United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 9, 2001 Decided July 27, 2001
No. 99-3114
United States of America,
Appellee
v.
Dennis L. Webb,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 98cr00260-01)
Peter S. Spivack, appointed by the court, argued the cause
for appellant. With him on the briefs was Christopher T.
Handman.
Mary B. McCord, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney at the time the brief was filed, John R.
Fisher and Roy W. McLeese, III, Assistant U.S. Attorneys.
Before: Ginsburg, Chief Judge, and Sentelle and
Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: This case presents questions aris-
ing from the Supreme Court's opinion in Apprendi v. New
Jersey, 530 U.S. 466 (2000), including the impact of Apprendi
on the interpretation of the career offender provision of the
United States Sentencing Guidelines, U.S.S.G. s 4B1.1. Den-
nis Webb appeals from his conviction on three counts of
distributing and one count of possessing with intent to dis-
tribute cocaine base, in violation of 21 U.S.C. s 841. Webb
contends that because a judge, rather than a jury, determined
facts concerning drug quantity and prior criminal convictions,
his sentence was imposed in violation of both the Constitution
and the Sentencing Guidelines. For the reasons discussed
below, we reject those challenges. We also reject Webb's
subsidiary claims that the trial court erred in failing to credit
him with accepting responsibility for his offenses, in admit-
ting evidence of Webb's prior drug transactions, and in
denying his motion to suppress evidence obtained during a
search of his apartment.
I
In the spring of 1998, the government began investigating
Webb for his suspected involvement in dealing cocaine base
("crack" cocaine) in Washington, D.C., and for his ties to a
New York drug supplier. The government recruited Danon
Johnson, a convicted drug dealer with whom Webb previously
had done business, to arrange several controlled purchases
from Webb. Webb sold Johnson cocaine base on May 14, 18,
and 28, 1998. Each of these transactions was preceded by
negotiations that were recorded on audiotape. The first two
transactions took place in Johnson's apartment; the third
transpired in a government car and was recorded on video
and audiotape. Government laboratory reports showed that
the quantity of cocaine base purchased on these occasions was
22.5, 34.7, and 53.5 grams, respectively. Following the sales,
on July 28, 1998, a federal grand jury handed down a sealed
indictment charging Webb with three counts of distributing
cocaine base.
The government's investigation into Webb resumed on
September 3, 1998, when investigators asked Johnson to
attempt another purchase from Webb. Johnson contacted
Webb, but Webb told Johnson that he did not have any crack
for sale. Soon thereafter, the government obtained a search
warrant for Webb's apartment, seeking documents related to
Webb's drug business. The search warrant was executed on
September 15, 1998, and investigators found 6.52 grams of
crack, $15,114 in cash, drug packaging supplies, and a piece of
paper with the name and pager number of the New York
supplier sought by the government.
On December 3, 1998, a four-count superseding indictment
was filed against Webb. The indictment charged him with
one count of distribution for each of the three May drug
purchases: Counts One and Two each charged Webb with
distributing 5 grams or more of cocaine base, in violation of
21 U.S.C. s 841(a)(1) and (b)(1)(B)(iii), and Count Three
charged him with distributing 50 grams or more of cocaine
base, in violation of 21 U.S.C. s 841(a)(1) and (b)(1)(A)(iii). A
fourth count, relating to the drugs seized from his apartment,
charged Webb with possessing with intent to distribute a
detectable amount of cocaine base, in violation of 21 U.S.C.
s 841(a)(1) and (b)(1)(C).
Webb's case went to trial on April 27, 1999. Webb filed
pretrial motions to bar the government from introducing
evidence of his past drug transactions with Johnson, and to
suppress evidence collected from the search of his apartment.
The district court denied both motions. At trial, the govern-
ment's evidence included the testimony of Johnson, as well as
that of investigators who surveilled the transactions between
the two men and who participated in the search. A govern-
ment chemist testified and introduced lab reports that speci-
fied the weight of the cocaine base recovered from each
transaction and the search. Webb neither testified nor pre-
sented witnesses in his defense.
Consistent with then-prevailing precedent in this circuit,
the trial court did not instruct the jury that it must find the
drug quantities recited in the indictment; instead, it instruct-
ed that "the government need not prove that the defendant
distributed any particular numerical amount of cocaine, but it
must prove beyond a reasonable doubt that the defendant
distributed a detectable or measurable amount of cocaine."
4/29/99 Tr. at 48. Similarly, the jury verdict form did not
specify quantities for any of the charges. See App. 202. On
May 4, 1999, the jury convicted Webb on all counts.
Based upon the presentence report ("PSR"), the district
court found that Webb had two prior felony drug convictions,
that he was on parole for one at the time of the offenses
charged in the indictment, that the quantities of cocaine base
involved in the indictment's four counts were as specified
above, and that the total quantity was 116.82 grams.1 This
would ordinarily have given Webb a criminal history category
of IV and an offense level of 32, which would have fixed his
sentencing range at 168 to 210 months. See U.S.S.G.
s 2D1.1(c)(4); id. s 4A1.1(a), (d); id. ch. 5, Pt. A. However,
because of his two prior narcotics convictions, Webb qualified
as a career offender. See U.S.S.G. s 4B1.1.2 Under the
career offender guideline, Webb received a criminal history
category of VI and an offense level of 37. PSR p 18. These
figures exposed Webb to a sentencing range of 30 years to
__________
1 The PSR apparently made a mathematical error in totalling
drug quantity; the total should have been 117.22 grams.
