in crack
cocaine. The district court thereafter sentenced her to spend
121 months in prison. In this appeal, she mounts a tripartite
challenge to her sentence, hinging all three prongs on Apprendi
v. New Jersey, 120 S. Ct. 2348 (2000) — an opinion handed down
by the Supreme Court well after she was sentenced. We conclude
that Apprendi is inapposite and therefore affirm the judgment
below.
I.
Background
We previously upheld the conviction and sentence of the
appellant's son, Phillip Robinson, who was tried with her in the
district court. See United States v. Robinson, 144 F.3d 104
(1st Cir. 1998). Here, we merely sketch the circumstances of
the offenses of conviction, referring the reader who hungers for
additional details to our earlier opinion. See id. at 105-06.
On January 6, 1997, Providence police officers executed
a warrant to search the appellant's home for articles related to
the sale and use of narcotics. When the police entered the
dwelling, they found the appellant in the kitchen. Fourteen
small bags of cocaine base, packaged for individual sale, were
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in plain view on the kitchen table. The ensuing search revealed
more cocaine base, drug paraphernalia, a loaded gun, and $1,800
in cash. The gun, the cash, and a digital scale of the type
commonly used to weigh cocaine were found in the appellant's
bedroom.
The appellant was tried and convicted on one count of
possessing cocaine base with intent to distribute and one count
of conspiracy to possess cocaine base with intent to distribute.
See 21 U.S.C. §§ 841(a)(1), 846. At the disposition hearing,
held on September 17, 1997, the district court used a
preponderance-of-the-evidence standard to make several findings
of consequence to the length of the appellant's sentence.
First, although the indictment did not mention a specific amount
of cocaine base and the jury was not asked to make any finding
in that regard, the court determined that the relevant quantity
of cocaine base for sentencing purposes was 35.33 grams. This
amount included the 9.63 grams that the police had discovered in
the appellant's house, plus a "drug equivalent" calculated by
converting the $1,800 found in the appellant's bedroom into 25.7
grams of cocaine base. 1 Second, the court determined by a
1
The court essayed this conversion after determining by a
preponderance of the evidence that the seized cash could be
traced to the appellant's drug trafficking. See United States
v. Sepulveda, 15 F.3d 1161, 1201 (1st Cir. 1993) ("When it is
reasonably probable that confiscated cash represents either drug
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preponderance of the evidence that the cocaine base was, in
fact, crack cocaine.2 Third, the court ascertained, again by a
preponderance of the evidence, that the loaded gun hidden in the
appellant's bedroom had a significant connection to her drug-
trafficking activity and therefore made a two-level upward
adjustment to the appellant's base offense level. See USSG
§2D1.1(b)(1). These findings, in the aggregate, resulted in a
guideline sentencing range of 121-151 months (offense level 32;
criminal history category I). The court sentenced the appellant
at the nadir of the range. After an unfortunate delay due to
some sloppy lawyering by the appellant's prior counsel, this
appeal eventuated.
II.
Analysis
The rule set out in Apprendi is 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
profits or money dedicated to the upcoming purchase of
contraband, a sentencing court may convert the cash into
equivalent amounts of narcotics for 'relevant conduct'
purposes."); see also USSG §2D1.1, comment. (n.12) ("Where . .
. the amount [of contraband] seized does not reflect the scale
of the offense, the court shall approximate the quantity of the
controlled substance.").
2We upheld this finding in Robinson, 144 F.3d at 107-09.
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S. Ct. at 2362-63. The appellant grounds her three-pronged
sentencing challenge on this newly-elaborated constitutional
mandate.
Our inquiry starts, as any Apprendi inquiry must start,
with a delineation of the penalties normally associated with the
counts of conviction. In this instance, the jury convicted the
appellant on one count of possessing cocaine base with intent to
distribute in violation of 21 U.S.C. § 841(a)(1) and one count
of conspiring to possess cocaine base with intent to distribute
in violation of 21 U.S.C. § 846. Because the penalty provision
of section 846 tracks the penalties provided for violations of
section 841(a)(1), we focus on the latter.
