F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 3, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 05-1318
C HRISTO PH ER HO LY FIELD ,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. NO . 00-CR-439-S)
Beth L. Krulew itch, Beth L. Krulew itch P.C., Denver, Colorado, for D efendant-
Appellant.
M artha Ann Paluch, Assistant United States A ttorney (Philip A . Brimmer,
Assistant United States Attorney, with her on the brief), Office of the United
States Attorney, Denver, Colorado, for Plaintiff-Appellee.
Before M cCO NNELL, B AL DOCK , and TYM KOVICH, Circuit Judges.
T YM K O VIC H, Circuit Judge.
A federal jury convicted Christopher H olyfield of conspiracy to distribute
over fifty grams of crack cocaine and over five kilograms of powder cocaine, a
crime with a sentencing range spanning ten years to life in prison. 21 U.S.C.
§ 841(b)(1)(A). The district court sentenced him to life in prison based on a
minimum sentence statutorily mandated due to two prior convictions in California
state court.
On appeal, Holyfield challenges the mandatory minimum as violating his
Sixth Amendment right to jury trial. First, he claims the district court violated
the Sixth A mendment by establishing his prior convictions without letting a jury
decide whether the convictions existed or not. Second, he claims the district
court violated the Sixth A mendment by applying the minimum based upon two
prior convictions when the second conviction overlapped with the conduct in the
instant offense. Holyfield contends the overlapping nature of the offenses
required a jury finding on whether he engaged in illicit activity after his 1998
state conviction for marijuana possession became final.
United States Supreme Court precedent forecloses both arguments. The
Sixth Amendment is not violated where a judge determines the existence of prior
violations. W e therefore AFFIRM the life sentence.
I. Background
Christopher H olyfield w as indicted along with nineteen others for a
conspiracy to distribute over fifty grams of crack cocaine and over five kilograms
of powder cocaine in violation of 21 U.S.C. § 846. Due to two prior state
convictions, the Government notified the court prior to trial of its intent to seek
increased punishment against Holyfield pursuant to 21 U.S.C. §§ 841(b) and 851
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in the form of a mandatory minimum sentence. 1 A superseding indictment added
a murder charge to Holyfield’s indictment. Holyfield was subsequently acquitted
of the murder charge, but found guilty of the drug conspiracy. As a result of the
mandatory minimum required by his two prior convictions, the district court
sentenced Holyfield to life in prison.
Holyfield’s tw o prior convictions w ere the result of guilty pleas in
California state court (1) on August 18, 1993 for transporting cocaine, and (2) on
July 13, 1998 for possession of marijuana for sale. The conspiracy charged in
this federal case ran from October of 1996 through September of 2000, thus
overlapping in part with the 1998 charges.
II. Discussion
Both of Holyfield’s challenges to his § 841(b)(1)(A) mandatory minimum
rely upon Apprendi v. New Jersey, 530 U.S. 466 (2000), so we review the
question of whether his sentence violates that decision de novo. United States v.
M ichel, 446 F.3d 1122, 1132 (10th Cir. 2006).
1
The parties, district court, and even many of our prior decisions have
referred to the mandatory minimum required by § 841(b) as a “sentence
enhancement,” see United States v. M cKissick, 204 F.3d 1282, 1300–01 (10th Cir.
2000); United States v. Green, 175 F.3d 822, 833–34 (10th Cir. 1999), because
the language in § 851(a)(1) requires notice if “increased punishment” will be
based on prior convictions. W e find discussing the prior convictions component
of § 841(b) as a mandatory minimum rather than as an enhancement is more
precise since it follows the language of the statute.
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A. Apprendi Exception for Prior Convictions
The Supreme Court has held that the Sixth Amendment requires the
government to submit to a jury facts which increase a crime’s penalty beyond the
statutory maximum to avoid a Sixth Amendment violation. Apprendi, 530 U.S. at
490. Excepted from this rule is judicial fact-finding used solely to establish a
prior conviction. Id. at 489–90. To determine the “fact of prior conviction,” a
sentencing court may examine “the language of the statute of conviction, the
terms of the charging document, the terms of a plea agreement or transcript of
colloquy between judge and defendant . . ., or to some comparable judicial record
of this information.” United States v. Taylor, 413 F.3d 1146, 1157 (10th Cir.
2005) (internal quotations omitted).
Holyfield contends recent decisions by the Supreme Court portend the
elimination of Apprendi’s prior conviction exception, see Shepard v. United
States, 544 U.S. 13, 26 n.5 (2005); see also id. at 27 (Thomas, J., concurring) (“a
majority of the Court now recognizes [the prior conviction rule] was w rongly
decided.”). W hile there may be some truth to Holyfield’s contention, we have
repeatedly rejected these types of challenges. “Unless and until the Supreme
Court determines otherw ise, we will continue to follow applicable precedent.”