2 Section 4B1.1 provides that: "A defendant is a career offend-
er if (1) the defendant was at least eighteen years old at the time
the defendant committed the instant offense of conviction, (2) the
instant offense of conviction is a felony that is either a crime of
violence or a controlled substance offense, and (3) the defendant has
at least two prior felony convictions of either a crime of violence or
a controlled substance offense." U.S.S.G. s 4B1.1. If a defendant
meets these criteria, his offense level is determined by using a table
set forth in s 4B1.1--if the table produces a higher offense level
than that which the defendant would otherwise receive under the
guidelines. Id. All defendants qualifying as career offenders re-
ceive a criminal history Category of VI. Id.
life. See U.S.S.G. ch. 5, pt. A. On August 13, 1999, the court
sentenced Webb to 30 years' imprisonment and 10 years of
supervised release.
II
Webb's principal challenge to his sentence is that it is
contrary to the rule announced 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." 530 U.S. at 490. Specifically,
Webb first contends that, because the jury merely found him
responsible for a detectable amount of cocaine base and made
no findings concerning his prior convictions, his 30-year
sentence exceeds the 20-year maximum constitutionally au-
thorized by the jury's findings. See 21 U.S.C. s 841(b)(1)(C).
Second, Webb contends that even if his sentence of 30 years
did not exceed the lawful maximum, the district court commit-
ted error by sentencing him, under the career offender
provision of the Sentencing Guidelines, U.S.S.G. s 4B1.1, to a
sentence greater than that justified by the jury's determina-
tion alone. We consider these contentions in Parts B through
D below. We begin with an explication of the relevant
statutory provisions, and with a discussion of the case law
leading to, and following from, the Supreme Court's opinion
in Apprendi.
A
Section 841(a) of Title 21 of the United States Code makes
it "unlawful for any person knowingly or intentionally" to
distribute or possess with intent to distribute a controlled
substance. Section 841(b) specifies sentences for "any person
who violates subsection (a)." For violations involving cocaine
base, s 841(b) establishes three categories of penalties, de-
pending upon the amount of the drug involved: s 841(b)(1)(A)
sets a maximum sentence of life in prison for violations
involving 50 grams or more; s 841(b)(1)(B) sets a maximum
sentence of 40 years for violations involving 5 grams or more
(or life, if the defendant has a prior felony drug conviction);
and s 841(b)(1)(C) sets a maximum sentence of 20 years for
any other amount (or 30 years, if the defendant has a prior
felony drug conviction).3
Until 2000, well-established precedent in this circuit held
that drug quantity was a sentencing factor to be determined
by the trial court by a preponderance of the evidence, and not
an element of the s 841 offense to be determined by a jury
beyond a reasonable doubt. See, e.g., United States v.
Williams, 194 F.3d 100, 102 (D.C. Cir. 1999); United States v.
Lam Kwong-Wah, 966 F.2d 682, 685 (D.C. Cir. 1992); United
States v. Patrick, 959 F.2d 991, 995-96 n.5 (D.C. Cir. 1992).
That precedent was consistent with the rule in the other
circuits. See Lam Kwong-Wah, 966 F.2d at 685 (collecting
cases). The fact of a defendant's prior conviction was also
treated as a sentencing factor and, in Almendarez-Torres v.
United States, the Supreme Court confirmed that prior con-
viction could constitutionally be determined by a judge rather
than a jury. 523 U.S. 224, 226-27 (1998). In accord with this
precedent, standard practice in the district court was for the
judge at sentencing, rather than the jury at trial, to make the
necessary findings about drug quantity and prior conviction.
This was the procedure the district court followed in Webb's
case.
In Jones v. United States, 526 U.S. 227 (1999), the Supreme
Court considered the statute that makes carjacking a federal
crime, 18 U.S.C. s 2119. That statute has a tripartite struc-
ture, with a base penalty of imprisonment for a maximum of
15 years, and greater penalties dependent upon whether the
offense involved the injury or death of a victim. The Court
suggested that it could well be unconstitutional for Congress
to remove those latter determinations from a jury's consider-
ation, pursuant to the principle 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
__________
3 Section 841(b)(1)(A) and (B) establish different quantity
thresholds for other drugs. They also establish mandatory mini-
mum sentences, but Webb raises no claim concerning the mandato-
ry minimum penalties on this appeal. See generally United States
v. Camacho, 248 F.3d 1286, 1288-89 & n.5 (11th Cir. 2001).
prior conviction) that increases the maximum penalty for a
crime must be charged in an indictment, submitted to a jury,
and proven beyond a reasonable doubt." Jones, 526 U.S. at
243 n.6. To avoid doubt about the constitutionality of s 2119,
the Court construed the statute "as establishing three sepa-
rate offenses by the specification of distinct elements, each of
which must be charged by indictment, proven beyond a
reasonable doubt, and submitted to a jury for its verdict."
Id. at 252.
The next Term, the Supreme Court decided Apprendi v.
New Jersey. Confirming what the Court said it had "fore-
shadowed" in Jones, Apprendi held that due process requires
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." 530 U.S. at 476, 490. Such a
fact, the Court said, was the "functional equivalent of an
element of a greater offense than the one covered by the
jury's guilty verdict." Id. at 494 n.19. In Apprendi, the
defendant had pled guilty to a state firearms charge that
exposed him to a sentencing range of 5 to 10 years' imprison-
ment. Id. at 469-70. However, pursuant to a separate state
statute enhancing punishment for hate crimes, a defendant's
maximum sentence could be increased to 20 years if the
sentencing judge found, by a preponderance of the evidence,
that the offense was motivated by racial bias. Id. at 470.
The judge made that finding and sentenced Apprendi to 12
years' imprisonment. Id. at 471. The Supreme Court held
this sentence unconstitutional, because it exceeded the statu-
tory maximum for the firearms offense based upon the
judge's factfinding concerning racial bias.