21 U.S.C. § 841(a)(1) renders it unlawful to
"manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance."
This statute covers cocaine base. See 21 U.S.C. § 812(c),
Sched. II(a)(4). The penalties for violating section 841(a)(1)
are articulated in 21 U.S.C. § 841(b). That statute designates
three different sentencing regimes based on drug quantity (as
well as on other factors not relevant here, such as whether
death or serious bodily harm resulted from the proscribed
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activity).3 The most onerous penalties are associated with
violations of 21 U.S.C. § 841(a)(1) that involve fifty grams or
more of a substance containing cocaine base; such a violation
exposes the perpetrator to a mandatory minimum sentence of ten
years and a maximum sentence of life imprisonment. Id. §
841(b)(1)(A). The next most onerous sanctions are linked to
violations that involve five grams or more of a substance
containing cocaine base; such a violation exposes the
perpetrator to a mandatory minimum sentence of five years and a
maximum sentence of forty years. Id. § 841(b)(1)(B). The third
and final tier — the catchall provision — directs that all other
violations involving detectable amounts of cocaine base shall
carry a maximum sentence of twenty years, but omits all mention
of a mandatory minimum. Id. § 841(b)(1)(C). Thus, the default
statutory maximum for a violation of 21 U.S.C. § 841(a)(1)
involving cocaine base is twenty years.
In this venue, the appellant makes three related
arguments, each of which is premised on Apprendi. First, she
maintains that it was error for the district court to enhance
her sentence based on facts (e.g., drug quantity) that it had
3The penalty provisions of section 841(b) apply somewhat
differently to various types and quantities of controlled
substances. We limit our discussion here to substances
containing detectable amounts of cocaine base.
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found only by a preponderance of the evidence. Second, she
complains that the district court's defective factfinding
exposed her to a maximum sentence of forty years, and she
contends that Apprendi forecloses that result. Third, she
asseverates that her sentence is invalid because the lower
court's methodology exposed her to a mandatory minimum sentence
of five years.4 Because the appellant did not raise any of these
issues below, we review her claims for plain error. See United
States v. Terry, ___ F.3d ___, ___ (1st Cir. 2001) [No. 00-1079,
slip op. at 17]; United States v. Mojica-Baez, 229 F.3d 292,
306-07 (1st Cir. 2000).
A.
The District Court's Factfinding
The appellant contends that her sentence offends
Apprendi because several of the constituent facts upon which the
district court predicated its guideline computations (and,
hence, the sentence that it levied) were determined by the judge
under the preponderance-of-the-evidence standard instead of by
the jury under the more rigorous beyond-a-reasonable-doubt
4
As we noted previously, section 841(b)(1)(B) carries a
mandatory minimum sentence of five years while section
841(b)(1)(C) boasts no mandatory minimum.
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standard. The appellant's premise is impeccable: the court
made the critical findings (e.g., drug weight) according to a
preponderance-of-the-evidence standard, and those findings
adversely influenced the length of the appellant's sentence.
Nevertheless, the appellant's conclusion is wrong.
In the last analysis, the court meted out only a 121-
month sentence — a sentence below the lowest statutory maximum
for trafficking in cocaine base. See 21 U.S.C. § 841(b)(1)(C)
(establishing twenty-year maximum). No Apprendi violation
occurs when the district court sentences a defendant below the
default statutory maximum, even though drug quantity, determined
by the court under a preponderance-of-the-evidence standard,
influences the length of the sentence imposed. United States v.
