United States v. Duarte

United States Court of Appeals
For the First Circuit

No. 00-1136

UNITED STATES OF AMERICA,

Appellee,

v.

EDWARD F. DUARTE, JR.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya, Lynch and Lipez,
Circuit Judges.

H. Ernest Stone, by appointment of the court, for appellant.
Michael D. Ricciuti, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, and Dina Michael
Chaitowitz, Assistant United States Attorney, were on brief, for
appellee.

April 17, 2001
 SELYA, Circuit Judge. Defendant-appellant Edward F.

Duarte, Jr., entered a guilty plea to multiple counts of

possessing marijuana with intent to distribute and conspiring to

possess marijuana with intent to distribute. The district court

imposed a 151-month incarcerative sentence. Duarte appeals,

asserting that the lower court's determination of drug quantity

under a preponderance-of-the-evidence standard elevated his

sentence above the five-year statutory maximum for trafficking

in unspecified amounts of marijuana and thereby contravened the

rule laid down in Apprendi v. New Jersey, 120 S. Ct. 2348

(2000). Because Duarte did not advance this argument below, we

review for plain error. Discerning none, we affirm.

I. BACKGROUND

Duarte was a ringleader in a massive conspiracy that

transported marijuana from California and distributed it in and

around Taunton, Massachusetts. The conspiracy operated

successfully for several years, but the authorities eventually

brought the perpetrators to book. On September 11, 1997, a

federal grand jury sitting in the District of Massachusetts

charged Duarte with multiple counts of marijuana trafficking and

money laundering. Although the body of the indictment did not

mention specific drug quantities, special notices were appended

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to two of the marijuana-trafficking counts. One such notice

read:

The offense described in Count Three
involved one thousand kilograms or more of a
mixture or substance containing a detectable
amount of marijuana. Accordingly, Title 21,
United States Code, Section
841(b)(1)(A)(vii), applies to this count.

A similar notice described Count Nine as involving one hundred

kilograms or more of marijuana and invoked the penalty provision

set forth in 21 U.S.C. § 841(b)(1)(B)(vii).1

Duarte originally denied the charges. On April 14,

1999, however, he reversed course. His ensuing guilty plea

encompassed eight counts of possession of marijuana with intent

to distribute, three counts of conspiracy to possess marijuana

with intent to distribute, and two counts of conspiracy to

launder money. See 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. §

1956(h). Counts Three and Nine were included in the compendium

of counts to which Duarte pleaded guilty. The plea agreement

1The first of these statutes, 21 U.S.C. § 841(b)(1)(A)(vii),
provides for a minimum sentence of ten years and a maximum
sentence of life in prison where a violation of 21 U.S.C. §
841(a) involves 1,000 kilograms or more of a mixture or
substance containing marijuana. The other statute, 21 U.S.C. §
841(b)(1)(B)(vii), provides for a minimum sentence of five years
and a maximum sentence of forty years where a violation of 21
U.S.C. § 841(a) involves one hundred kilograms or more of a
mixture or substance containing marijuana.

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between Duarte and the government prominently featured drug

quantity. In that agreement, Duarte took explicit

responsibility for handling 1,000 to 3,000 kilograms of

marijuana.

At the disposition hearing, held on December 1, 1999,

the district court divided the charges into two groups. See

USSG §3D1.1(a)(1). As to the eleven marijuana counts, the court

accepted Duarte's aforesaid admission anent drug quantity and,

accordingly, set the base offense level at 32. See id.

§2D1.1(c)(4) (mandating base offense level of 32 for offenses

involving at least 1,000 but less than 3,000 kilograms of

marijuana). The court then added four levels for Duarte's role

in the offense. See id. §3B1.1(a) (prescribing a four-level

upward adjustment for a defendant's leadership role in an

extensive criminal activity).

Duarte's adjusted offense level on the grouped

marijuana counts (36) was higher than his adjusted offense level

on the grouped money laundering counts (30), so the court

brought the combined offense level to 37. See id. §3D1.4

(directing that one level be added to the higher group where the

second group registers five to eight levels less). Subtracting

three levels for acceptance of responsibility, see id.

§3E1.1(b), produced a total offense level of 34. Since Duarte

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had no prior criminal record, that yielded a guideline

sentencing range of 151-188 months. See id. Ch.5 Pt.A

(sentencing table). The court thereupon sentenced Duarte to

concurrent 151-month terms on each of the thirteen counts of

conviction. This appeal followed.