Apprendi contained two important caveats. First, the
Court confirmed that Almendarez-Torres was still good law,
and hence that a judge rather than a jury could continue to
determine whether a defendant had prior convictions, regard-
less whether that determination increased the defendant's
sentence above a statutory maximum. Id. at 489-90. The
Court added, however, that it is "arguable that Almendarez-
Torres was incorrectly decided, and that a logical application
of our reasoning today should apply if the recidivist issue
were contested." Id. Second, the Court made clear that it
was not suggesting "that it is impermissible for judges to
exercise discretion--taking into consideration various factors
relating both to offense and offender--in imposing a judg-
ment within the range prescribed by statute." Id. at 481. In
so doing, Apprendi expressly preserved the holding of
McMillan v. Pennsylvania, 477 U.S. 79 (1986), that sentenc-
ing factors that determine where a defendant's sentence falls
within a statutory maximum need not be proven to a jury.
Apprendi, 530 U.S. at 487 n.13, 494 & n.19. Indeed, the
Court suggested that it would be permissible for a legislature
to set a crime's maximum sentence at, 34for example, 50 years
and [to] giv[e] judges guided discretion as to a few specially
selected factors within that range.34 Id. at 490 n.16.
Apprendi did not address the interpretation or constitu-
tionality of s 841. Apprendi itself involved two 34separate
statute[s].34 Id. at 468-69. One fixed a 10-year maximum
sentence for possessing a firearm for an unlawful purpose.
The other--the hate crime law--increased the maximum sen-
tence for any crime (with certain exceptions) where a judge
found by a preponderance of the evidence that the defendant
committed the offense out of racial bias. Id. Section 841, by
contrast, is a single statute with two subsections. One sub-
section, s 841(a), is entitled "Unlawful acts" and specifies that
it is unlawful to knowingly or intentionally distribute a con-
trolled substance. The other, s 841(b), is entitled "Penalties"
and specifies three categories of sentences for "any person
who violates subsection (a)." See s 841(b)(1)(A), (B), (C).4
Following the logic of Apprendi, if s 841 were interpreted as
a unitary statute--establishing a single crime with a statutory
maximum of life in prison and three sentencing factors depen-
dent upon drug quantity--then drug quantity in a particular
case may be decided by a judge. However, if s 841 were
interpreted as a tripartite statute--establishing three sepa-
__________
4 Section 841(b) includes a fourth category, s 841(b)(1)(D),
which applies to offenses involving (inter alia) less than 50 kilo-
grams of marijuana and which is not applicable here.
rate crimes with three different statutory maxima depending
upon the drug quantity categories of s 841(b) (hereinafter the
(A), (B), and (C) offenses)--then the drug quantity thresholds
effectively are elements that must be decided by a jury.
Since Apprendi was decided, numerous circuits have held
that Apprendi requires that the drug quantity thresholds of
s 841(b) be treated as offense elements and thus "charged in
the indictment and proved to the jury beyond a reasonable
doubt." United States v. Promise, No. 99-4737, 2001 WL
732389, at *5 (4th Cir. June 29, 2001).5 In several cases,
including the instant case, the government has conceded the
point. Br. for Gov't at 11-12.6 Subsequent to the oral
argument in this case, another panel of this court agreed,
holding in United States v. Fields that, "[i]n light of Appren-
di, it is now clear that, in drug cases under 21 U.S.C. ss 841
and 846, before a defendant can be sentenced to any of the
progressively higher statutory maximums that are based on
progressively higher quantities of drugs specified in subsec-
tions 841(b)(1)(A) or (B), the Government must state the drug
type and quantity in the indictment, submit the required
evidence to the jury, and prove the relevant drug quantity
beyond a reasonable doubt." United States v. Fields, 242
F.3d 393, 396 (D.C. Cir. 2001) ("Fields I"), aff'd and amended
on reh'g, 251 F.3d 1041, 1043 (D.C. Cir. 2001) ("Fields II");
accord In re Sealed Case, 246 F.3d 696, 699 (D.C. Cir. 2001).7
__________
5 See, e.g., United States v. Nance, 236 F.3d 820, 824-25 (7th
Cir. 2000); United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir.
2000); United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.
2000); United States v. Nordby, 225 F.3d 1053, 1058-59 (9th Cir.
2000); United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th
Cir. 2000).
6 See, e.g., United States v. Fields, 251 F.3d 1041, 1044 (D.C.
Cir. 2001) ("Fields II"); United States v. Swatzie, 228 F.3d 1278,
1282 (11th Cir. 2000); United States v. Meshack, 225 F.3d 556, 575
(5th Cir. 2000).
7 Although failure to follow these requirements constitutes er-
ror, it is not reversible error if it is either "harmless" under Federal
Rule of Criminal Procedure 52(a) or not "plain" under Federal Rule
Fields also held, however, that "Apprendi does not apply to
enhancements under the Sentencing Guidelines when the
resulting sentence remains within the statutory maximum."
Fields II, 251 F.3d at 1043-44; see United States v. King, No.
00-3023, 2001 WL 739813, at *4 (D.C. Cir. July 3, 2001); In
re Sealed Case, 246 F.3d at 698-99; see also Fields II, 251
F.3d at 1044 (collecting cases from other courts of appeals).
These holdings are now the law of the circuit.
As will be evident in our discussion below, in order to
decide this case it is important to know whether s 841 is
properly interpreted as a unitary (one crime with a life
maximum) or tripartite (three crimes with three increasing
maxima) statute. The defendant argues that it is the latter.
Although the Fields court did not explicitly address the
question, it must have understood s 841 to be tripartite.
Otherwise, and contrary both to Fields' holding and to the
government's concession in this case, drug quantity would not
need to be decided by a jury because a judge's determination
would not increase the penalty beyond the prescribed statuto-
ry maximum--life imprisonment.8 Accordingly, the question
of the statute's structure is not open for us to consider de
__________
of Criminal Procedure 52(b). See Fields II, 251 F.3d at 1045; infra
Parts II.B-D.
