United States v. Robinson

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

-2-
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

-3-
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.

-4-
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

-5-
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.

-6-
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.

-7-
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

-8-
(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

-9-
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).

-10-
 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

-11-
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.

-12-
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

-13-
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

-14-
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

-15-
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

-16-
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

-17-
 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.

-18-