II. ANALYSIS

In Apprendi, 120 S. Ct. at 2362-63, the Supreme Court

held 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." Duarte challenges the sentence imposed for

each of the eleven marijuana counts based on this rule. 2 The

thrust of his argument is that, absent a specification of drug

quantity in the indictment and its determination by a jury

beyond a reasonable doubt, he should have been sentenced to no

more than the lowest statutory maximum applicable to marijuana

trafficking (five years, see 21 U.S.C. § 841(b)(1)(D)).

We divide our analysis of this argument into three

segments. We first examine the statutory scheme under which

2
Duarte's brief ignores the money laundering counts, so we
assume that he concedes the propriety of the sentences imposed
on those counts. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).

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Duarte was charged, convicted, and sentenced. We next ponder

whether an Apprendi error occurred. Assuming, arguendo, the

existence of such an error, we proceed to explore the

consequences.

A

Duarte pleaded guilty to eight counts of possessing

marijuana with intent to distribute in violation of 21 U.S.C. §

841(a)(1) and three counts of conspiring to possess marijuana

with intent to distribute in violation of 21 U.S.C. § 846.

Because section 846 adopts by cross-reference the penalties

provided for violations of section 841(a)(1), we focus on the

latter statute.

21 U.S.C. § 841(a)(1) makes it unlawful to

"manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance."

The statute covers marijuana. Id. § 812(c), Sched. I(c)(10).

The penalties for transgressing section 841(a)(1) are set out in

21 U.S.C. § 841(b). That section provides for different

statutory maximums based, inter alia, on the type and quantity

of the substances involved.

A violation of section 841(a) that involves 1,000

kilograms or more of a substance containing marijuana exposes

the perpetrator to a maximum sentence of life imprisonment. Id.

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§ 841(b)(1)(A). A violation that involves one hundred kilograms

or more of a substance containing marijuana carries a maximum

sentence of forty years. Id. § 841(b)(1)(B). A violation that

involves less than fifty kilograms of marijuana carries a

maximum sentence of five years. Id. § 841(b)(1)(D). The

catchall provision — which, by process of elimination, covers

offenses involving at least fifty but less than one hundred

kilograms of marijuana — carries a maximum sentence of twenty

years. Id. § 841(b)(1)(C). Thus, the lowest statutory maximum

— what we sometimes have called the "default statutory maximum,"

United States v. Robinson, 241 F.3d 115, 118 (1st Cir. 2001) —

for a violation of 21 U.S.C. § 841(a)(1) involving marijuana is

five years. See 21 U.S.C. § 841(b)(1)(D).

To state the obvious, Duarte's 151-month sentence on

each of the eleven marijuana counts exceeds this default

statutory maximum. Duarte pounces on this discrepancy and

posits that the sentence imposed upon him contravenes Apprendi.

This is so, he claims, because the sentencing court increased

his sentence beyond the default statutory maximum based on a

fact (drug quantity) that was neither charged in the indictment

nor found by a jury beyond a reasonable doubt. On this basis,

Duarte seeks vacation of the sentences imposed on the marijuana-

trafficking counts and a remand for resentencing within the

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modest confines of section 841(b)(1)(D), that is, to sentences

that do not exceed five years per count. Because Duarte did not

advance this argument below, we review it for plain error. See

Robinson, 241 F.3d at 119; United States v. Mojica-Baez, 229

F.3d 292, 307 (1st Cir. 2000), petition for cert. filed, 69

U.S.L.W. 3557 (U.S. Feb. 1, 2001) (No. 00-1256).

Review for plain error entails four showings: (1) that

an error occurred (2) which was clear or obvious and which not

only (3) affected the defendant's substantial rights, but also

(4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings. Johnson v. United States,

520 U.S. 461, 466-67 (1997); United States v. Olano, 507 U.S.

725, 732 (1993); United States v. Brown, 235 F.3d 2, 4 (1st Cir.

2000).

B

The first question before us is whether the district

court committed an Apprendi error. It is now settled in this

and other circuits that even though an indictment is silent as

to drug amount and the jury is not asked to make a specific

drug-quantity determination, no Apprendi violation occurs as

long as the defendant receives a sentence below the default

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statutory maximum applicable to the kind of drugs at issue.