8 In her dissent in Apprendi, Justice O'Connor wrote that
"[t]he actual principle underlying the Court's decision may be that
any fact (other than prior conviction) that has the effect, in real
terms, of increasing the maximum punishment beyond an otherwise
applicable range must be submitted to a jury and proved beyond a
reasonable doubt." 530 U.S. at 543-44 (O'Connor, J., dissenting).
Such a principle, Justice O'Connor said, would also apply "to all
determinate-sentencing schemes in which the length of a defen-
dant's sentence within the statutory range turns on specific factual
determinations (e.g., the federal Sentencing Guidelines)." Id. at
544. But this expansive reading of Apprendi would effectively
overrule McMillan, a step the majority expressly stated it was not
taking. See Apprendi, 530 U.S. at 487 n.13. As noted above, this
circuit has taken a narrower view of the meaning of Apprendi. See
Fields II, 251 F.3d at 1043-44; In re Sealed Case, 246 F.3d at 698-
99.
novo, and we therefore accept for purposes of our analysis
that it is tripartite, without examining the indicia of legislative
intent ourselves.
B
Webb's first challenge to his sentence is that, because the
jury did not determine drug quantity, he may not lawfully be
sentenced to a term greater than that authorized for the (C)
offense--the only one of the three s 841(b) offenses for which
drug quantity is not an element. See 21 U.S.C.
s 841(b)(1)(C); United States v. Allen, 960 F.2d 1055, 1058
(D.C. Cir. 1992) (holding that s 841(b)(1)(C) is satisfied if the
defendant's violation involves "any detectable amount" of
cocaine base). Further contending that the maximum sen-
tence under the (C) offense is 20 years' imprisonment, Webb
argues that, in light of Apprendi, he should not have been
sentenced to any more than 20 years.
Webb did not raise this objection below, and the parties
agree that as a consequence we must review it under the
four-pronged plain error standard of Federal Rule of Crimi-
nal Procedure 52(b). See Fed. R. Crim. P. 52(b); Fields II,
251 F.3d at 1045; In re Sealed Case, 246 F.3d at 698. Under
that standard, "before an appellate court can correct an error
not raised at trial, there must be (1) 'error,' (2) that is 'plain,'
and (3) that 'affect[s] substantial rights.' " Johnson v. United
States, 520 U.S. 461, 466-67 (1997) (quoting United States v.
Olano, 507 U.S. 725, 732 (1993)). "If all three conditions are
met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error 'seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.' " Id. at 467 (additional internal quotations and
citations omitted). In evaluating whether an error is "plain"
in a case like Webb's, where the law has changed since the
time of the trial, "it is enough that an error be 'plain' at the
time of appellate consideration." Id. at 468.
The problem with Webb's claim to a 20-year maximum
sentence is that, although the basic (C) violation is subject to
a 20-year cap, the statute provides that "[i]f any person
commits such a violation after a prior conviction for a felony
drug offense has become final, such person shall be sentenced
to a term of imprisonment of not more than 30 years." 21
U.S.C. s 841(b)(1)(C). Moreover, as discussed above, in Al-
mendarez-Torres the Supreme Court expressly held that an
enhancement for prior convictions need not be based on a
jury's finding--a holding the Court preserved in Apprendi.
See Apprendi, 530 U.S. at 490 ("Other 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." (emphasis
added)). Webb nonetheless notes the skepticism about Al-
mendarez-Torres expressed in Apprendi, and asks us to
disregard the earlier case because he counts five Justices as
no longer supporting its holding. That, of course, we may not
do. See Agostini v. Felton, 521 U.S. 203, 237 (1997) ("[I]f a
precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of
overruling its own decisions." (internal quotation omitted)).
Thus, taking into consideration the district court's recidivism
finding, Webb faced a maximum sentence of 30 years even if
he had been convicted of the (C) offense alone. And because
he was only sentenced to 30 years, Webb was not sentenced,
as he claims, to a term greater than the statutory maximum
of s 841(b)(1)(C).
C
If this case were not complicated by the application of the
career offender guideline, the fact that the defendant received
a sentence within the statutory maximum of the (C) offense
might well end the analysis, notwithstanding that a judge
rather than a jury made a quantity determination that could
have exposed the defendant to a higher maximum. In such
cases, some courts of appeals have held that, because the
defendant was sentenced below (C)'s maximum, there was no
"Apprendi error" at all.9 Such an approach seems appropri-
__________
9 See, e.g., United States v. Angle, No. 96-4662, 2001 WL
732124, at *2 (4th Cir. June 29, 2001); United States v. Meshack,
225 F.3d at 576.
ate where the defendant was charged with and convicted of
the (C) offense (or with an unspecified s 841(b) offense not
based on quantity). In such a case, drug quantity is not an
element of the offense that must be decided by a jury, and
the defendant's sentence was determined by the Sentencing
Guidelines' drug quantity table, U.S.S.G. s 2D1.1(c), which
assigns offense levels based on drug quantities rather than
statutory maxima.10
Other courts of appeals have found "Apprendi error" where
the trial court determined a drug quantity that would qualify
the defendant for an enhanced maximum sentence, but have
concluded that the error did not "affect substantial rights,"
Fed. R. Crim. P. 52, because the defendant's actual sentence
fell below the maximum for the (C) offense.11 This approach
is appropriate where the defendant, like Webb, was charged
with and convicted of the (A) or (B) offense. See App. 11-12
(indictment); App. 216 (judgment of conviction). In such a
case, there is error because an element of the offense (the
quantity threshold) was not submitted to the jury. See
Apprendi, 530 U.S. at 490. Such an error does not affect the
defendant's substantial rights, however, because the applica-
tion of the Sentencing Guidelines' drug quantity table result-
ed in the same guidelines sentence the defendant would have
received had he only been convicted of (C).