United States v. M oore, 401 F.3d 1220, 1224 (10th Cir. 2005); see also United
States v. Harris, 447 F.3d 1300, 1303 n.1 (10th Cir. 2006) (same).
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But even if the Apprendi exception for prior convictions was modified by
the Supreme Court, Holyfield’s appeal would still fail. The district court’s fact-
finding regarding the prior convictions did not raise Holyfield’s sentence beyond
the statutory maximum.
B. Sentence Did Not Exceed Statutory M aximum
Holyfield’s alternative Sixth Amendment argument is that “[e]ven if the
fact of a prior felony conviction need not be determined by a jury, where a prior
conviction overlaps with [the instant] offense, additional factual findings are
required to determine the propriety of using the overlapping conviction as a basis
for [establishing a mandatory minimum sentence] and thus must be found by a
jury.” Aplt. Br. at 13.
According to Holyfield, because the purpose of the prior conviction
mandatory minimum sentence is to punish recidivists, a jury must find that
recidivism occurred after the prior convictions are complete. He contends this
overlap issue is one of first impression for the Circuit and engages the
government over whether the additional facts needed to establish recidivism fall
within the Apprendi exception for prior convictions. W hile having some appeal,
we need not reach this contention. Supreme Court precedent makes clear that
Apprendi does not apply in these circumstances. 2
2
Holyfield also argues that the district court did not make a factual finding
that he engaged in criminal conduct after the 1998 conviction. The record,
(continued...)
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The year following Apprendi, the Supreme Court held that judicial fact-
finding leading to a mandatory minimum sentence is permissible as long as the
mandatory minimum sentence does not exceed the maximum sentence available
under the jury’s verdict. Harris v. United States, 536 U.S. 545, 567–68 (2002).
The Court in Harris determined that Sixth Amendment jury protections only
ensure that the defendant will get no “more punishment than he bargained for
when he did the crime” absent a jury verdict or guilty plea; it does not ensure that
he will get less. Id. at 566. Accordingly, if the defendant faces no greater
punishment because of judicial fact-finding, the rule of Apprendi does not apply:
“[I]t does not include facts triggering a mandatory minimum. The minimum may
be imposed with or without the factual finding; the finding is by definition not
‘essential’ to the defendant’s punishment.” Harris, 536 U.S. at 561 (citing
M cM illan v. Pennsylvania, 477 U.S. 79, 87 (1986)).
The Court’s pronouncement in Harris followed from its earlier assertion in
Apprendi 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 490
(emphasis added). Facts that increase a sentence, but not beyond the statutory
2
(...continued)
however, is clear that Holyfield in fact engaged in criminal conduct after the
conviction became final in July 1998 and before he began serving his sentence for
that crime.
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maximum, historically were not deemed essential elements of a crime and need
not be alleged in an indictment or found by a jury. (But see Thomas, J.,
dissenting: “W hether one raises the floor or raises the ceiling it is impossible to
dispute that the defendant is exposed to greater punishment than is otherwise
prescribed.” Harris, 536 U.S. at 579). 3
The holding in Harris forecloses Holyfield’s appeal. In this case, the two
prior convictions set his mandatory minimum equal to the statutory
maximum— life in prison— but did not push the sentence beyond that maximum.
Due to the quantity of crack cocaine involved in the offense, Holyfield was
eligible for a sentence ranging from ten years to life in prison. 21 U.S.C.
§ 841(b)(1)(A ). Based on the two prior convictions, Holyfield was sentenced to
life.
Since the sentence mandated by the prior convictions fell within the
statutory range established before considering the prior convictions, Apprendi
does not apply and the district court’s sentence did not run afoul of the Sixth
Amendment. See also United States v. Estrada, 428 F.3d 387, 390 (2d Cir. 2005)
(same; applying 21 U.S.C. § 841 mandatory minimum of life); United States v.
3
Only a few months ago, the Supreme Court reiterated that the statutory
maximum is the top of the applicable sentencing range “without finding an
additional fact.” Cunningham v. California, 127 S. Ct. 856, 865 (2007) (“In other
words, the relevant statutory maximum is not the maximum sentence a judge may
impose after finding additional facts, but the maximum he may impose without
any additional findings.”) (internal quotations omitted).
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Dare, 425 F.3d 634, 640–41 (9th Cir. 2005) (same; applying mandatory minimum
of ten years for brandishing a firearm).
III. Conclusion
Based on the foregoing analysis, we AFFIRM the district court sentence of
life in prison.
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