Robinson, 241 F.3d at 119 (collecting cases). This holds true

even if the length of the sentence has been significantly

increased by facts (such as drug amount) that have been found by

the sentencing court under a preponderance-of-the-evidence

standard. Id.

This case, however, falls outside that safe haven

because Duarte's sentence on the marijuana counts exceeded the

five-year default statutory maximum limned in 21 U.S.C. §

841(b)(1)(D). Because the length of the sentence was driven

largely by drug quantity — a fact neither charged in the

indictment nor submitted to the jury — an Apprendi error may

have occurred. E.g., United States v. Nance, 236 F.3d 820, 825

(7th Cir. 2000) (acknowledging that a sentence enhanced beyond

the statutory maximum by reason of the sentencing court's drug-

quantity determination reflected Apprendi error); United States

v. Rogers, 228 F.3d 1318, 1327-28 (11th Cir. 2000) (similar).

It is, however, arguable that Duarte's admission in the

plea agreement to the drug quantity that propelled the sentence

beyond the default statutory maximum undermines the claim that

an Apprendi error occurred. On this basis, one might argue that

Duarte, when he pleaded guilty to dealing in a specific volume

of contraband, surrendered any right either to have the

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indictment phrased more specifically or to have a jury determine

drug quantity. Cf. Boykin v. Alabama, 395 U.S. 238, 242-43

(1969) (stating that a guilty plea is itself a conviction and

that a defendant who pleads guilty waives multiple federal

constitutional rights).

To be sure, any such argument would have to overcome

Apprendi's strongly-worded suggestion that any fact, other than

a prior conviction, that enhances the statutory maximum sentence

for a crime must be both charged in the indictment and found by

a jury beyond a reasonable doubt. See Apprendi, 120 S. Ct. at

2355 (quoting with approval Jones v. United States, 526 U.S.

227, 243 n.6 (1999)); see also United States v. Fields, 242 F.3d

393, 396 (D.C. Cir. 2001) ("In light of Apprendi, it is now

clear that, in drug cases under 21 U.S.C. §§ 841 and 846, before

a defendant can be sentenced to any of the progressively higher

statutory maximums . . . 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. Jones, 235 F.3d 1231, 1235

(10th Cir. 2000) (stating that if drug quantity increases the

statutory maximum, it must be alleged in the indictment); United

States v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000) ("[I]f

the government seeks enhanced penalties based on the amount of

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drugs . . . the quantity must be stated in the indictment and

submitted to a jury for a finding of proof beyond a reasonable

doubt."), cert. denied, 121 S. Ct. 1152 (2001); Rogers, 228 F.3d

at 1327 (holding that Apprendi requires drug quantity to be

charged in the indictment and proved to a jury beyond a

reasonable doubt); United States v. Aguayo-Delgado, 220 F.3d

926, 933 (8th Cir.) ("[I]f the government wishes to seek

penalties in excess of those applicable by virtue of the

elements of the offense alone, then the government must charge

the facts giving rise to the increased sentence in the

indictment, and must prove those facts to the jury beyond a

reasonable doubt."), cert. denied, 121 S. Ct. 600 (2000).

Moreover, at least one court of appeals has found Apprendi error

based on the omission of drug quantity from the indictment even

though the defendant pleaded to trafficking in a specific amount

of contraband sufficient to trigger the enhanced sentence. See

United States v. Pease, 240 F.3d 938, 943-44 (11th Cir. 2001)

(per curiam).

Despite these authorities, we see no present need to

resolve the question definitively. The Apprendi Court did not

rest its decision on an omission from the indictment, see 120 S.

Ct. at 2334 n.3, and the outcome of this appeal does not depend

on an explicit finding of Apprendi error. Consequently, we

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reserve the question of whether a potential Apprendi violation,

arising out of the failure to allege drug quantity in the

indictment, can be short-circuited by a showing that the

defendant pleaded guilty and admitted to the necessary drug

quantity as part of his plea agreement. Consistent with this

reservation, we assume, favorably to Duarte — but do not decide

— that Duarte's sentence was imposed in violation of Apprendi.

C

This assumption satisfies the first facet of the

quadripartite plain-error test. For consistency's sake, we also

assume that it satisfies the second.3 Accordingly, this appeal

turns on the third and fourth elements of the plain-error

paradigm.