But Webb's case presents an additional complication. Be-
cause of his two prior felony convictions, Webb was not
__________
10 The drug quantity table assigns a defendant a base offense
level depending upon the type and quantity of the drug involved in
his offense. For example, the drug quantity table assigns a base
offense level of 32 to a crime involving at least 50 but less than 150
grams of cocaine base. See U.S.S.G. s 2D1.1(c)(4). For a person
with Webb's criminal history category of IV (prior to application of
the career offender guideline), this results in a sentencing range of
168 to 210 months--notwithstanding the statutory maximum of 360
months for an offense involving 50 grams or more of cocaine base.
See U.S.S.G. ch. 5, pt. A.
11 See, e.g., United States v. Garcia-Guizar, 234 F.3d 483, 488
(9th Cir. 2000); United States v. Heckard, 238 F.3d 1222, 1235 (10th
Cir. 2001).
sentenced under the drug table but instead under the career
offender guideline, U.S.S.G. s 4B1.1. See supra note 2.
Unlike the former, which determines offense level based upon
drug quantity, the latter determines a defendant's offense
level based upon his "offense statutory maximum," which is
defined as the "maximum term of imprisonment authorized
for the offense of conviction ... including any increase in that
maximum term under a sentencing enhancement provision
that applies because of the defendant's prior criminal record."
U.S.S.G. s 4B1.1, comment. n.2 (emphasis added). According
to Guideline s 4B1.1, a career offender convicted of an of-
fense with a statutory maximum of life receives an offense
level of 37, while a defendant convicted of an offense with a
maximum of 25 years or more (but not life) receives an
offense level of only 34. All career offenders receive a
criminal history category of VI.
If the district court had treated Webb as having been
convicted of the (C) offense, which carries a (recidivist-
enhanced) maximum of 30 years, s 4B1.1 would have as-
signed Webb an offense level of 34. This level, combined
with a criminal history category of VI, would have yielded a
sentencing range of 262 to 327 months--for a maximum
sentence of 27.25 years. See U.S.S.G. ch. 5, pt. A. However,
because the district court treated Webb as having been
convicted of the (A) and (B) offenses, both of which carry
(recidivist-enhanced) statutory maxima of life, s 4B1.1 as-
signed Webb an offense level of 37. That level, combined
with Webb's criminal history category of VI, produced a
sentencing range of 30 years to life. Thus, Webb argues,
although the district court only sentenced him to 30 years,
that sentence was greater than the sentence he would have
received had he been convicted of the (C) offense alone. And
that, Webb argues, constitutes plain error. Cf. United States
v. Camacho, 248 F.3d 1286, 1290 n.7 (11th Cir. 2001) (holding
that error "occurs when a defendant in a section 841 case is
sentenced on the basis of [a judge's determination of] drug
quantity and the sentence cannot logically be construed as a
section 841(b)(1)(C) sentence"). Accordingly, in order to
determine whether Webb's sentence passes muster under the
plain error standard, we must consider whether the district
court's application of the career offender guideline does so.
D
The government contends that the district court's applica-
tion of Guideline s 4B1.1 was not plain error because it was
not error at all. See Johnson, 520 U.S. at 466-67 (noting that
first prong of plain error standard requires that there be
"error.") As the government notes, even after Apprendi and
Fields, a judge may still make quantity determinations that
affect sentencing as long as the sentence a defendant receives
falls within the maximum sentence authorized by
s 841(b)(1)(C). The government argues that, subject to this
cap, a sentencing court can determine the "offense of convic-
tion" (and hence the "offense statutory maximum") within the
meaning of s 4B1.1 based upon the court's own determination
of drug quantity--even if the defendant was only properly
convicted of the (C) offense.
The government's argument may well support a conclusion
that any error that was committed here was not "plain":
courts long thought that the drug thresholds of s 841(b) could
be determined by judges, and it is plausible that the Sentenc-
ing Commission likewise expected judges to determine the
meaning of "offense of conviction" based on nothing more
than their own determinations of drug quantity. In light of
this circuit's post-Apprendi decision in Fields, however, we
conclude that the district court's application of s 4B1.1 was
nonetheless error. After Fields, a conviction for the (A) or
(B) offense is not proper unless the relevant drug threshold
has been stated in the indictment, submitted to the jury, and
proven beyond a reasonable doubt. Fields II, 251 F.3d at
1043. Whatever the Sentencing Commission thought consti-
tuted an "offense of conviction" when the guidelines were
initially promulgated, we are confident that it intended that
only a conviction that was in accord with governing law would
qualify. See United States v. Gilliam, No. 00-2887, 2001 WL
723008, at *6-7 (7th Cir. June 28, 2001) (finding error where
court calculated sentence under career offender guideline
based on judge's determination of drug quantity); United
States v. Saya, 247 F.3d 929, 940-42 (9th Cir. 2001) (same);
United States v. Rogers, 228 F.3d 1318, 1329-30 (11th Cir.
2000) (holding that without a quantity finding by the jury, the
"offense statutory maximum" under s 4B1.1 must be that of
s 841(b)(1)(C)).