Caba, ___ F.3d ___, ___ (1st Cir. 2001) [No. 00-1493, slip op.
at 4-5]; Terry, ___ F.3d at ___ [slip op. at 18-19]; United
States v. Houle, 237 F.3d 71, 79-80 (1st Cir. 2001); United
States v. LaFreniere, 236 F.3d 41, 50 (1st Cir. 2001); United
States v. Baltas, 236 F.3d 27, 41 (1st Cir. 2001); accord United
States v. Garcia, ___ F.3d ___, ___ (2d Cir. 2001) [2001 WL
167018, at *4]; United States v. Thompson, 237 F.3d 1258, 1262-
63 (10th Cir. 2001); United States v. Williams, 235 F.3d 858,
863 (3d Cir. 2000); United States v. Kinter, 235 F.3d 192, 202
(4th Cir. 2000); United States v. Gerrow, 232 F.3d 831, 834-35
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(11th Cir. 2000) (per curiam); United States v. Keith, 230 F.3d
784, 787 (5th Cir. 2000) (per curiam), cert. denied, ___ S. Ct.
___ (2001); Hernandez v. United States, 226 F.3d 839, 841-42
(7th Cir. 2000); United States v. Aguayo-Delgado, 220 F.3d 926,
933-34 (8th Cir.), cert. denied, 121 S. Ct. 600 (2000).
The appellant's contrary argument relies principally
on United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000). That
case is readily distinguishable. There, the defendant was
convicted of marijuana trafficking and sentenced based on a
judicial determination of drug quantity. Id. at 1056-57.
Referencing 21 U.S.C. § 841(b)(1)(D), the court of appeals
determined the default statutory maximum for an unspecified
amount of marijuana to be five years in prison. Id. at 1059.
Since Nordby had been sentenced to a term longer than the
default statutory maximum without a jury finding on drug weight,
the court vacated his sentence. Id. at 1061-62. The
distinction between Nordby and the case at bar is obvious:
Nordby received a sentence in excess of what the court
determined to be the default statutory maximum (thus implicating
the rule in Apprendi 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," 120
S. Ct. at 2362-63), whereas the appellant here received a
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sentence lower than the default statutory maximum for
trafficking in an unspecified amount of cocaine base (thus
escaping the Apprendi proscription). We therefore reject both
the appellant's reliance on Nordby5 and the first prong of her
Apprendi challenge.
B.
Exposure Simpliciter
Although the appellant received a sentence beneath the
twenty-year statutory maximum for an unspecified amount of
cocaine base, the court's overall drug quantity calculation
(35.33 grams) placed her in the second statutory tier and
theoretically exposed her to a forty-year sentence. See 21
U.S.C. § 841(b)(1)(B) (establishing a maximum sentence of forty
years for violations of section 841(a)(1) that involve five
grams or more of a substance containing cocaine base). Since
the court's finding exposed her to this higher statutory
maximum, the appellant posits, that finding (and, consequently,
her sentence) offends Apprendi.
5
The appellant likewise hawks an unpublished Fourth Circuit
opinion, United States v. Lewis, No. 99-4714, 2000 WL 1390065
(4th Cir. Sept. 26, 2000). Lewis lacks precedential value. See
4th Cir. R. 36(c); 1st Cir. R. 36(b)(2)(F). In all events, the
case is functionally identical to Nordby (and, thus, adds
nothing to the appellant's argument).
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This argument does not flow naturally from Apprendi.
After all, the Court there did not deal with a defendant's
theoretical exposure to a sentence beyond the default statutory
maximum. Instead, the Court dealt with a sentence that actually
exceeded the default statutory maximum: Apprendi himself
pleaded guilty to possessing a firearm for an unlawful purpose,
an offense that carried a maximum ten-year sentence, and the
trial court increased this sentence to twelve years based on its
finding that he had acted with racial animus. 120 S. Ct. at
2352.
The appellant brushes aside this distinction. Although
the Supreme Court's opinion did no more than invalidate that
portion of the sentence that exceeded the basic statutory
maximum, id. at 2363-67, the appellant reads it as hinting
broadly that the Justices might in the future cast their net
more widely, see id. at 2363, quoting Jones v. United States,
526 U.S. 227, 252 (1999) (Stevens, J., concurring), to the
effect 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." This means, the appellant suggests, that a fact
(other than a prior conviction) that exposes a criminal
defendant to a sentence in excess of the default statutory
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maximum always must be submitted to the jury and proven beyond
a reasonable doubt, even though the sentence actually imposed
does not outstrip that maximum.