The next leg of the journey requires us to ascertain

whether this presumed error affected the complaining party's

substantial rights, that is, to gauge the likelihood that it

swayed the outcome of the trial court proceedings. See Olano,

3 If an error occurred, it resulted from the trial judge's
understandable adherence to prevailing pre-Apprendi practice —
a praxis that the Supreme Court subsequently ruled
unconstitutional. See Apprendi, 120 S. Ct. at 2362-63. When a
judge applies a legal regime which, though widely accepted at
the time of trial, proves to be antithetic to the law as it
appears at the time of direct appeal, the error is deemed
sufficiently clear to satisfy the second part of the test for
plain error. Johnson, 520 U.S. at 468.

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507 U.S. at 734. The complaining party bears the burden of

showing such prejudice. Id.

Duarte's argument on this point has the virtue of

simplicity. In his view, Apprendi error elongated his sentence

and, thus, affected his substantial rights. But the government

advances no fewer than three reasons why any such error did not

impart cognizable prejudice. First, it maintains that Duarte

would in all events have faced the same period of incarceration

because the court imposed an unchallenged 151-month sentence on

the two money laundering counts. Second, it asseverates that,

even if each marijuana count had been capped at five years, USSG

§5G1.2(d) would have required that the sentences run

consecutively to the extent necessary to produce an aggregate

period of incarceration equal to 151 months. Third, it asserts

that the proof of Duarte's complicity in distributing more than

1,000 kilograms of marijuana is so overwhelming that his

substantial rights could not have been affected by sentencing

him based on that quantity. Because we find the government's

third theory dispositive, we take no view of the validity vel

non of its other theories.4

4We note, however, that several courts have deemed the
availability of consecutive sentences sufficient to defeat
claims of plain error in the Apprendi context. E.g., United
States v. Smith, 240 F.3d 927, 930 (11th Cir. 2001) (per curiam)
(finding no prejudice in concurrent thirty-year sentences that

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 We need not tarry. A guilty plea in a drug-trafficking

case usually entails an admission anent the amount of drugs

involved. For all intents and purposes, such an admission

effectively resolves any doubts about drug quantity. In the

ordinary case, we think that it will be difficult, if not

impossible, for a defendant to show any cognizable prejudice in

connection with a sentence based on a drug quantity that he has

acknowledged, even though his sentence exceeds the statutory

maximum for trafficking in unspecified amounts of those drugs.

This is such a case. As said, Duarte signed a plea

agreement in which he unequivocally accepted responsibility for

a specified amount of drugs (1,000 to 3,000 kilograms). This

admission, which largely dictated the length of his sentence,

took any issue about drug quantity out of the case. That being

so, Duarte scarcely can claim to have been prejudiced either by

violated Apprendi where three twenty-year sentences could have
been imposed consecutively); United States v. White, 238 F.3d
537, 542-43 (4th Cir. 2001) (holding that the defendant's
substantial rights were not affected by what the court assumed
was Apprendi error because, even if the sentencing court had
limited the defendant's sentence on each count to the default
statutory maximum, it would have been obliged under the
sentencing guidelines to impose those sentences consecutively to
reach the same aggregate span of incarceration); United States
v. Page, 232 F.3d 536, 543-45 (6th Cir. 2000) (declining to
notice unpreserved Apprendi error where defendants in any event
would have been jailed for the same period through the
imposition of consecutive sentences), cert. denied, ___ S. Ct.
___ (2001).

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the omission of specific drug quantities from the body of the

indictment or by the absence of a jury determination on the

point.

Our conclusion that Duarte's substantial rights were

not trammeled by the presumed Apprendi error is bolstered by a

combination of other factors. First, although the body of the

indictment did not mention specific drug amounts, the notices

appended to the indictment gave Duarte fair warning that the

government believed he had dealt in large quantities of

marijuana and that it might seek penalties beyond the five-year

default statutory maximum on at least some of the marijuana

counts. Second, the plea agreement set out the maximum

penalties faced with regard to each of the thirteen counts of

conviction. In every instance, these maxima exceeded five

years. By like token, the plea agreement contained Duarte's

acknowledgment that his admission of guilt exposed him to a life

sentence on at least one of the marijuana-trafficking counts by

reason of the large volume of drugs that had passed through his

hands. Third, the record reveals that Duarte received a term of

imprisonment (approximately twelve-and-one-half years) well

under the maximum to which his own drug-quantity admission

exposed him. See 21 U.S.C. § 841(b)(1)(A) (providing for

penalties up to life in prison for marijuana trafficking

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involving 1,000 kilograms or more). Taking these accouterments

into account, the conclusion is irresistible that any Apprendi

error did not prejudice Duarte.