But although the district court committed error in its
application of s 4B1.1, and even assuming that error were
plain, Webb's sentence nonetheless survives plain error re-
view under Rule 52(b) because his underlying convictions for
the (A) and (B) offenses survive such review. Counts One
through Three of the indictment expressly charged Webb
with offenses under s 841(b)(1)(A) and (B), and expressly
alleged that he distributed 50 grams or more of cocaine base
on one occasion (Count Three), and 5 grams or more on two
other occasions (Counts One and Two). App. 11-12. Under
Fields, those quantities constitute elements of the charged
offenses, and by failing to submit them to the jury, the
district court erred. As the Supreme Court directed in
Johnson, however, we may not "exercise [our] discretion to
notice" such an error unless the fourth prong of plain error
review is satisfied: the error must "seriously affect[ ] the
fairness, integrity, or public reputation of judicial proceed-
ings." 520 U.S. at 469-70; see Fields II, 251 F.3d at 1045
(noting that plain error review is applicable to Apprendi error
and finding plain error); Gallego, 247 F.3d at 1198 (applying
plain error review but finding none); United States v. Nance,
236 F.3d 820, 824 (7th Cir. 2000) (same). That prong is not
satisfied here.12
In Johnson, the Court considered the validity of Johnson's
conviction for perjury under 18 U.S.C. s 1623. The trial
court, without objection and following then-settled law, had
instructed the jury that the element of materiality was a
question for the court to decide, and that it had already
determined that the statements at issue were material. After
Johnson's conviction but before her appeal, the Supreme
__________
12 As in Johnson, in light of our conclusion that the trial court's
error does not satisfy the fourth prong of the plain error standard,
we need not consider whether it satisfies the third prong: that the
error "affec[t] substantial rights." Johnson, 520 U.S. at 468-69.
Court decided United States v. Gaudin, 515 U.S. 506, 522-23
(1995), holding that the materiality of a false statement under
18 U.S.C. s 1001 must be decided by the jury rather than the
court. See Johnson, 520 U.S. at 464. When Johnson's
perjury case came before the Supreme Court, it held that the
trial court had committed error by failing to submit the
materiality question to the jury. The Court nonetheless
sustained the conviction, holding that the error did not affect
the integrity of the proceeding because the evidence that
Johnson's false statements were material was "overwhelming"
and "essentially uncontroverted." Id. at 470; cf. Neder v.
United States, 527 U.S. 1, 17 (1999) (finding that failure to
submit element of offense to jury was harmless error where
the "omitted element was uncontested and supported by
overwhelming evidence").13
As in Johnson, the evidence of the drug quantities charged
in Counts One through Three of Webb's indictment was both
overwhelming and uncontroverted. Those counts involved
three separate transactions: the government alleged that on
each occasion, Webb sold a quantity of crack to the govern-
ment's cooperating witness. For the jury to have convicted
Webb of each of these three incidents, the jurors must have
believed that Webb engaged in each of the three transactions
and was responsible for the amounts he provided. The
specific amount involved in each transaction was established
__________
13 Johnson and Neder both involved a district court's failure to
submit an element to the jury. Webb contends that those cases are
inapplicable here. He argues that the error in this case was not
that the district court failed to submit the quantity elements of the
(A) and (B) offenses to the jury, but rather that the district court
sentenced Webb as if he had been convicted of (A) and (B) when in
fact he had only been convicted of (C). We need not decide
whether Johnson and Neder would apply where a defendant was
convicted only of the (C) offense, because in this case the (A) and
(B) offenses were charged in the indictment and entered in the
court's judgment of conviction. Thus, the error here was the
district court's failure to submit an element (the drug quantity
thresholds of (A) and (B)) to the jury for determination beyond a
reasonable doubt--the same error as in Johnson and Neder.
by the testimony and report of a government chemist, and
was confirmed by tape recordings of conversations between
Webb and Johnson, in which the two discussed the quantities
of crack involved in the transactions. Webb did nothing to
challenge the evidence of drug quantity at either trial or
sentencing, and even on appeal offers no scenario under
which the jury could have convicted him of the transactions,
yet rationally found that they involved different quantities
than those testified to by the government chemist. See
Nance, 236 F.3d at 826 (finding Apprendi error not plain
because "[i]f this jury was going to convict [defendant] at all
... there is simply no way on this record that it could have
failed to find that he was conspiring to distribute 5 grams or
more of crack cocaine"); United States v. Swatzie, 228 F.3d
1278, 1284 (11th Cir. 2000) (same); cf. Neder, 527 U.S. at 19
(finding omission of element in jury instructions harmless
because "defendant did not, and apparently could not, bring
forth facts contesting the omitted element").14
Webb contends that he had no reason to contest drug
quantity below because his trial occurred before Apprendi
was issued, and hence before the drug quantity thresholds
were regarded as elements of the s 841 offenses. But even
accepting Webb's contention that he had no reason to contest
quantity at trial,15 he had every incentive to contest it at
__________
14 Webb's case is considerably different from that of the defen-
dant in Fields. In Fields, although the court recognized the
application of Rule 52(b) to Apprendi error, it did not find "over-
whelming" proof that the quantity of drugs involved exceeded the
threshold required to authorize a maximum sentence of life impris-
onment under s 841(b). Fields II, 251 F.3d at 1045. By contrast
to Webb's case, in Fields the government had recovered only 7
grams of cocaine base and 20 kilograms of marijuana (compared to
50 grams of the former and 1000 kilograms of the latter required to
authorize a life maximum), and was forced to rely on "imprecise
testimony" of cooperating witnesses and vague admissions by the
defendant. See id. at 1044-45.
15 But see Williams, 194 F.3d at 102 (noting that defendant--
who was faced with the same pre-Apprendi circuit precedent as
Webb--argued at trial that drug quantity was an element of a
sentencing. The presentence report's recommendations con-
cerning the quantity of drugs involved in Webb's transactions,
and the district court's adoption of those recommendations,
dramatically affected Webb's sentencing range. Yet, while
Webb "noted one factual inaccuracy" in the presentence
report regarding an unrelated issue, he did not dispute the
accuracy of the drug quantities there reported. PSR at 12
(noting Webb's objections). Moreover, whatever his incen-
tives below, Webb surely has an incentive on appeal to
suggest a scenario under which he could plausibly have
disputed the drug quantities specified by the chemist. Even
now, however, he suggests none. See Johnson, 520 U.S. at
470 (noting that "[b]efore the Eleventh Circuit and in her
briefing before this Court, petitioner has presented no plausi-
ble argument" that the false statement for which she was
convicted was not material).