This argument is not woven entirely out of the gossamer
threads of serendipitous surmise. At least one court seems to
have interpreted Apprendi as applying whenever a defendant is
exposed to a higher statutory maximum, regardless of the
severity of the sentence actually imposed. See United States v.
Garcia-Guizar, 234 F.3d 483, 488 (9th Cir. 2000) (finding
Apprendi error where judge's determination of drug quantity
increased the statutory maximum to which the defendant was
exposed, notwithstanding that the actual sentence did not exceed
the original statutory maximum);6 Nordby, 225 F.3d at 1056
(declaring Apprendi's holding to be "that a fact that increases
the prescribed statutory maximum penalty to which a criminal
defendant is exposed must be submitted to a jury and proven
beyond a reasonable doubt").
We nonetheless decline the appellant's invitation to
expand the Apprendi rule. As said, Apprendi's actual holding is
6
While the Garcia-Guizar court held that it was Apprendi
error for the defendant to have been exposed to an enhanced
statutory maximum as a result of a fact found by a judge on a
preponderance-of-the-evidence standard, the defendant did not
profit; the court deemed the error harmless because the
defendant's actual sentence was below the basic statutory
maximum. 234 F.3d at 488-89.
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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. Giving these words
their plain meaning, sentence-enhancing facts still may be found
by the judge under a preponderance-of-the-evidence standard as
long as those facts do not result in a sentence that exceeds the
original statutory maximum. Indeed, the Apprendi Court itself
commented that nothing in the history of criminal jurisprudence
"suggests that it is impermissible for judges to exercise
discretion . . . in imposing a judgment within the range
prescribed by statute." Id. at 2358 (emphasis in original); see
also Edwards v. United States, 523 U.S. 511, 513-15 (1998)
(confirming that sentencing judges are authorized to determine
the amount and kind of controlled substances for which a
defendant may be held responsible, as long as the resulting
sentence is within the otherwise-applicable statutory maximum).
Thus, theoretical exposure to a higher sentence, unaccompanied
by the imposition of a sentence that in fact exceeds the
otherwise-applicable statutory maximum, is of no consequence.
This interpretation of Apprendi does no more than make
explicit what our earlier cases have held implicitly. E.g.,
Houle, 237 F.3d at 78-81 (finding no Apprendi error where actual
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sentence was below lowest statutory maximum for cocaine
trafficking even though defendant was theoretically exposed to
life imprisonment); LaFreniere, 236 F.3d at 48-50 (finding no
Apprendi error where actual sentence was below lowest statutory
maximum for heroin trafficking even though defendant was
theoretically exposed to life imprisonment). Moreover, our
conclusion that the Apprendi rule is not transgressed by purely
theoretical exposure to a sentence higher than the default
statutory maximum finds solid support in Williams, 235 F.3d at
863, in which the Third Circuit held squarely that exposure to
an enhanced statutory maximum, without more, does not constitute
Apprendi error. The same tenet is embedded in the decisions of
other courts of appeals. See, e.g., Keith, 230 F.3d at 785-87
(finding Apprendi inapplicable when defendant was sentenced
under lowest statutory maximum for trafficking in cocaine base,
notwithstanding defendant's theoretical exposure to immurement
in excess of that maximum); Aguayo-Delgado, 220 F.3d at 933-34
(to like effect in case involving methamphetamine trafficking).
If more were needed — and we doubt that it is — another
powerful consideration buttresses this view. The appellant's
interpretation of Apprendi, carried to its logical conclusion,
would eviscerate the federal sentencing guidelines. We do not
believe that the Court would have set in motion such a sea
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change in the law of sentencing without explicitly addressing
the issue. Cf. Garcia, ___ F.3d at ___ [2001 WL 167018, at *4]
("Until advised to the contrary by the Supreme Court, we do not
believe that a sentencing judge's traditional fact-finding has
been replaced by a requirement of jury fact-finding.").