A number of other courts have reached similar

conclusions in analogous circumstances. In United States v.

Swatzie, 228 F.3d 1278 (11th Cir. 2000), the court assumed

without deciding that the defendant could show Apprendi error in

the imposition of a sentence of life imprisonment but determined

that any error fell short of affecting his substantial rights.

Id. at 1281-83. The court based this determination on the fact

that the defendant, after his arrest, led authorities to a

hidden drug stash (which included more than twenty grams of

cocaine base) and admitted that the drugs were his. Id. at

1282. Because there was no real doubt that the defendant, who

had prior felony drug convictions, possessed at least the amount

of cocaine base (five grams) needed to trigger a potential

sentence of life imprisonment, see 21 U.S.C. § 841(b)(1)(B), the

sentence survived plain-error review. Swatzie, 228 F.3d at

1282-83.

So too United States v. Poulack, 236 F.3d 932 (8th Cir.

2001), a case in which the court upheld a 210-month sentence for

marijuana trafficking, noting that the defendant had stipulated

at trial to a drug quantity (seventy-seven kilograms) that

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exposed him to a potential twenty-year sentence. Id. at 937-38.

Remarking that the record afforded "no reason to believe that a

jury would not have made the same finding of quantity as the

district court did," the Eighth Circuit held that the Apprendi

error had not affected the defendant's substantial rights. Id.

at 938.

Finally, in a case very similar to the one at bar, the

Eleventh Circuit conceded that the imposition of a thirty-year

sentence for cocaine trafficking violated Apprendi but

nonetheless refused to vacate it on plain-error review. Pease,

240 F.3d at 943-44. The court's ratio decidendi was that the

defendant had admitted in a plea agreement to accepting delivery

of a quantity of cocaine that exposed him to a maximum sentence

of forty years. Id. at 944.

Duarte asserts that his case is identical to United

States v. Nordby, 225 F.3d 1053 (9th Cir. 2000), in which the

district court sentenced the defendant to ten years for

marijuana trafficking based on a judicial finding of drug

quantity. Id. at 1057. A panel of the Ninth Circuit vacated

the sentence, finding that it violated Apprendi because it

exceeded the five-year statutory maximum for trafficking in an

unspecified amount of marijuana. Id. at 1059 (citing 21 U.S.C.

§ 841(b)(1)(D)). But Nordby is readily distinguishable. There,

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unlike in this case, the defendant consistently had disputed his

responsibility for the marijuana plants which the sentencing

court attributed to him. See id. at 1060-61. The appellate

panel, believing that the defendant had generated a substantial

doubt concerning his responsibility for the plants, found that

the sentencing court's failure to submit the question of drug

quantity to the jury prejudiced his substantial rights. Id. at

1061. That is a far cry from the situation that confronts us

here.

To say more on this point would be supererogatory.

Where an indictment in a drug-trafficking case fails to charge

a specific quantity of drugs, the sentencing court fails to

submit the question of drug quantity to the jury, and the

defendant is sentenced to a term of immurement in excess of the

default statutory maximum, there may well be Apprendi error.

But any such bevue ordinarily will fail the multifaceted test

for plain error so long as the issue of drug quantity was

effectively resolved by the defendant's acknowledgment of

responsibility for a definite amount of contraband sufficient to

trigger the new statutory maximum. Because this is such a case,

we come to the inexorable conclusion that, although an

unpreserved Apprendi error may have occurred, it did not

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adversely impact Duarte's substantial rights (and, therefore,

does not warrant vacation of the challenged sentences).5

III. CONCLUSION

In sum, Duarte invites us to vacate his concurrent

sentences on the eleven marijuana-trafficking counts based on

Apprendi error. We decline his invitation. After all, even if

an Apprendi error occurred, the sentences that the court imposed

were premised on a drug quantity about which Duarte had notice

at the time of his indictment and to which he confessed at the

time he entered his guilty plea. Hence, he suffered no

cognizable harm.

We need go no further. "The plain error hurdle is

high," United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir.

1989), and Duarte cannot vault it here.

Affirmed.

5
Having reached this conclusion, we have no cause to proceed
to the fourth prong of the plain-error test.

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