In sum, because the evidence of drug quantity was over-
whelming and uncontroverted, and because even now Webb
offers no plausible scenario under which it could be disputed,
"there is no basis for concluding that the error 'seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings,' " and hence no grounds for noticing that error
under Rule 52(b). Id. Webb's convictions for selling 50 or
more and 5 or more grams of cocaine base, in violation of 21
U.S.C. s 841(b)(1)(A) and (B), therefore survive plain error
review and remain intact. As a consequence, the sentence
that was based on those convictions would stand even if it had
exceeded the statutory maximum for the (C) offense. See
Nance, 236 F.3d at 826; Swatzie, 228 F.3d at 1284.16 That
__________
s 841 offense); Rogers, 228 F.3d at 1320 (noting that in reliance on
Jones, defendant argued that drug quantity was an element that
had to be determined by the jury).
16 For that reason, we reject Webb's argument (made in a
footnote) that the district court also imposed an improper term of
supervisory release, without deciding whether Webb is correct in
contending that the length of the term imposed is appropriate only
for a defendant convicted of the (A) offense. Similarly, our conclu-
sion that the (A) and (B) convictions survive review eliminates any
result follows a fortiori in a case like this one, in which the
sentence Webb actually received was below the statutory
maximum. See Gilliam, 2001 WL 723008, at *6-7 (affirming
defendant's sentence, notwithstanding that district court
erred in applying the career offender guideline as if defen-
dant had been convicted of an (A) offense, because the error
passed plain error review); Saya, 247 F.3d at 940-42 (same).
III
Webb raises three additional arguments on this appeal, one
relating to his sentence and two concerning the validity of his
convictions. Only the third requires any extended discussion.
A
Defendant's additional sentencing contention is that the
district court erred by failing to reduce his offense level by
two points for acceptance of responsibility, pursuant to Sen-
tencing Guideline s 3E1.1. Because Webb neither sought
this reduction nor objected to the district court's failure to
grant it sua sponte, our review is again for plain error. The
standard of review is unimportant, however, because the
district court did not commit error, plain or otherwise.
The Sentencing Guidelines require a two-point reduction in
a defendant's offense level "[i]f the defendant clearly demon-
strates acceptance of responsibility for his offense." U.S.S.G.
s 3E1.1(a) (emphasis added). The commentary to this provi-
sion explains that acceptance involves "truthfully admitting
the conduct comprising the offense(s) of conviction." Id.,
comment. n.1(a).17 Webb never did so. Although upon arrest
__________
argument (although Webb has made none) that those convictions
should themselves be vacated because they carry collateral conse-
quences beyond those created by the alleged differential in sen-
tences.
17 The commentary also states that "[t]his adjustment is not
intended to apply to a defendant who puts the government to its
burden of proof at trial by denying the essential factual elements of
guilt, is convicted, and only then admits guilt and expresses re-
he did waive his Miranda rights and admit to possession of
the crack found in his apartment and charged in Count Four,
Webb never admitted to the transactions for which he was
convicted under Counts One, Two and Three. During his
interview with the probation officer who prepared his presen-
tence report, Webb "declined to discuss his involvement" in
the offenses of conviction. PSR p 8. When he stood before
the judge at sentencing and was asked whether he wished to
speak, Webb once again declined. 8/13/99 Tr. at 14. As we
have said before, "[w]hile the district court lacks the power to
force a defendant to express remorse he does not feel, it is
not required to reward a remorseless defendant with a de-
crease in his offense level." United States v. Dozier, 162 F.3d
120, 128 (D.C. Cir. 1998). Accordingly, the court did not err
in failing to reduce Webb's offense level for acceptance of
responsibility.18
B
Webb also contends that the court erred, under Federal
Rule of Evidence 404(b), in rejecting his request to bar the
government's cooperating witness, Danon Johnson, from tes-
tifying about his prior drug transactions with Webb. See
Fed. R. Evid. 404(b) (governing the admissibility of "[e]vi-
__________
morse." U.S.S.G. s 3E1.1, comment. n.2. Although "[c]onviction
by trial ... does not automatically preclude a defendant from
consideration for such a reduction," it will be only the "rare
situation[ ]" in which a defendant goes to trial and receives the
s 3E1.1 deduction. Id. Webb's is clearly not that situation--not
because he put the government to its proof by going to trial, but
because (as noted below) even after his conviction he failed either to
admit guilt or express remorse.
18 Webb further contends that his failure to accept responsibili-
ty at sentencing was due to the ineffective assistance of his counsel,
who he claims failed to prepare him properly for the proceeding.
But nothing in the transcript of the sentencing proceeding suggests
that it was Webb's lack of preparation, rather than his own recalci-
trance, that caused his failure to accept responsibility. See 8/13/99
Tr. at 15 (statement by the sentencing judge that Webb was
evincing "an attitude ... like it's no big thing").
dence of other crimes, wrongs, or acts"). We need spend
little time on this point because even if admission of the
testimony were erroneous, it was also harmless. See Fed. R.
Crim. P. 52(a). The government tape-recorded the conversa-
tions between Webb and Johnson that took place in connec-
tion with the three transactions charged in Webb's indict-
ment. Those recordings contained numerous references to
the duo's prior drug transactions, and were admitted into
evidence without any objection from Webb. Even on appeal,
he does not dispute the admissibility of the tapes. We can
perceive no material additional harm that Webb suffered as a
consequence of Johnson's testimony on the same subjects,
particularly in light of the overwhelming evidence of Webb's
guilt. Cf. United States v. Lampkin, 159 F.3d 607, 615 (D.C.