In fine, the Apprendi rule applies only in situations
in which a judge-made factual determination actually boosts the
defendant's sentence beyond the basic statutory maximum. See
Baltas, 236 F.3d at 41. Theoretical exposure to a higher
maximum punishment, in and of itself, is not enough. Because
the appellant in this case received a sentence below the default
statutory maximum, we reject her importuning that her
theoretical exposure to a higher statutory maximum invalidates
the judge-found facts that increased her guideline sentencing
range (or, for that matter, invalidates the 121-month sentence
actually imposed).
C.
Mandatory Minimum Sentences
The appellant's final argument derives from the fact
that the statute under which she was sentenced, 21 U.S.C. §
841(b)(1)(B), provides for a mandatory minimum sentence of five
years. Building on this foundation, she endeavors to persuade
us that the Apprendi rule extends to the situation in which a
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mandatory minimum sentence is imposed based on a preponderance-
of-the-evidence judicial determination of drug quantity. We are
not convinced.
The principal problem with the appellant's thesis is
that she lacks standing to mount the challenge. Her sentence
was not premised on the five-year mandatory minimum set out in
section 841(b)(1)(B), but, rather, on the applicable sentencing
guidelines. Thus, even if her thesis had some bite, it would
not assist her here. See Houle, 237 F.3d at 80 (finding
Apprendi inapposite in analogous circumstances where defendant
was sentenced pursuant to the sentencing guidelines, not by
reference to a statutory mandatory minimum).
We hasten to add that the appellant's thesis would be
doomed to failure in any event. In McMillan v. Pennsylvania,
477 U.S. 79 (1986), the Supreme Court upheld a state statute
requiring a sentencing judge to impose a mandatory minimum
sentence if the judge found, by a preponderance of the evidence,
that the defendant possessed a firearm during the commission of
the offense of conviction. Id. at 81-93. It is beyond question
that McMillan survives Apprendi. See Apprendi, 120 S. Ct. at
2361 n.13 (confirming that the Court did not intend to overrule
McMillan, albeit noting that McMillan's holding was limited to
cases that "do not involve the imposition of a sentence more
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severe than the statutory maximum for the offense established by
the jury's verdict"). And since McMillan clearly allows a fact
that triggers a mandatory minimum sentence to be found by a
judge using a preponderance-of-the-evidence standard as long as
the mandatory minimum does not exceed the otherwise-applicable
statutory maximum, 477 U.S. at 87-88, it forecloses the
appellant's argument.
The appellant makes a last-ditch effort to undermine
this conclusion. She points out that the Supreme Court, after
deciding Apprendi, vacated the decision in United States v.
Jones, 194 F.3d 1178 (10th Cir. 1999), and remanded that case
for further proceedings. 120 S. Ct. 2739 (2000). The appellant
boldly asserts that this remand order inflicted a "death blow"
on McMillan. Appellant's Br. at 15. We do not agree. The
defendant in Jones had been sentenced to thirty years for
peddling cocaine base, see 194 F.3d at 1183 — a sentence well
above the twenty-year default statutory maximum limned in 21
U.S.C. § 841(b)(1)(C). Jones, then, is a classic Apprendi case,
and has nothing to do with the vitality vel non of McMillan.7
7In a further attempt to sustain her thesis, the appellant
cites a concurring opinion in Apprendi which argues that a fact
triggering a mandatory minimum should be submitted to the jury
and found beyond a reasonable doubt. 120 S. Ct. at 2379-80
(Thomas, J. concurring). Justice Thomas's concurrence is
explicitly denominated as an explanation of his view that the
Court should have adopted a broader rule, id. at 2367, and is
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III.
Conclusion
We need go no further. While Apprendi shifted the
tectonic plates insofar as criminal sentencing is concerned, its
impact is far less disruptive than the appellant assumes. For
the reasons explicated above, we conclude that the district
court correctly anticipated the Apprendi rule and that its
imposition of a 121-month incarcerative sentence in this case is
fully consistent with the strictures of that rule.
Affirmed.
not binding on us.
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