Cir. 1998) (holding inadmissible hearsay harmless where
"merely cumulative of other evidence adduced at trial");
United States v. Walls, 70 F.3d 1323, 1327 (D.C. Cir. 1995)
(holding erroneous Rule 404(b) ruling harmless where evi-
dence against defendant was overwhelming).
C
Finally, we consider Webb's claim that the district court
erred in denying his motion to suppress evidence obtained
during the September 15, 1998 search of his apartment. The
search was undertaken pursuant to a warrant, which autho-
rized a search for books and records relating to narcotics
transactions. It resulted in the seizure of evidence that
became the basis of Count Four of the indictment, including
6.52 grams of crack, $15,114 in cash, drug packaging supplies,
and a piece of paper with the name and pager number of
Webb's New York supplier.
Webb argued below and argues here that the warrant was
issued without probable cause because the affidavit upon
which it was based recited stale information: the affidavit was
sworn and the warrant issued on September 14, 1998, 109
days after the final drug transaction took place between
Webb and Johnson on May 28, 1998. The district court
denied Webb's motion to suppress, finding that although
defendant's arguments were "certainly not frivolous," "a rea-
sonable judicial officer could determine that it is likely that a
person who is engaged in drug selling in May, having not
been arrested, would continue to be engaged in such activities
three and a half months later." 4/27/99 Tr. at 5. Like the
district court, we give "a determination of probable cause by a
federal magistrate ... 'great deference.' " United States v.
Hubbell, 167 F.3d 552, 559 (D.C. Cir. 1999) (quoting Illinois v.
Gates, 462 U.S. 213, 236 (1983)); see Ornelas v. United States,
517 U.S. 690, 698-99 (1996).
We find the issuance of this warrant troubling. The
Fourth Amendment provides that "[t]he right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable
cause...." U.S. Const. amend. IV. To protect that right,
the Supreme Court has declared that the facts supporting a
warrant must be "so closely related to the time of the issue of
the warrant as to justify a finding of probable cause at that
time." Sgro v. United States, 287 U.S. 206, 210 (1932). Our
court has interpreted Sgro to mean that although the time
between the application for a warrant and the discovery of
the evidence supporting that application is "not controlling,"
it is nonetheless important. See Schoeneman v. United
States, 317 F.2d 173, 177 (D.C. Cir. 1963). In Schoeneman,
we found no probable cause to believe that classified govern-
ment documents, last seen in the defendant's house 107 days
before the application for the warrant was made, were still
present in that house on the date of the application. Id. at
177-78.
In this case, as in Schoeneman, the search warrant sought
documents, here relating to Webb's alleged drug activity.
See App. 184-85. As in Schoeneman, the warrant was issued
more than 100 days after the government last had direct
information that there was evidence of criminal activity in the
defendant's home. Although the government's application
included its affiant's statement that those involved in drug
transactions typically keep records of such transactions in
their homes, the question remains whether there was proba-
ble cause to believe that such records would still be there four
months after the last known transaction.
But even if the affidavit were insufficient to establish
probable cause, the Supreme Court has held that when police
officers obtain evidence through a search incident to a war-
rant, "suppression is appropriate only if the officers ... could
not have harbored an objectively reasonable belief in the
existence of probable cause." United States v. Leon, 468 U.S.
897, 926 (1984); see United States v. Maxwell, 920 F.2d 1028,
1034 (D.C. Cir. 1990).19 On that standard, suppression is
inappropriate in this case. Although Schoeneman concluded
that 107-day-old evidence was too stale to support probable
cause in that case, the evidence there consisted solely of an
informant's statement that he had seen classified documents
in the defendant's home on that single occasion. Schoene-
man, 317 F.2d at 175-77. Here, by contrast, the affidavit
reported a series of three drug transactions between Webb
and Johnson, transactions that verified Johnson's statement
that Webb had been a supplier of narcotics "for an extended
period of time." App. 188. Courts have been considerably
more lenient in assessing the currency of information sup-
porting probable cause in the context of extended conspira-
cies than in the context of single-incident crimes. See gener-
ally United States v. Schaefer, 87 F.3d 562, 568 (1st Cir.
1996); United States v. Dozier, 844 F.2d 701, 707 (9th Cir.
1988); In re Search Warrant Dated July 4, 1977, 667 F.2d
117, 135-36 (D.C. Cir. 1981). While Webb was not ultimately
charged with conspiracy, the warrant application expressly
sought evidence regarding the crime of conspiracy to distrib-
ute cocaine base. See App. 190. Moreover, even if Webb did
not have drugs in his apartment at the time of the application,
it would not necessarily have been unreasonable for an officer
to conclude that a longtime drug dealer, whose most recent
known deal had occurred three months earlier, would still
__________
19 Leon also permits suppression if "the magistrate abandoned
his detached and neutral role," or if the officers were "dishonest or
reckless in preparing their affidavit." 468 U.S. at 926. There is no
suggestion in the record that either circumstance applies to this
case.
retain papers permitting him to get back in touch with his
customers or--as turned out to be the case--his supplier.
In sum, whatever may be said of the search warrant
affidavit in this case, we cannot say "that no reasonably well
trained police officer could have believed that there existed
probable cause to search" Webb's apartment. Leon, 468 U.S.
at 926. Accordingly, the district court did not err in failing to
suppress the evidence recovered from the search.
VI
We conclude that neither Apprendi and its progeny, nor
the Sentencing Guidelines, compel a conclusion that the sen-
tence imposed upon Webb was reversible error. Nor do we
find reversible error in the district court's evidentiary rulings
or in its denial of Webb's motion to suppress. Webb's
convictions and sentence are therefore
Affirmed.